Thomas v US, CA 84-3552

Section 3

It is also significant to note that Ellen Thomas' declaration refers to alleged inordinate delay in the booking and police processing to delay their presentment to court on that date, She states:

"We were detained for a very long time at the substation. Shortly after noon all seven of us who were arrested were taken out to the paddywagon, and held there for nearly two hours in brutal heat. We were delayed so long that we didn't arrive at the Central Cell Block until it was too late to be brought before the Magistrate. This resulted in our being held overnight. "
(Declaration, ś 42)

See also Declaration of Robert Durrough, śś 31-33 concerning Mr. Thomas and his associates being held in a hot paddy wagon, [13] Mr, Manning in his affidavit, paragraph 5, furnished a similar description of the alleged slow processing and the failure of the Park Police to furnish the demonstrators water while in the hot paddywagon.

[13 This is not the only incident of alleged delay in presenting the individuals to court, to keep Mr. Thomas and his associates in custody for one or two days. Ellen Thomas refers to an arrest of June 23, 1984 at about 6:00 a. m, of Mr. Thomas and herself:

"We spent the weekend in jail because of a lengthy delay in taking us to the Central Cellblock. Charges were later dropped."]
(Declaration, śś 68-69)

Mrs. Ellen Thomas has asserted in her declaration that although "Officer Haynes was definitely the most obvious of the Park Police officers who are opposed to our presence in the park, he was not the only one." (Declaration, ś 71) She continues:

"Other officers frequently threatened us with arrest for simply lying down near our signs. More than one officer has told me he ar she was only following orders." (Declaration, ś 71)

Mr. Thomas asserts that such incidents occurred as early as in 1982, In his declaration, he states:

"On or about December 5, 1982, Concepcion Picciotto and I were seated on the sidewalk in front of the White House. Between the hours of 11:00 p. m. and 1:00 a.m. Concepcion and I were approached by Sgt. Bradley. "If you so much as blink, I'm going to arrest you," Sgt. Bradley warned Concepcion and me." (Second Declaration of William Thomas, śś 24-25)

Another type of constitutional claim presented in the complaint deals with the alleged unlawful seizure or destruction of plaintiff's signs and other Personal property by the federal defendants. [14] Accepting plaintiff's version

[14 It is significant to note that David Manning in a sworn affidavit of August 25, 1986 has related a conversation he had with Deputy Chief J. C. Lindsey on September 2, 1984:

"On or about September 2, 1984, I was demonstrating in the center of Lafayette Park against nuclear weapons when I was approached by Deputy Chief J. C. Lindsey, who asked me how long I was going to be in the park. I told him I would be there overnight and return to West Virginia the next morning. He indicated I would be left alone if that was the case. As Deputy Chief Lindsey was leaving, I hurried after him and asked him, "What do you think about these signs?" referring to the various signs then lining the sidewalks. Re said, "I'd like to burn all these f--- signs," turned and walked away,"
(Affidavit, ś 6)

While these statements may not be actionable, per se, coming from the (Footnote 14 Continued)]

of the facts, his protest signs were "destroyed beyond repair" by USPP officials and tossed into a dumpster several days after his arrest by Officer Haynes on June 6, 1984. See Second Declaration of William Thomas, at ś 91. See also Declaration of William Thomas of August 27, 1986, at ś 15. More troubling, however, are the statements made by Mr. Robert Dorrough that plaintiff's signs were "broken up with sledgehammers by Park Service employees under the supervision of Park Police" on June 23, 1984. See Declaration of Robert Dorrough, filed September 22, 1986, at śś 34-37. Mrs. Ellen Thomas in her declaration states that William Thomas and she obtained a ride from a friend and went out to the property office, "where we found several of our signs and much of our literature tossed into two dumpsters." She also related that their mobile speaker's platform, under NPS permit since May, 1984 had been totallydestroyed and was in paint-splattered pieces in the dumpster. (Declaration, ś 51). Defendants have offered no explanation for this conduct except that these signs were lawfully seized incident to plaintiff's arrest.

Having carefully and thoroughly reviewed plaintiff's pleadings, the Magistrate concludes that there exists sufficient troublesome incidents raising genuine issues of material facts in dispute in this case, which andate proceeding to trial on plaintiff's causes of action for both injunctive and declaratory relief. In addition to the incidents mentioned above, plaintiff has alleged numerous other incidents involving allegedly unconstitutional police actions by the federal defendants. These are enumerated fully in the attached

[14 (Footnote 14 Continued)
second highest level official of the U. S. Park Police in the context of the actual conduct of subordinate U. S. Park Police officers as referred to in the cited incidents, it may have major probative significance as to official condonement or approval of alleged police misconduct in the handling of Mr. Thomas' property in claimed violation of the Fourth and Fifth Amendments.]

appendices to this Report and Recommendation.

In ruling on a motion for summary judgment, a court must review the evidence proffered to determine if it presents a sufficient disagreement to require submission to the factfinder or is so one sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, Inc., U. S., 106 S. Ct. 2511-12 (1986). Here the bald assertions of the federal defendants that no conspiracy existed to deprive plaintiff of his First Amendment rights, that probable cause always existed to arrest him and seize his signs, and that a minimum amount of force was always utilized in effectuating plaintiff's arrests, are not sufficient to rebut his detailed allegations, supported by several affidavits and declarations, that he was unlawfully deprived of his constitutional and civil rights. [15] Thus, there are genuine issues of material fact in this case which would preclude granting defendants' motion for summary judgment.

