UNITED STATES OF AMERICA 
 
         v.             Action No. D-4369-96


WILLIAM THOMAS 
     Defendant. 

Washington, D.C.
April 2, 1997

The above-entitled matter came on for a hearing before the Honorable JOHN H. TREANOR, JR., Hearing Commissioner, in Courtroom Number 8A.

APPEARANCES:

On behalf of the Government: SCOTT DAMON, ESQ. On behalf of the Defendant: MARK GOLDSTONE, ESQ.

Deposition Services, Inc.
6245 Executive Boulevard
Rockville, MD 20852
(301) 881 3344

2300 M Street N.W.
Suite 800 Washington, D.C. 2003

WITNESSES

Direct Cross
For the Government:
Officer David Lombardi

(By Mr. Damon) . . . . . . . . . . . 10, 41

(By Mr. Goldstone) . . . . . . . . . . . . . . 27

PROCEEDINGS

THE DEPUTY CLERK: Calling the matter of United States v. William Thomas, Case Number D-4369-96.

THE COURT: Where is Mr. Thomas.

MR. GOLDSTONE: He's on his way in.

THE COURT: How are you, Mr. Thomas?

THE DEFENDANT: Thank God I'm all right. How are you?

THE COURT: Hum?

THE DEFENDANT: I said thank God I'm all right. How are you?

MR. GOLDSTONE: Mark Goldstone appearing for Mr. Thomas who is present, Your Honor. We're ready to proceed.

THE COURT: All right. And the Government?

MR. DAMON: Scott Damon, Your Honor. Assistant Corporation Counsel.

THE COURT: All right. Be seated, gentlemen. All right. The complaint alleges violation of D.C. Code, Loud and Boisterous, violation of 22-1121(1)DO-32. Under circumstances, such a breach of the peace might be occasioned by a act in a manner as to annoy, disturb, interfere with, obstruct and be offensive to others by acting loud and bolster oust All right. Any pre-trial motions?

MR. DAMON: Not from the Government, Your Honor.

THE COURT: Mr. Goldstone ?

MR. GOLDSTONE: No, Your Honor. But I would ask for the Government opening statement, please.

THE COURT: Yes. They'll make an opening statement. And do you want a rule on witnesses?

MR. DAMON: Yes, Your Honor. The Government has only one officer. I'm not sure if some of the people-in the courtroom now are the ones the defense is going to call.

THE COURT: Well, we'll have a -- do you want a rule on witnesses if some of them are here?

MR. DAMON: Yes, Your Honor. Yes.

THE COURT: All right. Anybody who is a witness in this case, kindly wait outside. Now, I understand there's somebody here from out of town.

MR. GOLDSTONE: Yes. It's Mr. Walsh.

THE COURT: Who was that again?

MR. GOLDSTONE: He's not here right this second. He's in the hallway.

THE COURT: If I can get to him today, I will, okay? I'll try to get to him. It all depends on how quickly the trial -

MR. DAMON: I'll try to be brief with the witness, Your Honor.

THE COURT: Okay. All right. The rest of you please wait outside. I'll call you.

MR. GOLDSTONE: These aren't witnesses, Your Honor

THE COURT: Oh. They're not witnesses. All right Opening statement. You may proceed.

MR. DAMON: Thank you. Just briefly, Your Honor, in the case of District of Columbia v. William Thomas, the Government will present only one witness. That's Officer David Lombardi of the United States Park Police. He will tell the Court that back on November 4, 1996, that's a Monday afternoon around 3:40 p.m., he was on duty working in the area of Lafayette Park across from the White House.

He approached the, what he described as a film or news crew that was in the park. There was a cameraman, there was a male who was holding a camera on a tripod. There was also a female who was apparently engaged, was holding a conversation with Mr. Thomas.

And Officer Lombardi had approached the crew and asked them basically what they were doing and that the defendant basically began yelling at him, made a number of statements towards the officer. Essentially the officer had told him to calm down. A crowd of people including some tourists, the officer will tell you, crowded around.

The officer was there alone, that he felt that the defendant was basically acting loud and boisterous and he called for a supervisor. But that supervisor wasn't going to be available for a period of time, that he instructed the defendant to calm down, that he would have to leave the area

That went on for a few minutes and essentially, the defendant then got on a bicycle, was riding around the area. The officer was telling him, you've got to calm down, you're going to leave. There was no response from the defendant an after that point, the Officer Lombardi placed him under arrest.

The supervisor eventually did come and at that point, he was placed in a police vehicle, taken to the District, a District Station at Haynes Point and he was processed. There was -- the officer will testify the defendant made a statement to him when he was processing him back at the station also.

And, Your Honor, the Government will show that through the testimony of Officer Lombardi that in fact, there were circumstances based on the defendant's actions that created a, that were likely to provoke a breach of the peace in this incident. Thank you.

THE COURT: Okay.

MR. GOLDSTONE: I would move for judgment of acquittal. Absolutely nothing that remotely approaches a breaking of this statute, Your Honor. This statue is not designed to interfere with people's First Amendment rights to speak in the park, to communicate with film crews and to have their positions made known to a larger public.

