Thomas v US, CA 84-3552

Section 2


Turning to the various facets of plaintiff's complaint, a recurring allegation is that officers and agents of the United States Park Police unlawfully continued to arrest him without probable cause. [8] Generally, whether probable cause exists to sustain an arrest, in a civil action for false arrest, is a question normally reserved for the jury except where the material facts are not in dispute or only one reasonable inference can be drawn from the evidence. The question is not whether plaintiff was guilty of the charge, but whether the defendants had a reasonable belief that probable cause for the arrest existed. [9] Thus, where the constitutional validity of a warrantless


[8 Plaintiff has been convicted at least four times following trial in the local courts. Consequently, plaintiff's claims that these four arrests were each executed without probable cause is barred on the basis of collateral estoppel, the plaintiff already having had an opportunity to raise the validity of these arrests in those cases.]

[9 In his statement of material facts to which there exist genuine issues of material dispute, filed on September 22, 1986, plaintiff contends that, "the bare fact that the preponderance of Thomas' arrests, for activities which defendants agree were expressive, have resulted in the charges being dropped, is certainly prima facie evidence that there was no probable cause." This contention is not well-taken. The decision not to prosecute a defendant lies within the informed discretion of a prosecutor and may be based on other factors such as insufficient evidence to prove guilt beyond a reasonable doubt, consideration for other court cases and congestion and the seriousness of the offense. Thus, this fact would be insufficient for a factfinder to infer a lack of probable cause far plaintiff's initial arrests. Moreover, an acquittal is merely an adjudication that the proof
(Footnote 9 Continued)]

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arrest is challenged and probable cause has been established, a plaintiff cannot recover for a violation of his civil rights arising out of that arrest. See generally Green v. Brown, 535 F. Supp. 1096, 1100 (E. D. N. Y. 1982); Onley v. Simms, 476 F, Supp. 974, 976 (E. D. Pa. 1979) (Neither the Fourth Amendment nor the Fourteenth Amendment guarantees that only the guilty will be arrested.)

In support of their motion for summary judgment, the federal defendants have filed, in accordance with Local Rule 108 (b), a statement of material facts not in disputer wherein the defendants contend that "plaintiff has never been arrested without probable cause by defendants, or without a reasonable basis to believe that plaintiff had violated a criminal regulation," and that "there is no evidence that these arrests were made in bad faith or that excessive force was utilized." Defendants further deny the existence of a civil conspiracy to deprive plaintiff of his constitutional rights or his civil rights. Defendants also assert that plaintiff's signs were confiscated incident to his lawful arrests, as part of the normal confiscation process when individuals are arrested. In further support of these contentions, defendants referred to the numerous depositions, wherein several federal defendants each denied having taken any unlawful action to impede plaintiff's constitutional and civil rights.

While many of plaintiff's unlawful arrest claims are without sufficient


[9 (Footnote 9 Continued)
was insufficient to overcome reasonable doubt of the guilt of the accused. The existence of probable cause, however, is determined on the basis of the collective information of the officers participating in an arrest at the time of its execution and is a much lower standard based on probabilities and common sense, Good faith in initiating an arrest, and probable cause for doing so, is available to the defendants as a defense. Thus, so long as the conduct of the federal officers and agents may objectively be based on probable cause, an arrest is not unconstitutional even though the charges are later dismissed or the defendant is acquitted.]

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factual support in the record, there remains an incredible number of incidents stemming from these arrests on which reasonable minds might well differ as to the arresting officers' subjective intent and whether their actions involved police misconduct. Plaintiff has alleged, for example, that on December 10, 1981 USPP Officers Pamela Jackson (now Rose-Hayes) and Jacqueline Anderson confiscated his signs and literature and transported him, first to the substation in a USPP vehicle, and thereafter they took him to the southeast section of Washington, D. C., and abandoned him in that area [10] with the intent that he not return to Lafayette Park. [11] See Second Declaration of William Thomas, filed September 22, 1986, at 14-20. Another incident, allegedly occurring an July 1, 1983, according to paragraph 82 of the complaint, involved Private Walter Sherba, Sergeant Donna Barrett, and other officials of the U. S. Park Police. Mr Thomas has asserted that during an eight (8) hour period these


[10 According to plaintiff's second declaration, after being taken to the U. S. Park Police District One Substation, at 1100 Ohio Drive, S. W., he was taken by these two officers in the early morning hours to the intersection of 30th and Southern Streets, S, E., and ordered out of the police vehicle. Mr. Thomas further alleges that when he demanded that the officers return him to Lafayette Park, Officer Anderson told him that he could not return to that location because "the President and Mrs. Reagan live there." He also claimed that Officer Anderson told him she had been given orders to drive him to a distant location.
(Second Declaration of William Thomas, at 14-20.)]

