Q. Captain, D C. doesn't permit structures of the type that Mr. Thomas
put up in Pennsylvania Avenue in any location in the center lane of any streets
in D. C., does it?
A. No, sir they do not.
Q. And it doesn't make any difference whether it is a First Amendment
activity or whether it is a non-First Amendment activity, that prohibition applies,
does it not?
A. Yes, sir.
Q. As it wouldn't make any difference whether it was on that particular part of
Pennsylvania Avenue, or any other avenue within the District of Columbia, that
particular structure, slash sign, would not be permitted, is that correct?
A. Yes, sir.
Q. Now I also take it that you don't get very mush advance warning, if any, if
emergency vehicles are required to traverse a particular area of Pennsylvania
Avenue, is that correct?
43
A. No, sir Sometimes you know it when they pull up and they have their red
lights and siren on. That is very short notice
Q. With that kind of short notice, it might not be possible to remove structures
and signs such as Mr. Thomas’s if they were in the way or the emergency
vehicle, is that correct
A. Yes, sir.
MR. LAWRENCE: I have nothing further, Your Honor.
THE COURT: Even though they were seven lanes wide?
THE WITNESS: Yes, sir.
THE COURT: All right, Now, Mr. Thomas I want to tell you something I
have twenty-five Judges, guests, to receive upstairs in fifteen minutes, or twenty
minutes, and I just want you to know that.
MR. THOMAS: Okay.
RECROSS EXAMINATION
by MR. THOMAS:
Q. You say that this structure is not allowed, Under what regulation is this --
THE COURT: He said he didn't know.
MR. THOMAS: He didn't know.
BY MR. THOMAS:
Q. And emergency vehicles only take one or two lanes, isn't that right?
A. Well, it all depends on what it is that you are trying
44
to accomplish at the time, sir, I mean I have been on Pennsylvania Avenue
when we have had double and triple stacked cars because we had so many
dignitaries at the Blair House and the White House. So it is really hard far me
to say.
Q. But those aren't emergency vehicles, that is a -- okay, all right.
MR. THOMAS: I am finished.
THE COURT: Thank You. may this witness be excused?
MR, BRENNAN: Your Honor, I just want to bring to the court's attention
24 D.C.M.R. 100.1, which I did indicate earlier, and would ask the court to take
judicial notice of, which is the public space provisions -- prohibitions.
THE COURT: Read it. How long is it?
MR. BRENNAN: It is a paragraph, Your Honor,
THE COURT: Read it quickly into the record.
MR. BRENNAN: Occupation of public space beyond the extent
permitted by existing law or regulation or as those laws or regulations may be
amended from time to time, is hereby forbidden.
The Mayor however, may authorize the issuance of a permit for the use
of public space directly connected with and subordinate to another use of that
space, which is specifically permitted by some other law or regulation if the
45
Mayor, on the recommendation of the public Safety; Committee, it finds the
proposed additional use will not adversely affect the public interest, or violate
any of the following criteria:
It will not endanger the public. It will not substantially interfere with
pedestrian or vehicular traffic, 7(and that the proposed additional use will not
increase the area of public space that the applicant for the permit is
authorized to use by other law or regulation.
THE COURT: Thank you. Anything else? May this witness be excused?
Hearing no objection, you may be excused, Captain. Thank you very much.
Does the government have anything you want to say in response to
this application for a temporary restraining order?
MR. LAWRENCE: May it please the court, Craig Lawrence, Assistant
United States Attorney for the federal defendants. Just very brief comments,
Your Honor. First of all, to the extent that the plaintiff is attempting to enjoin his
arrest and conduct on Pennsylvania Avenue, that part of 211 the area in
question is under the jurisdiction of the District of Columbia,
It is not under the jurisdiction of either the Secret Services or of the
Department of Interior. Although access has been closed in general, that area
is still open,
46
and may be used by motorcades and/or emergency vehicles as needed.
And under these circumstances, it is still Pennsylvania Avenue, and is
still under the jurisdiction of the District of Columbia.
THE COURT: I take it that your position is, then, that the plaintiff has
not stated a cognizable claim against the United States, President Clinton, the
Secret Service, or Secretary Reuben?
MR. LAWRENCE: Certainly as to --
THE COURT: Is that correct?
MR. LAWRENCE: That is correct, Your Honor.
THE COURT: all right.
MR. LAWRENCE: Now, as to the claims for preliminary injunction they
are beside the point at this particular hearing. We are just dealing with the
temporary restraining order.