The Government attorney just stated that this person was being interviewed by a film crew and this officer interdicted that communicative speech. On that alone, the Government cannot prove beyond a reasonable doubt that this individual was loud and boisterous. If anything, individual should be loud and boisterous when a member of the Park Police comes in and interdicts them from being able to give their views in Lafayette Park.

We're talking about the highest, the highest and most treasured part of our universe, the First Amendment rights, in Lafayette Park. There is no higher place to demonstrate First Amendment rights.

THE COURT: It's like any other place, isn't it?

MR. GOLDSTONE: No, it isn't.

THE COURT: It's a park.

MR. GOLDSTONE: It's a park, Your Honor, but it has -- the courts have explicitly recognized that this has the highest value -

THE COURT: It gets more attention.

MR. GOLDSTONE: It gets more attention because of its unique status in front of the White House.

THE COURT: Not any more unique than anyplace else except geographically, it's near the White House.

MR. GOLDSTONE: And that's exactly the point.

THE COURT: Well -

MR. GOLDSTONE: So if people have rights to speak and demonstrate in Grand Teton National Park in Wyoming, certainly in front of the White House they have a right to speak. And the Government basically makes a defense case right there.

THE COURT: I don't think anybody is claiming that he has no right to speak there. They're not, I gather they're not claiming that he, simply by being loud and/or boisterous, that doesn't break the law. There are all kinds of loud boisterous people up there bleeding on their horns and screaming at each other and all kinds of other such. It has to, does it not, threaten a breach of the peace?

MR. GOLDSTONE: And Your Honor, it can't -- the Heckler's Veto, which is an important principle in the First Amendment law says basically that if Mr. Thomas is demonstrating, if he is engaging in First Amendment conduct, the fact that others, tourists, visitors, that they may react to his speech does not characterize his speech -

THE COURT: Well, I haven't heard anything about any reaction except the policeman's reaction.

MR. GOLDSTONE: I understand. And we move to dismiss. There's absolutely nothing that's broken the statute.

THE COURT: Well -

MR. DAMON: Your Honor, the Government has presented

THE COURT: I don't know what a film crew is either to the policeman or you.

MR. DAMON: A camera crew might be better to -

THE COURT: We've got them outside the courthouse all week long. Lafayette Park has camera people by the thousands up there. Some are observers, some of them are trying to get rich quick making a movie. I don't know. But you mention the magic words in your opening statement, that would tend to, could promote a breach of the peace. That was part of your opening statement.

MR. DAMON: Yes, it was, Your Honor.

THE COURT: Denied. We'll see what the breach of the peace, or threat to breach of the piece was. All right.

MR. DAMON: Thank you, Your Honor. Whereupon,

OFFICER DAVID LOMBARDI: having been called as a witness for and on behalf of the Government, and having been first duly sworn by the Deputy Clerk, was examined and testified as follows:

THE COURT: Good afternoon.

THE WITNESS: Good afternoon, Your Honor.

THE COURT: Sorry you had to wait so long. Okay.

Q. Sir, will you please state your whole name and spell your last name for the record?

A. It's David Lombardi. It's L-O-M-B-A-R-D-I.

Q. And who do you currently work for?

A. I work for the United States Park Police, Anacostia Operations Facility. That's in Southeast, D.C.

Q. How long have you been a park police officer?

A. Approximately one-and-a-half years.

THE COURT: Let me interrupt for a minute. Do you have any relatives on the eastern shore of Maryland?

THE WITNESS: Not that I know of, sir.

THE COURT: Okay. I just want to check. The Lombardi clan is wide-spread. All right.

BY MR. DAMON:

Q. Back on November 4, 1996, where were you working?

A. I was working the White House sidewalk.

Q. Okay. How long had you been assigned to work that area when you worked as a Park Police Officer?

A. We switch around, but I was in that area for approximately three months.

Q. Now, back on November 4th of last year at around 3:40, did something attract your attention?

A. Yes. I saw a news crew in Lafayette Park.

Q. Okay. And where -- just for the Court, describe exactly where you saw them.

A. They were on the sidewalk facing the White House.

Q. Now, is this the sidewalk right by the White House or actually in the park?

A. Across the street. Across the street. Across Pennsylvania Avenue.

Q. Okay. And what you describe as a news crew or fil crew, can you tell us why you thought they were filming?

A. Well, I saw a male that had a TV camera and he had a tripod, and a female standing there. And on Government land, there's restrictions dealing with cameras and tripods. So I went over to ask them

THE COURT: Cameras? What restriction on cameras?

THE WITNESS: Well, in certain monuments and stuff, you have to have permission.

THE COURT: To take a picture?

THE WITNESS: Well, yeah. If it's like for a commercial. If it's a private citizen,-you don't but for commercial uses you do. You have to have a permit.

THE COURT: Any kind of a camera?

MR. DAMON: If they were like filming a movie or something, Your Honor.

THE WITNESS: Yeah. If it's for commercial use.

THE COURT: Okay.

