Vigiler's Reality - Continued

1st IN A LINE OF FIRST AMENDMENT CASES, 1984

The Park Service runs "a permit service that is customer friendly, service oriented, and efficient," says the loyal Mr. Spitzer, "and they try to accommodate everyone."

If that were true, I think Mr. Robbins would have simply accommodated my request for some specific definitions of "camping," "sleeping," and "storage of property," and saved me a lot of trouble.

As I once explained to Judge Bryant, "Unless this court or someone in authority in the National Park Service or the Park Police can make it clear to me exactly what the law allows, I'm afraid that any jail sentence today would mark the beginning of life in prison on the installment plan for me. I have a responsibility to maintain a vigil on the White House sidewalk. Unless some authority explains to me exactly how this activity should be carried out in order to remain within the law, it would seem I am fated to repeated arrests and imprisonment."

After a case where I was convicted, but knew that I was innocent, and that the government witnesses articulated a seriously skewed preception of reality, U.S. District Court Judge Louis Oberdorfer convicted me of camping, and suspended a six month sentence. At the time (1984), I still had three more camping trials pending. Ellen and I were discussing our options.

"The system's corrupt," I said to Ellen, who as yet had no experience with the courts. "We're doing the right thing. Let's just do what we've been doing; just keep sitting here on the sidewalk, calling for sanity, not contributing to the corruption of the system."

"Before he sentenced you, Judge Oberdorfer said they didn't like to arrest people and haul them off to jail," Ellen mused. "He even ordered you to file a lawsuit to protect our rights."

"He's got no power, he's a cog," I argued. "Experience shows we won't find Truth or Justice in the courthouse. Judge Oberdorfer might be a good guy, but he's just a smooth talking fixture. He's talking about getting a permit. First of all, we already have a permit ... the First Amendment. Second, after the enforcers start interpreting a 'permit' in the field it becomes a 'prohibit'."

"Are we only supposed to sit here and condemn this wicked system, or do we want to convert its adherents?" Ellen reasoned.

"Maybe you have a point," I was forced to admit. "At worst it will be an experiment. We can state, on paper, our perspective of the facts, and our claim to protection of the law. The government will have to answer, on paper. If we just state the truth as accurately as we can, and answer EVERY point the government brings up in its papers, eventually, if we do it thoroughly, we should be able to produce a document that anybody, with enough interest, will be able to read and figure out who was is factually accurate and who is out of touch with reality."

In November, 1984 we filed our first civil rights claim, naming President Reagan, Mr. Robbins, and a small number of U.S. agencies and agents as defendants. On the theory that "when a government seeks to deny on individual of civil rights under color of regulation, all citizens are deprived of those same rights," the complaint also charged the defendants with treason. Essentially the relief sought was definitions for the words "camping," "sleeping" and "storage of property." The case went to Judge Oberdorfer.

We contested the government's assertion that President Reagan should be above accountability. In February, 1985 the complaint was dismissed against Mr. Reagan under presidential immunity. On June 3, 1986, Judge Oberdorfer also eliminated the treason claim, but denied the government's motion to dismiss the entire complaint. After the government blew smokescreens for another year, on June 5, 1986 Judge Oberdorfer denied the government's second motion to dismiss, and directed U.S. Magistrate Arthur Burnett to supervise depositions in the case and to determine, "'(1) Whether any of the named defendants conspired to deprive plaintiff of his civil rights, in violation of federal law; and (2) Whether any of the defendants individually committed any unconstitutional acts toward plaintiff, specifically whether any defendants 'committed unconstitutional excesses in their efforts to arrest plaintiff pursuant to local statutes and DOI regulations'."

Magistrate Burnett listened to the testimony of ten government witnesses, including Mr. Robbins. That testimony was the closest the judicial system ever approached to scrutinizing Mr. Robbins' subjective state of mind with respect to the promulgation and enforcement of his ambitious regulatory policymaking. The magistrate detailed his conclusions in a memorandum to Judge Oberdorfer:

"(P)laintiff alleges that the defendants, U. S. Park Police ... and officers of the U. S. Secret Service and their supervisors, harassed and intimidated him and ordered his arrest without probable cause, unlawfully detained him in police custody and illegally confiscated and destroyed his signs protesting nuclear weapons. Plaintiff also claims defendants caused false criminal charges to be brought against him in order to impede the exercise of his First Amendment right to peacefully demonstrate on the White House sidewalk and in the Lafayette park area.

