THOMAS v. REAGAN

USDC Cr. No. 84-3552

26. The discussions begun during November, 1981 (Supra, para. 10 and 14), continued with added participants, and certain defendant participants admit that those discussions focused on Thomas' activities, and how they might be regulated.

Q: (By Ms. Zezulin, counsel for plaintiffs) "And at some point between March and December of '82 there were demonstrations that prompted discussions of necessary or desirable changes in regulations?"

A: (By Ms. Bangert) "Yes."

Q: "Without telling me what legal advice you're giving to people, could you tell me what were the facts that prompted those discussions?"

A: "One I remember, one factual situation I remember is a group of people who were ... on the White House sidewalk."

(Tr. Ex 26, Deposition of Patricia Bangert, ERA v. Watt, November 30, 1983 at 72-73.)

27. Again the Park Service repeated (Supra, para. 7) that a demonstration might include "sleeping," and more, yet still not be considered to "constitute camping."

"We have reviewed your application and have found that the planned activities will not contravene current or proposed National Park Service regulations.... (A)fter reviewing the details of your application we have concluded that the activities you propose do not constitute camping.

"Specifically you propose to establish a mock Vietnam War era firebase secured by a perimeter of mock concertina wire and sandbags. No structures or shelters will be used, and there will be no fires, breaking of ground, food service, food preparation, or sanitary facilities. Participants will have protest signs and picket banners within the perimeter, and sentries will guard the perimeter with toy rifles. While some participants will be asleep in the area at all times during the night, different participants will be awakened at two hour intervals to stand guard duty.... In light of all of the circumstances of your proposed demonstration activity, we have concluded that the park area will not be used for camping/living accommodations."

(Tr. Ex. 27, Letter from Manus Fish, April ?? 1982.)

28. During the winter-spring of 1982 defendants Robbins, Bangert, and Fish drafted, promulgated and implemented the definition at 36 CFR 50.27(a) ("camping"), which was purportedly:

"(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."

Defendant Fish (without `good cause' ERA v. Clark, __ F2d ___), suspended the thirty-day delay of effectiveness provided for by 5 USC 553.

(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.)

29. It would appear that the only addition to 36 CFR 50.27 by the June 4, 1982 re-definition were the words:

"The above listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging."

(Tr. Ex. 29 (ibid. 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.) (Emphasis added.)

30. On June 4, 1982 defendant Fish signed a letter that read in part:

"I have determined that you are using the park as a living accommodation and that you are in violation of regulations contained in 36 CFR 50.19(e)(8), and 50.27(a)....

"This is to advise you that you are in violation of said regulations and to warn you that appropriate law enforcement action ... will be taken if you do not remove the temporary structures you are now using for living accommodation purposes from, and cease camping in, park areas not designated as public campgrounds by 9:00 on Monday, June 7, 1982."

(Tr. Ex. 30, Fish Letter, June 4, 1982. Emphasis added. COMPARE, "Warning," supra para. 14.)

31. During the period between June 4, and June 17, 1982 the Fish letter of June 4, 1982 was delivered to Thomas regularly by agents of defendants Lindsey, and defendant Fish does not deny knowing Thomas, or that Thomas was demonstrating in June of 1982:

Q: (By plaintiff pro se Thomas) "...Did you have any knowledge of my existence before we met today?"

A: (By Mr. Fish) "I knew, knew of you, yes."

Q: "And what did you know of me?"

A: "Just that you demonstrated in the park." (p. 10)

THE COURT : "Well, let me ask a couple more germaine questions. In June of '82, do you have any recollection of having ever heard of Mr. Thomas at that time?"

A: "I most probably would have, your Honor, but I just don't know that for a fact." (p. 20)

(Tr. Ex. 31, Deposition of Manus Fish, Thomas v. USA, USDC, CA 84-3552, August 21, 1985, unofficial Thomas transcript.)

THE COURT: "Just for the Court's orientation, Exhibit 12 refers to an arrest when, what date and time."

