MARY HUDDLE and PHILIP JOSEPH, et. al., )
)
Plaintiffs, Pro Se )
) CA 88-3130-JHG
versus )
) Judge Joyce Hens Green
RONALD WILSON REAGAN, et. al., )
________________________________________)
"The Magistrate heard oral argument (on defendants' Motions for Summary Judgment) on November 15, 1986....1/ The Magistrate has since carefully considered defendant's motion for summary judgment... " (D.C. Defendant's Exhibt A, page 3.) "(T)he grav(a)men of plaintiff's complaint and theory of liability as to Captain Canfield is that he acted individually and in conspiracy, as part of a `joint venture' with the federal defendants to violate his First, Fourth, [Fifth, Ninth] and Fourteenth Amendment rights in initiating criminal prosecution against him maliciously and without probable cause for the purpose of interfering with his demonstration activities on the White House sidewalk." (Ibid. [Parentheses added].)
1/ Actually the hearing was held on November 14, 1986 (Docket Number 292).
deprivation of rights protected by the Constitution.... (G)overnments, like every other Section 1983 'person,' by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom has not received formal approval through the body's official decision making channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. Kress & Co, 398 U. 144, 167-168 (1970): 'Congress included customs and usage (in Section 1983) because of the persistent and widespread discriminatory practices of... officials.... Although not authorized by written law, such practices of ... officials could well be so permanent and well settled as to constitute a "custom or usage" with the force of law.'" (Monell v. New York City Dept. of Social Services, 430 U.S. 690, 691.)
"...there are no genuine issues of Material Fact in dispute which would warrant a trial." (Ibid., page 2.)
"that it was their intent to have (plaintiff William Thomas) move his structures from the White House sidewalk." Exhibit 52, p. 66, Deposition of Michael Canfield, July 10, 1986.
2. RICHARD ROBBINS: "(On March 11, 1983) 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." Exhibit 55, Defendant Robbins' testimony December l3, l983, ERA v. Watt, at 51.
3. CHRISTOPHER MERILLAT: "(On March 11, 1983) 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.... 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." Exhibit 50, Testimony of Lt. Merillat, May 19, 1983, USA v. Thomas, CR 83-56.
5. (By Lt. Merillat) "....I directed (Thomas) that Captain Canfield would be discussing something with him, reference to abating a nuisance.... At that time, Captain Canfield opened the curtain himself, directing Mr. Thomas to abate the nuisance or he would be subject to arrest." Exhibit 5l, USA v. Thomas, Cr 83-056, May l9, l983 testimony of Merillat.
6. "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." COMPARE Exhibit 59-A, para. l, 2, Declaration of Concepcion, and Exhibit 59-B, testimony of Lt. Merillat.
Just the same, civil conspiracy is:
"to participate in an unlawful act, or a lawful act in an unlawful manner." (See, e.g. Ryan v. Eli Lilly & Co., 514 F. Supp. 1004, 1012.)
"From the very beginning, when those signs began to be left, unattended and attended ... we started to have a concern. We met with individuals and legal people from Interior and Park Police to work out some kind of arrangement.
( ...)
"I don't remember exactly when I first saw them out there, physically, but it became apparent that this was
going to be a wave of the future." (Exhibit 2l, Testimony of Jerry Parr, ERA v. Watt, 746 F2d 1518, May 3, 1983, USDC CA 83-1243; Compare Exhibit 22 testimony of Patricia Bangert, November 30, 1983 [ibid]). 2/
"As you know, we are not in complete agreement concerning the presence of large, display board type signs on the White House sidewalk." (Exhibit 4l, Defendant Jerry Parr letter to Defendant Richard Robbins, January 10, 1983.)
"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." (Exhibit 42, Memo from James G. Watt, January 13, 1983.)
"(T)he problem ... is that for ten years Court decisions have held that structures must be allowed at demonstrations." (Exhibit C, Bangert quoted in the New York Times, September 7, 1984.) Defendant Bangert added that "other Court decisions have ordered the government to permit demonstrations on a 24-hour basis.... "
2/ ART SPITZER (counsel for plaintiff ERA): "When you
say the large sign such as then was occurring on the White House
sidewalk, are you referring to a large wooden object that might
be described as a sign or a structure that was used by a person
named William Thomas in his demonstration that had wheels on the
bottom and a sloped front and triangular wooden sides?"
