USDC Cr. No. 84-3552

     Plaintiff Pro Se    
versus                          CA 84-3552
                                Judge Louis Oberdorfer
UNITED STATES, et al     


On February 3, 1987 Assistant U.S. Attorney Michael Martinez, filed Federal Defendants' Comments On The Recommendation Of Magistrate Burnett Relative To The Pending Motions For Summary Judgment (Comments).

Plaintiffs will not here reargue or reiterate every point made in their motions but insted refer the court to their replies to defendants' motions filed (check dates) on August 27, 1987 (Lindsey), and September 22, 1986 (Federal Defendants [1] and Canfield), and upon their responses to the Magistrate's recommendations on the motions for summary judgment of Lindsey and Canfield, filed January 5, 1987.

[1 As Thomas explained to Magistrate Burnett Plaintiffs' Memorandum In Support Of The Motions For Summary Judgment, Declaratory and injunctive Relief was intended to be treated as the Opposition to Federal Defendants' Motion For Summary Judgment.]

Counsel begins with the important admissions "that ... plaintiff has been arrested many times over the past five years and ... there are disputes of fact between plaintiff's version and defendants' version of his many arrests and sign seizures, (and that the Magistrate contends) there is a material issue of fact about `whether supervisory officials and officers acted in bad faith ... to deprive plaintiff of his First Amendment rights which precludes granting summary judgment for the defendants.'." Comments pg.3, parenthsis added. The record is clear that Mr Martinez reminded the Magistrate:

"Your Honor is in the unique position in this case of having sat through every one of those depositions, having reviewed all of the various documents tgat had been produced in discovery ... "Your Honor has had a opportunity to basically see what the plaintiffs' case is and to observe the demeanor of the deponets, to listen to what they say, to review all the documents that plaintiff intends to introduce at trial as exhibits."
(Counsel Martinez, oral argument on motions for summary judgment, November 14, 1987, Tr. pg. 51).

Now counsel leaps to the seemingly illogical conclusion that Celotex Corp. v. Catrett, 106 S. Ct. 2548 (1986), and Anderson v. Liberty Lobby, 106 S. Ct. 2505 "(t)aken together ... evince an intent on the part of the Supreme Court that cases like this one Comments pg. 5.

One can only assume that the "rationale" behind counsel's argument is his hypothesis that "the Magistrate's reference at page 15 (Recommendation on Federal Defendant`s Motion For Summary Judgment) to `bald assertions' of defendants that no conspiracy existed and that probable cause existed to arrest persons, belittles the testimony offered by defendants." Comments pg. 6.

Mr. Martinez has made oral representation that "he is sure" once Your Honor has read the transcripts of the depositions this Court will be convinced that no conspiracy existed, and that probable cause existed for all arrests.

Plaintiffs would remind the Court that one of their allegations is that certain principle defendants have lied under oath. Plaintiffs believe that the Magistrate's "bald assertions" examplifies a compassionately civil understatement.

More to the point of this litigation are plaintiffs' claims that defendants have pursued a policy of "post hoc bureaucratic remedy in response to Constitutionally protected activity" which "posed no threat to Government's interests other than questioning the sanity of those interests."

Succinctly (sp?) plaintiffs claim that defendants have pursued a policy of applying ex post facto regulations agianst plaintiffs to intentionally deprive them of well established rights.

A conspiracy is determined by the design of the parties who originate it, and when a new person joins it continues to be the single venture which it was before, wotwithstanding some of the persons are strangers to each other." U.S.A. v. Feinberg, 123 F2d 425.

"Evidence that secretary of board of education and township employee acted in concert to illegally aquire... teacher's check ... so that he could deduct certain sums therefrom established an inditable conspiracy." State v. McNamee, 27 A2d 221.

"`conspiracy' ... whenever the act to be done has a necessary tendency to prejudice the public or oppress individuals ... whether of extortion or mischief." Id.

"The gist of civil action of `conspiracy' is damage caused by acts committed in preformance of formed conspiracy, and not the mere combination of two or more persons to accomplish an unlawful purpose ... the basis of the action is the wrong done under the conspiracy." Gallop v. Sharp, 19 S.E. 2d 84.

Mr. Martinez has urged the Court to be hesitant in applying a liberal reading to his pro se filings on the theory that "plaintiff has had several lawyers `coaching' him at various points in this litigation." Comments pg. 4, ftn. 2.

