Transcript of Hearing on TRO 5/30/95 Continued
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MR. THOMAS: I did assert a claim.
THE COURT: Excuse me sir. I am not trying to trick you or trap you in
any way. I am just trying to ask some questions so that I can get the necessary
information that I need on which to make a ruling.
MR. THOMAS: Um-hum.
THE COURT: You are the plaintiff. You are the one Who brought this
suit YOU have been in the court many. many times. you have -- on some
occasions you have been successful in my court. I don't think that you have
forgotten that, have you
MR. THOMAS: I remember it very vividly.
THE COURT: All right, sir. You didn't get mad when you were
successful, did you?
MR. THOMAS: Well, I try not to get mad at all, Your Honor.
THE COURT: I know you don’t, All right, now you have sued the district
of Columbia, and Captain Radzilowski of the Metropolitan police Department
under 42 U.S.C. 1983. f don't know what B.S. means, 1985, paren three, paren.
What is the basis for that?
MR. THOMAS: I am sorry, Your Honor, where are you? what page?
THE COURT: I am in paragraph one of your complaint, page one, the
bottom of the page.
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MR. THOMAS: Yeah, I was --
THE COURT: What Is the basis for it
MR. THOMAS: Wait a second. For the District of Columbia, well again,
this is -- I mean this is something that I just had to Bs. ft if in a very rushed
manner and at this point I am not sure whether or not there is any grounds for
leaving the District of Columbia as a defendant.
My reason far doing that was that I felt, and although I may have been
in court many times I am not that familiar with the rules of procedure about
necessity for maintaining a suit and who must be served.
My sole reason for serving the District of Columbia was to insure that
service was -- or in naming the District of Columbia was to insure that proper
service was made so that the complaint couldn't be invalidated on those
grounds. If, in fact, after an opportunity - I haven't had a chance to find out
anything yet.
THE COURT: Well, this May 30th, You say it happened on May 20th,
and you said that you --
MR. THOMAS: May 26th.
THE COURT: May 26th, all right. Let me ask you
this.
MR. THOMAS: The closure happened on May 20th.
THE COURT: All right. You have had really since May 20th to be
thinking about this, haven't you?
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MR. THOMAS: your Honor, if this had been published
in the Federal Register, we would have some information.
THE COURT: All right.
MR. THOMAS: If the government had gone through any of the
procedures --
THE COURT: But the DC. government has no obligation to publish
anything, nor any right to publish anything in the Federal Register, do they?
MR. THOMAS: No, they don't. But the D. C. Government is the
employer of Captain Radzilowski.
THE COURT: Wait just a minute. The D. C. Government has no right,
duty or permission to publish anything in the Federal Register, do they?
MR. THOMAS: I am not asserting that they do.
THE COURT: but you know, under 42 U.S.C, 1983, you can't sue a
municipality unless it is alleged wish specific facts pursuant to Rules 8 and 9 of
the federal Rules Civil Procedure, the local Rules of this court, and the case
law construing those Rules, that you have to assert the facts in a discrete form
sufficient to set forth a cognizable claim, or a claim upon which relief can be
granted. You have heard that before. I know that you have heard it. You have
heard it in this courtroom.
Now you have sued -- hauled off and sued the District of Columbia, and
I have merely asked you what is
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your basis for the claim against the District Of Columbia? What policy, factors,
custom or usage was violated by the District of Columbia as a municipality in
this case? And you say you don't know?
MR. THOMAS: I say that my reason for naming the District of Columbia
is because of my personal lack of knowledge as to the requirements for
maintaining a suit.
THE COURT: All right.
MR. THOMAS: Because Captain Radzilowski is an employee of the
District of Columbia, I assumed that it might be necessary for me to name the
District as a defendant. I may have been mistaken. I may have been mistaken,
and I wouldn't argue to have the District of Columbia as a defendant the case.
THE COURT: All right. You also assert a claim under the case of
Bivens versus Six Unknown Federal Narcotics Agents, a 1970, according to
you, decisively of the Supreme Court of the United States. What is the Basis of
that?
MR. THOMAS: The basis of that is that I have alleged that I have been
deprived of Constitutional rights by virtue of this arrest.
THE COURT: Did the District of Columbia have anything to du with your
arrest by Captain Radzilowski?
MR. THOMAS: at this point I can't say with a certainty that they didn't.
But even if the District of
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Columbia didn’t have anything to do with my arrest, I don't think that that
invalidates the entire complaint.
Perhaps the District did. Perhaps the District -- and maybe I will find out
through discovery that the District did have a part in this. I don't know. Again,
the only reason that the District is named is to insure that all of the proper
parties are named here -- have been named here.
THE COURT: All right. The only basis for naming this captain, who is
an employee of the Metropolitan Police Department of the District of Columbia,
was the fact that he arrested you for your refusal to move out of the street
MR. THOMAS: That is correct.
THE COURT: And you knew that you had no right to be on the street
at that time?
MR. THOMAS: That is not correct.
THE COURT: Wait a minute. demonstrating with your signs and other
paraphernalia.
MR. THOMAS: No, that is not correct. I maintain that I do have the
right to be in the street demonstrating with my signs.
THE COURT: All right,
MR. THOMAS: By virtue of this fact that the street is open to the
public.
THE COURT: All right.
MR. THOMAS: With the exception of vehicular
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traffic.
THE COURT: All right.
MR. THOMAS: And because it is open to the public, I think that it is
obviously incongruous and illegal for one person to be removed from the street
because he is demonstrating with hundreds, if not thousands, if other people
who are not demonstrating are not removed from the street. That is my basis.
THE COURT: Well, you only say in your complaint that the Captain is
employed by the Police Department, Special Operations Division, therefore he
is a Defendant. Therefore the District of Columbia is a defendant. You assert in
the claim here -- let me just look.
The thing that you ask for in your prayer for relief is an injunction
restraining access -- directing the government to not restrict access to the park,
from closing the park during periods of the day or the night, from arresting you
or others for engaging in First Amendment activity, and from closing
Pennsylvania Avenue, I presume for any previously -- previous activity there
before allowed prior to May 20, 1995, right? That is what your prayer says.
MR. THOMAS: Yeah.
THE COURT: You don't seek any damages, do you?
MR. THOMAS: That' s
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THE COURT: It doesn't say so here.
MR. THOMAS: I don’t seek damages at this point.
THE COURT: All right. The case of Bivens versus Six Unknown Agents
deals with a claim for damages, and the 42 U.S.C. 1983 and 1985, the
Conspiracy Section of that same Title, authorize claims for damages, I assume
that you arc not seeking money you are just seeking the right to demonstrate
and exercise your First Amendment rights, is that correct?
MR. THOMAS: Essentially, yes, sir. But if it is necessarily legal for me to
ask for damages in order to maintain --
THE COURT: Well, you haven't asked for them.
MR. THOMAS: Well, I can amend my complaint.
THE COURT: Well, you can amend your complaint maybe if I permit it
under Rule 15.
MR. THOMAS: That is true, but aren't I allowed to amend one time
before on answer is served?
THE COURT: well, maybe. Is there anything else that you want to tell
me, sir?
MR. THOMAS: I think -- I think I have pretty much said it all.
THE COURT: All right. Let me hear from the defendants. I will hear from
District of Columbia first.