"Ms. Concepcion and Mr. Dorrough were directed to remove the signs, which they did, Mr. Thomas was directed 'don't bring them back'." Exhibit 56, Testimony of Merillat, USA v. Thomas, CR 83-056, May 19, 1983 at 75.
7. 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." Exhibit 52, p. 66, Defendant Canfield's deposition of July l0, 1986, quoting his Grand Jury testimony, Exhibit 49, April 8, 1983, pages 2 and 3.) 3/
"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 coincidence.
"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 THIS CASE, IT NEED NOT RESOLVE THIS PARTICULAR ISSUE." Exhibit 49, Memorandum Opinion, ERA v. Watt, CA 83-1243 at pages 14 and 15, EMPHASIS ADDED.
Judge Bryant should be considered a "reasonable fact-finder." Therefore this Court may perceive the Magistrate's Recommendation to be based on a demonstrably invalid postulate of "insubstantial evidence."
3/ Although defendant Canfield's testimony to the Grand Jury on April 8, 1983 is cited in D.C. Defendant's Exhibit A at 2 and 3, the Magistrate deleted the reference which explained how defendant Canfield "became involved in it." Additionally the Magistrate incorrectly identified the quote as being from "the December 6, 1985 deposition of Captain Canfield."
"There is simply no evidence that law enforcement officials intended to preclude him from engaging in all demonstration activities." D.C. Defendant's Exhibit A, page 12, ftn. 10, emphasis in the original.
"Every person who, under color of any ... regulation ... subjects, or causes to be subjected,... anyperson within the jurisdiction (of the United States) to the deprivation of any rights, privileges, or immunities secured by the Constitution..." is in violation of Title 42 USC, Section 1983, and "If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ... if one or more persons engaged therein do or cause to be done any act in furtherance of the
4/ Plaintiff would direct the Court's attention to the fact that throughout the proceedings in CA 84-3552 he has filed various documents as attachments to his pleadings. Plaintiff asks the Court to take Judicial Notice of those documents, and to direct counsel for defendants to note any objection they may have to those documents as evidentiary material in this matter.
5/ e.g. A photographer, by arrangement of the Park Police, was present at the scene of the March 11, 1983 incidents. He took well over ninety (90) photographs (see Declaration of William Thomas in support of the Amended Complaint, pp. 3-l5. No fact-finder has considered the series of events depicted in those photographs.
object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators." (Title 42 USC, Section 1985(3), emphasis added.)
"'[T]he original meaning of 'joint tort' was that of vicarious liability for concerted action. All persons who acted in concert to commit a trespass, in pursuance of a common design, were held liable for the entire result.' W. Prosser, Law of Torts, Section 46, at 291 (4th ed. 1971). (Prosser's) illustration portrays a standard situation that involved this 'joint tort': combined action by tortfeasors on the scene together - 'one might have battered the plaintiff, while another imprisoned him, and a third stole his silver buttons.' Each was responsible for the others' actions." (Halberstam v. Welch, 705 F.2d 477.) "A conspiracy need not be established by direct evidence ... but may, and generally must, be proved by a number of indefinite acts, conditions, and circumstances which vary according to the purpose to be accomplished." (Davidson v. Simmons, 203 Neb. 804, 280 N.W. 645 [1979].)
"The record ... demonstrates that (plaintiffs), in displaying (their) placard(s) which contained a constitutionally protected message, in a peaceful manner, from an appropriate place, (were) engaged in activity protected by the First Amendment, and that the destruction (or confiscation) of (their) signs by (Government agents) deprived (them) of that right. (They) thus made out a prima facie case for damages under section l983." (Glasson v. City of Louisville, 5l8 F2d 904, 908 (l977), USApp 6th Dist. (cert. denied).)
"Where police officers ... acting pursuant to general notice given at (a) meeting at which police chief was present, destroyed (a) protest sign ... police officers and police chief were liable under civil rights statute prohibiting conspiracies to deny equal protection." (Ibid. at 906.)
