Opposition to Summary Affirmance - Continued

Even if concerns about protecting the President from " vehicle carried bombs" can justify the closing of Pennsylvania Avenue "to vehicular traffic" [10] (Record at 10 [Transcript of TRO hearing], Exhibit A,. pgs 10, 11), appellant questions whether a well intentioned concern for presidential security, or even the orderly procession of emergency vehicles, can excuse dispensing with due process, a concept well established from the inception of this nation, to check and balance the branches of government, and safeguard the essential ideals upon which the nation was founded.
"The right to speak freely and to promote diversity of ideas and programs is ... one of the chief distinctions that sets us apart from totalitarian regimes." Terminiello v. Chicago, 337 U.S. 4 (1945); see also, United States v. Eichman 58 LW 4745 (1990); Texas v. Johnson, 109 S. Ct. 2533 (1989); Boos v. Barry, 485 U.S. 312 (1989); Airport Commissioners v. Jews for Jesus 482 U.S. 203 (1986); Brown v. Louisiana, 383 US l3l (l96l); Hague v. C.I.O., 307 U.S. 496 (1939); Spence v. Washington, 418 U.S. at 411 (1969); Tinker v. Des Moines, 393 U.S. 503; United States v. O'Brien, 391 U.S. 368 (1969); Cox v. Louisiana, 379 U.S. 536, 551 (1965); Coates v. Cincinnati, 402 U.S. 611, 615; United States v. Grace, 461 U.S. 177; Carey v. Brown, 447 U.S. 455, (1980); Gregory v. Chicago, 394 U.S. 111, (1969); Jamison v. Texas, 318 U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940). Am. Com. pg. 12.
A proximate result of closing Pennsylvania Avenue, was appellant's arrest by appellee Radzilowski. There aren't many facts in dispute as to this arrest: (1) appellant had a sign, and, (2) with the explicit intention of communicating on issues of

[10 The immediate litigation did not implicate any "security concerns." The preliminary injunction merely sought "to enjoin defendants from (1) making any further changes to Lafayette Park (2) enclosing Lafayette Park with any more permanent barriers, and (3) closing the Park, except in the event of certifiable emergency, for any periods pending the resolution of this complaint, or until defendants comply with provisions governing park closures." Record at 7, pg. 2.]

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broad public concern, (3) appellant placed the sign in an area "closed to vehicular traffic," but open to the general public, which (4) impelled appellee Radzilowski to cause appellant's arrest, under color of a "failure to obey a police officer," (5) thereby terminating the exercise of appellant's communicative activities, and finally (6) appellee's baseless charge was dismissed. Record at 29 (Plaintiff's Statement of Facts) ¶¶ 23-44. This incident represents another "live controversy." [11]

Using only the meager means available -- his body and his sign -- to communicate; plaintiff practicing his religious belief (Matt. 5:0) in the concept of "Peace through Reason." (Is. 1:19)), Captain Radzilowski, practicing the political ideology of "Peace through Strength," removed appellant at the expense of due process, human dignity and the most sacred ideals of democracy. [12]

At the TRO hearing appellee Radzilowski relied heavily on the word "emergency." Appellant submitted evidence contesting appellee's testimony. [13]

[11 The importance of free speech is well established. Suppression of First Amendment exercise "for even short periods," has been held to constitute "irreparable injury," Elrod v. Burns, 427 U.S. 347, 373 (1976), and to constitute "substantial ... damages." City of Watseka v. Illinois Public Action Council, 796 F.2d 1559, Summarily Aff'd, slip opinion 86-631, January 27, 1987. ]

[12 Appellant agrees, "the Metropolitan Police Department has a duty to keep the streets and sidewalks open for the free movement of vehicular and pedestrian traffic." Record at 16 pg. 20. But, appellees conceded,
"The police must direct and control demonstrators only to an extent sufficient to protect legitimate state interests, which in this case is the free circulation of traffic." Wash. Mobilization Comm., 566 F.2d at 116. Record at 16, pg. 21.
This may seem abstract, dealing as it does with ideals, but, truth, justice, freedom and equality were, under the Constitution, considered, honored ancient traditions, supposed to be sacred. ]

[13 A videotape (Record at 30, Exhibit V.T. @ Segment 6 03min 48sec & 05 min 20 sec), which the Court declared "Moot" (Record at 45), shows that at 15th and 17th Streets -- the only points of ingress and egress to the closed portion of Pennsylvania Avenue -- there is space for only one vehicle to pass at a time. Thus, casting doubt on the veracity of appellee's professed concern that a proliferation of emergency vehicles might be impeded by appellant's four foot wooden "structure." See also, Record at 29, pg. 18; Record at 31, Undisputed Facts, ¶¶ 36-38.]

