THOMAS v. REAGAN

USDC Cr. No. 84-3552

ll6. On June 17, 1983, notwithstanding defendants Lindsey's sworn testimony that "a cart is a cart and a structure is a structure," both he and defendant Robbins (notwithstanding that defendant's representations in his August 22, 1986 deposition that he could only recall giving advice with respect to arrests of plaintiff on occasions when plaintiff was in trees -- see, supra., para. 70) participated in threatening plaintiff with arrest for the identical "cart" for which plaintiff had been arrested on March 13, 1983, and upon which the U.S. Attorney had declined to prosecute (Supra 80, 8l, 82-86, and l07.) "At approximately 1800 hours the departmental Solicitor, R. Robbins, and SFB responded to the White House area. Mr. Robbins drafted a preliminary warning which was verbally issued by Sergant Malhoyt at 1822 hours on the White House sidewalk, and 1825 hours in Lafayette Park. A five minute warning was also given. The demonstraters finished loading their equipment and pushed their structures from the park, they were last seen heading N/B on 16th Street." (Tr. Ex. ll6(a), Park Police report June l7, l983, reported by Chief Lindsey, and investigated by Officer Hennessey). "1825 hours, warning for Mr. Thomas' cart. . . "Your enclosed cart on wheels is a structure under National Park Service regulations, 36 Code of Federal Regulations, 50.19, structures are not permitted on the White House sidewalk. You must move this structure. If you do not remove this structure within fifteen minutes, you will be placed under arrest and your structure will be confiscated." (Tr. Ex. ll6(b), Park Police report June l7, l983, report by Officer Hennessey). ll7. "On July 1, 1983...Officer William Sherba of the Park Police approached me and asked, 'Are you asleep, Mr. Thomas?' "After I replied that I was not asleep Officer Sherba instructed me to sit up. "When I asked why, Officer Sherba told me that 'camping is illegal,` and again insisted that I sit up. "Lying on my back with my fingers laced together behind my head, I informed Officer Sherba that 36 CFR 50.27 contains no prohibition against lying down. "Officer Sherba began nudging me in the ribs and pectoral area with his foot urging me to sit up. "I repeatedly refused, and Officer Sherba continued prodding me with his foot. "This incident was repeated on three additional occasions that morning. "On each occasion I was awake when accosted and was repeatedly kicked by Officer Sherba in the side, head, arm and stepped on by him. "On the last of these occasions... Officer Sherba (was) asked why he was behaving in that manner. Officer Sherba replied: 'This used to be a beautiful house. How would you like it if somebody put these signs in front of your house." (Tr. Ex. ll7, William Thomas declaration, USA v. Thomas CR 82-385, July l, l983.) ll8. Agents of defendant Lindsey indicate having been given orders by him to take further enforcement action against plaintiff. Q: (By counsel for defendant Thomas): "In reference to your saying that you tapped Mr. Thomas on the foot, was it your purpose to keep him awake; was that what you were attempting to do?" A: (By Officer Sherba) "Yes, sir." Q: "Okay, and you had done this several times previously that morning, or that night?" A: "Yes, sir. Throughout the night, I did, at least once an hour." Q: "Okay. Now, was this pursuant to some instructions that you had received?" A: "Yes, sir. My instructions are to maintain -- to make sure that people stay awake." (Tr. Ex. ll8, testimony, Officer Sherba, USA v. Thomas, USDC, CR 83-243, December 3, 1983, transcript at 73.) ll9. "Individuals or groups of 25 persons or less demonstrating under the small group permit exemption of 50.l9(b)(l) shall not be permitted to erect temporary structures other than small lecterns or speaker's platforms. This provision is not intended to restrict the use of portable signs or banners." (Tr. Ex. ll9, 36 CFR 50.l9(8)(v).) "No signs or placards shall be permitted on the White House sidewalk except those made of cardboard, posterboard or cloth, having dimensions no greater than three feet in width, 20 feet in length, and l/4" in thickness." (Tr. Ex. ll9, 36 CFR 50.l9(e)(9).) l20. "On this date (Thomas) appeared in front of the White House with a twenty foot facsimile rocket. The rocket is approximately three feet in diameter at the bottom decreasing to eighteen inches in diameter at the top. It appears to be made of cardboard wrapped in black paper. A sign accompanying the rocket indicates it is a monument to Norman Mayer who was shot and killed at the monument grounds last year. A Park Police Lieutenant appeared on the scene and advised (Uniformed