THOMAS v. REAGAN

USDC Cr. No. 84-3552

PLAINTIFF'S FIRST AMENDED COMPLAINT

91. Several U.S. Park Police officers have informed plaintiff that arrest and harassment actions taken against him by themselves were not done of their own volition, but were taken pursuant to orders from superiors. One officer testified to that effect in sworn testimony before a U.S. District Court (Officer James.) (USA v. Thomas, USDC CR 83-0056, May 17, 1983 Transcript, p. 17.)

92. On June 17, 1983 defendants Fish, Bangert, Robbins and Arnett published 36 CFR 50.19(e)(9)(10) in the Federal Register. Against defendant Fish violated 5 USC 553 by suspending the 30-day delay of effectiveness of 50.19(e)(9)(10). -(Judge Bryant's Opinion.) Defendants' motive with respect to suspending delay of effectiveness was to enforce the regulation against plaintiff.

93. On or about July 19, 1983, despite a temporary restraining order issued by Judge Bryant, defendant Merillat forcibly moved plaintiff and his signs from the White House sidewalk to Lafayette Park. Defendant Bangert supervised the removal of the signs.

94. On December 13, 1983 defendant Robbins indicated in testimony (ERA v.Clark, USDC CA 83-1243) that the USSS, USPP, DOI and NPS had concerns with the "situation on the White House sidewalk" as early as November 1981.

95. On April 13, 1984, plaintiff's antinuclear demonstration in the Park grew permanently to include Co-Peace Int'l co-founder Ellen Benjamin (now Ellen B. Thomas). Plaintiffs Thomas and Ellen Thomas have regularly held permits from the NPS in connection with their demonstration activities. Further, any "structures" which may have been built by other individuals have been under permit from the National Park Service, or have been dealt with, or should have been dealt with, by the National Park Service or the U.S. Park Police under currently existing regulations.

96. On April 20, 1984, USDC Judge William Bryant called portions of defendant Lindsey and Parr's testimony in ERA v. Watt "incredible" and "unworthy of belief."

"The photographs contained in the administrative record depict the activities of certain long term demonstrators on the White House sidewalk and when the Government witnesses testified about the conditions on the sidewalk that promoted these regulations, they referred specifically to these same long term demonstrators," (ERA v. WATT, Memorandum Opinion, April 20, 1984, p. 11.)

"In light of these facts, plaintiffs' claim that a memo from Secretary Watt, and subsequent contacts between Ass.Sol. Robbins, principle drafter of the regulations, and the Secretary and the White House take on added significance,,,,

"(T)he key fact that both versions of the regulations just happened to proscribe all of the plaintiffs' then current activities on the sidewalk cannot be regarded as mere coincidence..., "

97. During the first two weeks in May, 1984, Park Police officers had special orders to monitor certain factors in the area of "the Thomas demonstration." (Original Complaint att. 5 & 6). As a direct result of information gained in the course of that surveillance a raid was produced by defendant Lindsey, who shared a starring role with defendant Robbins. Although Thomas was not arrested on that occasion, he was deprived of the association he enjoyed with fellow vigiler Robert Dorrough, who was arrested because, he admitted, he was sleeping.

98. On June 6, 1984, Officer David Haynes, USPP, acting in consort with USPP Officer Simons and defendant J.C. Lindsey as well as other unknown USPP and USSS officials, seized and destroyed or "lost" plaintiff's papers and signs, completely demolishing one NPS-permitted mobile speaker's platform, assaulted, arrested, booked very slowly (delaying presentment to Court), and imprisoned Thomas, four other individuals engaged in expressive activity, and two visitors. Among the property seized and "lost" was a Chinon camera with evidentiary film. On this same day Lieutenant Bolton,

USPP, issued a false statement to the Washington Post. All parties were acquitted of the charges after five days of conflicting and false testimony by Officer Haynes.

99. On June 18, 1984, while defendant James Baker II;. was White House Chief of Staff in charge of internal operations, Ellen Thomas hand-delivered to the White House mailroom a letter for Ronald Wilson Reagan in which she described the problems plaintiff was having with the Park Police.

100. On September 7, 1984, defendant Bangert stated to the New York TIMES, "the problem, if you want to call it that, is that for ten years Court decisions have held that structures must be allowed at demonstrations." She added that other Court decisions have ordered the government to permit demonstrations on a 24-hour basis and to allow amplified sound.

