Thomas v US, CA 87-1820
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM THOMAS, et. al., )
Plaintiffs Pro Se ) CA 87-1820-LFO
) Judge Oberdorfer
NEWS WORLD COMMUNICATIONS, et. al., )
PLAINTIFFS' RESPONSE TO
FEDERAL DEFENDANTS' OPPOSITION TO
PLAINTIFFS' MOTION FOR A PRELIMINARY
INJUNCTION AND TEMPORARY RESTRAINING ORDER
On July 22, 1987, Assistant United States Attorney Micheal
Martinez filed Federal Defendants' Oppostion To Plaintiffs' Motion
For a Preliminary Injunction And A Temporary Restraining Order
"Due to the voluminous nature of the (twelve volume Adminis-
trative) Record the federal defendants have not filed it with this
opposition," but have referred the Court to the record in Thomas
v. United States, C.A. No. 84-3552-LOF. (Opposition, page 2). In
itself the "voluminous nature" of the Administrative Record (Ad.
Rec.) should make the regulation suspect.
"Procedures (envisioned by Title 5 Section 553) may, in some
instances, provide safeguards against arbitrary or capricious
decisions by agencies and help insure that discretion entrusted
them by Congress, but the increased formalization of the rulemaking
process has also had adverse consequences. ... The participants,
including the agency, tend to develop adversarial relationships
with each other causing them to take extreme positions, to withold
information from one another, and to attack the legitimacy of
opposing positions. Because of the adversarial relationships,
participants often do not focus on creative solutions to problems,
ranking of the issues involved in a rulemaking, or the important
details involved in a rule. EXTENSIVE FACTUAL RECORDS ARE OFTEN
DEVELOPED BEYOND WHAT IS NECESSARY. MOREOVER, MANY PARTICIPANTS
PERCEIVE THEIR ROLES IN THE RULEMAKING PROCEEDING MORE AS
POSITIONING THEMSELVES FOR THE SUBSEQUENT JUDICIAL REVIEW THAN AS
CONTRIBUTING TO A SOLUTION ON THE ADMINISTRATIVE LEVEL." Federal
Register, Vol. 47, No 136, July 15, 1982, Section 305.82-4, at
30708, EMPHASIS ADDED.
Plaintiffs agree that this matter is related to Thomas v.
United States, C.A. No. 84-3552-LOF. In the interests of brevity
plaintiffs will refer the Court to the Trial Exhibits (Tr. Ex.)
which were filed in that case on September 22, 1986.
"Several commenters ... suggested a public meeting or private
negotiations concerning this rulemaking effort. It would be
inappropriate in this instance to have private negotiations with
any one individual or group. This rulemaking has been thoroughly
and intelligently discussed in the media, through editorials,
articles and letters to the editor, and thoughtful comments have
been received from all sides of the question." Federal Register,
March 5, 1986; see, Tr. Ex. 178, see also Ad. Rec. III.A.3.105,
COMPARE Complaint attachment 16.
As pro se litigants plaintiffs need not be "exact."  Haines
v. Kerner 404 U.S. 519 (1972) (COMPARE Opposition, page 5).
However, plaintiffs have been quite specific in alleging that
defendants wrongfully intended:
"to utilize regulatory schemes, disinformation, psychological
violence, public defamation of charactor, intimidation, *** to
encourage public support for regulations under the color of which
defendants have deprived plaintiffs of rights and privileges
guaranteed under the Constitution of the United States." Complaint
Even less "exactly" (professionally, competently, honestly, or
whatever), Defendants Opposition addresses only the March 5, 1987
regulation, and makes absolutely no reference to the "camping" or
"storage" regulations, the combination of which are the major
thrust of plaintiffs' challenge. SEE inter alia CONCLUSION.
[1 Inexactly plaintiffs titled their pleading "Motion For A
Preliminary Injunction And Temporary Restraining Order. In fact
plaintiff's seek only a Temporary Restraining Order, and do not, at
this stage, ask the Court to enjoin the enforcement of any
regulation. SEE Proposed Order for TRO, filed July 6, 1987. ]
"This responds to your letters of June 3, 1986, and May 21,
1986. In those letters you ask a number of questions that concern
matters that are the subject of the litigation in Thomas v. United
States, C.A. No. 84-3552. As you know, we are proceeding with
discovery in that case under the supervision of Magistrate Burnett,
as ordered by District Court Judge Oberdorfer. Therefore, I do not
feel that it is appropriate for me to respond to your questions
outside of the discovery process. Please refer any questions that
relate to matters within the scope of the litigation to Michael
Martinez ..." Letter signed by Richard Robbins, dated July 3,
1986, Tr. Ex. _____.
