THOMAS v. REAGAN

USDC Cr. No. 84-3552

l35. Officials who unquestionabley should have known better were, once again, trying to "build a case" against Thomas. A reasonable person would be forced to conclude that defendants efforts were prearranged. Q: (By AUSA Dixon) (p. 7) "Now, Officer Roofener, prior to May 9, l984 ... (h)ad there been any people in Lafayette Park that you and other Park Police officers had an occasion to observe and to watch?" A: (By Officer Roofener) "Just prior to that, for about a week prior, we were giving out written warnings advising people who we believed to be camping in Lafayette Park that arrests would be made if they continued to camp in the park." ... Q: (p. l0) "I'd like you to tell me if you see anyone in court today that you had an occasion to see on those earlier occasions, or on May 9, l984." A: "I see two people in Court today .... Mr. Robert Dorrough and Mr. William Thomas." Q: "(W)hen did you come on duty on May 9, l984? ..." A: "Four a.m." ... Q: (p. ll-l2) "Now, ... when you came on duty at approximately 4:00 a.m. on May 9, l984, was that unusual?" ... A: "(I)t was an unusual time to come in. It was specifically for this purpose.... We parked the cruiser -- several units arrived. There was the identification section, taking pictures. There (were two) solicitor(s) of the Interior Department there, the deputy chief of police, several units. We came in from the H Street side ... the northwest side of the park.... (p. l4) "(Officer Haynes) was requested not to -- to go into the immediate area, to stay at the northern side of the park (earlier).... (p. l5) "The identification unit ... followed me through the park as I was identifying people. There was also a SET from the SWAT team there to ... break down the property, to inventory it and make the physical arrests. And the identification unit and the SET team came through taking pictures of what they were observing. As I'd point something out, they were taking a picture of it.... (p. l8) "(W)e try and be as quiet as possible so we can take the photos before anyone--" (Tr. Ex. l35, USA v. Dorrough, CR 84-0283M-0l, trial transcript July 23, l984, testimony of U.S. Park Police Officer Donald Roofener.) Plaintiffs suffered injury in deprivation of association, and infliction of emotional distress. l36. At his deposition officer Haynes testified that he had never heard of the "Thomas Vigil," but a analysis of the facts on this Record might lead to a reasonable contradictory conclusion. Q: (By counsel for defendant Thomas) "(Does) this Evidence Custody and Control Receipt, where the blank is for owner, indicate 'unknown'?" A: (By Officer Haynes) "It states 'unknown'..." . . . Q: "And what does it have for person from whom evidence was obtained?" A: "William Thomas Vigil, it says." Q: "Is William Thomas Vigil a person?" A: "William Thomas Vigil is a specific location." (Tr. Ex. l36, USA v.Thomas USDC CR 84-255, September 24, l984, Officer Haynes testimony, Transcript p. 6l7.) l37. On May 28, 1984 William and Ellen Thomas submitted a permit application to the National Park Service. The following questions and answers appeared on that application: "10. List all props. . .and other similar items." "One mobile speaker's platform 30' x 8" x 4" made of plywood, for storage of electronic equipment, and literature." "11. If boxes, crates, coffins or similar items will be used state whether they will be carried opened or closed, their proposed size the materials constructed from and their proposed contents and use." "Stakes to anchor signs." "12. Do you have any reason to believe or any reason to believe any individual, group or organization might seek to disrupt the activity for which this application is submitted? "Either the Park Police, or the U.S. Attorney, judging from past experience, might seek to disrupt this activity." (Tr. Ex. l37, Thomases' permit application with diagram of speaker's platform, May 29, 1983.) l38. On May 30, 1984 Phil Walsh, Rick Merryman, et. al., "okayed" a diagram of the proposed structure, attached to the application. (Tr. Ex. l38, National Park Service Permit #84-564, May 30, 1984.) l39. Wearily Thomas has been attempting to maintain the Park in an unspoilt state. "On 5-30-84 at 1540 hours, while patrolling the area on the south side of Lafayette Park, I observed William Thomas, Mark William Parker, and T.J. Jones in a heated argument. As I drew nearer to their location subject Jones walked away from the argument, and began throwing signs down, and smashing other materials. There