US. APP. 84-1728


No. 84-1728





[Hon. Steffen W. Graae, Trial Judge]
[Argued November 21, 1988]
[Decided April 19, 1989]

Bruce Clarke, Public Defender Service, with whom James Klein, Public Defender Service, and Jennifer P. Lyman, Public Defender Service, were on the brief, for appellant.

Ann K. H. Simon, Assistant United States Attorney, with whom Jay B. Stephens, United States Attorney, and Michael W. Farrell, Mary Ellen Abrecht, and Zinora M. Mitchell. Assistant United States Attorneys, were on the brief for appellee.

Opinion for the court by Associate Judge SCHWELB.

Dissenting opinion by Associate Judge BELSON, at p. 22. Before ROGERS, Chief Judge, and BELSON and SCHWELB, Associate Judges.


SCHWELB, Associate Judge: William Thomas appeals from his conviction by a jury of malicious destruction of property (felony) in violation of D.C. Code 022-403 (1981). He contends that the prosecutor misstated the applicable steps to correct the prosecutor's misstatements, and that as a consequence he (Thomas) has denied his right to a fair trial. Although the case is a close one, and although Thomas quite appropriately complimented the judge on his fairness, we agree with just enough of Thomas' argument to compel us to reverse his conviction and remand the case for a new trial.

Those who demonstrate in support of peace and justice often light candles in symbolic protest against war and oppression and in memory of those victims of violence who have perished. 'This is a case of a demonstrator whose ostensibly symbolic torching of his own protest sign or structure in front of the Old Executive Office Building [OEOB) set off a spectacular miniconflagration, which spread to the OEOB fence and scorched and substantially damaged a granite column. The issue before the jury was whether Thomas had acted with malice in setting his contraption on fire and was therefore criminally responsible for the damage to the column.

Much of the evidence at trail was undisputed. Since June 1981, Thomas had been maintaining a vigil in front of the White House, expressing his opposition to nuclear weapons and mendacious politicians. [1]

During the period

[1 For an eminently readable description of other aspects of Thomas' protest, see Judge Starr's recent opinion for the court in United States v. Thomas, 864 F2d 188 (1988).]


of his vigil, the regulations governing the display of signs and structures in front of the White House bad frequently changed. Thomas testified that he had attempted to accommodate the various revisions in the regulations in order to ensure that his protest remained lawful. He claimed that he had been repeatedly arrested, beaten, harassed and otherwise mistreated by the police in retaliation for his activities.

In early 1983, Thomas and fellow-participants in the vigil were using three large wooden protest signs or structures [2] to bring their message to the public. Each of these contraptions consisted of several painted plywood panels attached to wooden frames mounted on wheels. The sign which Thomas ultimately set on fire depicted an alarming mushroom-like cloud on the front, with the words:


appearing in the boldest letters on the (presumably) nuclear mushroom. In smaller lettering on the left side of the sign, there appeared, perhaps ironically in retrospect, the following quotation from the Book of Revelation:

[2 The transcript of the trial is replete with the ceaseless but in our view fruitless attempts of both sides to secure debating points by self-serving characterizations of these objects. The prosecutor and her witnesses called them "devices" or "structures." The defense attorney and the defendant called them "signs." To simplify the dialogue, we refer to the contraption that was set aflame --the Revelation sign or structure -- simply as Revelation.]


The false prophet makes fire come down from heaven in the sight of men.

On March 11, 1983, Thomas and his fellow demonstrators were advised by representatives of the federal and District of Columbia governments that they would have to remove their demonstration paraphernal. United States Park Police officials, who were accompanied by two attorneys from the Department of the Interior, advised the group that the applicable regulations forbade the placement of "structures" such as those used by the demonstrators on the White House sidewalk. Representatives of the Metropolitan Police Department (MPD) told Thomas that he could not leave the contraptions in front of the OEOB, or anywhere else on public property in the District, because they constituted "living abodes."" Thomas was warned that he would be subject to arrest if he failed to remove the allegedly offending entities.

Thomas initially remonstrated with the officials, challenging the legal basis for their actions.' He contended that the activities now being prohibited had been permitted for several months and that the "signs" were neither "structures" nor "abodes." Admittedly frustrated and disappointed when he made no headway with his arguments, he indicated that something "big" was about to happen. In a way, it did.

'It appears that Thomas sometimes slept in one or more of the contraptions.

'Thomas testified, for example, that Captain Canfield of the MPD told him that if he did not remove the signs or structures he would be arrested for vagrancy. Thomas pointed out, correctly, that the District has no valid vagrancy law. See Ricks v. United States, 134 U.S. App. D.C. 201, 414 F.2d 1097 (1968).


An hour or more after these discussions, Thomas set fire to Revelation from inside by pouring some kerosene on the floor and lighting it with a cigarette lighter. He then came out and began to address the law enforcement officials gathered outside. As he recalled on the stand, he told the group:

"I'm tired of this shit You people are a bunch of hypocrites. You claim to he concerned with protecting freedom and individual rights and yet you are constantly harassing me, trying to prevent me from speaking my mind."

He would have said more, hut one of the officers noticed what had happened and stated "Look, it's on fire." A second officer yelled "Arson! Arson! Arrest him!" Thomas related that he fell to the ground and went limp, in conformity with the teachings of Gandhi, Martin Luther King and Jesus. The officers squatted on his back and handcuffed him while he yelled

Democracy is dead! Long live the police state!

The fire continued to burn. The officers could not or did not do anything to stop it until fire fighters arrived. Color photographs which were admitted into evidence, each one of which is worth at least a thousand words, show the vividly orange, yellow and brown flames rising many feet into the air, initially forming a bizarre contrast to the multi-colored mushroom design on Revelation, which design was then just below the flames. Eventually, only the metal frame and the cinders remained, and the top of the marble column was peeling, cracked and badly discolored. [5].

[5 The White House marble mason testified in some detail with respect to the damage done by the fire to the column An official of the General Services Administration related that the repairs cost the government $2,260 in materials and $600 in labor.]


Section 2
US APP 84-1728 Intro

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