It is correct that Thomas has had several `opportunities' to speak with various lawyers at various points in this litigation, however, prior to recent understandings reached with Mr. Mark Venuti, those `opportunities' amounted to little better than a waste of Thomas' time (see e.g. Opposition To Federal Defendants' (Second) Motion To Dismiss, filed January 17, 1986, at "Irrelevencies," "Counsel," pgs. 5-7).

"(The decision in Kring v. Missouri, 107 U.S. 221) proceeded upon the ground that the state Constitution deprived the accused of a substantial right which the law gave him when the offence was committed, and ... altered the situation of the party to his disadvantage." Hopt v. Utah, 110 U.S. 574, 589 (1883).

"The difficulty is not so much as to the soundness of the general rule ... as in determining whether the particular (regulations) by their operation take from an accused any right that was regarded at the time of the adoption of the (regulation), as vital to the protection of life, and liberty, and which he enjoyed at the time of the commission of the offense charged against him." Thompson v.Utah, 170 U.S. 343, 352 (1897), parenthesis substituting.

"(A) ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed, or an additional punishment to that then prescribed, or changes the rules of evidence by which less or different testimony is sufficient to convict than was then required; or, in short, in relation to the offense or its consequences, alters the situation of a party to his disadvantage." Duncan v. Missouri, 152 U.S. 377, 382 (1893).

As the Court is well aware this Complaint has arisen out of a situation generated by specific activities engaged in by myself and others in Lafayette Park. I have claimed, and the defendants have not challenged my claim that my activities have had the effect and propensity of communicating a message of broad public concern. I believe it is not possible for to pose a rational alternative to the proposition that, prior to June 4, 1982, the specific activities in which I had been engaged, namely displaying signs, regardless of size, and maintaining a continuous presence were recognized as constitutionally protected behavior.

At least two additional points have been firmly established in the record of this case; 1) Defendant Robbins should have known that the act of "sleeping" not punishable within the context of a round-the-clock vigil (Trial Exhibits 12 and 13 {check}, and 2) subsequent to the promulgation and selective enforcement of 36 CFR 50.27(a) on June 17, 1982 the rules of evidence by which less or different testimony is sufficient to convict than was previously required altered Thomas' situation to his disadvantage (e.g. Trial Exhibit __, Wolz testimony).

Plaintiffs agreed that some of the Magistrate's "factual bases" are inaccurate (see Comments pg. 6), but those insubstantial errors in dating can be clarified from plaintiffs' pleadings (e.g. April 27, 1983 see Complaint, filed November 21, 1984, para. 72, July 25, 1983, ibid, para. 85). However the "serious mischaracterizations" belong conspicuously to Mr. Martinez, e.g.

A. Judge Johnson, in Picciotto v. Clark, C.A. No. 84-1303, (Defendants Exhibit 7) ruled on one isolated incident, without hearing testimony, on the theory of "executive privilege." Comments pg. 6.

B. February 21, 1985. Plaintiff did not allege that an arrest occured on that date. Rather plaintiff alleged that defendants harassed and intimidated him on that date, and recorded their actions on video-tape (see Plaintiffs' Motion for Preservation of Evidence, filed February 22, 1984, compare Defendants' Response to Plaintiffs' Motion for Preservation of Evidence). Mr. Matinez's representation that "on February 19, 1985 (Thomas) was found to be camping" is, at best, an absurd mischaracteriaztion founded simply on an unquestioned Park Police Case Incident Report. There was not even an arrest much less a judicial determination. Comments pg. 6.

C. Plaintiff did not allege that a sign was confiscated on June 6, 1985, merely that he was harassed and intimidated on that date. Plaintiff agrees that the banner was confiscated on June 8, 1985, but maintains that confiscation was without probable cause. Defendants' Exhibit 6 exemplifies a gross mischarateriztion. It seems unlikely that counsel might have been so careless as to accidently delete Sgt. Moyers' report of June 7, 1985 which stated; "..........................." Comments pg. 6.

D. Counsel's assertion that "(p)laintiff was in violation of the camping regulations" on July 1, 1983 is merely supported by a bald police Case Incident Report, which was submitted by an officer who plaintiff alleges kicked him repeatedly. Counsel necessarily ignores plaintiffs' Trial Exhibit __. Comments pg. 7.