BY MR. DAMON:

Q. Now, when you first saw what you thought was a film, where were you?

A. I was across the street on the White House sidewalk.

Q. Across Pennsylvania Avenue?

A. Yes.

Q. And after you saw them, what did you do?

A. I approached them to ask them what they were doing.

Q. And did you do that?

A. Yes. I approached them and I -- just in the general area, there was two of them. I just stated what's happening or what's going on. Something to that effect.

Q. And who was this question directed to?

A. To both of them. I didn't really direct it to either one of the people. To both of them.

THE COURT: Now, wait a minute. I want to get a picture. There was the camera man, a female, anybody else?

THE WITNESS: There was the cameraman and the female. I guess she was the reporter.

THE COURT: Just two people?

THE WITNESS: Yes. Just two people.

THE COURT: And what were they doing?

THE WITNESS: They were standing there with their equipment. I could tell that they were probably from a news station. I get paid to be curious so I just went across the street to ask them what was happening.

THE COURT: Were they from a news station?

THE WITNESS: Yes. I'm not sure which one, but they were from a news station.

THE COURT: All right.

BY MR. DAMON:

Q. Was there anyone else around when you first approached them?

A. The defendant was.

THE COURT: Well, that was my question. So there were three people there?

THE WITNESS: Oh, yeah. The defendant was -I mean there was a lot of people around the area, but the defendant was in the general area, too.

MR. DAMON: May the record reflect that Officer Lombardi identified the defendant.

BY MR. DAMON:

Q. Where specifically was the defendant when you new the film crew?

A. He was standing to the left of the female reporter

Q . And from when you approached, when you saw the film

A. Well, the cameraman was just looking at the White House, looking at the general area of the White House. And the female seemed to be talking to the defendant, Mr. Thomas.

Q. Seemed to be talking, could you describe what exactly you saw? Were they just in conversation with one another?

A. Yeah. They were just looking at each other.

THE COURT: Was he filming the White House or just kind of

THE WITNESS: No. He was just looking at the White House.

THE COURT: How was he carrying the tripod?

THE WITNESS: I think he had the tripod in one hand and he just had the camera, I think, slung over his shoulder.

THE COURT: Big camera?

THE WITNESS: Yeah. It was one of the bigger ones.

THE COURT: Okay.

BY MR. DAMON:

Q. After you had approached this film crew and asked them this question, what happened next?

A. Mr. Thomas approached, stepped toward me and yelled at me, they can interview me. See what these cops do. They don't want me to talk. They don't want me to tell the truth.

Q. Can you describe his voice when he was saying those things to you?

A. He said it like -- they can interview me, like pretty loud. The general area around it heard, heard what h was saying. And when that happened, people started to walk towards the noise.

Q. Now, after Mr. Thomas was yelling at you, what did you do in response to that?

A. I stated that he needed to calm down and then I said you need to leave the area. And he sat down and then h said, No. You need to leave the area. Get out of here. Something to that effect.

Q. Okay. And what was -

A. He was still yelling and by this time, there was approximately maybe 20 people, I'm not Sure, in like a circle around, around me and Mr. Thomas.

THE COURT: What day of the week was it, do you remember?

THE WITNESS: I'm not sure.

THE COURT: What was the weather like?

THE WITNESS: I'm not sure. There was quite a few people around so it couldn't have been that bad of a day.

MR. DAMON: Your Honor, if the Court will take judicial notice, I believe it was Monday afternoon about 3:40.

THE COURT: Okay.

BY MR. DAMON:

Q. Now, you said that there was about 20 people that had gathered around. Can you describe the distance from you and the defendant when this was happening?

A. I'd say they were five to seven feet in a circle around us. Some of them appeared to be taking pictures. I actually seen one lady, she looked like she was surprised at what was happening, right across from the White House. She looked surprised and she had her hand up to her mouth.

Q. Okay. Do you know any of these people, from what you remember, who were around you at the time?

A. I noticed a few that are usually around the area that demonstrate.

THE COURT: Was the defendant one of the regulars up there?

THE WITNESS: Yes, he is. And I noticed two other l that I don't see in the courtroom right now.

THE COURT: Had you met the defendant before, ever talked to him before?

THE WITNESS: No. I've never talked to him before but I've seen him. I've seen him before but, no. I really didn't have a talking relationship with any of the people around there.

THE COURT: What does he do most of the time up

there?

THE WITNESS: He demonstrates across from the White House.

THE COURT: How does he demonstrate?

THE WITNESS: He has one of the, I think six foot long placards that says something about nuclear war or something to that effect.

THE COURT: Does he carry them or are they sitting on the ground?

THE WITNESS: No. They have them like on -

THE COURT: Tents like?

THE WITNESS: Yeah.

THE COURT: Okay.

BY MR. DAMON:

Q. Okay. So you have been -- prior to this time, you had never been involved in arrests involving the defendant, have you?

A. I've never even spoke to him.

Q. Now, in addition to people you said that circled around, were there other people in the general vicinity of Lafayette Park at this time?

A. Yes. There was people all through the park and on the White House sidewalk and on Pennsylvania Avenue since it's closed off now.

Q. About how many people around 3:40 Monday afternoon

would there be in, say in the Lafayette Park on Pennsylvania Avenue walking in the area?

MR. GOLDSTONE: Objection to the form of the question.