[11 In addition to his awn declaration, plaintiff has proffered the affidavit of Mr. Larry Tucker, a taxi driver who volunteered to drive him back to the Lafayette Park area in his cab after the arresting USPP officers allegedly abandoned Mr. Thomas near St. Elizabeth's Hospital in the southeast section of Washington, D, C., and told him to "get lost". Therein, Mr. Tucker claims that after he drove back to the White House with Mr. Thomas, USPP Private Anderson approached him to inquire as to the reasons why Mr. Tucker drove plaintiff back, When Mr. Tucker responded "I was doing him a favor", Private Anderson's reply was "Well you didn't do us any favor, we were trying to get rid of him." See Attachment 10 to Plaintiff's Complaint, filed November 21, 1984.]

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officers repeatedly stepped on, kicked and prodded him. Mr. Thomas has claimed that Pvt. Sherba, when questioned at one of his camping trials, would only admit to kicking Mr, Thomas "on the foot."

A second facet of plaintiff's complaint is that he was the victim of malicious prosecution by the federal defendants. Here, another troubling incident is Mr. Thomas' arrest for alleged "unlawful entry" by agents of the Secret Service on May 5, 1983 for climbing up on the White House fence to show that signs propped against the fence were not necessary for one to scale the fence. Mr. Thomas protests that he did not "enter" and that the agents were aware he was showing them how easy it was to scale the fence. He asserts that according to the admission of Government counsel in D. C. Superior Court, the May 5, 1983 event was recorded on videotape by the U, S. Secret Service, and that tape was later destroyed. Mr. Thomas asserts that the unlawful entry charge was dismissed pursuant to a motion by his counsel for destruction of evidence. (Second Declaration, 86-88.)

Plaintiff also alleges another incident to the effect that defendants Robbins and Lindsey instructed USPP Officer Braxton to falsely charge him with an additional count of "resisting arrest" on October 10, 1985 when there was no factual basis for the charge. (Second Declaration, 111 117-125.) In support of this allegation, plaintiff states:


"On October 10, 1985 I was arrested for General Injury to a Tree, Attaching an Object to a Tree and convicted after a trial by this Court. When the arresting officer, Braxton, took me to the substation I told him I wanted to pay the fine on both charges. He told me that I would be allowed to pay the fine after I had been booked. I was taken to the holding cell. I saw J. C. Lindsey and Richard Robbins, both of whom had been on the scene of the arrest, enter another room, where they spoke with Officer Braxton. A short time later Officer Braxton came to the cell and told me that we were going to the Central Cell Block. I asked:

"What about the fine?" "Too late for that", said Officer Braxton.

"You've got another charge. Resisting arrest." "Did Lindsey and Robbins tell you to do that" I asked. "Yup" he told me,

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Here again, the motive of these defendants in bringing this additional charge against plaintiff is a factual issue to be determined at trial.

Another troubling sequence of events involves USPP Officer David Haynes. Ellen Thomas in her declaration, filed September 22, 1986, has stated:

"During the spring and summer of 1984, Officer David Haynes frequently drove his cruiser through the park, across the grass and the brick sidewalks, to within inches of where we were sitting standing, or lying, or came striding up with his nightstick in hand in what seemed to me to be an effort to intimidate us." (Declaration, 30)

She then referred to a June 6, 1984, 6:00 a. m. incident, in which she was one "of three demonstrators assaulted and arrested by U. S, Park Police Officer David Haynes. Officer Haynes falsely charged us with assaulting a police officer." (Declaration, 1 31). Ellen Thomas further states in her declaration that just prior to Officer Haynes' assault on her, she photographed Officer Haynes using excessive force on William Thomas, with their Chinon 35 mm. camera. She claims that Mr. Thomas had used the same camera to photograph Officer Haynes, assisted by Officer Gerald Simon, punch Robert Dorrough three times in the back of the neck with the knuckle raised on his right fist while Robert Dorrough knelt, unresisting, his hands cuffed behind him. (Declaration, 34) She also claims that Officer Haynes attacked them because of the photographing and that Haynes grabbed Willian Thomas, hurled him against a large sign, kicked him and then grabbed him in a stranglehold briefly until several Secret Service agents arrived to put handcuffs on him. Ellen Thomas also related that Officer Haynes grabbed her around the neck in a chokehold so that she could not breathe and then loosened his hold and slung her to the ground. Mr. David Manning in an affidavit of August 25, 1986 describes the June 6, 1984 incident in complete accord with the version furnished by Ellen Thomas. ( 4). The second

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declaration of William Thomas ( 89-90) and the declaration of Robert Dorrough ( 21-30) are fully corroborative of Ellen Thomas' version of this incident. [12] See also declaration of Willian Thomas, filed August 27, 1986, 13-14.


[12 There is also a controversy as to what happened to the camera after the arrest. The plaintiff suggests that the film was removed and destroyed by U. S. Park Police officers to prevent the plaintiff and his associates from having evidence of the police officers assaulting them. The Government contends that a U. S. Park Service employee, David Harley, was prosecuted and convicted in connection with the theft of the camera. There is a dispute as to whether he was convicted of stealing the camera, or perhaps, of only receiving stolen property. The critical question is whether the film recording the conduct of the officers was still in the camera at the time David Harlem took possession of it. Perhaps, he could shed some light on this issue were he to testify in this case.]


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