A (By Mr. Fish): "It was a letter, your Honor, June 4, 1982, and it was 'To Whom It May Concern.'...(ibid p. 15-16)

(Tr. Ex. 31, Deposition of Manus Fish, Thomas v. USA, USDC, CA 84-3552, August 21, 1985, unofficial Thomas transcript.)

32. On each occasion that a Fish letter was delievered to him Thomas responded by advising the delievering agent that Thomas was not using any structure or shelter for living accommodation, or any other purpose, and by giving defendants' agents a copy of his own letter dated June 5, 1982:

"By sitting in front of the White House, sleeeping, like Lazarus, by the gates of the world's wealthiest public servant, I hope to clearly demonstrate the lengths to which a moral person must go in order to remain true to the ideals of Truth, Justice, and Freedom within an amoral society. In other words: I am demonstrating not only how to be in a world of law, and bureaucratic regulations which value property above human life, while not being part of such a world, but also I am demonstrating how difficult the law enforcement, judicial, and bureaucratic agencies of such a world make the life of an individual who presumes to question their morality."

(Tr. Ex. 32, Thomas letter, June 5, 1982.)

33. On June 17, 1982, Thomas was arrested by pre-arrangement, and under instructions from defendant Lindsey. Defendants Robbins, and Bangert were "advising" on the scene.

Q: (By counsel for defendant Thomas): "Were you aware that this was the time (June 17, 1982) when this statute or rather this regulation (36 CFR 50.27(a) was going to be enforced? Were you aware of that in advance?"

A: (By Officer Wolz) "Yes, sir."

Q: "Who apprised you of that, if you recall?"

A: "I believe Sergeant Reid and Deputy Chief Lindsey."

Q: "All right. And they had apprised you of this prior to your leaving the previous day or prior--"

A: "Yes, sir. I had a couple of days notice." (Tr. Ex. 33, testimony, Officer Wolz, USA v. Thomas, USDC, Cr 82-0329(M), September 16, 1982, transcript at 122.)

34. On June 17, 1982, Officer Wolz read Thomas a statement prepared by defendant Robbins' office, threatening Thomas with arrest:

"On June 17, 1982, at approximately 0350, myself and Officer Wolz approached the demonstrators who were sleeping on the sidewalk of 1600 Pennsylvania Avenue, N.W., and advised them that camping was in violation of 36 CFR 50.19, and they had thirty minutes to clear the sidewalk. These warnings were read verbatim by Officer Wolz to each individual demonstrator from a statement prepared by the National Park Service Solicitor's Office.... Miss Picciotto claimed she was going to stay in the area, but would not sleep ... Miss Picciotto, observing the arrests of Mr. Thomas, and Mr. Harris began moving her property to Lafayette Square. She was advised that she was also under arrest..."

(Tr. Ex. 34, USPP Walter Sherba report, June 17, 1982.)

35. Thomas handed defendants' agent a copy of his June 5, 1982 letter (supra. para. 32; Tr.Ex. 32). Thomas' attempts to communicate were ignored.

Q: (By counsel for defendant Thomas): "Now, when you read the statement to Mr. Thomas, the one that you have identified as having read three times, did he attempt to give you any of his pamphlets or any written material?"

A: (By Officer Wolz) "Yes, sir.

Q: "And did you accept it?"....

A: "No, sir. I didn't think it was of importance."

(Tr. Ex. 35, testimony, Officer Wolz, USA v. Thomas, USDC, Cr 82-0329(M), September 16, 1982, transcript at 103-104.)

36. Giving her the benefit of the doubt there is evidence that defendant Bangert`s memory has dimmed somewhat over the years.

Q: (By plaintiff pro se Thomas) (pg. 3): "Do you know me?"

A: (By Ms. Bangert) "Yes, I do."

Q: "How long have..."

A: "I don't remember when I, the first time I specifically met you, but I assume that I've known of your existence since the camping regulations were promulgated, so it would have been somewhere around June of '82."

Q: (p. 14) "(Y)ou were aware of my arrest in June of 1982." ...