THE COURT: Overruled. It's a little leading. Overruled.

MR. DAMON: I'm sorry, Your Honor.

THE WITNESS: I'd say approximately maybe in the whole area, maybe 50 people.

BY MR. DAMON:

Q. Now, how many other officers or Park Police or United States District officers were around with you?

A. Well, there was just one other officer that came across the street after almost the whole situation was resolved.

Q. Now, after what you describe as a crowd had formed around you, what did you do in response to that?

A. I took a couple steps back. Since it's a sensitive area, it's right near the White House, I called for a supervisor. I figured if my supervisor, my sergeant came, that he might be able to talk to the defendant and the defendant would just leave.

All I wanted was for the defendant just to leave the area to calm the area down so the people would disperse. I gave him -- I said approximately four or five times I asked

THE COURT: Did you tell the cameraman that it was illegal to have a tripod there?

THE WITNESS: I didn't get to say anything until the defendant stepped forward and started yelling at me.

THE COURT: So you never got to speak your peace then with them?

THE WITNESS: No. No.

THE COURT: Were they any part of any rudeness or loudness toward you?

THE WITNESS: NO.

THE COURT: Okay.

THE WITNESS: They pretty much dust stood there and watched as he yelled at me.

THE COURT: They didn't film it?

THE WITNESS: No. No, they didn't

THE COURT: You didn't make -

THE WITNESS: They didn't film at all. Actually, towards the end when I was arresting the defendant, they just left.

THE COURT: You didn't make it on the evening new'

THE WITNESS: Surprisingly, no. They weren't interested in it at all.

THE COURT: Okay.

BY MR. DAMON:

Q. Now, Officer Lombardi, after you called what you described as a supervisor, what happened?

A. Well, the supervisor informed me that he was busy. It was going to take him approximately 15 minutes to get to my location. I didn't want to wait that long because of the amount of people around and the disturbance it was causing. So I went up -

THE COURT: Whoa, whoa, whoa. What? The disturbance who was causing?

THE WITNESS: Well, the defendant with his yelling .

THE COURT: He was still yelling?

THE WITNESS: No. At this time, no, he was not. No. At this time, he was not yelling. But there was still crowd around the area and I just wanted to resolve the situation. The defendant, I went up to the defendant. I told him that he needed to leave. He got on his bike, he started riding around.

I asked him a couple more times, are you going to leave. He ignored me. He started talking to another person that frequents the park. So at that time, I placed -- I said that he was under arrest.

THE COURT: Well, where were you trying to get him to go?

THE WITNESS : Just leave Lafayette Park, leave the

area. The way I look at it is disorderly conduct, loud and boisterous, is that they're causing a disturbance. If they're not drunk, if I can just get them to leave the area for awhile, the area will calm down and that's pretty much the way I look at it.

THE COURT: That was really just a bit of a con on your part, try to get him to kind of -

THE WITNESS: Yes. To leave.

THE COURT: -- get him to leave.

THE WITNESS: Yeah. He refused and I thought that he was going to cause a disturbance, a further disturbance. So at that time, I placed him under arrest.

THE COURT: Well lets talk about that. What kind of a disturbance other than the circle of apparently curious people? What was he, what was he causing? What kind of a disturbance was he causing

THE WITNESS: Like I said when he was yelling, it was just causing a lot of people to crowd around me, which I feel threatened any time a crowd forms around me.

THE COURT: Well, now, wait a minute now. I understand, of course, the importance of keeping order up there just as well as anybody here does but the cameraman and the lady apparently were leaving, were ready to leave, right?

THE WITNESS: Well, when -- towards the end of the situation, yeah, they just left. So I don't -- at that time

I don't know if they were ready to leave or not.

THE COURT: Do you think that your presence there kept the crowd -- in other words, your sort of a confrontation with this gentleman caused them to kind of stick around and see the fireworks, whatever they might be?

THE WITNESS: It might have. It might have.- But believe my duty is if I see a law being broken is to -

THE COURT: What was the law that he broke? I guess that's what we're here for.

THE WITNESS: He was causing a -

MR. DAMON: I mean, that's the crux of the argument, Your Honor, that the standard in the law is that there are circumstances based on the defendant being loud and boisterous which I believe Officer Lombardi has testified to, that those circumstances might provoke, could provoke, create circumstances and a breach of peace might occur.

THE COURT: Well -

MR. DAMON: Because that's -

THE COURT: Well, don't go over that too fast now because that's what this case is all about.

MR. DAMON: Well, Your Honor, the defendant that was yelling -

THE COURT: He was yelling, people were curious. The policeman and he were in a bit of a standoff as I'm getting the picture. He's trying to kind of move him.

MR. DAMON: Right. But to blame the officer for a crowd being attracted and curious -

THE COURT: I'm not blaming the officer for anything.

MR. DAMON: I'm not saying that you were. But that's after the fact, after the defendant had, was already acting in the manner that Officer Lombardi described.

THE COURT: I want to know what the breach of the peace is that all of this was going to -

MR. DAMON: Well, I can explain that now, Your Honor. The breach of the peace is that when Officer Lombard is there, he's alone. The breach, obviously that somebody i yelling at the police officer does not make a breach of the peace. There was a crowd of people, some -

THE COURT; The other people weren't mad at the policeman.