THE COURT: Well --
MR. LAWRENCE: We will be preparing and filing a motion to dismiss, or
at least d dispositive motions in due course in this case.
THE COURT: All right, When can you file a responsive pleading to the
complaint and petition now before the court? It is styled as a class action on
behalf of all of the people of the United States.
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It is now the 30th of may. Can you let me have it -- it is not that
complicated, on or before 4:00 p.m. on June 12th?
MR. LAWRENCE: Your Honor, I have -- we would make
every effort to respond within that time frame.
THE COURT: Thank you very much.
MR. LAWRENCE: By June 12th.
THE COURT: Can you do the same thing, Mr. Brennan?
MR. BRENNAN: Yes, Your Honor. We will.
THE COURT: All right. Thank you very much. Mr. Thomas, I know that
you have filed another extension in the other case that you have pending
before the court until, I guess, and you correct me if I am wrong, the 31st of
this month, isn't that correct
MR. THOMAS: I believe I had to get another one, yeah, I submitted
another extension today.
THE COURT: You did?
MR. THOMAS: Yes, sir.
THE COURT: I am not sure if that -- well, all right When can -- the
government is going to respond to your pleading in this case by way of a
dispositive motion or pleading on or before 4:00 p.m. on June 14th. That is a
Wednesday. Can you respond thereto by the following Wednesday by 4:O0
p.m. on June 21st
MR. THOMAS: I will do the best that I can, I
48
certainly will.
THE COURT: All right. The! Court will give the plaintiff leave to file an
answer to the government's -- both the District of Columbia and federal
defendants responsive Pleadings by 4:00 p.m. an June 21st, 1999.
MR. THOMAS: okay. Can I --
THE COURT: You can start working an it right now, as well as the other
case.
MR. THOMAS: The other thing is -- I; would just like to follow up in
closing on this before you decide on the TRO.
THE COURT: Yes, sir.
MR. THOMAS: The TRO is only dealing with paragraphs - I believe it is
seventeen to twenty-eight in the complaint. The other issues relating to the
other defendants are in paragraphs one through sixteen.
THE COURT: YOU say that your TRO deals with
paragraphs seventeen through what?
MR. THOMAS: Twenty-eight .
THE COURT: All right.Thank you. What else?
MR. THOMAS: I would just like to say, and I think that what the
testimony here has shown today, is that I had a sign in what used to be
Pennsylvania Avenue, which is seven lanes wide, and the sign is four feet
large. I don’t think that the regulation --
49
THE COURT: It had a bench seat, too, didn't you?
MR. THOMAS: Well, Your Honor-, this is --
THE COURT: Isn’t that what the evidence shows?
MR. THOMAS: I think that the --
THE COURT: Isn't that what the Captain said he saw you carry it out
there in the street, along with your sign
MR. THOMAS: Well, Your Honor, this sign is -- I am asserting here, and
there may be some question, but that can be dealt with, and we don't have to
deal with this particular sign, but it is a sign. This is a sign --
THE COURT: Someone could sit in front of the sign,
can’t they? Do you have a seat?
MR. THOMAS: I have support for the sign,
THE COURT: Yes or no?
MR. THOMAS: It is a support for the sign.
THE COURT: All right, Could somebody sit on the support?
MR. THOMAS: Somebody could sit on the support.
THE COURT: And normally you and your wife and friends do, don't
you?
MR. THOMAS: That is true, yes. It is not unusual to sit on the support.
THE COURT: normally you do, don’t you?
MR. THOMAS: Normally I do, that is correct.
THE COURT: Okay. And you intended to use it for
50
that purpose out in the middle of Pennsylvania Avenue, didn't you
MR. THOMAS: Let's get it clear. 'The purpose that I intended to use the
sign for --
THE COURT: Was to demonstrate.
MR. THOMAS: Was to communicate.
THE COURT: All right, communicate.
MR. THOMAS: Now, if I have a support for the sign, which is legitimate
THE COURT: I didn't say that it was illegitimate.
MR. THOMAS: Okay.But -- but. I want to make it clear
THE COURT: You had a sign which had a support, to use your words -
MR. THOMAS: This is true,
THE COURT: Upon which you, and your wife, and friends could sit?
MR. THOMAS: That is right.
THE COURT: How many people could sit on that, quote, support,
unquote?
MR. THOMAS: Comfortably, I would say two.
THE COURT: All right. And sometimes how many do sit on it?
MR. THOMAS: I don’t think that I have ever seen more than two people
sit on it at once.