In a memorandum, filed January 13, 1987, "the Magistrate conclude(d) the incidents referred to above raise factual issues requiring trial as to whether there was the adoption of a plan or policy, express or implied, showing Department of Interior and the U. S. Park Police officials' authorization or approval of police misconduct... and whether these incidents constituted a pattern, and thus there was a casual link between them sufficient for the trier of fact to find a conspiracy or concert of action to harass William Thomas to force him to give up his vigil against nuclear weapons and to rid the White House sidewalk and Lafayette Park of him and his associates....

"It is not for the Magistrate at this stage to determine credibility as to where the truth lies. It is sufficient to conclude that appellate precedent requires a trial because there are material issues of fact in dispute."

The only questions remaining before my claims went to trial were whether we would be allowed additional discovery and whether it would be trial by jury, as I requested, or trial by judge, as the government wanted, and whether I would be allowed more discovery. On April 9, 1987 Judge Oberdorfer heard argument on those issues, and set a final pre-trial hearing for May 1, 1987, which he cancelled, by telephone, on April 29th. The case lay dormant until September 16, 1988 when, without further factual scrutiny, Judge Oberdorfer, who appended a copy of a vigil permit to his order, dismissed the case, "without prejudice," ruled that if the vigil obtained a permit, and that didn't solve the problem, we could file another complaint.

Without explaining precisely why, the court of appeals agreed.

Our legal experiments were still in their early stages.

SIGNIFICANT VICTORY/DEFEAT

Since 1981, my purpose has been to serve the Eternal Creator in personal pursuit of wisdom and honesty. Socially, my intention has been to symbolically embody commitment to freedom, justice, equality, personal responsibility, and for the well-being of the human race; hoping to illustrate through action (i.e., living, exposed to the elements, without accommodations) personal commitment to the belief that "it is preferable to suffer personal inconvenience, than to inflict harm on others."

The "camping" regulation was already five years old, the government still had not managed to find a judge willing to send us to jail, but a well-established Government just keeps on grinding. After Mr. Robbins and Crew arranged a flurry of carefully orchestrated arrests in 1987, several of us found ourselves back in criminal court charged again with "camping" violations. We moved to dismiss the criminal charges on the grounds that our expressive activities were religiously motivated.

Judge Richey came closest to discovering whether our vigil was causing any harm by asking "the Government to specify its interest in prosecuting these defendants under the regulation .... The Government stated that it had 'no interest in prohibiting any of these defendants from sleeping in the park' and that its only interest in this case was 'enforcing the regulations' at issue. The Court asked the Government if it wished to offer anything other reason, any piece of evidence, or wished to cross-examine any of the defendants. The Government declined to do any of these things." Because the Government had failed to show any legitimate interest that would justify enforcing the regulation against our religious exercise, Judge Richey dismissed the charges.

On paper, and that's what counts in banks and courts, Mr. Robbins has been on the winning side in all the big ones. In an unpublished opinion, which we are still trying to fathom, the court of appeals reversed Judge Richey's well reasoned dismissal of camping charges, and remanded us to trial on two charges, in two trials before two judges.

At trial the Government was supposed to prove that we had been "using the park for living accommodation purposes." After "camping" enforcement policy arbitrarily dropped the "sleeping in a tent or other structure" guideline, criminal cases pivoted around the questions of "impermissible" versus "permissible" sleeping and "storage of property," and determining which mysterious combinations of those terms equal "camping." Remember, "sleeping" in the park is not illegal, and our attempts at civil litigation failed to produce specific definitions of "sleeping," and "storage of property."