MR. DAMON: No, Your Honor. But the policeman, Officer Lombardi in this case, as in any case, if a crowd gathers around one person, Officer Lombardi says clearly whenever an officer is being surrounded -

THE COURT: He's a lone wolf at that point.

MR. DAMON: Right. And he doesn't know who the people in the crowd are. Clearly, some people are taking -giving the nature of the park, there's tourists around. There's people who are probably working in the office build-

ings around there. There's other tourists who are snapping pictures, could be friends of the defendant, people he doesn't know. The fact is, that's what -- part of it is built into it. Other than if you only had a crowd. If you had to show that a crowd was yelling, kill the police, we're going to hurt you, et cetera.

THE COURT: Which we don't have.

MR. DAMON: Clearly, that's not here. But that's not required for the statute, Your Honor. What essentially shows is that there is circumstances that could provoke it, the defendant's action could have when the officer came and some people see there, there's going to be some people that are going to approach and say ooh, there's something going on.

THE COURT: All right. Well, I'll let you go ahead and try your case. Mr. Goldstone will cross examine.

BY MR. DAMON:

Q. After you -- at the time you had approached the film crew and asked a question, had you directed anything, any speech towards the defendant?

A. No.

Q. After the defendant was arrested, what did you do with him?

A. I took him towards the cruiser that we have sitting on Pennsylvania Avenue and conducted a frisk of the person

before I placed him inside the vehicle.

Q. Okay. And after you, did you place the defendant in the vehicle?

A. Well, my supervisor pulled up and I briefed him on what had happened and he said, yeah. Just put him in the car and we'll take him down to the Station.

Q. Okay. And what did you do with the defendant after that?

A. I got in the vehicle and advised dispatch, our communications section, that I'd be transporting the defendant to our District 1 office for conducting paperwork.

Q. Okay. Is that what you did?

A. Yes.

Q. And where is that -- where is the District 1 Police Station?

A. It's at Haynes Point on West Potomac Park.

Q. Okay. And at the police, at the District station, what did you do with the defendant?

A. When you first bring him in

MR. GOLDSTONE: Your Honor, I object. This is irrelevant.

THE COURT: Yes. I don't see

MR. DAMON: Well, Your Honor, there's going to be -I'm sorry. There is going to be a statement which -

THE COURT: There's what?

MR. DAMON: There's a statement at the, which I believe is relevant. I'll get to the point, Your Honor. There's two more questions.

THE COURT: All right. Go ahead.

BY MR. DAMON

Q. At the police station, what did you do with the defendant?

A. I just do the paperwork to either collateral him out or send him to a block, send him to a cell block.

Q. Okay. Now, what happened with the defendant when you were doing the paperwork?

A. The defendant said, stated, you were pretty cool. I just did it to prove a point.

THE COURT: Go on back to the park. Was he using any profanity in the park? You didn't say he was.

THE WITNESS: No, no. He was just being very loud and

THE COURT: What was he saying to you? I'm still not sure? Leave me alone?

THE WITNESS: When I first went up to the film crew, he said, they can interview me. See what these police try to do. They don't want me to talk. They don't want me to tell you the truth. And that's when I said please calm down. I said you have to leave the area and then he sat do' and he started screaming, no. You leave. You get out of

here.

THE COURT: Okay. Mr. Goldstone, what do you have

MR. GOLDSTONE: Thank you, Your Honor.

BY MR. GOLDSTONE:

Q. Is it your testimony that a citizen in Lafayette Park is committing a disorderly conduct when they say to you that the film crew can interview me. See what the cops do. They don't want me to hear the truth. They don't want to hear -

THE COURT: What's your question?

BY MR. GOLDSTONE:

Q. Is that disorderly conduct?

THE COURT: Now, wait a minute. That's a legal conclusion.

MR. DAMON: I would object to that, Your Honor. That's not what his testimony was as far as -

MR. GOLDSTONE: I'm trying to get to what the basis for the -

THE COURT: Well, ask him. Ask him what you want to ask him.

BY MR. GOLDSTONE:

Q. What's the basis for the disorder conduct charge? What breach of the peace was occasioned by Mr. Thomas being interviewed by a film crew--

THE COURT. No. It doesn't have to be occasioned.

BY MR. GOLDSTONE:

Q. All right. What was the breach of peace that happened as a result or might have happened as a result of Mr. Thomas being interviewed by a film crew in Lafayette Park?

A. Well, for disorderly conduct, if he's just loud to me, no. That's not disorderly conduct. He has to be -- it has to pretty much affect other people around the area.

Q. All right. So his reaction to your telling the film crew, asking the film crew what they're doing there, his reaction is not what's the breach of the peace, is that right?

THE COURT: It was the drawing of the crowd in tandem with that is what I understand.

MR. GOLDSTONE: Okay. Fine.

BY MR. GOLDSTONE:

Q. Did Mr. Thomas, while he was objecting to your preventing him from being interviewed, did Mr. Thomas say come on people. Help me out here. I'm being harassed by the officer. I'm not allowed to give a First Amendment speech. I mean, is that what's going on here?

