THOMAS v. REAGAN

USDC Cr. No. 84-3552

58. "I would like a briefing on the regulations that allow demonstrations and protesters in Lafayette Park and in front of the White House on Pennsylvania Avenue.

"My intention is to prohibit such activity and require that they take place on the Ellipse."

(Tr. Ex. 58, Memo from James G. Watt, January 13, 1983.)

59. During this same period defendants Bangert and Robbins, in consort with defendants Fish, Watt, Parr, Lindsey, et al were in the process of trying to ban all but "hand held signs" from the White House sidewalk.

(Tr. Ex. 59, Robbins letter to "the Reviewers" dated February 25, 1983; see also inter alia para. 95 (April 22, 1983).)

60. Prior to March 11, 1983 Thomas' signs were referred to as "signs" by members of the Park Police, and the Secret Service.

(Tr. Ex. 60(a), USPP report by Officers Guentz, 2-27-83, Tr. Ex. 60(b), report by Shea 3-8-83, and Tr. Ex. 60(c), report by Ferebee 3-10-83.)

61. Q: (By counsel for defendant Thomas) "Lieutenant, for clarification, we are talking about two signs. I believe one is referred to as 'Disgrace' sign, and the other one as 'Revelation' sign?"

A: (By Lt. Merillat) "Yes, sir, that is correct."

Q: "Now, sir, in regard to the 'Revelation' sign, when did you first observe this 'Revelation' sign?"

A: "'Revelation' has been there for quite some time, sir. The exact date I do not know." ...

Q: "Well, would it be fair to say that the 'Revelation' sign was being displayed as far back as December?"

A: "I can imagine that it would be possible, yes, sir."

Q: "And Mr. Thomas -- Well, this 'Revelation' sign was observed by you in front of the White House on numerous occasions?"

A: "I had seen it there, yes sir, on numerous occasions."

Q: "Almost on a daily basis?"

A: "Yes, sir."

Q: "And that would be December, January, and February?"

A: "Yes, sir, it had been there for some time."

(Tr. Ex. 61, Merillat testimony, USA v. Thomas CR 056, May 19, 1983, p. 59.)

62. On or about March 8, 1983, defendant Robbins' office radically altered the status quo, without the formality of a regulation, initiating a prearranged, concerted operation carried out by agents of defendant Lindsey (compare Lindsey's "Facts" para. 3 and 4), which attempted to remove all but "hand held signs" from the White House sidewalk, by issuing a definition which redesignated two of the "objects" previously recognized as "signs" to be "structures."

Q: (By counsel for defendant Thomas): "How long had the opinion been issued by the Solicitor's Office before the event on March 11?". . .

A: (By Lt. Merillat) "I received information approxi- mately two days before the arrest that the structures were to be removed from the sidewalk. The exact date from the Solicitor's Office, I do not have that."

(Tr. Ex. 62, testimony of Lt. Merillat, USA v. Thomas, USDC, CR 83-056, May 19, 1983 at 64.)

63. On or about March 8, 1983 Thomas was threatened with arrest by Captain Canfield of the D.C. Metropolitian Police on a charge of "vagrancy."

(Tr. Ex. 63, Declaration of Arthur Spitzer, July 15, 1986.)

64. On or about March 9, 1983 defendant Robbins met with Secretary Watt with regard to the situation on the White House sidewalk. Secretary Watt told him to "Keep up the good work."

(Tr. Ex. 64, Robbins testimony ERA v. Watt, December 13, 1983, at 50, 112.)

65. (By Capt. Canfield) "I was summoned down there by the officials of the Uniformed Secret Service and by members of the United States Park Police to address a problem they were encountering with a protester... and the Park Police apparently with the permission of the Solicitor General of the United States had determined that this ... was not a placard or a sign.

"Their intentions were to inform him to abate the nuisance and move it off federal property. That's how I became involved in it."

(Tr Ex. 65, Page 66 from defendant Canfield's deposition of July 10, 1986, quoting his Grand Jury testimony. See also defendant Canfield's Answer to the Amended Complaint, filed December 6, 1985, para. 84.)