"Mr. Thomas has failed to established (sic) throughout these proceedings that he could not have continued with his demonstration activities ... provided he conformed his conduct to the regulations...." (D.C. Defendant's Exhibit A, page 12, at footnote 10).
6/. JUDGE: "Let me ask you this ... hasn't it been
one of those things where he (Thomas) gets arrested today for
doing "x" conduct, and then he goes back out and he
does "x" minus "y" conduct, right? And he
gets arrested. And then he goes back out and he does "x"
minus "y" minus "z" conduct. In other words,
wherever you folks draw the line, he wants to stay on that line?"
CONSISTENTLY CHOSE NOT TO MEET PLAINTIFF FACE TO FACE TO WORK OUT THEIR POLITICAL, RELIGIOUS OR SOCIAL DIFFERENCES, DESPITE PLAINTIFF'S REPEATED REQUESTS. Rather, in their official capacities, defendants chose to direct the force and violence of various police agencies against plaintiffs and his communications devices.
"(P)laintiff also averred that, defendant Canfield at no time, ever suggested to Thomas that he should seek a Permit for any purpose from any party." (D.C. Defendant's Exhibit A, page 5).
CANFIELD: "'You will have to obey the law, and if you are sleeping on this, on public space at night, you'll have to get a permit.' And that's all I asked you to do, is comply with the law. And then you rebutted by threatening to sue me.
"And then the next day I came down and showed you the specific law and then you still -- was uncooperative." THOMAS: "I object to this. I don`t believe that this happened and --" MAGISTRATE BURNETT: "Well, the point is, you'll have a chance to testify at the trial, and that's what a trial ultimately is for... " Exhibit 52, Deposition of Michael Canfield, Thomas v. USA, July 10, 1986, page 56. "It is, of course, academic that a motion for summary judgment should never be granted if there remains in the case a genuine issue of material fact. CREDIBILITY OF THE WITNESSES OR OF THE PARTIES MAY WELL BE SUCH A GENUINE ISSUE." (United States v. United Marketing Association, 291 F.2d 851 (1961), EMPHASIS ADDED.)
"Thomasaverred that Captain Canfield returned the next day ... and threatened to arrest him for vagrancy. According to plaintiff, 'defendant Canfield knew such a threat would have been unconstitutional, but made the threat to intimidate Thomas'" (D.C. Defendant's Exhibit A at 5),
and despite the fact Defendant Canfield said: "That's been unconstitutional for quite some time, several years" (Exhibit 52, Deposition of Michael Canfield, July 10, 1986, page 44), the Magistrate just said:
"Plaintiff's allegations of harassment or threatened arrest for vagrancy by Captain Canfield are simply not actionable" (D.C. Defendant's Exhibit A, page 16),
presumably because:
"Captain Canfield has vehemently denied that he threatened Mr. Thomas with arrest for vagrancy...."
"In view of the relationship of credibility to the defense asserted ..., it can scarcely be gainsaid that the court in so doing resolved a dominant factual issue, thus not only invading the province of the jury but obviating the truthtesting process of cross examination." (United States v. United Marketing Association, 291 F.2d 854.)
"(t)he evidence in this case clearly establishes that all communications between Captain Canfield and Lieutenant Merillat and that Captain Canfield had with others were for proper police business." (D.C. Defendant's Exhibit A, page 12.)
approval from the General Counsel... to abate the nuisance." Exhibit 5l. 7/.
7/.
THOMAS: "(W)hat I am wondering now is whether or not anyone explained to you what the nuisance was that you were trying to abate. What nuisance were you down there (on March 11, 1983) to abate?"
CANFIELD: "I was attempting -- the nuisance I was attempting to abate was you sleeping in a structure on public space." Exhibit 52, Deposition of Michael Canfield, July 10, 1986, page 62. THOMAS: "Was I asleep at that time?"
CANFIELD: "What time?"
THOMAS: "At the time that you warned me not to use this sign as a living accommodation.... Specifically when you were arresting me, when you stuck your head in and allegedly saw me flicking the Bic, was I sleeping?"