A: "I`m aware that you were arrested for camping after the revised camping regulations went into effect, but whether that was June or July, I couldn't tell you for sure. But I am aware that you were arrested."

Q: "Were you on the scene of that arrest?"

A: "I was on the scene when you were arrested on several occasions, and I think one of them was shortly after the camping regulations went into effect."

THE COURT (p. 20): "...Do you recall in '82, 1982, ever telling the Park Police to arrest Mr. Thomas, specifically referring to him for any activity or conduct on the sidewalk near the White House or in Lafayette Park? This is in '82...."

Q: "I don't remember ever telling the Park Police to arrest him. I remember one time the Park Police called us and said there is a problem with people camping (sic) in front of the White House and we responded to the scene."

THE COURT: "Once you responded to the scene, did you tell the Park Police at that point to make an arrest or not to make an arrest?"

A: "Mr. Thomas was arrested. I can't say that I--"

THE COURT: "The question is, did you affirmatively tell them to do so, let's clear that up for the record."

A: "Yes sir. I don't recall specifically being the one who told the Park Police to arrest Mr. Thomas--"

(Tr. Ex. 36, Bangert deposition, Thomas v. USA, USDC, 84-3552, August 22, 1986, unofficial Thomas' transcript.)

37. Thomas was arrested for precisely the same activity which, during November and December of 1981, he had been arrested for but, as justice would have it, not prosecuted (Supra, para. 19).

Q: (By counsel for defendant Thomas): "Now, other than sleeping on the morning that you arrested Mr. Thomas, was he doing anything that you hadn't observed him doing the rest of the time you had seen him?" . . .

A: (By Officer Wolz) "Mr. Thomas had basically been doing the same thing for, like I say, approximately a year. Basically he appeared to be residing around the White House."

Q: "Now, Officer, you have indicated residing. Specifically what acts or what act was he doing on the night that he was arrested that he had not done for the preceding year? We are talking about acts, not an opinion as to whether he was residing there."

A: "Basically he was doing the same thing for an extended period of time."

Q: "Now, was he doing --"

THE COURT: "That's the same thing as what he said. Now, what were the same things? Can you enumerate what they were?"

THE WITNESS: "Sleeping. You don't like the word 'reside.' I guess you could say--"

(Assistant U.S. Attorney Roistacker, interposing): "You can use that. The Judge said you can use that."

THE WITNESS: "Residing, loitering -- if you want to use that."

(Tr. Ex. 37(a), testimony Officer Wolz, USA v. Thomas, USDC, Cr 82-0329(M), Pre-Trial hearing September 3, 1982, transcript pp. 9-10; Tr. Ex. 37(b), testimony Officer Wolz, USA v. Thomas, USDC, Cr 82-0329(M), trial September 16, 1982, transcript at 88-89.) (Supra. para. 19.)

38. During July and August, 1982, others, sleeping in tentsin Lafayette Park with air mattresses, blankets, TV's, etc., were not arrested.

(Tr. Ex. 38(a), Declaration of Barbara Gamarekian, CCNV v. Watt, CA 82-2501, October 1, 1982; see also Tr. Ex. 38(b), Declaration of Carol Fennelly (ibid.), October 3, 1982.)

39. On at least two occasions defendant Lindsey bore direct supervisory responsibility for improperly caused arrests which resulted in allegedly malicious prosecution. (Compare Lindsey's "FACTS" para. 4 and 8.)

Q: (By counsel for defendant Thomas): "Okay, referring to the various prohibited activities, do I understand, then, that if someone is just sleeping in the park that they can be arrested for camping?"

A: (By Deputy Chief Lindsey) "No."

(Tr. Ex. 39, Testimony of J.C. Lindsey, USA v. Thomas, USDC CR 82-0329(M), Transcript, September 3, 1982, pg. 24.)

40. But, beyond any doubt, a reasonable person could honestly conclude that someone is lying, and that Thomas was injured as a result of those lies.

Q: (By Mr. Graber) "With respect to the camping regulation, do you have any instructions from your superiors with regard to demonstrators sleeping in Lafayette Park?"