66. (By Lt. Merillat) "Myself and several officers remained in the area. I was in concert with Captain Canfield of the Second District of the Metropolitian Police Department at which time Mr. Canfield was trying to get the General Counsel from the District of Columbia to authorize him to remove the structure to abate the nuisance of having a temporary abode on the sidewalk which is District of Columbia property.... It was approximately one hour, maybe one hour and fifteen minutes before Mr. Canfield received approval from General Counsel to have the structures removed, and to abate the nuisance."

(Tr. Ex. 66, testimony of Lt. Merillat, USA v. Thomas, USDC, CR 83-056, May 16, 1983 at 50.)

67. In light of defendant Merillat's testimony from May of 1983 and defendant Canfield's testimony from his deposition of July 10, 1986, it would appear that, like defendant Bangert, his memory on these points has become less clear over the years:

Q: (By plaintiff pro se, Thomas) "All right, now, did they -- did you -- did they , being the Secret Service or the Park Police give you any indication as to what sort of a 'nuisance' they were dealing with? Did they define the term 'nuisance'? Did you ask?"

A: (By defendant Canfield) "Okay, Mr. Thomas, if I -- it appears that you are hung up on this phrase 'a nuisance', 'abate the nuisance', and that was not their language. That was my language. And I will testify they probably never used 'abate the nuisance.' That was the language that I used in summarizing the information I had gleaned from our conversations with them."