Division that Thomas) was within the law." (Tr. Ex. l20(a), Secret Service report, July 22, 1983.) "Officer (censored) U.S.S.S./UD/WH advised that (Thomas) had returned to the North side of the White House with a new sign (fifteen foot replica of an ICBM with 'Ban the Bomb slogans'). (Thomas) to date was orderly, and has not violated any laws. Subject's activities will be closely monitored." (Tr. Ex. l20(b), Secret Service report, July 23, 1983.) l2l. "On the above time and date (July 25, 1983) Deputy Chief Lindsey, USPP, and NPS Solicitor, P. Bangert responded to the above location to observe reported activities involving structures.... "The structures were observed. One structure was identified as belonging (to Thomas,) that structure, a black cylinder approximately eighteen inches by twenty feet simulating a missile... "At 1210 hours subject was asked if he was going to remove the structure from the sidewalk and answered 'No.' amd then was placed under arrest at 1212 hours." (Tr. Ex.l2l, U.S Park Police report, Officer Guentz, July 25, 1983.) Q: (By Mr. Graber, counsel for defendant Thomas) "Where did you measure the missile?" A: (By Lt. Clipper) "I measured the missile after we had taken it to our property offices in Brentwood Yard...." Q: "Okay. And you say it was l8 feet in height?" A: "Yes. Eighteen feet, six inches." Q: "And what about in width?" A: "The width at the bottom was approximately 28 inches, and I believe the top of it was l4 inches." (Tr. Ex. l22, Testimony of Lt. Clipper, USA v. Thomas, CR 83-l06, November l4, l983 transcript p. 35.) l23. (BY THE COURT): "Now, if you want to ask, did (Ms. Bangert) come over to talk to you, and whether or not she considered whether the missile was proper on the basis of any First Amendment right, you can ask her that question." Q: (By Mr. Thomas): ... "Did you consider coming over to talk to me (about the missile)?" A: (By Ms. Bangert): "No...." Q: "Was there any way that I may have been able to alter that missile in order to comply with the regulation...?" A: "It's not something I thought about at that time...." (Tr. Ex. l23, Bangert Deposition August 22, l986, unofficial Thomas transcript, pp. 4l-42.) l24. THE COURT (Judge Bryant): "Let me ask you this. I agree with you, but hasn't it been one of those things where he gets arrested today for doing 'X' conduct, and then he goes back out and he does 'X-Y' conduct, right? And he gets arrested. And then he goes back out and does 'X-Y-Z.' In other words, wherever you folks draw the line, he wants to stay on that line, wherever you want to draw the line." (Tr. Ex. l24, Judge Bryant USA v. Thomas CR 83-358, July 5, l983, transcript p. 6-7.) l25. On September 24, 1983 Thomas and Concepcion were arrested, and charged with camping by Officer Haynes. (Tr. Ex. l25, Park Police report, September 24, 1983.) l26. "Both subjects spent the weekend in Central Cell Block, and Women`s detention respectively." (Tr. Ex. l2, Case Incident report, Haynes, September 24, 1983.) l27. (By Officer Haynes) "To my knowledge, per Deputy Chief Lindsey and the commander of the Central District substation, I have been advised that William Thomas does have a permit for the vigil there at 1800 Pennsylvania Avenue, Lafayette Park side. Per the Deputy Chief, the Commander of Operations Division, Chief Lindsey, we have all been advised that that permit does not permit the participants of that vigil to camp in Lafayette Park." (Tr. Ex. l27, Testimony, Officer Haynes, USA v. Thomas, 84-255, transcript at 783, September 24, 1984.) l28. Q: (By Mr. Graber, Counsel for Defendant) "Officer Haynes, you indicated that you had been told something by somebody, and the Court cut you off. I was interested in if you had been given any instructions from your superiors with respect to the enforcement of the camping regulations where an individual may be sleeping...." THE COURT: "Well, have you received any instructions about sleeping?" THE WITNESS: "Sleeping?" THE COURT: "Yes." THE WITNESS: "Sir, it is a violation."