51
THE COURT: All right. But if push came to shove three people could sit
on it, is that correct?
MR. THOMAS: It would be very uncomfortable for the third person. He
could sit on there, but it would be very uncomfortable.
THE COURT: But they could?
MR. THOMAS: They could.
THE COURT: All right. All right you want to go through your application
for a TRO only deals with paragraphs -- I apologize to you, did you say sixteen
or eighteen?
MR. THOMAS: Seventeen, seventeen through twenty-eight.
THE COURT: All right. Thank you.
MR. THOMAS: You are welcome.
THE COURT: All right, The Court has before in an application for leave
to file this case in forma pauperis, which the court granted at the outset of this
hearing to Mr. William Thomas, pro se plaintiff herein,
The action by Mr. Thomas is against United States, the District of
Columbia, President Clinton, the United States Secret Service, Robert Reuben,
the Secretary Of the Treasury, Captain Radzilowski and the Metropolitan police
Department of the District of Columbia.
This action is filed as a purported class action alleging violation of
rights, privileges and immunity alleged
52
to exist under the First, Fourth, Fifth and Ninth Amendments to the constitution
of the United States, and for alleged violations of rights allegedly available to
the plaintiff under the district of Columbia Code or Municipal Regulations.
The court finds that based on the testimony and record before the
Court that Pennsylvania Avenue, the part that is now closed, in the vicinity
immediately north of the White House otherwise known as Pennsylvania
Avenue, is a District of Columbia street.
That the federal defendants have no jurisdiction over that street, and
that based on the testimony of record, the Captain has a legal and lawful right
to arrest the defendant upon his refusal to remove himself, and his sign, and
seat from the middle of Pennsylvania Avenue on the date in question, for which
he was arrested.
No cognizable claim has been stated under the 42 U.S.C., 1983, f985,
the First, Fourth, Fifth Ninth Amendment to the Constitution, The National
Environmental Policy Act, or the APA
The plaintiff has not pled an action for damages pursuant to the 1983 ~r
1985 claims, or the Constitutional Tort Claim, nor has he stated a cause of
action cognizable under Rule 12 of the Environmental Policy Act, as he calls it
Accordingly, the application for temporary
53
restraining order, the court finds is without merit, that the plaintiff is unlikely to
be successful an the merits, that there is a legitimate public interest in
preserving the safety of the President of the United States in the area of the
White House, and that Captain Radzilowski was acting within the scope of his
authority and pursuant to valid and existing law and regulations at the time of
the arrest of the plaintiff.
The actions taken by the City, pursuant to the closure of the avenue,
in consultation with the -- presumably the federal defendants, was all together
fitting, appropriate and proper.
Therefore, the -- for all of these reasons, and such other reasons as
may be made to appear proper and appropriate, the court will deny the
application for a temporary restraining order.
MR. LAWRENCE: Your Honor, may I have one brief
question?
THE COURT: Yes.
MR. LAWRENCE: I assume that the schedule that you laid out for us
was on the application for a preliminary injunction, We have not yet been
served --
THE COURT: Well, you have been served now as far as I am
concerned. I don't want to issue an order directing the Clerk, and the Marshall,
to serve you or the corporation
54
Counsel, you are still -- you are in court. Let’s don't hang an technicalities.
Let’s get this over with.
MR. LAWRENCE: There is one problem, however, Your Honor, because
we have --we were served -- we were given a courtesy copy last week of some
of the pleadings here and they differ rather markedly from the document that
we received today,
THE COURT: All right. Consider the one received today as the
pleading in this case.
MR. LAWRENCE: And then our preliminary injunction opposition is due
on the 12th of June --
THE COURT: That is right.
MR. LAWRENCE: -- following your schedule?
THE COURT: That is correct.
MR. LAWRENCE: Thank you Your Honor.
THE COURT: I assume that you want a transcript?
MR. LAWRENCE: I will check with the court reporter,
THE COURT: Yes. She will make that available to you. Thank you.
MR. THOMAS: Can I get it, too? Can I get
transcript, Your Honor?
THE COURT: Sure you can if you pay for it.
MR. THOMAS: I am in forma pauperis.
THE COURT: I don't know what the answer to that
55
is,
MR. THOMAS: I will let you know, sir.
(Whereupon, the proceedings in the above-styled matter were adjourned at
4:45 o’clock p.m.)
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CERTIFICATE OF COURT' REPORTER
I certify that the foregoing is a correct transcript of the proceedings in
the above-captioned case.