SAFEGUARDING WHOSE FREEDOM?

On about April 15, 1999 and again on about April 19th US Park Service rangers hand-delivered a Park Closure Notice to the site of Thomas' continuous vigil in Lafayette Park. The Notice announced that, "to provide security to the President and visiting heads of state for the NATO 50th Anniversary Summit," portions of Lafayette Park would be closed from noon on April 23rd until 6:00 pm, April 25th.

Thomas fired off a reply, but didn't receive a response.

Since the very first time Lafayette Park was closed for purported "security concerns," Thomas had been involved. In 1987, just a couple of days before Gorbachev's first visit to the US, Thomas received a copy of the first ever Park Closure Notice. Due to the short notice, Thomas' only option was to file in the District Court for a temporary restraining order.

The government cried, "Security!" Owing to the short time available to prepare for the hearing, Thomas could only point out that the government presented no facts to back their "security" claims, and predict that if the court allowed this extraordinary closure it would be like letting the camel get his nose into the tent, and the court could expect things would only get worse.

"If the Court renders judgment grounded only on the untested 'opinions' of police officials -- as might appear to be the case should this matter end here -- then we must humbly wonder: why not simply replace this judicial system with a system of police commissioners?" Thomas argued in opposition to the government's motion to dismiss.

Thomas failed to convince the court to halt the closure. However the judge, somewhat sensitive to the value of the First Amendment, did order the police to allow that Thomas' signs remain in the areas slated for closure. Ultimately, the government's security claims managed to evade any factual review. Because Gorbachev's visit had ended, the court refused to conduct a preliminary injunction hearing on the grounds that the issue was "moot." Thomas' urged the court to conduct a factual inquiry, arguing that the issue was not "moot" but was likely to be repeated.

Jumping ahead to April 23, 1999, there were at least 200 police officers in the park before 9:00 am. At about 10:30 Park Police officers Watson and Bergo approached Thomas to advise him that sections of the park would be closed beginning at noon. Officer Bergo, noting that he "was in charge of the park today," asked what Thomas planned to do.

Thomas explained he didn't want to make any rash decisions, and was still mulling it over. He said that he would let them know once he had made a final decision. At 11:45 Thomas handed Officer Bergo a copy of an Illegal Park Closure Notice, his position paper.

"I suppose you just printed this out." Officer Bergo said.

"Actually I printed it out yesterday, I just hadn't finally decided what I was going to do. Show it to your supervisors, please." Thomas requested.

 

Promptly at noon police forces began clearing the park.

 

 

Concepcion and Ellen moved their signs out of the closed area. Thomas remained with his sign, but none of the police said anything to Thomas.

 

As the minutes passed, and the police seemed to be ignoring him, Thomas began to think the Empire may have capitulated to his demands, that he may have won the battle.

He soon discovered he was mistaken.

With about a thousand Albanian demonstrators chanting angrily in the background -- "Send the troops, Now!" "Bomb NATO Bomb!" -- Thomas was approached by two Park Police lieutenants.

 

 

One, who Thomas didn't recognize, reminded him of the Mario video character.

 

"Are you aware that you're supposed to leave at 12 o'clock" Lt. Melachuk began.

"I know that we got a Notice saying that. This is my position on that." Thomas offered a copy of his position paper, Illegal Park Closure Notice.

"We already have that." Lt. Melachuk, displayed the copy Thomas had given Officer Bergo.

"Well, whatever, whatever, you just need to be on the other side of the fence right now." Lt. Mario advised.

"Based on this I don't think the closure is legal." Thomas responded, displaying his Illegal Park Closure Notice.

"Yeah, it's only for one day." Lt. Mario countered.

"The Park Service Notice says three days." Thomas informed him.

"Three days? Oh, okay, maybe you're right." Lt. Mario admitted.

"So, what would my charge be if I don't go?"

"Why do you care?" Lt. Mario asked.

"I care because NATO is supposed to be safeguarding freedom, and what I'm doing here is exercising the most fundamental aspects of freedom.-- communication, expression. I mean you know me. I'm not a threat. Just one little sign. I've been here for years. I've never caused any problems."

