THOMAS v. REAGAN
USDC Cr. No. 84-3552
I. The Magistrate illustrates how he has pre-judged another
point:
"Even if, as plaintiff contends in his opposition motion at
paragraph 10, that (sic) Captain Canfield advised Mr. Thomas that
he had twenty (20) minutes to remove the structure, this does not
alter the fact that Captain Canfield acted properly in requiring
plaintiff to `abate the nuisance.'" (Magistrate's Canfield Memo,
pg. 6, ftn. 6.)
The question is whether Captain Canfield was engaged in the
"reasonable" enforcement of police regulations, as he would now
like the Court to believe [11], or whether he "got involved" in a
"joint venture" to remove constitutionally protected signs from the
vicinity of the White House "under color of regulation" [12].
[11 THOMAS: "Is it possible that what you said was that I had
twenty minutes to move the sign or would be arrested?"
( ...)
CANFIELD: "No... I did not say that, Mr. Thomas. I told you I
would give you a reasonable time to abate the nuisance and I
defined that as by the end of the day." (Deposition of Michael
Canfield, Thomas v. USA, July 10, 1986, page 83.)]
[12 CANFIELD: "I had a flatbed truck to haul it away if he didn`t
move it." (Grand Jury testimony of Canfield, April 8, 1983, page
9.)]
Thomas has not attempted to attribute blame to the
defendants for his own actions, as it may seem the Magistrate
implies, he merely alleges that the actions of defendants were
improper in the first instance.
"If [the plaintiff] can establish that [one defendant]
participated in or induced the alleged wrongful actions of [a
second defendant] pursuant to an agreement, then [the first
defendant] is liable as a conspirator for the damages proximately
caused by these wrongs." (International Underwriters, Inc. v.
Boyle, 365 A.2d at 784 {D.D.C 1971}.)
J. After noting that:
"The ...theory of liability as to Captain Canfield is that he
acted individually and in conspiracy, as part of a 'joint
venture,'... in initiating criminal prosecution against (plaintiff)
maliciously and without probable cause for the purpose of interfering with his demonstration
activities...." (Magistrate's Canfield Memo at 3.) [13]
[13 It should be noted that during depositions the Magistrate
professed to lack comprehension on this point:
THOMAS: "I'm also alleging in the complaint, Your Honor, that
there was malicious prosecution and abuse (of) process."
MAGISTRATE: "I've read the file now completely, and I don't see
that in the case, at this point." (Deposition of Michael Canfield,
July 10, 1986, page 100.)
Actually a careful reading of the Complaint would reveal:
"The 'arson' arrest... was at best a classic example of
selective enforcement or, at worst, part of a concerted effort to
bring criminal charges against plaintiff, in either case (it)
violat(ed) plaintiff's First, Fourth , Fifth...Ninth), and
Fourteenth Amendment rights" (Complaint, filed November 21, 1981,
para 166).]
Next, the Magistrate hypothesizes:
"(t)he fact that plaintiff was not arrested for maintaining a
temporary abode is... immaterial because Mr. Thomas was charged and
convicted for setting fire to his structure and causing substantial
damage to the White House fence." (Magistrate's Canfield Memo
at 3.)
Then as if to fill in the gaps, the Magistrate quotes the
"temporary abode" regulation (ibid, page 13), from which he
proceeds to expound a lengthy theory (ibid, pages 12 thru 17)
which, he says, exonerates defendant Canfield because "(w)hen
Captain Canfield first observed plaintiff in his structure he
clearly had probable cause to believe Mr. Thomas was (in violation
of the temporary abode regulation)." (Ibid, page 13.)
The Magistrate goes on to conclude:
"defendant Canfield has responded to plaintiff's allegations on the
ground that he acted in good faith in arresting the plaintiff,
based on probable cause, with a reasonable belief in the lawfulness
of his actions." (Ibid.)
However, the honorable Mr. Burnett leaves a gap by failing to
mention the specific regulation under which plaintiff alleges he
suffered malicious prosecution; which reads, in pertinent part:
"Whoever maliciously injures or breaks or destroys, or
attempts to injure or break or destroy, by fire or otherwise ...."
(D.C. Code, Section 22 -402, emphasis added).
Plaintiff contends the police officers realized, or should
have realized, that Thomas, who wanted to preserve the signs which
the officers were trying to move out of town under color of regula-
tions, had not acted maliciously in destroying his own sign. (See,
Complaint, para 164 - 166.) [14]
[14 "The Park Police originally tried to get the U.S. Attorney to
paper the case as arson, but the papering people refused, pointing
out that even if they had evidence that he set the structure on
fire (which apparently they do not), the structure was not a
'building,' and the D.C. Code specifically requires that a person
burn a building to commit an arson. According to AUSA Dan Cisin
(in an off-the-record conversation), the Park Police left, then
came back about an hour later and cornered the chief papering
assistant in an office for an hour and a half until the AUSA agreed
to paper the case as a felony destruction of property -- White
House gate, just to get rid of them....