were signs positioned on the lawn area on the east side of the park, closest to the east urn. The sidewalk became littered with signs, nails, 2 x 4's, books, papers, and other property. While questioning subject Jones regarding his actions, I learned that the argument began as a result of the desire of William Thomas to discontinue his demonstration. Several other demonstrators then began to voice their dissatisfaction regarding William Thomas' decision, and also started to take down several signs. Bob Long, a member of the demonstration, began to gather the property into a pile near the curbside in an attempt to assist in the removal of this property. I spoke with William Thomas, and asked him whether he was in fact terminating his vigil. William Thomas stated that he was `just tired.' I asked him whether the property that was on the sidewalk was to be removed, and he said 'yes,' and he began to separate the signs which he intended to keep for the signs which he intended to remove." (Tr. Ex. l39, U.S. Park Police report, Officer Manso, May 31, 1984.) l40. During the last week of May, 1984, Officer David Haynes ordered William Thomas and Concepcion Picciotto, under threat of arrest, to unfasten signs which they had secured to stakes, which had been driven into the ground by Park Service workers. On or about June 2, 1984 the same sign which officer Haynes had ordered to be unsecured blew over, and struck a pedestrian. (Tr. Ex.l40, Park Police report, Officer Horgan, June 2, 1984.) (See Thomas Declaration filed this date.) l4l. On June 6, 1984 Officer David Haynes assaulted Robert Dorrough, William Thomas, and Ellen Thomas, respectively. He also arrested those individuals on a charge of assaulting a police officer, and, along with four additional individuals, charged them with camping. (See inter alia para. l46.) "The undersigned officer arrested seven subjects subsequent to having observed them lying on the ground in a prone position. Having made attempts to get a witness to this violation (camping CFR 50.27), an employee of NATIONAL PARK CENTRAL/PRESIDENT PARK was stopped as he drove past. This gentleman accompanied the undersigned officer as all subjects present were clearly observed visually by both of us." (Tr. Ex. l4l(a), Park Police report, Haynes, June 6, 1984; Tr. Ex. l4l(b), Washington POST article.) l42. The Grand Jury refused to indict the assault charges, and all defendants were acquitted of "camping" charges. After the Government put on a five day case Federal District Court Judge Joyce Hans Green found: "Officer Haynes ... while he spoke with precision, and exactitude, and painstaking care, had selective memory ... and unable to remember even testimony that he clearly specifically had given in the court hours earlier, failed to remember making, on some occasions, earlier arrests of the defendants, contradicted representations of the manner in which he inventoried the property.... "Now, the Court's ruling today does not mean that ... it has ... become unnecessary ... to reach the several most significant constitutional questions that someday, someway, with perhaps other defendants, perhaps the same will be addressed. "To continue with this trial would transform the trial from a prosecution into a persecution, and accordingly the respective motions for judgment of acquital are as to each of the defendants granted." (Tr. Ex. l42, U.S. District Court Judge Joyce Hans Green, USA v. Thomas, USDC 84-255, September 25, l984 transcript at 1025). l43. "The 'Chinon' 35 mm camera which had been used to photograph the undersigned during the arrests ... appeared to have been loaded with film. It was with this camera that Ms. Ellen Benjamin and Mr. William Thomas photographed the arrest of Mr. Dorrough. Subsequently Ms. Thomas used the camera to also photograph the arrest of Mr. William Thomas." (Tr. Ex. l43, Park Police report, Haynes June 22, 1984.) l44. "Officer Haynes (purported) that there were no reports of injuries to any of the subjects.... "Officer Haynes stated that initially he departed the scene with the camera, however when he realized that he still had it he returned to the scene and placed the camera in the crew cab with the other valuables. Officer Haynes stated that the last time he saw the camera it was in the truck. He also stated that Sgt. Wilkins saw him put the camera in the truck...." (COMPARE Testimony in USA v. Thomas, Thomas, Thomas (CR 84-255).) (Tr. Ex. l44, Park Police report, Sgt. Jones, June 18, 1984.) l45. In light of the long history it would