Also Mr. Martinez cannot plead ignorance to plaintiffs' efforts to gain clarification of the definitions under which they
allege they have been subject to arbitrary enforcement actions.
COMPARE Opposition, pages 23 and 24. On March 26, 1987 Mark
Venuti, the attorney who represents the organizational plaintiffs
in Thomas v. USA, wrote Mr. Martinez a letter requesting the
specific information which would enable us to carry out our
communicative activities in Lafayette Park without being charged
with regulatory violations. SEE Complaint, attachment 28.
Rather than answer the questions which would insure plaintiffs
the Constitutional protection to which they are entitled (SEE inter
alia, page 12, footnote 4), Defendants' Exhibits 4, 5, 6, 8, and 9,
craftily skirt the issues, and have left plaintiffs prey for
capricious enforcement such as those which occurred on March 27 and
29, 1987. As a result of plaintiffs William and Ellen Thomas are
now enbroiled in yet another criminal proceeding (Cr 87-231), and
which has interrupted, and will continue to disrupt their
communicative activities, simply because they preformed actions
which threatened no substantial governmental interest, were
otherwise Constitutionally protected.
It is well settled that:
"(T)he Constitution's First Amendemnt guarantees free speech
and expression (but) the Government may adopt regulations that
impose reasonable 'time, place, and manner' restrictions ***
"Under (the established) test four elements must be satisfied:
(1) the regulation must not be intended to suppress expression and
must not distinguish between subject matters or viewpoints ***; (2)
it must `serve a significant interest'; (3) it must *** be
`narrowly tailored,' and (4) *** it must `leave open ample
alternative channels of communications'." Opposition, page 6.
Plaintiffs humbly submit that if it reasonably appears a
regulation was intended to suppress expression there is no ground
upon which a Court need question further. At a TRO hearing we may
not convince the Court that the defendants intended to suppress
expression, but we believe that premise will be proven beyond
reasonable doubt by a trial on the merits.
With respect to the confiscation of Ms. Picciotto's literature
and petitions on June 15, 1987, Mr. Martinez makes some speculative
reference (Opposition, pages 23, and 24), and has attached some
deceptive , in some respects unrelated, reports written by some
of the officers involved. SEE Defendants' Exhibit 2. Primarily, as
Mr. Martinez has failed to do, it should be noted that the charges
arising from that incident HAVE BEEN DROPPED. SEE, USDC Cr.
87-513-M-01. As reflected in paragraph 8 of Ms. Picciotto's
Declaration in support of the Motion for a TRO, filed July 6, 1987,
her property was again seized on July 1, 1987, another fact which
Mr. Martinez has ignored.
[2 Defendants Exhibit 2 (page 3) makes numerous references to
"misc papers" and "papers," however the report makes absolutely no
reference to "literature," "petitions," or "petition blanks."
COMPARE Declaration of Concepcion Picciotto, filed July 6, 1987,
e.g., para. 5 and 10. Likewise Mr Martinea contention that
plaintiffs' claim "Picciotto has received no guidance from the Park
Service regarding what she may and may not possess in Lafayette
Park" is, at best, careless nonsense. Opposition pages 23 and 24.]
Attached to Ms. Picciotto's Declaration of July 6, 1987 is a
copy of Richard Robbins' letter of May 8, 1986.
Plaintiffs'complaint in this regard is that, nothwithstanding the
"guidance" which Ms. Picciotto has received from the Park Service,
on at least two occasions Park Police officials seized all of the
items which Mr. Robbins agreed that Ms. Picciotto had a "right" to
From the beginning the federal defendants have expressed the
view that this case is related to Thomas v. United States (Federal
Defendants' Response To Inquiry From The Calendar Committee, filed
July 16, 1987). While defendants argue that plaintiffs are not
likely to succeed on the merits, the most recent Opinion in Thomas
v United States indicates a strong likelihood that plaintiffs will
prevail upon the merits:
"(T)here remains an incredible number of incidents stemming from
(arrests of plaintiff) on which reasonable minds might well differ
as to the arresting officers' subjective intent and whether their
actions involved police misconduct." Magistrate Burnett's
Memorandum Opinion, Report & Recommendation, Thomas v. USA, CA
84-3552, filed January 13, 1987, at page 9.