A: (By Sgt. Malhoyt) "It's not allowed. It is a violation of the camping regulation."

THE COURT: "You do have instructions?"

THE WITNESS: "We have instructions, yes sir." ...

Q: (By Mr. Graber) "And sleeping is prohibited?"

A: "Sleeping is prohibited."

(Tr. Ex. 40. Testimony USA v. Thomas, CR 83-243, December 2, 1983, Malhoyt transcript pg. 86-87.) (Inter alia para. 128.)

41. After a trial before Magistrate Arthur Burnett Thomas was convicted (at least in part, it must be assumed) as a result of defendant Lindsey's testimony, intended to convince the Court that the regulation was "reasonably" enforced, and obscuring the fact that the regulation was being selectively applied against Thomas. In the wake of his conviction Thomas altered his behavior to accommodate himself, in his understanding, to the Magistrate's Order. Most significant, perhaps, was the fact that Thomas began a fast, and published the reason for that activity.

(Tr. Ex. 41, Washington Times October 12, 1982 photo with sign.)

42. Notwithstanding Thomas' sincere attempts to come into unmistakable compliance with the regulations, during the months of October, November, and December of 1982, he and Ms. Picciotto were subjected to intensive surveillence.

(Tr. Ex. 42(a)-(m), numerous Park Police reports from October 7, 1982 thru November 12, 1982, which identify a "vigil," "demonstration," sponsored by "William Thomas," "Concepcion Picciotto," and "Norman Mayer.")

43. Police harassment and sleep deprivation continued at an excelerated rate:

"William Thomas and Isabela Concepcion (sic) were found sleeping by this officer. Both subjects were awakened, and warned on one occasion. They complied and I cleared at 0510 hours."

(Tr. Ex. 43, Occasion report, November 12, 1982 Officer Ferebee.)

44. Charactoriztically Thomas tried to reason with defendants and/or their agents both literally and symbolically:

"Although I am in this country against my will, while I am here I have a responsibility to scream out against the unresponsible activities of this government. For the most part my screaming has been ignored, but lack of attention has not been a factor in driving me away from the White House sidewalk. For more than seventeen months I have fought to retain the rights guarenteed by the First Amendment against the police, bureaucracy, and the suicidal system of this country. Perhaps one point that will be made by this demonstration will be to illustrate to Federal Magistrate Arthur Burnett that sleeping can be expressive communication. It may also serve to show that, while it may be necessary to go to ridiculous extremes in order to stand up for one's beliefs, one's belief in freedom need not, can not be protected by destroying the earth."

(Tr. Ex. 44, Thomas letter November 13, 1982, Statement of Reason.)

45. Thomas was driven up a tree to highlight Officer Ferbee's actions of November 11, 1983 (Supra para.43).

"On November 13, 1982 at approximately 2330 hours, while patrolling as car 113, I responded to Lafayette Park to investigate a complaint of a man in a tree. Upon arrival I saw a blue sleeping bag approximately 50 feet above the ground suspended between two tree limbs. The sleeping bag had ropes attached to it. I also observed two protest banners in the tree facing the White House."

(Tr.Ex.45, Officer Ferebee, report November 14, 1982.)

46. Mr. Robbins should have known Thomas was simply trying to draw attention to a perfectly legitimate grievence.

(By Mr. Robbins) "Yes, I had been called to Lafayette Park at approximately 10 p.m., I believe it was winter or early spring because it was fairly cold, and you had tied yourself about 40 feet up into that large sycamore tree that's just to the west of the center panel of Lafayette Park and had fashioned a rope-like coccoon arrangment in the tree and around a sleeping bag, and the Park Police, not having encountered that before, had ... sought my advice on that, and I did provide them with advice at that time ... that we saw no movement, there were safety considerations for your safety (sic), and that it was a violation of the regulation forbidding attachments to park trees."

Q: (By Mr. Thomas) "(W)ith respect to me, ... what efforts have you made to determine whether my activity was First Amendment protected...?"