"After I got the indictment/arraignment notice, I saw the AUSA
assigned to this case in the Grand Jury room, William (J.J.)
Jackson, in the hall of the courthouse, and asked him how in the
world he could indict this case. He said that even though I was
right that there was no evidence of malicious intention to destroy
the White House gate, the Grand Jury relied on 'reasonable
inferences' arising from the fire to constitute the malicious
intent....
"I've had several conversations with AUSA Marc Tucker, to whom
this case is assigned for trial before Judge Webber. Marc is not
overwhelmed with the case, and I have told him all of the above.
He says he does not think 'reasonable inferences' get you past an
MJOA on destruction of property, and if that's all he has --
reasonable inferences -- he will try to get his supervisors to
dismiss. (The case is still very political.) -- He also told me
the reason the case is in Superior Court is the Park Police/Secret
Service were not having any luck in District Court getting Mr.
Thomas locked up, so they decided to change courts and maybe things
would improve." (Tr. Ex. 78, Public Defender Service Memorandum,
Allie Sheffield to Charles Ogletree, July 26, l983.)]
K. Plaintiffs would dispute the Magistrate's representation that they were "given every opportunity to be fully
heard." (Magistrate's Canfield Memo, page 3.) [15]
[15 THOMAS: "Did you have any reason to believe that I intended to
cause damage to the pillar by setting fire to the sign?"
MS. STAEMPFLI: "Your Honor, I object."
MAGISTRATE: "I have to say, that's not relevant to the question of
your First Amendment issues at this point."
( ...)
THOMAS: "It's relevant, I believe, to (Mr. Canfield's) actions,
Your Honor, because he followed through on a charge of, I believe
it was criminal damage."
MAGISTRATE: "Well,it's destroying of property is what he said it
was (inaudible)."
( ... )
THOMAS: "Now -- but the elements of this charge require intent on
the part of the defendant."
( ... )
MAGISTRATE: "I think that is immaterial and irrelevant to the
questions you have about the First Amendment issues and what his
intent really was and his conduct."
( ... )
THOMAS: "Well, it's also, I thought, about malicious prosecution
and I think that his intent with regard to this particular question
is important as to whether or not he had reason to believe that
there was probable cause for arresting me on a charge that required
intent."
MAGISTRATE: "All right, sustained ..."
THOMAS: "Okay. I'D LIKE TO CERTIFY THIS QUESTION."
(Deposition of Michael Canfield, July 10, 1986, page 125-126,
EMPHASIS ADDED).]
L. Plaintiffs incorporate by reference Amended Complaint para
130 (a)-(m)), "Causes Of Action".
In researching Section 1983 and 1985 cases, plaintiffs have
not discovered an instance which alleged as many wrongful actions
as set forth in this complaint. The depositions have shown that
without exception in every incident chronicled by plaintiffs'
pleadings 1) defendants have not disputed that the incident
occurred SUBSTANTIALLY AS PLAINTIFFS ALLEGED, and 2) the
individuals named in the pleadings participated SUBSTANTIALLY AS
ALLEGED.
"In Adickes v. H.S. Kress, 398 US 144 (1970), the Court
emphasized that the availability of summary judgment turned on whether a proper jury question was presented. There, one
of the issues was whether there was a conspiracy between private
persons and law enforcement officers. The District court granted
summary judgment for the defendants.... We reversed, pointing out
that the moving parties' submissions had not foreclosed the
possibility of the existence of certain facts from which 'it would
be open to a jury ... to infer from the circumstances' that there
had been a meeting of the minds. Id at 158-159." (Anderson v.
Liberty Lobby, decided June 25, 1086, slip Opinion at 6.)
Adickes relied on one incident where a policeman was allegedly
in a store, and then arrested plaintiff. With respect
to this defendant alone there are at least two such incidents.
Plaintiffs submit that one might reasonably infer the alleged
combination of "mindless bureaucracy and totalitarian police state
tactics" (see Complaint, para. 111), tacitly admitted by Federal
Defendants' consistent failure to refute the documentation
presented in plaintiffs' Trial Exhibits (Supra 5/), constitutes
irreparable injury to "individual freedom."
Assuming the validity of plaintiffs' allegations, (Reuber v.
USA, 750 F2d 1061, ___), it must seem that the Magistrate,
supposedly supervising discovery pursuant to 28 USC 636, has acted
as if conducting a trial ... sans testimony from the plaintiffs or
any non-hostile witnesses ... summarily exonerating defendants' in
their motives, and intents.
UPON THE FOREGOING plaintiffs ask this Court to disregard the
Recommendation of the Magistrate as regards Michael Canfield.
Respectfully submitted this _____ day
of January, 1987,
____________________________________
William Thomas, Plaintiff Pro Se
1440 N Street NW, #410
Washington, DC 20005
(202) 462-3542
Case Listing --- Proposition One ---- Peace Park