(Tr. EX. 67, Thomas v. USA, deposition of defendant Canfield, July 10 1986, at 68.) 68. (By Lt. Merillat) "...I directed (Thomas) that Captain Canfield would be discussing something with him, reference to abating a nuisance, and I asked him to depart the structure... At that time, Captain Canfield opened the curtain himself, directing Mr. Thomas to abate the nuisance or he would be subject to arrest." (Tr. EX 68, USA v. Thomas, Cr 82-056, testimony of Merillat, transcript at 51.) 69. Q: (By Mr. Vanderstar, counsel for plaintiffs): "What law?" A: (By Mr. Robbins) "We were looking at two or three provisions in the code of regulations regarding the storage of property in Park Service lands." Q: "So there were already regulations in effect on storage of property in Park Service lands?" A: "There is a regulation which addresses that." Q: "I thought you said there were two or three?" A: "Also, we were looking at a law with regard to public nuisances, which is a common law principle." (Tr. Ex 69, ERA, CA 83-l243, Robbins testimony, December 13, 1983, Trial Transcript, at 67.). 70. 36 CFR 50.7(g) and (h) and 50.44(b) provide for the removal by the United States Park Police of "abandoned, stored or dumped" property. (Tr. Ex. 70, Lt. Treon letter June 7, l982.) 7l. Q: (By Mr. Bates): "Let me address your attention to March 11, 1983, Mr. Robbins, and ask you if you remember being present on the White House sidewalk on that date?" A: (By Mr. Robbins.) "Yes." Q: "What did you observe take place?" A: "I had accompanied the United States Park Police to the White House sidewalk to ask the individuals who had those large ... signs on the White House sidewalk to remove them, and we were there to prepare for an arrest situation should they fail to comply with that request." Q: "Did you at that time have a conversation with either Robert Derow (sic) or William Thomas?" A: "Yes." (Tr. Ex. 7l, Robbins testimony December l3, l983, ERA v. Watt, at 51.) 72. As early as November 30, l983, in his ERA deposition, defendant Robbins exhibited what appears to be collective amnesia concerning the events of March ll, l983: Q: (By Mr. Graber, attorney for plaintiffs): "Drawing your attention to March of l983, do you recall an incident where a sign in the possession of a demonstrator near the Executive Office Building alighted into flames in some manner?" A: (By Mr. Robbins): "I remember that occurring, yes." Q: "Do you recall being present and having a conversation with Mr. William Thomas in relation to that event?" .... A: "I don't recall that conversation, having conversations with him. I have talked to him on several occasions and just don't recall whether that was one of them or not." (Tr. Ex. 72, Robbins Deposition ERA v. Watt, November 30, l983, p. 70.) 73. Judging from defendant Robbins' testimony at his deposition in this case, his memory has not improved over the years: Q: (By The Court): "And with reference to Mr. Thomas personally, ... after November of '8l, do you recall ever being present at a time when he was arrested?" A: (By Mr. Robbins): "The only two times I recall precisely seeing Mr. Thomas arrested both involved activities in trees...." (Tr. Ex. 73, Robbins Deposition August 22, l986, Unofficial Thomas Transcript, p. 40.) 74. Fortunately, defendant Merillat had a clearer memory of events on March ll, l983: "Ms. Concepcion and Mr. Dorrough were directed to remove the signs, which they did, Mr. Thomas was directed 'don't bring them back'." (Tr. Ex. 74, testimony of Lt. Merillat, USA v. Thomas, USDC, CR 83-056, May 19, 1983 at 75.) 75. Q: "Okay. Now, do you remember any conversation Ms. Bangert may have had with Mr. Thomas that the only signs that were allowed were hand-carried signs?" A: (By Lt. Merillat) "Reference was made -- when Mr. Thomas and I were discussing structures and signs, I do believe that there was some conversation between Ms. Bangert and Mr. Thomas, reference to hand-held signs and the permissibility of such signs in the White House area." Q: "Well, was the gist of the statement or conversation that Ms. Bangert instructed or advised Mr. Thomas that the only signs that were legal were hand-held signs?" A: "Basically, I believe that was the gist of the conversation, sir." Q: "Are you aware of any such regulation that the only signs --" A: "There were regulations pending at this time which indicate that hand-held signs would be the only ones permissible in front of the White House area." Q: "That regulation was not in force at that time, was it, back on March 11, 1983.?" A: "You are probably correct, sir." (Tr. Ex. 75. Testimony of Lt. Merillat May 19, 1983 USA v. Thomas, USDC CR 83-056, pg. 70, 7l.) 76. Agents of the Park Police confiscated Thomas' sign, although Concepcion Picciotto had identified herself as a part owner and asked to be given possession. "On March ll, l983, officers of the U.S. Park Police loaded a sign onto a National Park Service truck. I begged various officers, particularly Lt. Merillat, not to confiscate the sign which was used by my friend, Thomas, and me jointly in the course of our demonstration activities." (Tr. Ex. 76(a), Affidavit of Concepcion Picciotto, January l7, l986; see also Tr. Ex. 76(b), testimony of Merillat, CR 83-056, May l9, l983, at page 73.) 77. Although Captain Canfield claims to have made the arrest on 3-11-83, Ms. Staempfli, representing Captain Canfield for the D.C. Corporation Counsel's Office, has asserted that Captain Canfield made out no reports concerning the incident. Captain Canfield, who purports to have conducted an "investigation" which lasted for three days, makes the same claim. (Tr. Ex. 77(a), Canfield July l0, l986 transcript at p. 60.) However, Lt. Merillat did make out reports, although he denies making the arrest. (Tr. Ex. 77(b), Lt. Merillat report, 3-ll-83.) 