Federal Defendants' plea that "(o)n March 5, 1987 the National
Park Service *** placed minimal restrictions on the rights of
demonstrators to express freely their views in Lafayette Park"
(Opposition, page 1) merely begs the allegation.
"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 significance. 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 plaintiffs' claim
in this regard can in no wise be characterized as frivolous;
however in light of this Court's disposition of this case, it need
not resolve this particular issue." Tr. Ex. 96, White House Vigil
for the ERA v. Clark, C.A. No. 83-1243, Memorandum Opinion, J.
Bryant, filed April 26, 1984, pages 15 and 16.
Defendants would also like to proceed from the unexamined
theory that "(t)he regulation is not directed for or against any
party but instead applies equally to all ...." Opposition, page
"It is true that restrictions were placed on the size,
placement and construction of signs used on the White House
sidewalk in July of 1983 ... The imposition of those regulations
appears ... to be the reason for the movement of large signs ... to
Lafayette Park." Federal Register, March 5, 1986, page 7560, Tr.
Defendants claim that "ample alternative channels of
communication are available." Opposition, e.g. pages 20, 21. This
is not the first time that they have made such a claim.
"(T)he proposed rule would apply only to Lafayette Park and
not to the many other park areas in close proximity, for example,
the Ellipse on the south side of the White House." Tr. Ex. 176.
Federal Register, March 5, 1987.
That language is strongly reminiscent of similar wording which
appeared in the Federal Register on April 22, 1983 (Tr. Ex. 95),
May 17, 1983 (Tr. Ex. 108), and June 17, 1983 (Tr. Ex 112) with reference to the same subjects (i.e. signs, Concepcion
Picciotto, and William Thomas);
"For, example, two individuals who have in the past and are
presently maintaining a daily demonstration in front of the White
House have had as many as 25 signs or placards leaning against the
White House fence....
Further, the interim rule applies only to sidewalks contiguous
to the White House. A substantial number of alternative forums
exist close to the White House sidewalks where these restrictions
do not apply." Federal Register, April 22, 1983, pages
17352-17353, see also, White House Vigil for the ERA v. Clark, C.A.
No. 83-1243, Memorandum Opinion, J. Bryant, filed April 26, 1984,
page 27, see also, ERA v. Clark, 746 F.2d 1528. 
Herein the Court faces a classic example of why one must not
"have the exercise of his liberty of expression in appropriate
places abridged on the plea that it may be exercised in some other
place." Southeastern Promotions, Ltd. v. Conrad, 420, U.S. 546, 556 (1976).
[3 Federal defendants have pointed to a decision by Judge
Richey (Defendants' Exhibit 1), and claim "it is significant ***
because it is the only pronouncement of any judge of this Court
as to the validity of the three foot rule." (Opposition, page 4).
At an evidentary hearing plaintiffs will illustrate that Judge
Richey's Order is predicated on an erroneous assumption, fostered
by the Administrative Record, that the three foot rule was
necessary to "prohibit persons from abandoning or not attending
their signs" (Defendants' Exhibit 1). Not even the voluminous
Administrative Record makes any pretense that the rule was
"tailored to serve the substantial interest in the security of the
White House (or) high government officials" (COMPARE Defendants'
Exhibit 1, citing White House Vigil v. Clark, 746 F.2d 1518). More
to the point in USA v. Musser, Cr. 87`157, Judge Richey has given
no consideration to the allegations raised by this suit that the
regulation in question is a narrow component of a broader scheme.
Defendants urge that "(b)efore examining the application of
this standard to the Lafayette Park regulation it is important to
emphasize generally that the regulation was adopted to "restore
aesthetic quality to the park."