Plaintiffs have never disputed the fact that a number of arrests did result in convictions. However, Mr. Martines accuses the Magistrate of being "deficient" in may instances were he was not e.g.:

A. The November 13, 1982 "camping" arrest resulted in a dismissal, as the Magistrate correctly noted, and Mr. Martinez doesn't even bother to pretend he has any valid reason to assert otherwise. Comments pg. 7.

B. Defendants should have records of the arrests which occurred on June 13, 1982, March 15, 1983, May 5, 1983, and March 15, 1983, because plaintiffs got their records from defendants' see Exhibits ___, ___, ___, ___ attached hereto. Comments pg. 7.

C. Although the July 6, 1981 "camping arrest was merely a ticket" Thomas was also handcuffed, booked, and incarcerated for a considerable period of time at the Haines Point substation. Comments pg. 8.

D. It is true that the July 25, 1983 "Structures" arrest resulted in a conviction by Judge Oberdorfer (Cr. No. 83-186), but there is a wealth of new evidence to be considered in conjunction with that arrest (e.g. attachment __, Secret Service Report July 23, 1983), and Judge Oberdorfer has wisely and justly reserved judgment on Thomas' Motion for Writ of Corum Nobis in connection with that conviction (attachment __ ).

Similarly, although Magistrate's Appendix B contains one minor error the mischaractorizations are a product of Mr. Martinez's machinations.

A. June 21, 1981 should be June 21, 1982.

B. Mr. Martinez claims that "the Park Police were called to the area by the Secret Service in response to a complaint by one demonstrator that Thomas was trying to injure her," and he offers Exhibit 3 to support this hypothesis. However Exhibit 3, the Supplemental Case Incident Report, identifies the "Complainant" only as the "U.S. Secret Service Uniform Div." According to the officer when he arrived "Ms. Tierney (was) yelling at ... Mr. Thomas..." There is absolutely no indication anywhere in the report which even remotely suggests that "Thomas was trying to injure her," and plaintiff is currently investigating the possibility of asking for sanctions or other appropriate relief from Mr. Martinez ridiculous hyperbole.

C. Thomas has made no complaint with reference to being "detained longer than usual" on December 25, 1981. But Thomas did complaint that the Secret Service made false, defamatory statements to the press with respect to the incidents which transpired on that date, and that issue Mr. Martinez totally fails to mention.

D. Defendants may not have any record of "such warnings," but plaintiff can testify to them.

E. Defendants admit that: "Thomas' sign was cut during a struggle with Ellen Thomas," but neglect to point out that there was no probable cause for their agents to have initiated that "struggle."

F. Plaintiff denies that the speaker's platform violated 36 CFR 50.19

G. Counsel fails to note that the banner did not violate any regulations. (SEE attachment __, Sgt.Moyer's Report).

Thomas reckons that the Magistrate has correctly identified (?) twenty-two (?)B incidents of arrest. Notwithstanding Mr. Martinez tally of "eleven convictions" Thomas avers that the defendants cannot possiably prove that more than seven convictions resulted from those arrests.

It is my position that each of the incidents noted by the Magistrate could arguably be considered a seperate cause of action for a 1983 claim. Hopefully the various proposals for Injunctive, Declaratory, and Mandamus relief which I have filed in conjunction with this Complaint make it clear that plaintiffs are asking not for redress against an individual officer, or for a specific act which may have caused injury, but rather that plaintiffs are asking the Court to halt an alleged errosion of constitutional safeguards that were intended by the architects of this nation to insure individual liberty.

Perhaps my Complaint is most succinctly stated in the Statement of Claim which I filed on April 22, 1986 pursuant to this Court's Order. There it is alleged that each defendant "has intentionally acted to subvert the Constitution to my irreparable injury, by setting official policy above the law."

Parenthetically, as Your Honor has observed, if the government deprives one individual of liberty that denial threatens the liberty of all individuals. Therein lies the injury for which this suit seeks redress.

Defendants contend that "plaintiff has never been arrested without probable cause by defendants, or without a reasonable basis to believe that plaintiff had violated a criminal regulation." (That quote from page eight of the Magistrate's Jan 13th recommendation)

If the series of events listed in the Magistrate's appendices had occurred 15 or 20 years ago, I would have felt abused by the police agents and defiant of the judicial system.

Today I am an entirely different person, with entirely different ideas and opinions than those which I held a couple of decades ago.

Today I recognise the power of society to issue and enforce laws or rules for the benefit of all.