Reluctantly, both judges allowed me to question Mr. Robbins, who was sworn in as an "expert witness," to clarify the guidelines on "sleeping" and "storage of property." Under oath, Mr. Robbins admitted his responsibility to advise the Park Police on enforcement of his regulations. Ironically, seven years later, Judge Richey would dismiss our White House sidewalk shooting civil case against Robbins on the notion that we "failed to indicate with sufficient specificity to what extent Defendant Robbins was responsible for supervising the alleged wrongdoers."

When asked how much sleep constituted camping, Mr. Robbins testified that no "minutes and hour" figures were ever set. Unfortunately, it wasn't until after my trial, imprisonment, and appeals had ended that I became aware of documents -- written by Mr. Robbins and giving specific suggestions about sleeping time lengths -- which contradict his testimony.

Mr. Robbins told another deceitful story when I attempted to elicit information about "storage of property." In response to various questions about possession of which articles were prohibited by law, instead of simply admitting that the articles were not prohibited under the existing regulations, Mr. Robbins repeatedly insisted that the articles in question were prohibited under the authority of a "Notice" he had written. Although Mr. Robbins finally conceded that his Notice was not a "law or regulation," he insisted that his Notice "had the effect of law." It wasn't until several months later, when the court of appeals ruled, that the Notice relied on by Mr. Robbins was "null and void."

Had Mr. Robbins answered those "sleeping" and "storage" questions honestly, things would has been different. As it turned out his inaccurate testimony resulted in putting Ellen, Philip, Sunrise and me in federal prison.

"I know what I'm (in the Park) for," I told Judge Richey, at the sentencing. "I know what my purpose is. I know what my intent is, or I'm crazy, one or the other. Assuming my intent is true, then I'm not guilty of ('camping'). So I can't feel ... any remorse.

"You dismissed the charges, in the first place, on the grounds of religious exercise. The government can't question me, they can't question the sincerity of my belief. That's what's motivating me, my religious belief, and there's nothing I can do. I have to do what I'm doing. So I feel remorse, I feel remorse that it's very obvious to me that you understood that motion. You cited the cases to support your order. I feel remorse that we're in this position today. I feel remorse because I think there is something wrong, and, although I have my doubts, I don't strongly believe it's me that's wrong. I sort of feel sorry for you, because you did what is right in the first place, and it seems that you're caught in something that's wound up making you do what seems to me to be wrong. I mean, that's my belief. I believe your first opinion was correct.

"So do I," Judge Richey replied "but, you know, Mr. Thomas, this court thought it rendered the decision under the facts as then presented on your motion that was consistent with the jurisprudence of the Supreme Court; however, there was an appeal, and the Court of Appeals said that I erred and that you were wrong, even though I agreed with you. So this court is bound by that. I have no other choice, and I hope you understand that....

"It appears to the court, Mr. Thomas, that what you're saying is that you're not going to change and really, it's not the office or the purpose of the court to ask you to change ...

"One of the fundamental purposes of sentencing in our criminal jurisprudence in this country, which we inherited from England, is deterrence. Whether you can be deterred by virtue of a sentence or incarceration, I don't know, but I do know this: that sentences of incarceration to jail, together with fines, is said ... to be a deterrent to others against commission of the same or similar offenses."

To some degree this worked. Two young people who were sentenced with us eventually quit their vigils as a result of their semantic criminalizaton and selective enforcement. This is nothing new. During the dark ages judicial Star Chambers divorced reason from law, elevating "might" to "right."

MOCK JUSTICE

"Sometimes I wonder what I have to show for my efforts," I once admitted to a Park Police officer.

"Well, Bill," The officer replied, encouragingly, "it's not everyone who can say he had a federal regulation passed against him."

If that's an accomplishment, I suppose we can also claim credit for inspiring "mock trials," and our own own Starr chamber decree. After divorcing meaning from words by reducing "vigil" to "camping," then-Appeals Court Judge (now-Special Prosecutor) Kenneth Starr usually ignored us, but commiserated, in a sort of back-handed way:

"It may be unfortunate that the Thomases' deeply felt convictions have led them to persistent behavior running afoul of the clear import of the regulation," Judge Starr decided, then opining for the D.C. Federal Circuit Court. "That disagreement, in the face of various warnings, perhaps reflects courage, conscience, or tragedy. It manifestly does not reflect, in the regulation as it has been applied, vagueness of constitutional dimension."

