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
FACTUAL ISSUES IN DISPUTE
WITH FEDERAL DEFENDANT'S COMMENTS ON THE
RECOMMANDATION OF MAGISTRATE BURNETT RELATIVE TO
THE PENDING MOTIONS FOR SUMMARY JUDGMENT
On February 3, 1987 Assistant U.S. Attorney Michael Martinez,
filed Federal Defendants' Comments On The Recommendation Of
Magistrate Burnett Relative To The Pending Motions For Summary
Judgment (Comments).
Plaintiffs will not here reargue or reiterate every point made
in their motions but insted refer the court to their replies to
defendants' motions filed (check dates) on August 27, 1987
(Lindsey), and September 22, 1986 (Federal Defendants [1] and
Canfield), and upon their responses to the Magistrate's
recommendations on the motions for summary judgment of Lindsey and
Canfield, filed January 5, 1987.
[1 As Thomas explained to Magistrate Burnett Plaintiffs' Memorandum
In Support Of The Motions For Summary Judgment, Declaratory and
injunctive Relief was intended to be treated as the Opposition to
Federal Defendants' Motion For Summary Judgment.]
Counsel begins with the important admissions "that ...
plaintiff has been arrested many times over the past five years and
... there are disputes of fact between plaintiff's version and defendants' version of his many
arrests and sign seizures, (and that the Magistrate contends) there
is a material issue of fact about `whether supervisory officials
and officers acted in bad faith ... to deprive plaintiff of his
First Amendment rights which precludes granting summary judgment
for the defendants.'." Comments pg.3, parenthsis added. The
record is clear that Mr
Martinez reminded the Magistrate:
"Your Honor is in the unique position in this case of
having sat through every one of those depositions, having reviewed
all of the various documents tgat had been produced in discovery
... "Your Honor has had a opportunity to basically see what
the plaintiffs' case is and to observe the demeanor of the
deponets, to listen to what they say, to review all the documents
that plaintiff intends to introduce at trial as exhibits."
(Counsel Martinez, oral argument on motions for summary judgment,
November 14, 1987, Tr. pg. 51).
Now counsel leaps to the seemingly illogical conclusion that
Celotex Corp. v. Catrett, 106 S. Ct. 2548 (1986), and Anderson v.
Liberty Lobby, 106 S. Ct. 2505 "(t)aken together ... evince an
intent on the part of the Supreme Court that cases like this one Comments pg. 5.
One can only assume that the "rationale" behind counsel's
argument is his hypothesis that "the Magistrate's reference at page
15 (Recommendation on Federal Defendant`s Motion For Summary
Judgment) to `bald assertions' of defendants that no conspiracy
existed and that probable cause existed to arrest persons,
belittles the testimony offered by defendants." Comments pg. 6.
Mr. Martinez has made oral representation that "he is sure"
once Your Honor has read the transcripts of the depositions this
Court will be convinced that no conspiracy existed, and that
probable cause existed for all arrests.
Plaintiffs would remind the Court that one of their
allegations is that certain principle defendants have lied under
oath. Plaintiffs believe that the Magistrate's "bald assertions"
examplifies a compassionately civil understatement.
More to the point of this litigation are plaintiffs'
claims that defendants have pursued a policy of "post hoc
bureaucratic remedy in response to Constitutionally protected
activity" which "posed no threat to Government's interests other
than questioning the sanity of those interests."
Succinctly (sp?) plaintiffs claim that defendants have pursued
a policy of applying ex post facto regulations agianst plaintiffs
to intentionally deprive them of well established rights.
A conspiracy is determined by the design of the parties
who originate it, and when a new person joins it continues to be
the single venture which it was before, wotwithstanding some of the
persons are strangers to each other." U.S.A. v. Feinberg, 123 F2d
425.
"Evidence that secretary of board of education and township
employee acted in concert to illegally aquire... teacher's check
... so that he could deduct certain sums therefrom established an
inditable conspiracy." State v. McNamee, 27 A2d 221.