I am not opposed to regulations intended and applied to prevent the litter or destruction of public resourses. However it is self-evident to a reasonable, non-biased person that all of my signs were intended to communicate the necessity for peaceful co-existence of all humanity.

I think it can be proven that, except for certain individuals who were opposed to the content of my message, and because of that opposition may have considered my signs and/or constant presence to be a public inconvienience, or annoyance, there has existed no reasonable or rational objection which defendants might raise to justify the implementation of their regulatory schemes against my specific activities.

Aside from the issue of the facial constitutionality of the most regulations promulgated on March 5, 1986, which I will address shortly, it seems that the most significant question posed by the Magistrate's recommendations is that of "probable cause."

"In his statement of material facts to which there exist genuine issues of material dispute, filed on September 22, 1986, plaintiff contends that, "the bare fact that the preponderance of Thomas' arrests, for activities which defendants agree were expressive, have resulted in the charges being dropped, is certainly prima facie evidence that there was no probable cause.' This contention is not well taken." (Memo at footnote 9, pages 8 and 9).

The Magistrate explains that the reason my contention is not well taken is that the existence of probable cause is determined on the basis of the collective information of the officers participating in an arrest at the time of its execution and is a much lower standard based on probabilities and common sense.

BUT here there are circumstances which deserve special consideration. First the record of this case is already replete with evidence that certain defendants, employed by the Solicitor's Office of the DOI, and who bare the responsibility of considering the First Amendment implications of a given activity, or situation with respect to possible violations, actually, in their own words "work with the Park Police to help build a case." Regularly these defendants have been on the scene of enforcement actions, and without exception these individuals have supervisory responsibility over the enforcement of regulations. So the Court should not really consider whether the individual officer believed he had "probale cause" for an arrest, but whether the officer believed he had "probable cause" simply because certain defendants led him to believe he had "probable cause."

There is no question that I have committed certain actions, namely displaying signs, and maintaining a continuous presence. Here were the action is admitted the Court should not consider whether there was probable cause for the officer to believe that I had committed the act, rather, I submit the question of probable cause should be farmed around the wording of certain defendants:

"(B)anning the use of parks for living accommodations (and) designed not to stifle First Amendment expression, but to protect undesignated parks from activities for which they are not suited, and the impacts of which they can not sustain. Short term casual sleeping which does not occur in the context of using the park for living accommodations will not be affected by these regulations." (Tr. Ex. 28, Fed. Reg Vol 47, No 108, p. 24304, June 4, 1982, 36 CFR 50-27(a), written by the office of defendant Robbins.)

There can be absolutely no question that the camping regulation might serve a substantial interest, because the Supreme Court majority opinion unmistakably notes that the issue which prompted the regulation was a proposed demonstration involving 100 persons in 50 tents, a proposal which threatend unsustainable impacts to park resources.

However the dissenting Supreme Court opinion noted that there were facts in that case which might well indicate the impetus of the regulation had been a desire to mute expression of "political" opinions, rather than to protect resources.

Of course that is not a question in this case. As I see it the question with regard to the camping regulation is quite simple. Did my activities impact park resources in an unsustainable manner?

First it is my contention that defendants will not be able provide evidence that my continuing efforts to symbolize individual responsibility and committment through a continuous presence in Lafayette Park have impacted the park in any unsustainable manner. Second I believe the evidence will easily convince a reasonable person that certain defendants ordered, supervised, encouraged or condoned the enforcement of camping regulations against me. In the event that the evidence supports these propositions then, I believe, the Court should be constrained to find that no probable cause existed for my arrests under the camping regulations.

Next there is the issue of the White House sidewalk regulations, purportedly promulgated as "reasonable time place and manner restrictions which further substantial governmental interests, most notably the security of the President..." (ERA v. Clark, 746 F2d 1520). James C. Lindsey and Jerry S. Parr are identified at page 1524 and 1525 of the ERA opinion as "officials with special expertise in the field of White House security. Those officials testified at length as to the security rationales underlying each regulation..."

I have alleged that those two individuals gave false testimony to the court with the intent to deceive the Court into thinking that my signs created a threat which actually did not exist.

The Magistrate asked Mr. Martinez: "Are you suggesting if law enforcement officers purposely and knowingly give perjured testimony at trial as part of conspiracy, they would be immune in a civil rights suit if there was an actual affirmative purpose to frame someone?" (November 14, 1986 summary judgment arguments at pages 125 and 126).