be unreasonable to assume that a "meeting of minds" had not played some role in furthering the object of injuring the "Thomas Vigil." "Sergeant Wilkins stated that on the day of the incident, June 6, 1094 he was working the second relief as car 102.... Sergeant Wilkins identified the following members of the United States Park Police who were on the scene: l) Deputy Chief J. C. Lindsey, 2) Lt. Bruce Clements.... "Officer Haynes never explained to Sgt. Wilkins the reasons why he took the camera from Mrs. Thomas, or why he departed the scene with the camera, and later returned...." (Tr. Ex. l45, Park Police report, Sgt. Jones, November 8, l984.) l46. Contrary to representations made by defense counsel in this case there were complaints noted by plaintiffs of physical injury as a result of the June 6, 1984 incident. "On June 8, 1984 Mrs. Ellen Thomas wrote another complaint and sent it to the Chief of the United States Park Police. In this letter Mrs. Thomas complained of the abusive manner and excessive force which were displayed by Officer David Haynes towards her and her colleagues on June 8, 1984. The incidents are alleged to have occurred during the arrest procedures." (Tr. Ex. l46(a), Park Police report, Sgt. Jones January 17, 1985; see also Tr. Ex. l46(b), Ellen Thomas letter to Officer David Haynes; Tr. Ex. l46(c), Ellen Thomas letter to Herring, Lindsey, and "USPP"; Tr. Ex. l46(d), Affidavit David Manning filed August 27, l986; Tr. Ex. l46(e), Declaration of Robert Dorrough filed this date, with attachment (hospital report); Tr. Ex. l46(f), Declaration of Ellen B. Thomas filed this date.) l47. Park Police spokesmen also issued false reports to the press stating that demonstrators had assaulted a police officer. "A U.S. Park Police officer was assaulted and slightly injured yesterday morning when he tried to arrest several persons who were sleeping in Lafayette Park, across the street from the White House, Park Police officials said.... It was not certain whether any of those arrested were protesting at the time, police said." (Tr. Ex. l47, Washington Post article, June 7, 1984.) l48. David Harley, an employee of the National Park Service, was eventually arrested, and charged with Second Degree Theft in connection with the disappearance of the camera used by Ellen and Willaim Thomas to photograph the arrests on June 6, 1984. Charges against Mr. Harley in connection with that incident were nolle prossed on July 18, 1985, immediately after Ellen Thomas informed the U.S. Attorney that she was going to explain why she believed that Mr. Harley was being used as a scape-goat. No disciplinary was taken against Mr. Harley who is still employed with the National Park Service, and is pictured in the Administrative Record, e.g., at I.J.154, top picture. (Tr. Ex. l46(f), Declaration of Ellen Thomas filed this date; Tr. Ex. l48, D.C. Superior Court Criminal Inquiry Docket Sheet.) l49. Defendant Lindsey revised the information in a police officer's report by adding and underlining the false and misrepresentative word "unattended" in a letter he wrote defendant Robbins urging new regulation against signs in Lafayette Park (COMPARE Thomas Declaration filed this date): "Enclosed is a copy of a Case Incident Report of a hazardous condition in Lafayette Park caused by demonstrators who had left unattended (sic) a sign that had been swept by gusty winds into the path of a visitor. This incident is further proof of the need for regulatory action to control the conduct of activities in this regard to insure a safe environment for park visitors. "We request that the present regulations be amended to prohibit the use of the public of any sign or other paraphernalia that is not stabilized or personally attended in areas of the National Capital Region. We solicit your support in seeking this regulation to help provide for the protection of persons, property, and the natural resources in our area." (Tr. Ex. l49(a), letter from defendant Lindsey to defendant Robbins, June l4, l984, emphasis in the original; compare to Tr. Ex. l49(b), Officer Smallwood report, June l4, l984.) l50. On another occasion when plaintiffs deny having been asleep, officer Haynes again caused them injury. "Subsequent to having observed five individuals asleep in Lafayette Park, each individual was arrested and charged with camping and storage. The arrestees were transported to the U.S. District One sub-station where they were processed thoroughly before being transported to the District of Columbia Superior Court." (Tr. Ex.l50, Officer