CANFIELD: "No, sir." (Ibid., page 74.)
arresting whom on March 11th? 8/
"It may well be that the weight of the evidence would be found on a trial to be with defendant. But it may not withdraw these witnesses from cross-examination, the best method yet devised for testing trustworthiness of testimony. And their credibility and the weight to be given to their opinions is to be determined, after trial, in the regular manner." (Sartor v. Arkansas Natural Gas Corp, 321 U.S. 620 [1944]).
"Plaintiff also claims that USPP officers used trucks to unlawfully remove his signs on March 11, 1983 following his arrest by Captain Michael Canfield even though two other demonstrators, Robert Dorrough and Concepcion Picciotto, remained after his arrest and claimed part ownership of the signs.... After Captain Canfield arrested plaintiff, the USPP acted properly in impounding plaintiff's property for inventory and safekeeping. These officers had no obligation to allow the other demonstrators possession of the signs and structure until true ownership of the property could be established.... Further, there is no proffered evidence that Captain Canfield directed or instructed them to do so." (D.C. Defendant's Exhibit A at 17.)
The facts are:
8/ Defendant Canfield's recollection with respect to the papering of that case is a little foggy:
THOMAS: "Were you accompanied by any other officers when you spoke with the U.S. Attorney?"
CANFIELD: "There may have been another officer down there from the Metropolitian Police, I don't recall now."
THOMAS: "May there have been an officer there from the Park Police?"
CANFIELD: "I don't recall representation from the Park Police there. It wasn't their case, it was a District of Columbia case."
THOMAS: "Wasn't their case? So it would not have been likely then, is that correct, for the Park Police officers to have been there?"
CANFIELD: "It would have been highly irregular and unusual." (Exhibit 52, deposition of defendant Canfield, July 10, 1986, at 107.)
directed or instructed the removal of the signs. 9/
"Even if, as plaintiff contends in his opposition motion at paragraph 10, that Captain Canfield advised Mr. Thomas that he had twenty (20) minutes to remove the structure, this does not alter the fact that Captain Canfield acted properly in requiring plaintiff to `abate the nuisance.'" (D.C. Defendant's Exhibit A, pg. 6, ftn. 6.)
9/
THOMAS: "Who impounded it?"
CANFIELD: "I did, or the Metropolitan Police Department."
THOMAS: "Metropolitan?"
CANFIELD: "Yes. I'm sure you're referring to the pictures on page 50, 51, and 49 (of the Original Complaint). However, it reflects that Park Police had a flatbed truck there and working --"
( ...)
THOMAS: "But if someone had come forward, the 'structures' wouldn't have been confiscated?"
( ... )
CANFIELD: "I don't think I would have-- logistically it's a nightmare to take the structure anyplace, and if somebody had claimed it and pushed it away, we would have probably let them do it, because it certainly is an expense to the District government to impound this type of property." Exhibit 52, Michael Canfield deposition, July l0, l986, at p. l09-110.
10/
THOMAS: "Is it possible that what you said was that I had twenty minutes to move the sign or would be arrested?"
( ...)
CANFIELD: "No... I did not say that, Mr. Thomas. I told you I would give you a reasonable time to abate the nuisance and I defined that as by the end of the day." Exhibit 52, Deposition of Michael Canfield, July 10, 1986, page 83.
"joint venture" to remove constitutionally-protected signs from the vicinity of the White House "under color of regulation" 11/.
"If [the plaintiff] can establish that [one defendant] participated in or induced the alleged wrongful actions of [a second defendant] pursuant to an agreement, then [the first defendant] is liable as a conspirator for the damages proximately caused by these wrongs." (International Underwriters, Inc. v. Boyle, 365 A.2d at 784 {D.D.C 1971}.)
"The... theory of liability as to Captain Canfield is that he acted individually and in conspiracy, as part of a 'joint venture,'... in initiating criminal prosecution against (plaintiff) maliciously and without probable cause for the purpose of interfering with his demonstration activities...." (D.C. Defendant's Exhibit A at 3) 12/,
the Magistrate hypothesized:
11/ CANFIELD: "I had a flatbed truck to haul it away if he didn`t move it" Exhibit 49, Grand Jury testimony of Canfield, April 8, 1983, page 9.
12/ It should be noted that during depositions the Magistrate professed to lack comprehension on this point:
THOMAS: "I'm also alleging in the complaint, Your Honor, that there was malicious prosecution and abuse (of) process."