"For example, in evaluating the ordinance before us in this
case, the city might be pursuing either of two objectives,
motivated by two very different judgments. One objective might be
the elimination of `visual clutter,' attributable in whole or in
part ot signs posted on public property. The aesthetic judgment
underlying this objective would be that the clutter created by
these signs offends the community's desire for an orderly, visually
pleasing environment. A second objective might simply be the
elimination of the messages typically carried by the signs. In
that case the aesthetic judgment would be that the signs' messages
are themselves displeasing. The first objective is lawful, of
course, but the second is not. THE CITY MIGHT EASILY MASK THE
SECOND OBJECTIVE BY ASSERTING THE FIRST AND DECLARING THAT SIGNS
CONSTITUTE VISUAL CLUTTER. IN SHORT, WE MUST AVOID UNQUESTIONED
ACCEPTANCE OF THE CITY'S BARE DECLARATION OF AN AESTHETIC OBJECTIVE
LEST WE FAIL IN OUR DUTY TO PREVENT UNLAWFUL TRESPASSES UPON FIRST
AMENDMENT PROTECTION." City Council v. Taxpayers for Vincent, 104
S.Ct. 2139 (1984), EMPHASIS ADDED.
Defendants rely heavily on the pretext that they were impelled
to the March 5, 1986 regulation on the basis of "citizen
complaints." Opposition, e.g. pages 7, 12, 13, 16. On the face of
the Administrative Record several factors are apparent which give
some indication that the defendants tried to "mask the second
objective by asserting the first." A) Not all of the "16 written
requests for some action against the visual blight in Lafatette
Park" (Fed. Reg. August 20, 1985, page 33573) made any mention of
signs, or even demonstrations, in Lafayette Park (e.g. Ad. Rec.
I.A. 24, I.A. 30, I.A.37). B) Some "written complaints" implied,
or explicitly stated personal opposition to "the messages typically
carried by the signs" (e.g. Ad. Rec. I.A.11, I.A.13, I.A.24). C)
The Administrative Record contains less than 300 signatures in
favor of regulations limiting the use of signs by demonstrators in
Lafayette Park, and more than 3,000 signatures in opposition to
those regulations. D) It is also as clear as the quack of a duck
that not all of the complaints came from different complainants
(e.g. Ad. Rec. I.A.1, III.A.2.99 (Best); I.A.33, III.A.1.57
(Centner); I.A.9, III.A.2.36 (Dalecke); I.A.19-20, III.A.1.18
(Fife); III.A.1.40, III.A.1.36 (Griffith); III.A.1.162, III.A.1.164
(Kohler); I.A.24-25, III.A.2.118 (Lynch); III.A.1.37, III.A.a.38
(Miller); I.A.34, III.A.2.66-68 (Pipal); III.A.1.112, III.A.1.106
(Staum); III.A.2.95, III.B.10, III.B.14 (Vaden); I.A.21,
III.A.2.15 (Hatfield); I.A.16, III.A.1.153, III.D.34 (McC
Mathias); III.A.1.1 to III.A.1.6 (Hart)).
One more indication of the selective nature of the Lafayette
Park regulation is the fact that in certain important areas it is
pointed directly at individuals and small groups, who would
normally be exempted from permit restrictions under the provisions
of the Code of Federal Regulations Section 50.19 (b)(1)(1986).
Plaintiffs ability to communicate has been severly crippled by the
prohibition that groups of less than 200 may not use speaker's
platforms larger than 3ft. x 3ft. x 3ft.. However we believe that
the extent of the "dimution" of our ability to communicate should
be determined only after a full hearing of fact encompassing all
aspects of the Complaint in this matter. COMPARE Opposition, page
After "complaints from the public," defendants make reference
to "safety conditions," "accidents and near accidents," and
"significant damage to the park." Opposition, pages 6 and 7.
These incidents, or alleged incidents, are clearly matters of fact
to be determined in the light of testimony and evidence, rather
than to be unquestioningly accepted on the strength of defendants'
conclusory pleadings. We believe that evidence will show that
these incidents are at best exaggerations, and at worstintentional
deceptions which were "intended to encourage public support for
regulations under color of which defendants have deprived
plaintiffs of rights and privileges." Complaint, paragraph 20.
