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