The Magistrate finds the case of Rizzo v. Goode, 423 U, S. 362 (1976), by analogy, to be relevant. In that case, a suit for injunctive relief against alleged police misconduct under section 1983, the Supreme Court, in dictum, suggested that evidence of an affirmative link between the occurrence of various incidents of police misconduct could indicate the adaption of a plan or policy by government officials, showing their authorization or approval of such

[15 With reference to plaintiff's claims under sections 1983, since that section is directed to State officers (including the District of Columbia) but not against federal officers, his claims under that statutory provision are not proper and should be disnissed. However, federal officers can be sued under section 1985(3). See, e.g. Founding Church of Scientology of Washington, D.C., Inc., v. Director, Federal Bureau of Investigation, 459 F. Supp. 748 (D. D. C, 1978); Martinez v. Winner, 548 F, Supp 278 (D. Colo. 1982).`]

conduct, See also discussion of Rizzo in Popow v. City of Margate, 476 F. Supp. 1237, 1245 (D. N. J. 1979). The Magistrate has considered whether isolated and independent alleged acts of law enforcement officers' misconduct can create a constitutional or a civil rights case. The Magistrate concludes not. But if there is a pattern of such acts affirmatively linked together, then a different situation is presented, and a plaintiff may be able to establish a basis for declaratory and injunctive relief. If police officers of a local municipality can engage in a course of police misconduct which would Warrant such relief against a city or other municipality under section 1983, it would appear that similar relief could be granted against the United States or the head of a governmental agency, such as the Secretary of Interior for the same type of conduct by the United States Park Service officers if, in fact, established at trial as a violation of constitutional rights under the First, Fourth and/or the Fifth Amendments. [16] While the action may not properly be one under 42 U. S. C. § 1983 against a federal agency or against federal officials, for established constitutional violations under the U. S, Constitution, the federal courts can grant declaratory and injunctive relief to prevent future violations. [17]

[16 See, e. g., Founding Church of Scientology v. Webster, 802 F.2d 1448, 1449 (D. C. Cir, 1986), for a case seeking injunctive relief and not damages.]

[17 See, Reuber v. United States, 750 F.2d 1039, 1061-63 (D. C. Cir. 1984) ("Federal injunctive relief traditionally is presumed available against federal actors committing constitutional violations. This is true regardless of whether or not the plaintiff may also have a Bivens action for damages.") The Reuber Court also noted that on numerous occasions prior to Bivens, the Supreme Court had permitted suits for injunctive relief brought directly under the constitution for violation of plaintiff's constitutional rights, citing as examples, Bolling v. Sharpe, 347 U. S. 497 (1954); Philadelphia Co. v. Stimson, 223 U. S. 605 (1912). The Court also cited Bell v. Hood, 327 U. S. 678, 684 & n.4 (1946). See also Jorden v. National Guard Bureau, 799 F.2d 99, 111 n. 17 (3rd Cir. 1986).]

With these principles in mind and under the dictum enunciated in Rizzo, on this record, the Magistrate concludes the incidents referred to above raise factual issues requiring trial as to whether there was the adoption of a plan or policy, express or implied, showing Department of Interior and the U. S. Park Police officials' authorization or approval of police misconduct, if these acts, in fact, occurred, or whether they were isolated, totally unconnected incidents. The Magistrate is constrained to conclude that the plaintiff is entitled to attempt to establish constitutional violations by individual U. S, Park Police officers, and by any Secret Service officers acting in concert therewith, and whether these incidents constituted a pattern, and thus there was a casual link between them sufficient for the trier of fact to find a conspiracy ar concert of action to harass William Thomas to force him to give up his vigil against nuclear weapons and to rid the White House sidewalk and Lafayette Park of him and his associates and what some might perceive as unsightly and gaudy signs in an unlawful interference with his exercise of First Amendment rights, and in the process, also violative of his Fourth Amendment rights against unlawful arrest of his person and seizure of his personal property and of his Fifth Amendment rights not to be deprived of his property without due process of law.

It is not for the Magistrate at this stage to determine credibility as to where the truth lies. It is sufficient to conclude that appellate precedent requires a trial because there are material issues of fact in dispute, The Magistrate cannot restrict his review to the deposition testimony of the ten (10) deponents and the facially adequate arrest and incident reports, but must also consider the declarations submitted by William Thomas and his

associates, affidavits such as the ones by Larry Tucker and David Manning, and other facts proffered by Mr. Thomas and persons who presumably will be witnesses in his behalf at trial.

Accordingly, it is this 13th day of January, 1987

RECOMMENDED that the motion of the federal defendants for summary judgment be DENIED. [18]

ARTHUR L. BURNETT, SR.

U. S. Magistrate

Date:

January 13, 1987

[18 Upon review of the court record, the Magistrate has discerned no basis for plaintiff's reliance on the Sixth and Ninth Amendments of the U. S. Constitution. Further, as to his common law claims, to the extent he relies thereon for declaratory and injunctive relief, it would appear that he would be limited to the one (1) Year statute of limitations of 12 D. C. C. § 301 and those incidents occurring within one (1) year of November 21, 1984, the date on which he filed his complaint. However, some of those earlier incidents may be admissible in evidence to establish a pattern of conduct in connection with the constitutional claims.]

Appendices

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