I don't claim to know anything for sure, except what's in my own head. It is obvious from the words that the "camping" rule requires "using an area for living accommodation purposes." Because I KNOW my sole purpose for using the area is to communicate with the general public on issues of broad public concern, unless I'm crazy, anyone who would condemn me for "camping" is, at best, confused about the difference between "accommodations" and "no accommodations."

Whether or not "the regulation as it has been applied" reflects "vagueness of constitutional dimension," were questions raised in my various civil suits, which sought to compel Mr. Robbins to supply specific definitions for "sleeping" and "storage of property." Fortunately for Mr. Robbins and the intentions of his handlers, when the district courts dismissed each of my civil suits -- with no more than the rudimentary factual inquiry documented by Magistrate Burnett in 1987-- those were among the "significant questions" which escaped minimal judicial review in criminal trials.

"In the face of various warnings" perhaps reflects an uninformed judicial mind, lack of conscience, or an incapacitating flaw in the judicial process. From my perspective these "various warnings" were actually raw threats to punish me through police force and subjection to the judicial process for the exercise of constitutionally protected activity, activity crucial to the existence of any truly democratic system.

Of course, it could be that Starr is just, and it's just me who's crazy (i.e., can't distinguish between "purpose of communicating" and "living accommodation purposes"). In that case, it seems, if I'm crazy, Starr should have known better than to uphold my criminal conviction; civilized law wouldn't hold me accountable, and particularly not for materially harmless actions. Although Judge Oberdorfer honored Starr's judicial departure from reality, he washed the illogic from his own hands with the admission that there was no apparent reason to justify condemning peaceful people under Mr. Robbins' crimes.

"The defendant and others who are maintaining vigils in Lafayette Park may be eccentric," Judge Oberdorfer conceded to Starr's dictum, "but they have stood up day and night for their beliefs in spite of repeated arrests and convictions and the dangers encountered when sleeping unprotected from the weather and other perils that lurk in the middle of a city at night. Their protests have been peaceful. They are not venal criminals, and application of criminal sanctions to them puts strain on the criminal justice system. That system is designed to protect the public from crime, to condemn and punish criminals, and to deter others from committing crime. The justification for condemning and punishing a peaceful protester like defendant is not immediately apparent. The effectiveness of the criminal sanction as a protection of the public or as a deterrent to repetition when applied to persons like defendant is also questionable."

Wouldn't it really be a national tragedy if the nation's judicial system is peopled by conscience-less individuals, willing to discard the principles of civilized society at the whim of illogical institutional reasoning?

#3 -- "LAFAYETTE PARK SIGN SIZE" REGULATION, 1985

According to "TROUBLE MAKERS," "The Park Service and protesters have always played a kind of cat-and-mouse game, in which the Park Service slaps its paw at the protesters in one place only to have them pop up somewhere else that the Park Service hadn't thought to cover. So it was no surprise that the peace vigil protesters had only just been cleared from the White House sidewalk when they reappeared across the street in Lafayette Park."

The logical gap between "hadn't thought to cover," and "no surprise the peace vigil reappeared across the street," misses a key point: the government's entire scheme relied on incremental constitutional erosion. It wasn't because the Park Service "hadn't thought to cover" Lafayette Park; "the problem" was that in subverting the law, the process required they move only one step at a time.

It certainly was "no surprise the peace vigil reappeared across the street." In the White House sidewalk case, Mr. Robbins' crew was forced to begin from the fact that the signs were "constitutionally protected" and Lafayette Park was a "unique public forum." Arguing incredible "security concerns," the district court record shows that the government suggested "ample alternative" existed, and demonstrators needed only "move their signs across the street to Lafayette Park."

"I believe in freedom of speech. I support your right to be here, speaking your mind. But with you and your sign right here I can't get a good shot of the White House," a tourist said to me.

"Actually you can get a picture of the White House from any number of angles that completely exclude my signs," I pointed out some of the angles.