"Well, you understand that this is an unusual situation. This doesn't happen every day."

"Yeah," Thomas agreed, "it is an unusual situation, I feel you're trying to close the park illegally."

"It doesn't happen every day." Lt. Mario reasoned.

"That's true, but in a country under the rule of law ..."

"You can live with it. You can live with it." Lt. Mario cut it short.

"I can't."

"Well, okay. That's your choice." Lt. Mario said cheerfully.

"Mr. Thomas, you realize what your options are." Lt. Melachuk stated. "Go right over there, about 25 or 30 feet away."

"I got that option; I'm not sure on what my other option is." Thomas explained.

"Well, that is your option."

"I don't have any other option?"

"That's right." Lt. Melachuk concluded.

Thomas was curious. "Well, what's the consequence?"

"I believe you already know." Lt. Melachuk surmised.

"You've been here long enough, you know." Lt. Mario observed.

"I guess I'm gonna get arrested?"

"Well, you know, you know." Lt. Mario said, good-naturedly.

"I wonder what the charge is."

"Guess you'll find out." Lt. Mario hypothecated.

Lts. Mario and Melachuk departed.

Thomas continued attending his message.

The Empire's forces remained inactive.

Again Thomas began to think that Reason may have triumphed over Force, but that illusion was dashed with the approach of Sgt. Turonis, Officer Bergo, and two more Park Police officers, a third with a video camera..

"Mr. Thomas," Sgt. Turonis began, then, referring to a paper he was holding, continued, "You are in violation of 36 CFR 1.5(f). This area has been closed, and you must leave the area immediately. If you do not leave you will be arrested, and your property confiscated. I will give you three warnings. This is your first warning. I will give you another warning in 3 minutes."

For about fifteen seconds Sgt. Turonis and Thomas looked at one another in silence.

"Well, Sarge, since I've still got more than two minutes until my next warning would you have any objection if I were to explain my position on this situation?"

"You have the time, Mr. Thomas, say what you like." Sgt. Turonis replied.

"Thanks." Thomas said, "As you know, under the theory of 'the rule of law' even the government must abide by its own regulations. You're threatening to arrest me under the authority vested in you pursuant to 36 CFR 1.5(f). However, under the provisions of 36 CFR 1.5(b), except in 'emergency situations' the Park Service is required to publish proposed park closures in the Federal Register. Because the Park Service has failed to comply with the requirements for park closures, I believe that the closure is illegal, and, therefore, your order for me to leave the park is also illegal. So, I suggest, you reconsider your threat to arrest me, respect the government's regulations, and leave me alone."

Sgt. Turonis listened politely, but remained silent.

"My problem with the failure to publish the proposed closure in the Federal Register is that it denies me the ability to mount a meaningful challenge to in court."

Continued silence.

"You know, there was a time when the park was never closed?" Thomas pressed for a response. "Were you with the Park Police during Gorbachev's first visit in 1987?"

"No, I wasn't" Sgt. Turonis answered.

"I was." Thomas recalled. "Then, like now, I didn't have any notice that the government was planning to close the park until just a few days before they did it. So, I didn't have much time to prepare for the court presentation. At the hearing the government called the Director of the Executive Protective Branch of the Secret Service and the Deputy Chief of the Park Police who both recited the unsubstantiated phrase. 'Security Concern.' They couldn't identify any specific "security concern," but argued that the closure would probably never happen again, and, anyway, the closures were only going to last for a few minutes at a time. Then they were purposing to close a much smaller portion of the park, now they want to close it for three straight days.

"Frankly, Sarge, I think that, at best, it's just paranoia. There's no security concerns here. You know as well as I that if some actual security concern actually came up you guys have more than enough manpower here to close the park in minutes. Like they did with Gorbachev, you could just close the appropriate areas when something is actually happening, and leave my signs here just the same."

Thomas paused, Sgt. Turonis made no attempt to respond, but looked at his wristwatch, and said, ""You are in violation of 36 CFR 1.5(f). This area has been closed, and you must leave the area immediately. If you do not leave you will be arrested, and your property confiscated. I will give you three warnings. This is your second warning. Do you understand what I said?"