101. On or about September 10, 1984, Director of Public Affairs Sandra Alley of the National Park Service entered into a concerted effort with the other federal defendants to deprive plaintiff of his constitutional rights by printing and distributing a memorandum proscribing various of plaintiff's expressive activities. The memorandum prepared and distributed by Sandra Alley, and issued under color of regulation, has no lawful basis in the applicable provisions of the Code of Federal Regulations or other federal law.

102. As of September 25, 1984, Park Police records indicated that the only persons ever arrested for alleged violations of 36 CFR 50.27 were arrested in the immediate vicinity of the "Thomas demonstration," although others were similarly situated in Memorial Core Area Parks during the same period. Senior Private David Haynes gave false and obstructive testimony before a U.S. District court with respect to plaintiff's legitimate activities

103. On October 10, 1984, defendants Lindsey and Robbins supervised the destruction of plaintiff's reconstructed and NPS-permitted mobile communication speaker's platform. In addition, defendant Lindsey directed the removal of all plaintiff's other signs and literature, without receipt. Two large signs, "AS AN ACT OF SANITY, STRIKE FOR PEACE, OR HAVE A NICE DOOMSDAY" and "LET MY BODY GO: PLEASE MR. REAGAN, DON'T PUT US IN PRISON FOR EXERCISING OUR CONSTITUTIONAL RIGHTS," were destroyed beyond repair.

104. Despite the restrictive conditions imposed on individual demonstrators, large reviewing stands.measuring 90 feet in length and over 25 feet high, were constructed on the White House sidewalk (E.g., the January 1985 inauguration of President Reagan), in violation of 36 CFR 50.19(e)(9)1 Those stands occupied the entire "center 60 feet" of the White House sidewalk from fence to curb. Additionally, sometime in December, 1984, a sign depicting the Presidential Seal was affixed to the reviewing stands in the very center of the White House sidewalk. A similar structure was constructed in Lafayette Park.. The erection of those structures caused substantial damage to Park resources, including extensive damage to the sidewalks and grass, totally stopping pedestrian traffic, and forcing plaintiff and his signs into an area fenced in by defendants in a manner which severely and unnecessarily limited the access of the public to the message of the plaintiff. The inaugural signs were over regulation size, made of restricted materials, less than three feet from the White House fence, and unattended. In related criminal proceedings AUSA Bates has stipulated that these activities were tolerated by and with the awareness of the Park Service. The NPS allows the government's violations of regulation, but has denied plaintiff the co-equal right to engage in similar activity on a smaller scaler that has not resulted in damage.

105. On February 19, 20, and 21, 1985, USPP Officers Duckworth and Bohn harassed and photographed plaintiff in the early morning hours.

106. During his demonstration activities, plaintiff has regularly painted and maintained his signs to enhance their aesthetic appeal. Plaintiff was never accused of causing damage to any tree, grass, shrub, or other vegetation during the course of this activity. Nonetheless, during the spring and summer of 1985 defendants barred plaintiff from maintaining enhancing the aesthetic appeal of his signs under color of "general injury" (36 CFR 50.10(a)), a regulation which prohibits damage to trees, grass, shrubs, or other vegetation, Defendants' actions serve no -substantial government interest other than to interfere with plaintiff's ability to effectively question the sanity of the official administrative policies

107. Indeed, during the entire course of his communicative activities defendants are unable to point to one (1) specific incident in which plaintiff has obstructed pedestrian traffic or caused "substantial" damage to an property within-the area define·d-in 36 CFR 50.19(5) for which he could be held liable.

108. On May 9, 1985, defendant Bangert, citing "Additional Permit Restrictions," instructed USPP and NPS personnel to seize the NPS-permitted mobile speaker's platform, and to arrest Ellen Thomas when she challenged Ms.Bangert's right to take the speaker's platform. Ellen was arrested under color of "disorderly conduct," and NPS seized and removed plaintiff's legally permitted mobile speaker's platform.

109. On June 3, 1985, Ellen Thomas spent several hours on the White House sidewalk with a cloth banner, hand-sewn within the 36 CFR 50.19(e)(9)(10) requirements, unmolested. When Thomas and Ellen returned on June 4, 1985 with the same banner, which read "WORK FOR PEACE," they

were warned by USSS Sergeant Smith and USPP Officers Carroll and Moore to remove the wire shopping cart supporting one pole of the banner as an unlawful structure ... or be arrested.

