THOMAS v. REAGAN

USDC Cr. No. 84-3552

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM THOMAS, et al    
     Plaintiff Pro Se    
                         
versus                          CA 84-3552
                                Judge Louis Oberdorfer
UNITED STATES, et al     
     Defendants

TRIAL BRIEF

I. MATERIAL FACTS NOT IN DISPUTE

1. Secret Service reports indicate that at least as early as June 5, 1981, the Secret Service was aware Thomas represented himself as a "writer and philosopher," and:

"(Thomas) stated that he was a non-violent person who objected to being in this country at what he feels is against his will. (Thomas) stated that he went to the Soviet embassy to present them with a book he had written, and to prove that there is nothing to fear from the Soviet Union. (Thomas) expressed concern about nuclear destruction of the world, and believes that nuclear weapons are made because of the fear that this country has of the Soviet Union....

"Copies of the following entitled literature were obtained from (Thomas), and are being forwarded to ID under separate cover: Manifesto of Independence, Truth and Assorted Red Herrings, Parable of a Prophet, Parable of a Beast....

"(Thomas) feels these writings best express his philosophies and actions.... (Thomas) was calm, congenial, and understanding of our interest in him during the interview." (Tr. Ex. 1 (a),(b),(c),(d),(e), June 16, 1981.)

2. Both the Secret Service and the Park Police were aware of the nature of this activity, and the fact that it was protected under law. (Tr. Ex. 2, 3 and 4.)

3. This activity was likely to be understood by the public:

"Thomas ... is entirely coherent. He just lives in a world of the abstract, as a street corner philosopher, engaging curious passersby in Socratic dialogue on Freedom, Truth, and the meaning of Life.

"'The main point I'm trying to make' he says, 'is that the Earth is a unit. It's a whole thing. It's not compartmentalized. And what people do is to divide this unit up with imaginary lines, and then they start wars over those imaginary lines. This is not productive....

"Thomas recalled a conversation with Victor Doreshenko, an employee of the Soviet embassy where Thomas had been arrested for unlawful entry: 'I told him that I thought the mutual build-up of nuclear weapons had to do with mutual fear between the two nations, and he said: yes, he thought that was true. And then I told him that in order to prove to Americans that they have nothing to fear of the Russians, I wanted to surrender myself to the Soviet Union.'"

(Tr. Ex. 5, Boston Globe, August 27, 1981; see also Complaint, November 21, 1984, at 190-193; see also Tr. Ex. 114(c).)

4. At least as early as November 1981 there was a concerted effort among different agencies within the Department of Interior to disrupt or terminate Thomas' expressive activity under color of the camping regulation. (Tr. Ex. 6, 7, 8, 9, 10, 11.)

5. Now defendant Robbins claims he can't remember this period too well. (Tr. Ex. 12.)

6. Also during that time the Department of the Interior admitted that a "demonstration is proper, a symbolic camp site is proper, a continuous presence is proper." The Department of the Interior also admitted to the validity of United States v. Abney (sleeping is prohibited in the context of a round-the-clock vigil). (Tr. Ex. 13, 14.)

7. Nonetheless, on four separate occasions between June and December of 1981, Thomas was arrested for "sleeping" under color of various regulations. (Tr. Ex. 2, 15(a),(b), 17, 18.)

8. Those arrests were executed under instructions. (Tr. Ex. 19.)

9. During this period Thomas made several attempts to communicate with the Department of Interior. Finally:

10. "On 12-25-81 (Thomas) was observed hanging by his wrists from a street light in front of 1600 Pennsylvania Avenue N.W. and was arrested by U.S. Park Police. This incident was photographed by UPI and was the subject of an article by the Washington Post. At the time of the arrest (Thomas) was in possession of a one page statement protesting police harassment (copies of the article and the statement will be forwarded to ID under a separate cover). On 12-25-81 at one-forty-five PM the subject was interviewed by special (Secret Service) agents (censored) and (censored) at the Park Police sub-station on Ohio Drive. The interview revealed that the subject's purpose was to solicit the attention of the president regarding his displeasure with certain governmental operations." (Tr. Ex. 20, Secret Service Report, January 7, 1982.)

11. "I have been patient, peaceful, and consistent in my belief. The Government has remained steadfast in its ignorance. The police, in response to civil authority rather than law, have waged a continuous campaign of harassment, from which, it is hoped, they have learned something of their own lack of principle.

"Unfortunately the on-going police harassment has reached a stage where it effectively, though illegally, prohibits me from expressing myself as I had chosen, and as my principles dictate. Therefore it seemed appropriate that I attempt a new form of demonstration." (Tr. Ex. 21, Thomas' Statement, December 25, 1981.)

12. None of the agencies involved responded to Thomas in any manner whatsoever. The Secret Service went as far as to misrepresent Thomas to the public. (Tr. Ex. 22, 23.)