Even Mr. Martinez admitted that he would not present such an argument.

I also claim that Mr. Robbins and Ms. Bangert participated in an effort to frame my harmless signs as a threat to presidential security. If the evidence bears these allegations out I believe we would have a very serious situation.

The secondary purpose of the White House sidewalk regulations was to further a "substantial governmental interest in aesthetics." Regardless of my personal opinions on that subject there is no challenge made to that so-called interest in this suit. On July 19, 1983 the offensive signs moved across the street to a position in Lafayette Park which the defendants themselves suggested, and which the Court of Appeals noted as a readily available alternative which made the government's restriction all the more reasonable.

Which brings us to the Most recent regulation, 36 CFR 50.19(e)(11)(12), that went into effect on April 5, 1986, eliminating the signs I had formerly used, and which, I allege is being arbitraarily and capriciously abused to color my arrest and harassment.

I think that perhaps the most obvious indication of bad faith on behalf of the defendants is their persistance in refusing to negotiate their alleged problems with me. This refusal is actually noted in the Federal Register of March 6, 1986, and blatantly evident in a letter which I received from Mr. Robbins dated July 3, 1986, that letter has been made part of the record in this case.

Starting at page 90 of the November 14th transcript Magistrate Burnett questioned me at some length on the subject of whether I had ever received instructions as to how I might modify my behavior to comply with the regulations. Quite possibly if I had ever been civily treated by the defendants, or given some clear indication of what they would permit this case, not to mention considerable personal suffering and inconvience might have been avoided.

I have no power. This Court does have the power to define fact, and thereby, reality as it applies to society.

I think it is self-evident that for almost six years now I have been doing something which I have been able to continue ONLY because the law unreservedly protected what I was doing.

What is also self-evident is that step by step new regulations have been introduced that have had the effect of making it progressively more difficult for me to continue doing what had previously been continued.

It is also self-evident that this step by step progression has been facilitated by building regulation upon regulation. So that the latest "sign" regulation is founded on the judicial base of the earlier "camping," and "White House sidewalk" regulations.

My Complaint here is that this Court should not allow this pyramiding of regulatory restraint to continue if only because it is based upon a foundation of lies and/or delusions both in the Administrative Records of the regulations, and the sworn testimony given by various defendants for the purpose of falsely convincing various courts of the validity of the regulations.

For these reasons I ask this Court to allow me to proceed on the Motions for Joinder of Parties filed September 22, 1986, October 3, 1986, ansd November 21, 1986, as well as upon the Opposition to Federal Defendants Motion for Judgment on the Administrative Record.

I believe that to do otherwise would only burden the judicial system, as it would necessitate the filing of seperate law suits to address those issues.

I believe that the Court should allow me to proceed upon the premise that the defendants have been taking sneak shots at the law to the detriment not only of myself but to the very principles of democratic society; simply because they have not offered any plausable alternative by which to explain the "incredible number of incidents ... on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct" (Magistrate's Recommendation, January 13, 1987, pg. 9). Therefore I also think that unless I am permitted to consolidate my civil rights claims, with a hearing to determine whether the most recent regulations, issued March 5, 1986, are constitutional, and unless this Court examines the actions of Lt. Irwin and Officer Waite as set forth in the Motions for joinder denied by the Magistrate's orders of January 13, 1987, that I will also be prejudiced in any attempts I might make to challenge the basic question at issue in this matter.

The government agents who are defendants in this case are vested with the obligation to uphold laws which strengthen the commonweal of society. Similarly my signs are plain statements to the fact that I too pursue the commonweal.

My hope for a trial is to find out exactly what happened. All I'm going on at this point is my experiences, and I'm interested in finding out the truth."

I do not think that the defendants can take exception to the assertation that to promote diversity of ideas and programs is one of the chief distinctions that sets us apart from totalitarian regimes. I believe this case provides a regretable illustration as to why the right to engage in that promotion, must be protected against censorship or punishment. There is no room under a democratic Constitution for a more restrictive view, for the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups."

Respectfully submitted this _____ day of January, 1987.

William Thomas, Plaintiff Pro Se
1440 N Street NW, #410, DC 20005
(202) 462-3542

Ellen Thomas, Plaintiff Pro Se
1440 N Street NW, #410, DC 20005
(202) 462-3542

Case Listing --- Proposition One ---- Peace Park