"Why couldn't you just take your signs across the street, and protest there. Like I said, I agree with your First Amendment rights, but I came all the way from Oshkosh, this is my vacation and I want to get some nice pictures to remember it."

"Please, don't misunderstand. My purpose for being here is not to ruin your vacation. I am here out of a sense of duty. I feel I have a responsibility to communicate as effectively as possible on issues I believe to be of great importance to the human race."

"I agree that what you are talking about is important, but I don't see why you couldn't say it just across the street," the tourist persisted.

"Let's say I was to take my signs right now and move them across the street. Inevitably, I think, it would only be a short time before someone else would come by and say, 'I agree with your First Amendment rights, but you're ruining my vacation. Why don't you put your signs on the top of Mt. McKinley?' Unless a line is drawn somewhere, there will be no place to draw a line."

During litigation of the White House sidewalk case, I predicted that merely forcing demonstrations across the street would not satisfy the government, and was only one step in a more ambitious plan to "prohibit demonstrations on the White House sidewalk, and in Lafayette Park." Since the security gambit seemed fully exploited, I wondered how the government would argue to further limit demonstrations in Lafayette Park. It didn't take long to find out. Nothing succeeds like success; and each of Robbins' rules acted as a pedestal upon which the next rule could rest.

During the two years following the removal of our signs from the White House sidewalk, according to the Park Service, more than six million people visited the Park. In that period, depending on which of Mr. Robbins' figures one chooses to accept, the Park Service received either 16 (Fed Reg. August 20, 1985) or 25 (Fed.Reg. March 5, 1986) complaints about the "problem in the Park." By my reckoning the Administrative Record contained only 16 complaints, and every one bemoaned "signs," "posters," "placards," "protesters," or "demonstrators."

Typical of the complaints, David Dunn, a guide with Heritage Tours, wrote: "We are horrified by the collection of signs and banners which are allowed to be exhibited daily at Lafayette Park opposite our President's home - Are our hands tied? Is there nothing which we can do to clean up this eye-sore which blights our beautiful city?"

Initially, Robbins & Company replied truthfully to the complaints. In October, 1984 the agency was explaining, "The National Park Service put demonstrators in Lafayette Park on notice that they must comply with regulations and permit conditions, prohibiting such activities as storage of property... To date we have received compliance and the Park is noticeably more attractive."

Robbins & Company figured it might take more than a few irate citizens against robust dissent to justify discarding the First Amendment, so they embellished a bit. "One woman--a Spaniard named Conception Picciotto, who continues her anti-nuclear vigil there today--erected 187 signs," Van Dyne wrote. "187 signs?" Now, that's a surprise. Officially, in his 1986 final rulemaking Mr. Robbins specifically claimed that only 33 signs belonged to Concepcion. At that time I claimed 33 was a gross exaggeration, but lacking even minimal judicial scrutiny, the actual number of signs was never determined.

In the Federal Register, Robbins also claimed that "huts, beds, chairs, desks, tables, bookcases, cabinets, cans of paint, even a kitchen sink" also legitimized limits on the size of signs in Lafayette Park.

"Particularly since it already has regulations to remedy problems concerning huts, kitchen sinks and the rest, why does the government want to limit the size of signs?" I asked Judge Oberdorfer, in another question which escaped factual review.

The rulemaking efforts have always been supplemented by a successful propaganda campaign. The Park Service fueled public indignation against our expressive activities through numerous contacts with the members of the press, misrepresenting the situation existing in the Park. One nationally syndicated column, quoting Park Service officials and padded with the columnist's own absurd representations about "16 demonstrators emptying their bowels on the grassy swards of Lafayette Park." This one particular article alone sparked a number of letters in support of the regulation.

Thanks to Judge Oberdorfer's September, 1988 dismissal (without prejudice) of my civil suit -- which was the only legal challenge to the new sign regulation -- exactly how many signs Concepcion actually erected, what somebody else's kitchen sinks had to do with our signs, or why the Park Service manufactured "news" are questions which entirely evaded judicial scrutiny,

Vigil Continued .. Old Regulations -- New Interpretations

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