A. Well, when he, well, when he started -- well, when he was yelling, he was directing it towards the people around him. That's why I believe the crowd formed.

Q. Did he call to the crowd to help him out?

A. He Said. Hey, look. He said, he looked at everybody and he said they can interview me. See what these police do. And he was talking to the people in that area. I perceived him to be talking to them.

Q. Isn't it true, isn't it true, officer, that he is allowed to be interviewed in Lafayette Park? Do we admit that?

A. Yes.

Q. Okay. And there's no requirement there for, that he has to leave the park if he's being interviewed in Lafayette Park, is there? He doesn't have to leave the park if he's being interviewed, does he?

A. If he's just being interviewed, no.

Q. Okay. So being loud and boisterous to you isn't a crime. He's allowed to be interviewed. He's not calling out to the other person. I'm trying to get at what is the disorderly conduct. What is the breach of the peace that is occasioned by this, by this mans' conduct in the park?

MR. DAMON: Your Honor, objection.

THE COURT: No. That's a fair question. Over ruled.

MR. DAMON: Okay.

THE WITNESS: To me, the disorderly conduct comes

when he starts affecting other people's, starts affecting

other people.

BY MR. GOLDSTONE:

Q. All they did was gather. You didn't say that they were shouting anything or that they were loud and boisterous, did you?

A. Well, I believe I did say that I saw -- I mean, a lot of people's faces were surprised and like I did say, I did say that a female had her mouth opened and looked like she was surprised at what was happening and had her hand over l her mouth.

Q. Could it have been that she was surprised that you were preventing an interview from taking place in Lafayette Park? Isn't that possible?

A. Yes.

Q. Do you see people being interviewed in Lafayette Park a lot?

A. No.

Q. Do you see communicative activity take place in Lafayette Park a lot?

A. Excuse me?

Q. Do you see communicative activity, people expressing opinions on issues and politics? Do people communicate -

A. In a loud manner or how do you -

Q. Do people communicate in Lafayette Park?

A. Do people talk in Lafayette Park?

Q. Yes.

A. Yes.

Q. Do people have signs in Lafayette Park?

A. Yes.

O. Okay. And all of that's okay, isn't it?

A. Yes, it is.

Q. Were you given special instructions to disrupt organized demonstrations the day before the elections?

MR. DAMON: Objection, Your Honor.

THE COURT: Sustained. Sustained. Come on. This was no organized demonstration anyway.

BY MR. GOLDSTONE:

Q. Are you aware of people that have been in Lafayette Park on a more or less permanent basis for the last 10 or 15 years?

A. I don't know them on a personal basis but, yes, there are two stations that have been there, that I've heard have been there for years.

Q. Okay. And you're well aware that they have a right to be there and that they're not to be, that their rights are not to be interfered with unless they break a criminal statute, is that correct? That's your understanding of the law down there?

A. Well, to my understanding' people have said that

it's still in the court system, it's still being fought in the court system. I don't know if -- that's what my understanding of the situation is. It's still being fought in the court system.

Q. But to the best of your knowledge, there's no -you weren't told to go down there and clean up the park or get rid of protesters in the park or anything?

MR. DAMON: Objection, Your Honor. I think this was already asked and was sustained.

MR. GOLDSTONE: That's a fair question.

THE COURT: He can answer. Go ahead.

BY MR. GOLDSTONE:

Q. You can answer.

A. Was I told by my superiors to go down and break up demonstrations? No.

Q. Do you consider the act of a person being interviewed by a film crew part of a demonstration?

MR. DAMON: Objection, Your Honor, as to the relevance of the question. Officer Lombardi hasn't said, he didn't testify that there was any kind of demonstration or political protest going on at the time other than what was permanently there.

THE COURT: Yes. Sustained. I don't think that -you might rephrase that questions. You thought that the big camera, the crewman, had no bushiness being there, is

that right?

THE WITNESS: No, it isn't. I get paid to get curious. That's what police officers are. They're curious.

THE COURT: I understand but -

THE WITNESS: I had seen -

THE COURT: I thought you said earlier a half-an-hour ago or so that you had some sort of a rule against tines big cameras on tripods.

THE WITNESS: No. There are certain rules that people have to follow in the area and one of them is you're not allowed to have tripods.

THE COURT: Whose rules are those?

THE WITNESS: These are in the CFR, Code of Federal Regulations. And there's other things stating that, like I said, you have to have a permit to film or to photograph inside a federally owned area. Now, if they were on Pennsylvania Avenue, that's D.C. property, then they can have tripods, they can have cameras.

THE COURT: Well, the tourists take pictures all over Lafayette Park.

THE WITNESS: Yes. That's for a commercial purpose, that's why.

THE COURT: Hum?

THE WITNESS: For if it seems to be a commercial purpose. That's my understanding.

BY MR. GOLDSTONE:

Q. What threat did the crowd pose to you?

A. Anytime there's a crowd that encircles me, I feel threatened. I mean, they were, like I described earlier, five to seven feet away from me, approximately 20 people in circular, circle around me.