"Did you understand what I said?" Thomas asked.

"I heard you." Sgt. Turonis smiled sweetly. "I have no opinion."

"You have no opinion. Just doing your job, huh?" Thomas asked. "I noticed a picture in the Washington Post yesterday. It was a picture of the NATO shield with the motto 'Safeguarding Freedom. I think it's obvious that if there is going to be any 'freedom' there has to be a balance with 'security'. And I'm not the only one who thinks that. In another Post article last week, Sen. Moynihan was quoted as calling for a 'national conversation' on the question of how much security can you have before democracy becomes police state."

Pause, "I have no opinion." Sgt. Turonis repeated.

"Okay, you're just doing your job, I'm just doing mine. This park is the premier public forum on earth and you're going to close it. I can't figure out whose freedom you're safeguarding, so it's my job to stand up for freedom in hopes of starting a national conversation. In the past I've tried to address this issue in civil challenges, but I could never get to a hearing of fact. Now, if you're going to arrest me, I'll just have to try to explain it in my defense against criminal charges.

"The government has to follow it's own regulations, else we have a dictatorship. The regulations say that, 'except in emergency situations' park closures must be published in the Federal Register ...."

Sgt. Turonis stared blankly.

"Guess I'm repeating myself." Thomas admitted. "No sense in trying to argue the law here with you. Guess that's something for a judge to decide. After all, you have no opinion anyway, right? That's probably all I have to say."

Sgt. Turonis expressed no opinion.

"If you're going to be the arresting officer, please make sure you attach this to your arrest report." Thomas turned to Officer Bergo, extending a copy of his Illegal Park Closure Notice.

"No, you can introduce it as evidence in your defense." Officer Bergo said.

"We already have a copy of that." Sgt. Turonis said. "We'll attach it and a copy of the Park Closure Notice."

"Who's that?" Officer Bergo asked, pointing to a woman with a camera seated on the curb where Concepcion's signs used to be.

"She's from the White House." Sgt. Turonis said, then gave Thomas his third and final warning. The White House photographer began photographing Thomas signs

 

Officer Bergo applied the handcuffs, and the same police contingent walked Thomas to the paddywagon

 

 

The the lady "from the White House" snapped photos.

 

 

"This won't be a big problem for you, Mr. Thomas," Sgt. Turonis, said, sticking his head into the paddywagon. "This is a CFR violation. All you have to do is show a picture ID, sign an agreement to appear in court, and you can be released on citation from the substation."

"I don't have a picture ID."

"It still won't be much of a problem. You'll have to be sent down to Central Cell Block; once they make positive ID, but then you'll be released from there." From previous experience Thomas knew that process was likely to take at least 12 to 18 hours.

At the substation, while Officer Bergo was asking Thomas the routine questions -- name, rank, serial number, kind of stuff -- Sgt. Turonis was buzzed into the room.

"You've probably heard, we're having serious security problems with the demonstration in Lafayette Park," Sgt. Turonis excitedly related news which might make the park closure seem less than paranoid.

Having been held incommunicado since leaving the park, Thomas hadn't any idea about what was going on in the outside world, he asked, "What do you mean? You're having problems with my friends? The people who work with me?"

"No, not with your friends. That demonstration that was in progress, an opposing group came into the park and there are clashes between the two groups."

"Gee, I guess something like that isn't going to help my case against security." I said.

"That's my greatest fear on this job, crowds." Officer Bergo murmured, momentarily looking up from his paperwork." After Officer Bergo finished filling in all the blanks, he locked Thomas in a holding cell.

About two hours later Officer Bergo returned and opened the door. "You won't believe this," He said, "but a couple of the guys identified you, so we're just going to let you go from here." He handed Thomas a CFR Citation Violation Notice which listed a court date of July 21, 1999.

"Sure I believe it. I've been a fixture around here for years. It doesn't surprise me that a couple of your guys would admit knowing who I am, it's really the only honest thing to do."

After walking back to the Park, Thomas discovered the actual nature of Sgt. Turonis' "security concerns".