Whether or not a jury would believe appellee's "emergency" stories is a genuine issue. [14]

Appellee Radzilowski also swore,

"there can be people in the street carrying signs. We don't have a problem with that, because they can get out of the street very quickly. The problem was this large structure that Mr. Thomas had." Tr. pg. 33.
This testimony is contradicted by appellant's videotape exhibit, which shows that appellee Radzilowski did have "a problem" with a person carrying a sign in the street, a person who "g(o)t out of the street very quickly," after being threatened by appellee. Record at 30 (Plaintiff's Motion for Judicial Notice of Exhibits, Exhibit V.T., Segment 9, @ 8m 58s), see also, Record at 31, Undisputed Facts, ¶¶ 39, 40. [15]
(A)ppellant alleged that he maintains a permanent presence in Lafayette Park. (R, 7, Amended Complaint at 2).... He did not allege that serious environmental impacts may follow the street restrictions on May 20th or that the potential for such impacts would be overlooked as the federal government considers the future of this area..." MSA, pg. 10.
In April, 1992 the Executive Committee for the Comprehensive Design Plan for the White House and President's Park ("the Plan"), citing Lafayette Park as "a symbol of our free and democratic nation," and commitment to preservation strategies "for the

[14 Appellees are certainly free to talk about "emergencies," (see, generally, appellees' pleadings), but courts must,
"follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45 (1957) (footnote omitted).]
[15 A separate issue raised by appellant on appeal, was the Court's August 31, 1995 Order, which declared moot appellants Motion for Judicial Notice of Exhibits Record at 46, pg. 3. This issue is not so clear as to merit summary affirmance.]

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symbols not only of the executive branch of our Republic, but also of public access to the government," began studying changes to the area, including "security concerns," surrounding the White House. Record at 7, Exhibit 1 & 2. Lafayette Park is not Red, or Tiennamen Square, neither of which are surrounded by concrete barriers. Appellant claims keeping things that way is a substantial environmental quality issue. [16]

Consistent with a project impacting such a key aspect of harmony between man and an environment of freedom and democracy, the Executive Committee scheduled an Environmental Impact Statement to be completed by 1996. Record at 7, ¶ 13.

Appellees now argue, "the emergency exception (to NEPA) amply covers the Secretary's action in restricting access to the streets at issue." MSA, pg. 16. But "the streets at issue" do not include the "barriers around the park," nor according to the Secretary's order of May 19th, Jackson and Madison Places. Supra, pgs. 2 & 3.

Another issue, not ripe for summary affirmance, is the Court's disposition of appellant's Motion For Consolidation. The Court found that "there are insufficient issues of law and fact in common between the present case and Thomas I (Thomas v. United States, Civ. No. 94-2747, U.S.App. No. 95-5340) to warrant consolidation."

[16 "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges. immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." White House Vigil for ERA v. Clark, 746 F.2d 1518,1528, citing Hague v C.I.O, 307 U.S. 496 (1939).]

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Record at 46, pg, 8.

These two cases involved the same plaintiffs, the same vigil, the same sign, [17] the same Park, essentially the same defendants, and the same alleged disrespect, under color of regulations, for individual rights. Appellant believes this issue is one which bears on the District Court's factually unsupported prejudgment.
"The Plaintiff in this action, William Thomas, is no stranger to the Court. Mr. Thomas proclaims that, '[s]ince 1981 in the exercise of his religious beliefs[, he] has regularly maintained a continuous presence on the White House sidewalk and southern part of Lafayette Park for the purpose of communicating on issues of peace and social justice.' Amended Complaint at 3. Throughout the period he has been conducting his vigil, the Plaintiff has filed numerous claims with this Court that he has been `arrested, beaten, harassed and otherwise mistreated by the police in retaliation for his activities.' Mem. in Support of Plaintiff's Opposition to Summ. Jud. at 24 n.15." Record at 47, ftn. 5.
Literally, the words, "arrested, beaten, harassed and otherwise mistreated by the police in retaliation for his activities," were written by the Court of Appeals for the District of Columbia in yet another questionable case. Thomas v. United States , 557 A.2d 1296, 1297. Still, it is true that appellant "has filed numerous claims with this Court." Problem is that all those claims have escaped factual review, while not all legal authorities have agree that factual review was unmerited.. E.g., Thomas et. al. v. Reagan, et. al, 113 S.Ct. 2397, cert denied, (May 13, 1993), J White, dissenting; in light of Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 113 S.Ct. 2397, see also, Thomas I, Record at 6, Exhibit 3, pgs. 9-15; Record at 65, pgs. 7-12.

III.

[17 The Court has apparently rendered conflicting opinions regarding that sign. See, Appellant's Motion for a Stay Pending Appeal, Thomas, et. al. v United States, et. al., U.S.App. No. 95-5340, filed October 30, 1995, compare, Record at , 46, pg. 16.]

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For the foregoing reasons appellees' Motion for Summary Affirmance should be denied.

Respectfully submitted,

William Thomas, appellant, pro se.
Appellant, pro se
P.O. Box 27217
Washington, D.C. 20038
202-462-0757

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Opposition to Appellees' Motion for Summary Affirmance has been mailed, postage prepaid, this 29th day of November 1995, to

Marina Utgoff Braswell
Assistant United States Attorney
Judiciary Center Building
555 4th Street N.W., Rm 10-820
Washington, D.C. 20001

and upon counsel for the District of Columbia, in the same manner, addressed to:

Bruce Brennan
Assistant Corporation Counsel, D.C.
Office of the Corporation Counsel
441 4th Street, N.W.
Suite 6-S-101
Washington, D.C. 20001

William Thomas