A: "The times that I remember being involved with ... you would be giving directions where (two) arrests were made. It has always been with the understanding that you were engaged in First Amendment rights. Given that you were engaged in First Amendment rights, were you nevertheless in violation of law, that has been the way that that's been considered."

(Tr. Ex. 46, Deposition of Richard Robbins, August 22, 1986, unofficial Thomas transcript, this case, p. 17-18.) (Emphasis added to indicate Mr. Robbins' recent recollection of "only two" arrests of Thomas at which he was present. Compare, inter alia, para. 48, and 70.)

47. Federal Defendants incorrectly assert that the November 13, 1982 arrest "resulted in a conviction" (Federal Defendants Comments on The Recommendations of Magistrate Burnett, filed February 3, 1987, pg. 7). The Magistrate correctly notes (Recommendation, January 13, 1987, pg. 19) that the charges were dismissed.

"On 11-13-82 at approximately 2345 hours, Mr. Thomas ...was arrested, and charged with disorderly conduct, unauthorized camping, attaching an object to a tree, and general injury to a tree. The aforementioned charges against the defendant have since been no papered.

"...AUSA, Mr. Finnigan has declined to relinquish any of the defendant's property (signs) to him until this case is adjudicated."

(Tr. Ex. 47, Officer Ferebee, November 24, 1982.)

48. Although Mr. Robbins can now only "remember" having been involved in consideration of two arrests, both of which he claims took place in trees; there is more evidence that he might be telling tall tails to disguise the truth.

Q: (By Mr. Bates) "Directing your attention to the periods of November of 1982, do you remember being involved in consideration of an event where some people might have been camping on the White House sidewalk?"

A: (By Mr. Robbins) "Yes."

(Tr. Ex. 48, Robbins testimony, ERA v. Watt, USDC CA 83-1243, December 13, 1983, transcript at 48.)

49. On December 6, 1982 defendant Lindsey reaffirmed the mutual responsibility he shared with defendant Robbins' office in a memorandum issued to "the Force."

"The enforcement of these regulations in which the activity may be a part of a First Amendment expression should be delayed until consultation with a supervisor, and a representative of the Solicitor's Office who can be reached through the Force Communications Center. However, enforcement of these regulations should be positive, and immediate when an activity is clearly not a part of a First Amendment expression."

(Tr. Ex. 49, Memo to the Force from J.C. Lindsey, December 6, 1982, emphasis in original.)

50. Once again plaintiffs were injured by a "meeting of minds."

"On 12-7-82 at 0312 hours myself and Officer Shea observed defendant and co-defendant lying on ground cover composed of several large pieces of cardboard covered with heavy-duty plastic. I observed Ms. Picciotto in a blue sleeping bag. Mr. Thomas had both legs under the sleeping bag using it for cover.... Sgt. Bradley ... advised them they were under arrest for camping/living in the park.... Defendants were transported to District 1 for processing.... Ms. Picciotto was advised of her rights. No pictures or prints were taken since they had been booked previously....

"It should be noted that the two defendants have been observed on the White House sidewalk for the last sixty days."

(Tr. Ex. 50, USPP report, (written by) Sgt. Bradley, (signed by) Officer Shea, December 7, 1982.)

51. Although Sgt. Bradley testified that the December 7, 1982 arrest was not prearranged, reasonable person might be very hard pressed to believe that he was telling the truth.

Q: (By Government counsel Eric Marcy) "Officer Shea, did you respond to the White House as a result of Sgt. Bradley's call?"

A: "Yes, I did." ...

Q: "Do you know how long he had been on the scene before you arrived?"

A: "I'd say about twenty minutes, fifteen to twenty minutes."

Q: "How is it that you say it was fifteen or twenty minutes? How do you know that?"

THE COURT: "It took you twenty minutes to get there after that call?

THE WITNESS: "No. He went up there and he said, you know, if he was going to make an arrest, that he would call us, and it was about twenty minutes, I believe fifteen to twenty minutes."