At an evidentary hearing, through testimony and the Adminis-
trative Record, we will establish that defendants already had
adequate regulatory means to ensure that the park would not be a
"repository for trash," and to "restore aesthetic quality to the
park." We will show that defendants used those existing
regulations, but only after allowing, if not promoting, a "degen-
erated" situation in Lafayette Park and utilized that situation as
a public relations ploy by which to poison the public mind against
plaintiffs; although defendants knew that the plaintiffs to this
suit were in no way responsible for that "degenerated" situation,
and knew, or should have known precisely who was responsible.
COMPARE Opposition, page 6.
"In Schneider v. State, 309 U.S. 147 (1939), the Court
held that ordinances that absolutely prohibited handbilling on the
streets were invalid. The Court explained that cities could
adequately protect the aesthetic interest in avoiding litter
without abridging protected expression merely by penalizing those
who actually litter." City Council v. Taxpayers for Vincent, 104
S.Ct. 2131 (1984).
Defendant's also rely heavily on the Justice White's "most
restrictive means" theory. Opposition, pages 8 and 9. We think
that this theory has been clearly and most intelligently debunked.
"We do not believe that Justice White's opinion in Clark
rejected the less restrictive means analysis. (Cites omitted).
Although the opinion rejects the lower court's
less-restrictive-means holding, we read Justice White to say that
the alternatives were not adequate. Although Justice White has
elsewhere expressed his disapproval of the less-restrictive-means
standard (cites omitted), that view has never attracted a majority
of the Court. (Cites omitted)." City of Watseka v. Illinois
Public Action Council, 796 F.2d at 1554, ftn. 13; Summarily
Affirmed, January 20, 1987, Supreme Court No. 86-631.
On July 6, 1987 plaintiffs filed a Proposed Temporary Restraining Order, and a Proposed Declaratory Judgment Order.
Plaintiffs do not propose that the Court should execute the Order
for Declaratory Judgment prior to the conclusion of a trial on the
merits. We do not seek a Preliminary Injunction per se, and
therefore, the Court need address only the issues raised by the
The necessity for a TRO is highlighted by the Government's
admission that "its only interest interest in (a recent case
against plaintiffs William and Ellen Thomas) was in 'enforcing the
regulations' at issue." SEE, USA v. Thomas, CR. 87-62, Order of J.
Richey, at page 2, filed May 23, 1987.
In the TRO plaintiffs pray for only two, simple and reasonable
remedies. FIRST clear definitions of a) "camping," b) "casual
sleep," c) "impacts which the area cannot sustain," and d)
"property," ... enabling them to maintain their respective
demonstrations within the law  ... SECOND that Defendants Hodel,
Robbins, and Bangert shall not allow, condone, or support threats
of arrests, or arrests of plaintiffs for any activities
unless it can be shown that plaintiffs have "impacted park lands in
an unsustainable manner," or threatened some other substantial
Government interest (SEE Federal Register, June 4, 1982, Vol. 47,
No. 108, p. 24301)
[4 "It is possible for a law abiding person to accommodate a
protest like yours with the valid laws regulating the use of public
parks ... " United States v. Thomas, CR. 83-243, Sentencing
Memorandum, page 1, filed July 19, 1984, J. Oberdorfer.]
Certainly the proposed Order will cause defendants no damage,
in the absence of such an Order plaintiffs will continue to suffer
intense emotional distress, and the disruption of their lawful
activities as they remain at the unbridled mercy or whims of
individual police officials. Surely the interests of a democratic
society will suffer if "men of common intelligence must
necessarily guess at [a regulation's] meaning" when a mistaken
guess could subject them to imprisonment during the course of
socially essential communicative activity. Conally v. General
Construction Co., 269 U.S. 385 (1926); Papachristou v. City of
Jacksonville, 405 U.S. 156 (1972); Kollender v. Lawson, 103 S. Ct.
1855, 1858 (1983).
William Thomas, plaintiff, pro se
1440 N Street NW #410
Washington, DC 20005
Concepcion Picciotto, Plaintiff Pro Se
Post Office Box 4931
Washington, D.C. 20008
Ellen Thomas, Plaintiff Pro Se
1440 N Street NW, #410, DC 20005
Robert Dorrough, Plaintiff Pro Se
Post Office Box 27217
Washington, D.C. 20038
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