13. Secret Service falsely reported to the press that Thomas grievances were unknown, and that he had been sent to a mental institution. (Tr. Ex. 24.)

14. From the very beginning the Secret Service didn't like the signs, saw them as the "wave of the future," and met with people from the Department of the Interior to try to "work out some kind of arrangement." (Tr. Ex. 25, 26.)

15. In the wake of those meetings certain defendants promulgated, suspended the delay of effectiveness, and on June 17, 1982, implemented the "camping regulations" against Thomas, as well as Concepcion Picciotto and Arthur Lee Harris, who had also begun demonstrating on the White House sidewalk. (Tr. Ex. 28, 29, 30, 31, 32, 33, 34, 35, 36, 37.) (Arthur Lee Harris never came back.)

16. Beginning on June 4, 1982 a letter signed by defendant Fish, and threatening the recepient with arrest unless he "removed temporary structures which you are now using for living accommodation from, and cease camping on park lands," was delivered to Thomas regularly by agents of defendants Lindsey and Fish during the period between June 4 and June 17, 1982. (Tr. Ex. 28, 30). On each occasion Thomas responded by advising the agent he was not using any structure or shelter for living accommodation, or any other purpose, and by giving defendants' agents a copy of his own letter dated June 5, 1982:

"By sitting in front of the White House, sleeping, like Lazarus, by the gates of the world's wealthiest public servant, I hope to clearly demonstrate the lengths to which a moral person must go in order to remain true to the ideals of Truth, Justice, and Freedom within an amoral society. In other words: I am demonstrating not only how to be in a world of law, and bureaucratic regulations which value property above human life, while not being part of such a world, but also I am demonstrating how difficult the law enforcement, judicial, and bureaucratic agencies of such a world make the life of an individual who presumes to question their morality." (Tr. Ex. 32, Thomas letter, June 5, 1982. See also Tr. Ex. 33, 34, 35, 36, 37(a) and (b).)

17. Again defendants can't really remember what happened during this period. (Tr. Ex. 31, 36.)

18. The agents who performed the actual arrests indicate that it was by prearrangement. (Tr. Ex. 33.)

19. Magistrate Arthur Burnett imposed pre-trial release conditions that Thomas be at least one block away from Lafayette Park between the hours of 10:00 p.m. and 8:00 a.m. (Tr. Ex. 53.)

20. While Thomas was arrested for sleeping (Tr. Ex. 37), others who were similarly situated were not. (Tr. Ex. 27 and 38.)

21. During July and August, 1982, others, sleeping in tents in Lafayette Park with air mattresses, blankets, TV's, etc., were not arrested. (Tr. Ex. 38(a), 38(b).)

22. Defendant Lindsey, who shared responsibility with defendants Bangert and Robbins for defining the enforcement of these regulations (Tr. Ex. 49), stated very clearly under oath that "sleeping is not camping" at a trial before Magistrate Arthur Burnett. (Tr. Ex. 39(a).) Thomas was convicted at least in part as a result of defendant Lindsey's testimony, intended to convince the Court that the regulation was "reasonably" enforced, and obscuring the fact that the regulation was being selectively applied against Thomas. (Tr. Ex. 39(b).)

23. Defendant Lindsey's subordinates have testified under oath that they were given instructions that "sleeping is prohibited." (Tr. Ex. 40, 127, 128.)

24. In the wake of his conviction Thomas altered his behavior to accommodate himself to his understanding of the Magistrate's Order. Most significant, perhaps, was the fact that Thomas began a fast, and published the reason for that activity. (Tr. Ex. 41.)

25. In November, 1982, as in November, 1981, Thomas was again under surveillance for his demonstration activities on the White House sidewalk at the direction of the Solicitor's Office of the Department of Interior. (Tr. Ex. 42(a)-(n), 48.)

26. Despite Thomas' attempts to comply with the regulations as defendants represented them, he continued to suffer harassment and intimidation for the action of "sleeping." (Tr. Ex. 43).

27. "I have a responsibility to scream out against the unresponsible activities of this government. For the most part my screaming has been ignored, but lack of attention has not been a factor in driving me away from the White House sidewalk. For more than seventeen months I have fought to retain the rights guaranteed by the First Amendment against the police, bureaucracy, and the suicidal system of this country. Perhaps one point that will be made by this demonstration will be to illustrate to Federal Magistrate Arthur Burnett that sleeping can be expressive communication. It may also serve to show that, while it may be necessary to go to ridiculous extremes in order to stand up for one's beliefs, one's belief in freedom need not, can not be protected by destroying the earth." (Tr. Ex. 44, Thomas letter November 13, 1982, Statement of Reason.)

28. Defendant Robbins was discussing arrests of people on the White House sidewalk during November, 1981 (Tr. Ex. 48), and defendant Lindsey conceded partial responsibility for determining "First Amendment expression." (Tr. Ex 49.)