"`conspiracy' ... whenever the act to be done has a necessary
tendency to prejudice the public or oppress individuals ... whether
of extortion or mischief." Id.
"The gist of civil action of `conspiracy' is damage caused by
acts committed in preformance of formed conspiracy, and not the
mere combination of two or more persons to accomplish an unlawful
purpose ... the basis of the action is the wrong done under the
conspiracy." Gallop v. Sharp, 19 S.E. 2d 84.
Mr. Martinez has urged the Court to be hesitant in applying a
liberal reading to his pro se filings on the theory that "plaintiff
has had several lawyers `coaching' him at various points in this
litigation." Comments pg. 4, ftn. 2.
It is correct that Thomas has had several `opportunities' to
speak with various lawyers at various points in this litigation,
however, prior to recent understandings reached with Mr. Mark
Venuti, those `opportunities' amounted to little better than a
waste of Thomas' time (see e.g. Opposition To Federal Defendants'
(Second) Motion To Dismiss, filed January 17, 1986, at
"Irrelevencies," "Counsel," pgs. 5-7).
"(The decision in Kring v. Missouri, 107 U.S. 221)
proceeded upon the ground that the state Constitution deprived the
accused of a substantial right which the law gave him when the
offence was committed, and ... altered the situation of the party
to his disadvantage." Hopt v. Utah, 110 U.S. 574, 589 (1883).
"The difficulty is not so much as to the soundness of the
general rule ... as in determining whether the particular
(regulations) by their operation take from an accused any right
that was regarded at the time of the adoption of the (regulation),
as vital to the protection of life, and liberty, and which he
enjoyed at the time of the commission of the offense charged
against him." Thompson v.Utah, 170 U.S. 343, 352 (1897),
parenthesis substituting.
"(A) ex post facto law is one which imposes a punishment for
an act which was not punishable at the time it was committed, or an
additional punishment to that then prescribed, or changes the rules
of evidence by which less or different testimony is sufficient to
convict than was then required; or, in short, in relation to the
offense or its consequences, alters the situation of a party to his
disadvantage." Duncan v. Missouri, 152 U.S. 377, 382 (1893).
As the Court is well aware this Complaint has arisen out of a
situation generated by specific activities engaged in by myself and
others in Lafayette Park. I have claimed, and the defendants
have not challenged my claim that my activities have had the effect
and propensity of communicating a message of broad public concern.
I believe it is not possible for to pose a rational alternative to
the proposition that, prior to June 4, 1982, the specific
activities in which I had been engaged, namely displaying signs,
regardless of size, and maintaining a continuous presence were
recognized as constitutionally protected behavior.
At least two additional points have been firmly established in
the record of this case; 1) Defendant Robbins should have known
that the act of "sleeping" not punishable within the context of a
round-the-clock vigil (Trial Exhibits 12 and 13 {check}, and 2)
subsequent to the promulgation and selective enforcement of 36 CFR
50.27(a) on June 17, 1982 the rules of evidence by which less or
different testimony is sufficient to convict than was previously
required altered Thomas' situation to his disadvantage (e.g. Trial
Exhibit __, Wolz testimony).
Plaintiffs agreed that some of the Magistrate's "factual
bases" are inaccurate (see Comments pg. 6), but those insubstantial
errors in dating can be clarified from plaintiffs' pleadings (e.g.
April 27, 1983 see Complaint, filed November 21, 1984, para. 72,
July 25, 1983, ibid, para. 85). However the "serious
mischaracterizations" belong conspicuously to Mr. Martinez, e.g.
A. Judge Johnson, in Picciotto v. Clark, C.A. No. 84-1303,
(Defendants Exhibit 7) ruled on one isolated incident, without
hearing testimony, on the theory of "executive privilege." Comments
pg. 6.