(Tr. Ex. 51, testimony Officer Shea, USA v. Thomas CR 82-358, May 17, 1983, transcript p. 91, SEE ALSO, Third Declaration of William Thomas, para. 19, 20, 21, and 22, filed March 6, 1987.)

52. The "probable cause" for the December 7, 1982 arrest was "sleeping" (COMPARE, supra para. 13, 39, and 40):

(JUDGE WILLIAM BRYANT): (p. 4) "I listened to the tape, and they locked the man up for going to sleep. And he says that is part of his -- he is out there forever, 24 hours.

"In the face of it, it's a piddling case; but, really, it is a bedeviling case....

(p. 9) "What bothers me is ... the definition (of camping) when (Thomas) was arrested.... And the police officer, it was clear to him that he was acting because he felt they were asleep; and this was the activity that put them in violation, and I'm sure they still feel that way.... I have a hard time sleeping putting him in jail, actually, for what he did. He is such a -- I kind of tend to agree with him. He is such a minimal harm to anybody in the world. . ."

(MR. MARCY): "Your Honor, he is not a minimal harm.... He has been there since I believe June of the previous year....

(p. 11) "It is not an easy case, your Honor, but we would suggest to the Court that there is only one road to go down at this point. The defendant has been given every opportunity to conform his conduct, and he has failed to do so, and we would ask the Court to incarcerate him....

(p. 12) "Six months. If your Honor would like to send him to Sacramento to demonstrate in front of the state capitol out there, we wouldn't have any strong objection."

(Tr. Ex. 52, USA v. Thomas CR 83-358, transcript July 5, 1983.)

53. Magistrate Arthur Burnett imposed pre-trial release conditions that Thomas be at least one block away from Lafayette Park between the hours of 10:00 p.m. and 8:00 a.m., unwittingly increasing Thomas' injury.

(Tr. Ex. 53, Thomas testimony, USA v. Thomas CR 83-056, transcript p. 113.)

54. (By Mr. Robbins) "On Friday (December 9, 1982) I received a call from John Meenan, the acting legal counsel to the Secret Service indicating that the Secret Service wanted to have a meeting to discuss the situation on the White House sidewalk with a view to solving some of the problems that were occurring there....

"We held our first meeting on the precursor of (the White House sidewalk) regulations on December 13, 1982."

(Tr. Ex. 54, ERA v. Watt, USDC CA-83-1243, Richard Robbins testimony, December 13, 1983, Transcript p. 6-7.)

One again a reasonable person might not intelligently fail to ask whether nuclear weapons are really necessary in order to guard against mindless bureaucracy and totalitarian police-state tactics.

55. A reasonable personal would be likely to preceive a discriminatory animus if others, similarly situated, but promoting an issue which the Administration supported, did not suffer the same injuries as plaintiffs.

"... Terrance McConnell, Vice President (of the Vietnam Veterans' Vigil Society ... and veteran representatives from a number of other states from across the nation have been maintaining a twenty-four-hour-a-day color guard at the Vietnam Veterans Memorial since December 24, 1982. Those dedicated men and women intend to continue their vigil until all Prisoners of War and Missings in Action are fully accounted for...

"On an equally encouraging note, the U.S. Government has recently exhibited a deep commitment to obtaining resolution of the POW/MIA accounting question making it a matter of the highest national priority and putting it on the front burner where it belongs."

(Tr. Ex. 55, letter from Douglas Applegate, United States House of Representatives, October 3, 1983).

56. Beginning on or about December 9, 1982 Thomas had certain "objects" (signs) on the White House sidewalk, but only during certain hours.

(Tr. Ex. 56, Complaint pages 28-51.)

57. Although the "camping" regulation, and various pre-existing "storage of property" regulations (inter alia para. 69 and 70) completely addressed all "problems" of packages, parcels, etc., the S.S. was still not completely satisfied, and sought a "meeting of minds":

"As you know, we are not in complete agreement concerning the presence of large, display board type signs on the White House sidewalk."

(Tr. Ex. 57, Jerry Parr letter to Richard Robbins, January 10, 1983.)


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