MAGISTRATE: "I've read the file now completely, and I don't see that in the case, at this point." Exhibit 52, Deposition of Michael Canfield, July 10, 1986, page 100.
Actually a careful reading of the Complaint would reveal:
"The 'arson' arrest... was at best a classic example of selective enforcement or, at worst, part of a concerted effort to bring criminal charges against plaintiff, in either case (it) violat(ed) plaintiff's First, Fourth, Fifth...Ninth (and Fourteenth) Amendment rights." Thomas v. USA, CA 84-3552, Complaint filed Nov. 2l, l984, para. l66.
"(t)he fact that plaintiff was not arrested for maintaining a temporary abode is... immaterial because Mr. Thomas was charged and convicted for setting fire to his structure and causing substantial damage to the White House fence." (D.C. Defendant's Exhibit A at 3.)
"defendant Canfield has responded to plaintiff's allegations on the ground that he acted in good faith in arresting the plaintiff, based on probable cause, with a reasonable belief in the lawfulness of his actions." (Ibid.)
"Whoever maliciously injures or breaks or destroys, or attempts to injure or break or destroy, by fire or otherwise ...." (D.C. Code, Section 22-402, emphasis added).
13/
"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(footnote 13/ continued bottom next page)
13/ (continued from previous page)
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." (Exhibit 60, Public Defender Service Memorandum, Allie Sheffield to Charles Ogletree, July 26, l983.) (EMPHASIS added.)
14/
THOMAS: "Did you have any reason to believe that I intended to cause damage to the pillar by setting fire to the sign?"
MS. STAEMPFLI: "Your Honor, I object."
MAGISTRATE: "I have to say, that's not relevant to the question of your First Amendment issues at this point." ...
THOMAS: "It's relevant, I believe, to (Mr. Canfield's) actions, Your Honor, because he followed through on a charge of, I believe it was criminal damage."
MAGISTRATE: "Well,it's destroying of property is what he said it was (inaudible)." ( ... )
THOMAS: "Now -- but the elements of this charge require intent on the part of the defendant." ( ... )
MAGISTRATE: "I think that is immaterial and irrelevant to the questions you have about the First Amendment issues and what his intent really was and his conduct." ( ... )
THOMAS: "Well, it's also, I thought, about malicious prosecution and I think that his intent with regard to this particular question is important as to whether or not he had reason to believe that there was probable cause for arresting me on a charge that required intent."
MAGISTRATE: "All right, sustained ..."
THOMAS: "Okay. I'D LIKE TO CERTIFY THIS QUESTION."
Exhibit 52, Deposition of Michael Canfield, July 10, 1986, page 125-126, EMPHASIS ADDED.
"In Adickes v. H.S. Kress, 398 US 144 (1970), the Court emphasized that the availability of summary judgment turned on whether a proper jury question was presented. There, one of the issues was whether there was a conspiracy between private persons and law enforcement officers. The District court granted summary judgment for the defendants... We reversed, pointing out that the moving parties' submissions had not foreclosed the possibility of the existence of certain facts from which 'it would be open to a jury... to infer from the circumstances' that there had been a meeting of the minds. Id at 158-159." (Anderson v. Liberty Lobby, decided June 25, 1086, slip Opinion at 6.)
supervising discovery pursuant to 28 USC 636, has acted as if conducting a trial ... sans testimony from the plaintiffs or any nonhostile witnesses ... summarily exonerating defendants' motives and intents.
Respectfully submitted,
_____________________________
William Thomas
Peace Park Antinuclear Vigil
Plaintiff, pro se
1440 N Street, N.W. Apt. 410
Washington, D.C. 20005
202-462-0757
I William Thomas, hereby state that, on this l7th day of January, 1989, I caused a copy of the foregoing Plaintiffs' Opposition to the Distict of Columbia's Motion to Dismiss or for Summary Judgment, to be hand delivered to the office of Assistant Corporation Counsel Arthur Burger, 1350 Pennsylvania Avenue, N.W., Washington. D.C. and Assistant U.S. Attorney Micheal Martinez, at Judiciary Square, 555 4th Street, N.W., Washington, D.C. 20001.
_____________________________
William Thomas