B. February 21, 1985. Plaintiff did not allege that an arrest
occured on that date. Rather plaintiff alleged that defendants
harassed and intimidated him on that date, and recorded their
actions on video-tape (see Plaintiffs' Motion for Preservation of
Evidence, filed February 22, 1984, compare Defendants' Response to
Plaintiffs' Motion for Preservation of Evidence). Mr. Matinez's
representation that "on February 19, 1985 (Thomas) was found to be
camping" is, at best, an absurd mischaracteriaztion founded simply
on an unquestioned Park Police Case Incident Report. There was
not even an arrest much less a judicial determination.
Comments pg. 6.
C. Plaintiff did not allege that a sign was confiscated on June
6, 1985, merely that he was harassed and intimidated on that date.
Plaintiff agrees that the banner was confiscated on June 8, 1985,
but maintains that confiscation was without probable cause.
Defendants' Exhibit 6 exemplifies a gross mischarateriztion. It
seems unlikely that counsel might have been so careless as to
accidently delete Sgt. Moyers' report of June 7, 1985 which
stated; "..........................." Comments pg. 6.
D. Counsel's assertion that "(p)laintiff was in violation of the
camping regulations" on July 1, 1983 is merely supported by a bald
police Case Incident Report, which was submitted by an officer who
plaintiff alleges kicked him repeatedly. Counsel necessarily
ignores plaintiffs' Trial Exhibit __. Comments pg. 7.
Plaintiffs have never disputed the fact that a number of
arrests did result in convictions. However, Mr. Martines accuses
the Magistrate of being "deficient" in may instances were he was
not e.g.:
A. The November 13, 1982 "camping" arrest resulted in a
dismissal, as the Magistrate correctly noted, and Mr. Martinez
doesn't even bother to pretend he has any valid reason to assert
otherwise. Comments pg. 7.
B. Defendants should have records of the arrests which occurred on
June 13, 1982, March 15, 1983, May 5, 1983, and March 15, 1983,
because plaintiffs got their records from defendants' see Exhibits
___, ___, ___, ___ attached hereto.
Comments pg. 7.
C. Although the July 6, 1981 "camping arrest was merely a ticket"
Thomas was also handcuffed, booked, and incarcerated for a
considerable period of time at the Haines Point substation.
Comments pg. 8.
D. It is true that the July 25, 1983 "Structures" arrest
resulted in a conviction by Judge Oberdorfer (Cr. No. 83-186), but
there is a wealth of new evidence to be considered in conjunction
with that arrest (e.g. attachment __, Secret Service Report July
23, 1983), and Judge Oberdorfer has wisely and justly reserved
judgment on Thomas' Motion for Writ of Corum Nobis in connection
with that conviction (attachment __ ).
Similarly, although Magistrate's Appendix B contains one minor
error the mischaractorizations are a product of Mr. Martinez's
machinations.
A. June 21, 1981 should be June 21, 1982.
B. Mr. Martinez claims that "the Park Police were called to
the area by the Secret Service in response to a complaint by one
demonstrator that Thomas was trying to injure her," and he offers
Exhibit 3 to support this hypothesis. However Exhibit 3, the
Supplemental Case Incident Report, identifies the "Complainant"
only as the "U.S. Secret Service Uniform Div." According to the
officer when he arrived "Ms. Tierney (was) yelling at ... Mr.
Thomas..." There is absolutely no indication anywhere in the
report which even remotely suggests that "Thomas was trying to
injure her," and plaintiff is currently investigating the
possibility of asking for sanctions or other appropriate relief
from Mr. Martinez ridiculous hyperbole.
C. Thomas has made no complaint with reference to being
"detained longer than usual" on December 25, 1981. But Thomas did
complaint that the Secret Service made false, defamatory statements
to the press with respect to the incidents which transpired on that
date, and that issue Mr. Martinez totally fails to mention.
D. Defendants may not have any record of "such warnings," but
plaintiff can testify to them.
E. Defendants admit that: "Thomas' sign was cut during a
struggle with Ellen Thomas," but neglect to point out that there
was no probable cause for their agents to have initiated that
"struggle."