29. On December 7, 1982, Sgt. Bradley arrested Thomas and Concepcion as a premeditated action in which the Solicitor's Office had participated to "help build a case." (Tr. Ex. 12, 48, 50, 51.) The probable cause for that arrest was "sleeping."

(JUDGE WILLIAM BRYANT):
(p. 4) "I listened to the tape, and they locked the man up for going to sleep. And he says that is part of his -- he is out there forever, 24 hours.

"In the face of it, it's a piddling case; but, really, it is a bedeviling case....

(p. 5-6) "Let me ask you this. . . hasn't it been one of those things where he gets arrested today for doing 'X' conduct, and then he goes back out and he does 'X-Y' conduct, right? And he gets arrested. And then he goes back out and does 'X-Y-Z.' In other words, wherever you folks draw the line, he wants to stay on that line, wherever you want to draw the line." (Tr. Ex. 52, Judge Bryant USA v. Thomas CR 83-358, July 5, l983; transcript p. 6-7.)

(p. 9) "What bothers me is ... the definition (of camping) when (Thomas) was arrested.... And the police officer, it was clear to him that he was acting because he felt they were asleep; and this was the activity that put them in violation, and I'm sure they still feel that way.... I have a hard time sleeping putting him in jail, actually, for what he did. He is such a -- I kind of tend to agree with him. He is such a minimal harm to anybody in the world. The worst criminal, put him in jail."

(MR. MARCY): "Your Honor, he is not a minimal harm.... He has been there since I believe June of the previous year....

(p. 11) "It is not an easy case, your Honor, but we would suggest to the Court that there is only one road to go down at this point. The defendant has been given every opportunity to conform his conduct, and he has failed to do so, and we would ask the Court to incarcerate him....

(p. 12) "Six months. If your Honor would like to send him to Sacramento to demonstrate in front of the state capitol out there, we wouldn't have any strong objection." (Ibid.)

30. Although Thomas and Concepcion had altered their behavior to comply with the new regulations, nonetheless in December 1982 the Secret Service and the Department of Interior, and others, were participating in further discussions to deal with "the situation on the White House sidewalk" and "the group of people demonstrating there." (Tr. Ex. 26, 54.)

31. Thomas built larger signs. Police officials instructed him to make frames for the signs. (Tr. Ex. 146(g), para. 37.) In order to accommodate Court rulings, it was necessary for Thomas and Concepcion to move their signs in and out of the Park on a daily basis. Up to that point all parties agreed that Thomas' signs were signs. (Tr. Ex. 56, 60(a)-(c), 61.)

32. Simultaneously during that period, the Secret Service expressed its displeasure with "large signs," Secretary Watt expressed his displeasure with "demonstrations and protesters," and defendant Robbins was writing regulations to ban all but "hand-held signs." (Tr. Ex. 57, 58, 59, 95, 108.)

33. "I would like a briefing on the regulations that allow demonstrations and protesters in Lafayette Park and in front of the White House on Pennsylvania Avenue.

"My intention is to prohibit such activity and require that they take place on the Ellipse." (Tr. Ex. 58, Memo from James G. Watt, January 13, 1983.)

34. On or about March 8 and 9, l983, defendant Robbins met with defendant Watt to discuss the development of the "hand-held sign" regulations. Defendant Watt told defendant Robbins to "keep up the good work." Meanwhile defendant Canfield began threatening Thomas with arrest. (Tr. Ex. 62, 63, 64, 65.)

35. After a concerted, prearranged operation which had the effect of removing Thomas' "objects" and other signs from the White House sidewalk (Tr. Ex. 64), agents of the Park Police confiscated Thomas' sign-cum-object, although Concepcion Picciotto had identified herself as a part owner and asked to be given possession. (Tr. Ex. 76(a), 76(b).)

36. Evidence indicates that all defendants believed themselves to be dealing with a "nuisance." (Tr. Ex. 65, 66, 68.)

37. Notwithstanding the evidence established at these earlier dates, from his deposition testimony on July 10, 1986, it would appear that defendant Canfield is now ready to swear that events he earlier testified to did not occur. (Tr. Ex. 67.)

38. In concerted effort to remove Thomas and Concepcion's constitutionally-protected signs from the White House sidewalk, on March 11, 1983 agents of various departments, under the orchestration of defendants Robbins and Bangert, met on the White House sidewalk. (Tr. Ex. 65, 66, 71, 72, 74.)

39. Defendants unnecessarily confiscated Thomas and Concepcion's signs. (Tr. Ex. 76.)

40. Although defendant Canfield claims to have made the arrest of Thomas on March 11, 1983, there is no evidence in the paper trail that he did. Lt. Merillat did leave a paper trail. (Tr. Ex. 77(a),(b).)

Case Listing --- Proposition One ---- Peace Park