78. Plaintiff alleges he was subjected to malicious prose- cution by agents of defendant Government, in consort with defen- dant U.S. Attorney's Office and others, under color of "criminal damage," for performing what defendant's agents knew or should have known was a "symbolic act" which would not have occurred lacking the provocation of defendants' wrongful attempts to prevent plaintiff from having only "hand held signs" on the White House sidewalk, and for which others similarly situated have not been prosecuted (e.g., September l983 CARP demonstration; see Complaint para. 86.) (Compare Lindsey's "Facts" para. 6.) "The Park Police originally tried to get the U.S. Attorney to paper the case as arson, but the papering people refused, pointing out that even if they had evidence that he set the structure on fire (which apparently they do not), the structure was not a 'building,' and the D.C. Code specifically requires that a person burn a building to commit an arson. According to AUSA Dan Cisin (in an off-the-record conversation), the Park Police left, then came back about an hour later and cornered the chief papering assistant in an office for an hour and a half until the AUSA agreed to paper the case as a felony destruction of property -- White House gate, just to get rid of them.... "After I got the indictment/arraignment notice, I saw the AUSA assigned to this case in the Grand Jury room, William (J.J.) Jackson, in the hall of the courthouse, and asked him how in the world he could indict this case. He said that even though I was right that there was no evidence of malicious intention to destroy the White House gate, the Grand Jury relied on 'reasonable inferences' arising from the fire to constitute the malicious intent.... "I've had several conversations with AUSA Marc Tucker, to whom this case is assigned for trial before Judge Webber. Marc is not overwhelmed with the case, and I have told him all of the above. He says he does not think 'reasonable inferences' get you past an MJOA on destruction of property, and if that's all he has -- reasonable inferences -- he will try to get his supervisors to dismiss. (The case is still very political.) -- He also told me the reason the case is in Superior Court is the Park Police/Secret Service were not having any luck in District Court getting Mr. Thomas locked up, so they decided to change courts and maybe things would improve." (Tr. Ex. 78, Public Defender Service Memorandum, Allie Sheffield to Charles Ogletree, July 26, l983.) 79. Characteristically perhaps, defendant Canfield's recollection with respect to the papering of that case is a little foggy: Q: (By plaintiff pro se, Thomas) "Were you accompanied by any other officers when you spoke with the U.S. Attorney?" A: "There may have been another officer down there from the Metropolitian Police, I don't recall now." Q: "May there have been an officer there from the Park Police?" A: "I don't recall representation from the Park Police there. It wasn't their case, it was a District of Columbia case." Q: "Wasn't their case? So it would not have been likely then, is that correct, for the Park Police officers to have been there?" A: "It would have been highly irregular and unusual." (Tr. Ex. 79, Thomas v. USA, deposition of defendant Canfield, July 10 1986, at 107). 80. On March 13, 1983 Thomas was arrested for allegedly possessing a structure on the White House sidewalk. (Tr. Ex. 80, James report March 13, 1983; see also inter alia para. l07.) 8l. This alleged structure was a small cart, and the charges were no-papered. That cart had been on the White House sidewalk on a daily basis since at least as early as July of l982. Sgt. Bradley had an opportunity to testify with respect to that cart on an earlier occasion: Q: (By counsel for defendant Thomas): "Could you describe that box?" A: (By Sgt. Bradley) "It was a large box on -- it was more like a cart or something, that had a door on it and it opened.... It was probably about the size of the podium right there." (Tr. Ex. 8l, testimony of Sgt. Bradley, USA v. Thomas, USDC CR-84-358, pg 24, May 17, 1983; see also, inter alia, para. l07.) 82. On August 22, l986, defendant Bangert recalled the "object," but not too clearly: Q: (By Mr. Thomas) "Do you recall whether you gave (the Park Police) any advice on March l3 with respect to a small object on wheels as to whether or not it was a violation of the structures regulation?" A: (By Ms. Bangert) "I remember such an object, a small object, a box-type thing on wheels with a hinged top, either being on the sidewalk, or I saw pictures of it on the sidewalk. But I don't remember whether the Park Police ever specifically asked me for advice with regard to that box." (Tr. Ex. 82, Bangert deposition August 22, l986, unofficial Thomas transcript p. 4; see also inter alia para. l07.) 83. On November 2l, l983, defendant Bangert's memory with respect to the "object" of March 13, l983 seemed to be a little fresher: Q: (By Mr. Graber, counsel for defendant Thomas) "Have you ever received a call asking for advice with respect to carts or dollies or similar devices?" A: (By Ms. Bangert) "I don't remember a phone call, per se, but the question did come up in the context of a specific situation, although I don't know whether you would call it a cart. It was a large wooden structure that had a hinged top." THE COURT: "Hinged?" THE WITNESS: "It had a hinged top, and was on wheels. . . . a well constructed little piece of -- a well constructed object." (Tr. Ex. 83, Bangert testimony, USA v. Thomas CR 83-l86, October 2l, l983, p. l42; see also inter alia para. l07.) 