110. On June 7, 1985 (early after midnight) USSS Officer W.A. Reynolds told Thomas and Ellen to move their banner from the White House sidewaLk or he'd call the Park Police. Sergeant Meyer (USPP) threatened them with arrest for unlawfully demonstrating without a permit without probable cause

111. On June 8, 1985, 8:00 a.m.. Sergeant Walkovich and Officers Ferebee and Brown (USPP) confiscated the "WORK FOR PEACE" .banner as an "unlawful structure." Ellen Thomas attempted to retrieve the banner from the Park Police Property Office in July and was told it was being held as evidence. Thomas and Ellen were deprived of its use and chilled by prospect of arrest from communicating during the peak tourist season at the White House. Charges were dropped on August 21, 1985, with no apology for the damage to freedom of communication.

112. The government, through various press releases by various agents. has argued the necessity to balance the rights of the First Amendment against the purported "rights" of "picture taking" and "undisturbed enjoyment of public parks" for an unspecified "public,n although plaintiff never was accused of personally interfering with those rights except by his presence, with signs, in a public park and traditional forum for free speech.

113. On August 20, 1985, Interior Department defendants Richard Robbins and Patricia Bangert joined with defendant William P. Horn and National Park Service defendants Alley and Mott to publish 36 CFR 50.19(e)(9) in the Federal Register to eliminate the very effective large signs which stand in the Park as a strong symbol of individual commitment, and a

creative means of social/political/religious expression, which would have the effect of reducing Lafayette Park as a public forum to the status of Red Square ... a public showcase in which regimented demonstrations may be conducted pursuant to a government-issued, restrictive, permit.

114. Thomas takes issue with a number of the statements in the Background of this regulation, including, but not limited to, the following:

a. History

1. Thomas stipulates that "in the 1800's President Thomas Jefferson authorized the Park's separation from the President's House (White House), intending its use for local residents and visitors to Washington." (36 CFR 50.19(e)(11), p. 33571-2), but additionally notes that

2. Hewn in stone at the Jefferson Memorial are the inscriptions:

"Almighty God hath created the mind free. All attempts to influence it by temporal punishments or burthens are a departure from the plan of the Holy Author of our religion.... No man shall be compelled to frequent or support any religious worship or ministry or shall otherwise suffer on account of his religious opinions or belief, but all men shall be free to profess and by argument to maintain their opinions in matters of religion. I know but one code of morality for men whether acting singly or collectively."

"I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

"I HAVE SWORN UPON THE ALTAR. OF GOD ETERNAL HOSTILITY AGAINST EVERY FORM OF TYRANNY OVER THE MIND OF MAN.:

President Jefferson intended that local residents, visitors to Washington, and "all men ... created equal, ... endowed by their Creator with certain inalienable rights" which should not be abridged, should be assured protection from hostile public or government actions which might be utilized

to suppress the questioning of any form of tyranny which might enslave the mind of humanity, or utilized to oppress any individual who might raise an allegation of such enslavement.

3. The NPS has not adhered to the name "Lafayette Park," but together with at least the U.S. Park Police, regularly identifies it as "President's Park" (see, e.g., "Ad Hoc White House Liaison Committee on President's Park Signs," (Original Complaint Att. 34.)

4. Lafayette Park has historically served as a public forum in which individuals and groups, with varYing degrees of effectiveness, have sought to communicate their opinions, beliefs, and ideas to the American public. For example, as early as January 10, 1917, challenging Woodrow Wilson's policies and pretensions as to his personal commitment to "freedom a group of women began a continuous presence at the gates of the White/House. These women protested President Wilson's policies with regard to suffrage for women, and American involvement in the First World War. Those actions led to repeated arrests and imprisonment of the suffragists, and resulted in Supreme Court decisions upholding the right of the women to engage in those activities and overturning the convictions which had result from those activities.

b. Unique Features of the Park

1. Five memorial statues adorn Lafayette Park honoring heroes who, intelligently or instinctively, engaged in war for the purposes of establishing and/or securing "Life, Liberty, and the Pursuit of Happiness."

2. In addition to honoring these five notable figures of American's past, Lafayette Park has historically served as a public forum, See supra. 114 (a)(4) (above).)

3. The "problem" which 50.19(e)(11) purports to address has never prevented anyone from playing chess, eating a picnic lunch, sitting quietly on a park bench, or reading a book in the Park.

4. Signs in Lafayette Park do not prevent park visitors from "viewing the north side of the White House" without obstruction.

5. The Park Service has allowed special events which have resulted in extensive damage to park resources as recently as the 1985 Inauguration. (Supra. para. 104.)

Amended Complaint - Continued

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