THE COURT: That seems to be what this is all about, Mr. Goldstone. The breach of the peace is the encircling crowd. Was the crowd growing or staying about the same size?

THE WITNESS: There was a lot of people in the area then as people saw, heard what was happening, more and more people were coming.

BY MR. GOLDSTONE:

Q. Would your reaction have been different if you had not been working alone?

MR. DAMON; Objection, Your Honor.

THE COURT: That's a good question.

THE WITNESS: What action?

BY MR. GOLDSTONE:

Q. Your reaction.

A. My reaction? What reaction?

Q. If you were with a partner in the park, would your reaction to this crowd that's gathering five to seven feet away from you, would that have been different?

A. I still don't understand the question.

Q. Would you have arrested Mr. Thomas if you were working with a partner? That's what we're getting at.

A. Yes, I would. He was disobeying the law. He was being loud and boisterous.

THE COURT: Could his voice be heard across Pennsylvania Avenue, do you think?

THE WITNESS: I think so. I mean, he was very loud and that's why people from all over Lafayette Park started coming towards the area.

THE COURT: Okay.

BY MR. GOLDSTONE:

Q. What was the basis for your order for him to leave the park? What formed the basis for you to order him out of the park?

THE COURT: I think you should qualify that as Mr. Lombardi did. He said he didn't order them to leave. He tried to get him to move.

MR. GOLDSTONE: He suggested in -

THE COURT: He suggested in a strong way.

MR. GOLDSTONE: -- a strong way that he leave the park. I would say that he -

BY MR. GOLDSTONE:

Q. Did you order him to leave the park?

A. As a police officer, I have a lot of leeway of what

I can do and I did not want to arrest the defendant.

Q. All right. So the answer is yes, you did order him -

A. So I gave him ample opportunity to leave the park.

Q. Right. The answer is you did order him to leave the park, isn't that correct? You ordered him to leave the park, correct?

A. I didn't say to leave the park. I stated to him, you need to leave the area.

THE COURT: Calm down I think is what you said.

THE WITNESS: I said calm down.

BY MR. GOLDSTONE:

Q. And he refused?

A. Yes. He refused.

Q. But he didn't give you any back talk in his refusal? He just went about his business in the park?

A. Oh, yes, he did. He yelled again. He said no. You leave. You get out of here.

Q. What was the crowd that was gathering around, what was the -- were their arms extended, were they upraised, were they down by their sides? I mean, were you in the threat of physical danger? What was the threat?

A. Well, when there's a, people all around you, you cannot see everybody. So there was people behind me that I couldn't see so I had no idea what their intentions to me are<./P>

Q. Nothing eventually happened?

A. No.

Q. Did there come a time when you went back to Mr. Thomas after he refused to leave the park and he was sitting in front of some signs and you had further conversation with Mr. Thomas?

A. This was an ongoing process. I didn't have to ga back to him. I took a couple steps back, called for a supervisor, immediately, a supervisor came over the radio and Said that he couldn't be there within 15 minutes so I felt that I had to take Action right now.

Q. Right. But later you went over to Mr. Thomas and asked him whether or not he was demonstrating in front of some signs, is that correct? Did you have some later discussion with him in the park?

A. I don't recall that.

Q. Okay. Do you recall kicking some literature that he had by his feet in front of his signs?

A. I know I didn't do that.

Q. You know you didn't do that?

A. I know I didn't do that.

Q. Did you see any officers kick any literature?

A. No, I didn't.

Q. Okay. Did you have any conversation with a lady by

the name of Conception Picciotto, who is a longtime Lafayette Park protector in the park?

A. I know exactly who you're talking about and like I said, I have no relationship with them at all. I have not spoken to anybody in the park.

Q. You had no conversation with Ms. Picciotto that day?

A. No.

Q. Okay. Do you know Mr. Frank Wall? Did you have any conversation with Frank Wall that day?

A. I don't know who that is.

Q. Isn't it true, Officer, that you kicked some literature that Mr. Thomas had in front of his signs?

MR. DAMON: Objection, Your Honor. That's been asked and answered.

THE COURT: I thought I had.

BY MR. GOLDSTONE:

Q. Okay. And isn't it true further that you went over to Mr. Thomas and told him that those were not his signs, isn't that correct?

A. I don't recall saying anything like that.

Q. And isn't it true that you looked at the signs to see whether or not Mr. Thomas' name was on a demonstration sign, isn't that correct?

A. No, I didn't do that.

Q. And isn't it true that you told him that his name was not on a sign and therefore, he was not demonstrating and therefore, he had no right to be in the park, isn't that correct?

MR. DAMON: Objection, Your Honor. That's been asked and answered.

THE COURT: No. He can answer that.

THE WITNESS: I have not looked at those signs that close. To my knowledge, I don't know anybody that writes their names on the signs. I don't know if they do or not.

BY MR. GOLDSTONE:

Q. And isn't it true you ordered him out of the park at that time when you felt that his name was in fact not on the sign, isn't that correct?