84. Defendant Lindsey, in May of l983 at any rate, was not afraid to call a cart a cart: Q: "Mr. Lindsey, isn`t it the case that these plywood signs that you testified about, four foot by eight foot, were hand-carried onto the White House sidewalk by demonstrators when they were brought out to the White House sidewalk?" A: "No, that's not correct." Q: "How were they--" A: (Interposing) "They were rolled onto the sidewalk by a container." Q: "I'm not talking about this so-called structure sign." A: "No, I'm not talking about the structure sign, either." Q: "Just plain flat plywood signs?" A: "That's right. They all came onto the sidewalk at the same time, being rolled on the sidewalk." THE COURT: "All at once? All these 4 x 8's came on the sidewalk at the same time?" THE WITNESS: "That's correct, Your Honor." . . . THE COURT: "How did they bring them on?" THE WITNESS: "It was a small, wheeled, box-like structure that had pretty much like a handcart configuration about it." (Tr. Ex. 84, ERA Testimony of J.C. Lindsey, May 3, 1983, CROSS at 61 and 62; see also inter alia para. l07.). 85. It is a fact that even as recently as October of l983 defendant Lindsey was still not mincing words, at least on this particular subject: A: "I don't view a cart as a structure. . . A cart is a cart, and a structure is a structure." (Tr. Ex. 85, Lindsey testimony, USA v. Thomas CR 83-l86, October 2l, l983, p. ll3; see also inter alia para. l07.) 86.Q: (By Mr. Graber, counsel for defendant Thomas) "Do you have any idea how many structures arrests there have been in the last two years?" A: (By Deputy Chief Lindsey) "I can't say with any specificity. I can only remember one or two, maybe three." Q: "How many of those were Mr. Thomas; do you know?" A: "Off hand I can only remember two that Mr. Thomas was involved in, and I am not sure whether there was another one that he may have been involved in." O: "To the best of your knowledge has anyone ever been arrested for having a cart or a dolly or any of the objects similar to what I showed you in defense Exhibits 12 thru 15?" A: "If they are not in violation, they are not a structure." Q: "But my question is: do you have any knowledge of any arrests for objects like that?" A: "If I had any knowledge of one of my officers arresting someone for having a baby stroller on the White House sidewalk then I am sure disciplinary action would have followed." (Tr. Ex. 86, Lindsey testimony, USA v. Thomas CR 83-l86, October 2l, l983, p. l23-l24; see also inter alia para. l07.) 87. On March l5, l983, a subordinate of defendant Canfield was expressing interest in the events of March ll: "On (3-l5-83) the undersigned, assigned to 9-84, along with Officer D.R. Jones, observed (Thomas) at the location of arrest. We had knowledge that an arrest warrant for destruction of property had been sworn out on the defendant stemming from an incident in front of the Executive Office Building a few days earlier." (Tr. Ex. 87, Minzak arrest report, March l5, l983 (poor-quality copy provided by federal defendants).) 88. Metropolitan Police Officer Jones accosted Thomas and asked: "'Are you Mr. William Thomas?' "'Yes,' I replied." "'I think we have a warrant for your arrest. Officer Minzak and I have been looking for you all morning. You know Officer Minzak, don't you?' "'I know Officer Minzak. But I doubt if you have a warrant for me. I just got out of jail on Saturday night, and if there had been a warrant for me I'd have probably heard of it then.' ... "Three D.C. police cruisers containing five officers arrived on the scene at that point. "'There's scumbag,' said Officer Minzak, having emerged from the car. 'Hey, scumbag, we have your shit over at the District. Things look nice around here. I hope we have a warrant for you. I'm going to love putting the cuffs on you.' "'If that will make you happy, Officer Minzak, I hope you have a warrant for me too,' I replied." (Tr. Ex. 88, Statement of William Thomas, March l6, l983.) 89. "Police are denying there is any new policy, but the street people and the clutter of protest signs have disappeared from in front of the White House. "William Thomas, an anti-nuclear protester, has been swept away by the police three times since last Friday, and others such as Concepcion Picciotto, another anti-nuke regular who plastered her signs at 1600 Pennsylvania Avenue, have vanished from the scene. "The U.S. Park Police deny there is any new crackdown, but there has been a near feud involving the police and courts and various Lafayette Park protesters for at least two years, and sources have told the Washington Times that cluttered sidewalks in front of the White House have been a topic of discussion lately between the Secret Service, the Park Police, and the U.S. Attorny's Office. "'It's been an ongoing problem,' said Sandra Alley, spokeswoman for the National Park Service." (Tr. Ex. 89, Washington TIMES article by Gene Goltz, 3- 16-83.) 90. "On 3-18-83 at U.S. Magistrate's Court Mr. William Thomas was advised by U.S. Magistrate Arthur L. Burnett that he was restricted from demonstrating at the White House sidewalk except the hours of 10:00 AM to 8:00 PM. After 8:00 PM, he must not be within a block of the White House, if Mr. Thomas is observed in a one block area after 8:00 PM advise the District supervisor." (Tr. Ex. 90, report by Officer James 3-18-83.)

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