... Q: (By Mr. Graber) "Sleeping is a violation?" A: "Yes sir, and we are told to enforce the regulations as they pertain to camping in Federal Parks." Q: "Now, which supervisor told you that?" ... A: "My immediate supervisor, John Philip Malhoyt." THE COURT: "And he told you that?" A: "Yes sir." (Tr. Ex. l28, Testimony USA v. Thomas, CR 83-243, December 2, 1983, Haynes, transcript pg. 56 and 57.) (Supra. para. 40.) l29. (By defendant Thomas) (p. 2l-23) "I have a belief, and by the most sacred principles of this country, I am entitled to hold my (belief), and, by the fundamental laws of this country, I am entitled to express my belief.... My burden seems to be that I hold an unpopular belief, and I insist on expressing it. I am viewed as a blight on society as a direct result of the manner of my expression. But, being penniless in a society which traditionally demands money for expression, there is no other manner available to me for expressing my beliefs than through my body, my voice, and crude signs in a prominent place. "I am just doing my job. I am a critic, but criticism is not a bad thing. Criticism identifies problems. Identifying a problem is the first step toward solving it, when criticism is viewed optimistically. "I pray this court will seriously consider whether I (accurately) represent myself as a critic, as exemplified by my life and works at l600 Pennsylvania Avenue. Whether or not my criticism is valid has never been at issue before this, or any other, court.... (S)hould this court sentence me to be imprisoned without ever having addressed the issue of my criticism, I fear we shall have a sorry state of affairs)." Judge Oberdorfer replied: (p. 28-29) "You can stand in front of that White House, and your message can be seen all over the globe within hours, and your right to do that is guaranteed.... I am sensitive, perhaps more sensitive than most, to the fact that if your country suppresses the kind of protest that you are engaged in, it would be jeopardizing the liberty of all of us." (Tr. Ex. l29, USA v. Thomas CR 83-l86, transcript December 2l, l983.) l30. One of defendant Lindsey's agents has testified under oath: "When I have to go and tell the men to enforce the regulations constantly, then we have a problem." (Tr. Ex. l30(a), Lt. Hume, USA v. Thomas USDC CR 84-255, September 18, 1984, transcript at 169.) Q: (By Ms. Schlossberg, defense attorney) "First of all, let me ask you this: sleeping in the park in and of itself is not a violation of the camping regulation, is it?" A: (By Lt. Hume) "I don't think so." (Tr. Ex. l30(b), Lt. Hume, USA v. Thomas USDC CR 84-255, September 18, 1984, transcript at p. l76.) l3l. "William Thomas was observed sleeping in Lafayette Park and was subsequently arrested, and charged, CFR 50.27(a) CAMPING. Mr. Thomas' companion, Ms. Concepcion Picciotto was also observed sleeping and was charged with the same violation." (Tr. Ex. l3l, USPP report, Haynes, January 31, 1984.) l32. "In light of these facts, plaintiffs' claim that a memo from Secretary Watt, and subsequent contacts between Assistant Solicitor Robbins, a principle drafter of the regulations, and the Secretary and the White House take on added signifigance. On January 13, 1983, a memo from Secretary of Interior James G. Watt requested 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 activities and require that they take place on the Ellipse. "When Assistant Solicitor Robbins spoke to Secretary Watt about development of the regulations in March of 1983, the Secretary told Mr. Robbins to `keep up the good work.` There was also contact with the White House to inform White House counsel of the status of the regulations. Additionally plaintiffs urge that the key fact that both versions of the regulations just happened to proscribe all of the plaintiffs then current activities on the sidewalk cannot be regarded as mere co-incidence. "In the circumstances it would appear that plaintiff's claim in this regard can in no wise be characterized as frivolous; however in light of this court's disposition of htis case, it need not resolve this particular issut." (Tr. Ex. 96 (see supra. para. 96, 105), Memorandum Opinion, ERA v. Watt, CA-84-1243, filed April 26, 1984, at pages 14 and 15.) 133. Officer Merkle exemplified the misunderstanding of the Park Police with respect to what has been going on in Lafayette Park when she filed a Park Police occasion report entitled "demonstration," and listed: "demonstrators" William Thomas, "Maria" Concepcion, Bob "Thourough", "Ellen?" and several other individuals by names unfamiliar to plaintiff (with a notation to Lt. Clements: "Thought you might like to review.: Attached to Officer Merkle's report was a supplemental report which proves, one might surmise, that in public parks one sometimes finds uncooperative people. (Tr. Ex. 133, US Park Police report, Officer Merkle April 30, 1984, Ad Rec. I.D. 87-90.) 134. During the spring of 1984, plaintiffs were under surveillance on a daily basis. (e.g. Tr. Ex. 134(a), "William Thomas Demonstration," U.S. Park Police, Roofener, May 4, 1984 COMPARE Supra para2; Tr. Ex. 134(b), "William Thomas White House Vigil Society," Tkach, May 6, 1984; Tr. Ex. 134(c), "Thomas Demonstration," Clark report, May 8, 1984.)

Simplified Trial Brief - Continued

Contents

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