A. I just stated I do not know anybody that puts their name on the signs so, no. I did not do that.

Q. Okay. Was Mr. Thomas riding a bicycle in the park to your recollection on that day?

A. Yes. I stated earlier that after he said, no. You get out of here, he got on a bike. He drove around a little area and I stated a couple more times are you going to leave, are you going to leave, he ignored me.

Q. Okay. And did you see him to up to an individual by the name of Frank Wall and try to talk to Mr. Wall?

A. Yeah. He went and talked to an elderly gentleman

with I think white or gray hair.

Q. He was on his bicycle when this happened?

A. Yes.

Q. Okay. And did you, in the arrest process, knock him off of his bicycle?

MR. DAMON: Objection, Your Honor. He's testified, he's testified about him riding the bicycle.

THE COURT: You've got to ask him -- knock him off the bicycle, is that the question? Did you knock him off hi bicycle?

THE WITNESS: No, I did not. I said you're under arrest. He put his hands behind his back and I cuffed him.

BY MR. GOLDSTONE:

Q. Did he have something in his hands?

A. Not that I can recall.

Q. Did he have a cup of hot chocolate in his hands?

THE COURT: What was that last one?

BY MR. GOLDSTONE:

Q. Did he have a cup of hot chocolate in his hands?

A. I don't remember any hot chocolate.

Q. Isn't it true that the hot chocolate spilled on Frank Wall?

A. No. Because I would have remembered somebody having hot chocolate and it spilling on somebody. That person would have, I'm sure, yelled out. I would have remem-

bered that so, no.

MR. GOLDSTONE: I have no further questions.

THE COURT: All right. Anything by the Government

MR. DAMON: Just two brief questions, Your Honor.

BY MR. DAMON:

Q. Officer Lombardi, when you, you described earlier there was a number of people around you when you were engaged with the defendant. At what point did your supervisor arrive on the scene?

A. It was after I had already arrested the defendant and I was patting him down. My supervisor came and stated put him in the, put him in the car and we'll take him down to our District and book him.

Q. And during an afternoon, say a Monday afternoon like this. how many other Park Police Officers would be in Lafayette Park?

A. One other officer.

Q. Do you know where that officer was when this was taking place?

A. I think he was across Pennsylvania Avenue on the White House sidewalk.

Q. Okay. He wasn't with you?

A. No, he was not.

MR. DAMON: No further questions, Your Honor.

THE COURT: I have just, I think only one. Were any of the people in the crowd that surrounded, were any of them yelling in any way or saying anything in any way that was in support of the defendant?

THE WITNESS: I think I remember -- like I said, there are a lot of people that demonstrate in that area.

THE COURT: I know that. But would it -

THE WITNESS: And I know that some of them people were in that crowd.

THE COURT: Yes. But that isn't my question. I'm not asking whether they were there. I assume they were. I assume all of them were there probably. But were they egging him on in any way?

THE WITNESS: I'm not sure. I'm trying to think ii -I'm not really sure. I'm not really sure.

THE COURT: All right. You may step down. Thank you very much. Is that the Government's case?

MR. DAMON: It is, Your Honor.

THE COURT: Officer, just hold on just a minute, will you, before you leave. Your motion?

MR. GOLDSTONE: Was for judgment of acquittal.

THE COURT: I'm going to acquit this charge but I want to say something before I discharge you. You know, it isn't -- not enough time goes by in this time between the shootings and injuries of police officers. It seems that

almost once a month they have a funeral and they wear black on their badges and they, you see a picture of a widow and the children. And I don't think that what you did, at least the proof that I heard, amounted probably to a breach of any law up there. You were a pain in the neck. You were nasty. You were all of those things and you know it.

THE DEFENDANT; I wasn't -

THE COURT: No. I don't want to hear from you. But let me tell you something, pal. I don't know if you're a reading man or not but you know, an English poet, an author by the name of Rudyard Kipling, did you ever hear of him?

THE DEFENDANT: Yes.

THE COURT: He wrote a poem called Tommy.

THE DEFENDANT: I 'm not familiar with it.

THE COURT: Well, let me tell you about it. It went something like this. It was Tommy this, Tommy of course was the British soldier, Tommy this and Tommy that and Tommy go away but it's thank you, Mr. Atkins when the band begins to play. Do you get my point? There are times, pal, when you and I and a lot of other people need police officers. Why do you want to give them a hard time?

THE DEFENDANT: Your Honor, I -

THE COURT: No. I don't want to hear this.

THE DEFENDANT: You're asking me a question. Would you give me a chance to answer, please? How do we make a

judgment? I think you are wise in acquitting me but in all honesty, I must say that this gentleman was lying through his teeth and if you made -

THE COURT: Thank you very much. Bye. Have a nice day.

THE DEFENDANT: I wasn't disrespectful.

(Proceedings concluded.)

I, Josephine Hayes, a transcriber, do hereby certify that I transcribed the proceedings had in the matter of UNITED STATES v. WILLIAM THOMAS, Action Number D-4369-96, in said Court, on the 2nd day of April, 1997.

I further certify that the foregoing 44 pages constitute the official transcript of said proceedings as transcribed from audio recording to the best of my ability.

In witness whereof, I have hereto subscribed my name, this, the 4th day of August, 1997.

Josephine Hayes
Transcriber