Haynes report, June 23 1984.) l5l. As a direct and proximate result of officer Haynes "thorough" processing plaintiffs were again denied due process. "This case could not be papered on the day of the arrests (6-23-84)...." (Tr. Ex. l5l, Officer Haynes June 24, 1984.) l52. "Lt. James McLaughlin, U.S. Park Police said that approximately a dozen large signs were then broken down because they were no longer under anyone`s supervision." (Tr. Ex. l52, Washington Post report, June 24, 1984; COMPARE Tr. Ex. l46(e), Declaration of Robert Dorrough.) l53. "U.S. Park Police watch commander Lt. Paul Bolton said five people were arrested Saturday for snoozing in the park across Pennsylvania Avenue from the White House, and after they were taken away the signs were under no one's control. "`There was nobody there to leave the signs with who claimed to be with the demonstration so we are responsible for everything.' Lt. Bolton said." (Tr. Ex. l53, UPI report, June 24, 1984.) l54. Routinely Park Police spokesmen were misinforming the press, while other of defendants agents were destroying signs. "On June 23, l984, I awoke and made my way to the park and the signs only to discover that once again there had been a police raid and the demonstrators had been removed from the park. The signs were still there so I claimed responsibility for the signs and attempted to take possession of them but was refused and told that the signs were being confiscated as abandoned property. I said again I would claim them. 'No,' I was told, they were being confiscated as prisoner property. The signs were broken up by the Park Police with sledgehammers." (See Tr. Ex. l46(e), Declaration of Robert Dorrough, filed this date.) l55. The Supreme Court hasn't reversed Abney. "We need not differ with the view of the Court of Appeals that overnight sleeping in connection with a demonstration is expressive conduct protected to some extent by the First Amendment." (Tr. Ex. l55, Majority Opinion, Clark v. Community for Creative Non-violence, # 82-1998, June 20, 1984 and referenced in Dissent at pages l and 2.) l56. On July 19, 1984 Federal District Court Judge Louis Oberdorfer sentenced Thomas for an alleged violation of the camping regulation: "ORDERED: That you shall ... apply promptly and in good faith to the Secretary of Interior or his delegate for a permit or other writing which prescribes the terms and conditions of your presence in the park and in good faith seek judicial review of any decision denying that permit or other writing." (Tr. Ex. l56, Order filed July 19, 1984, USDC, USA v. Thomas, CR 83-243.) l57. Thomas tried to be reasonable, and still abide by the law. "It is my position that since 36 CFR 50.27(a) is not an across the board ban on sleeping, there is no regulatory process by which the human demands of sleeping can be denied me despite the fact that I am maintaining a twenty-four hour vigil on park lands, unless, of course, it can be illustrated that the act of my sleeping results in impacts which the area is incapable of sustaining. Since the Government has been unable to prove such impacts in the three years I have been here I am sure we will be able to determine at which point permissible (casual) sleep becomes destructive, impermissible sleep, and so the first question demanding agreement is, precisely what is 'casual sleep'? "We leave it to your discretion to tell us just how many hours per day we are legally permitted to sleep. "We'll also need to know exactly what is meant by 'storage of personal property'." (Tr. Ex. l57, letter from Thomas to Department of Interior, National Park Service, et al, July 21, 1984.) l58. Despite repeated efforts on behalf of Thomas to comply with Judge Oberdorfer's Order, Park Service Officials have consistently refused to provide them with the information with the information necessary to conduct their demonstration activities in accordance with defendants' definitions of the terms which, plaintiff alleges in this action, have been arbitrarily and selectively employed to "color protected activity as criminal activity." (Tr. Ex. l58, Permit application, September 25, 1984.) l59. During the trial before Judge Green the Government provided a list of persons arrested for alleged violations of the 'camping' regulations. Without exception every person on that list was arrested within fifty yards of plaintiffs. (Tr. Ex. l59, List of Violators, 36 CFR 50.27(a), l983- 84.)

Simplified Trial Brief - Continued

Contents

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