F. Plaintiff denies that the speaker's platform violated
36 CFR 50.19
G. Counsel fails to note that the banner did not violate
any regulations. (SEE attachment __, Sgt.Moyer's Report).
Thomas reckons that the Magistrate has correctly identified
(?) twenty-two (?)B incidents of arrest. Notwithstanding Mr.
Martinez tally of "eleven convictions" Thomas avers that the
defendants cannot possiably prove that more than seven convictions
resulted from those arrests.
It is my position that each of the incidents noted by the
Magistrate could arguably be considered a seperate cause of action
for a 1983 claim. Hopefully the various proposals for Injunctive,
Declaratory, and Mandamus relief which I have filed in conjunction
with this Complaint make it clear that plaintiffs are asking not
for redress against an individual officer, or for a specific act
which may have caused injury, but rather that plaintiffs are asking
the Court to halt an alleged errosion of constitutional safeguards
that were intended by the architects of this nation to insure
individual liberty.
Perhaps my Complaint is most succinctly stated in the
Statement of Claim which I filed on April 22, 1986 pursuant to this
Court's Order. There it is alleged that each defendant "has
intentionally acted to subvert the Constitution to my irreparable
injury, by setting official policy above the law."
Parenthetically, as Your Honor has observed, if the government
deprives one individual of liberty that denial threatens the
liberty of all individuals. Therein lies the injury for which this
suit seeks redress.
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."
(That quote from page eight of the Magistrate's Jan 13th
recommendation)
If the series of events listed in the Magistrate's appendices
had occurred 15 or 20 years ago, I would have felt abused by the
police agents and defiant of the judicial system.
Today I am an entirely different person, with entirely
different ideas and opinions than those which I held a couple of
decades ago.
Today I recognise the power of society to issue and enforce
laws or rules for the benefit of all.
I am not opposed to regulations intended and applied to
prevent the litter or destruction of public resourses. However it
is self-evident to a reasonable, non-biased person that all of my
signs were intended to communicate the necessity for peaceful
co-existence of all humanity.
I think it can be proven that, except for certain individuals
who were opposed to the content of my message, and because of that
opposition may have considered my signs and/or constant presence to
be a public inconvienience, or annoyance, there has existed no
reasonable or rational objection which defendants might raise to
justify the implementation of their regulatory schemes against my
specific activities.
Aside from the issue of the facial constitutionality of the
most regulations promulgated on March 5, 1986, which I will address
shortly, it seems that the most significant question posed by the
Magistrate's recommendations is that of "probable cause."
"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." (Memo at footnote 9, pages 8
and 9).
The Magistrate explains that the reason my contention is not
well taken is that the existence of probable cause 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.
BUT here there are circumstances which deserve special
consideration. First the record of this case is already replete
with evidence that certain defendants, employed by the Solicitor's
Office of the DOI, and who bare the responsibility of considering
the First Amendment implications of a given activity, or situation
with respect to possible violations, actually, in their own words
"work with the Park Police to help build a case." Regularly these
defendants have been on the scene of enforcement actions, and
without exception these individuals have supervisory responsibility
over the enforcement of regulations. So the Court should not really
consider whether the individual officer believed he had "probale
cause" for an arrest, but whether the officer believed he had
"probable cause" simply because certain defendants led him to
believe he had "probable cause."
There is no question that I have committed certain actions,
namely displaying signs, and maintaining a continuous presence.
Here were the action is admitted the Court should not consider
whether there was probable cause for the officer to believe that I
had committed the act, rather, I submit the question of probable
cause should be farmed around the wording of certain defendants:
"(B)anning the use of parks for living accommodations (and)
designed not to stifle First Amendment expression, but to protect
undesignated parks from activities for which they are not suited,
and the impacts of which they can not sustain. Short term casual
sleeping which does not occur in the context of using the park for
living accommodations will not be affected by these regulations."
(Tr. Ex. 28, Fed. Reg Vol 47, No 108, p. 24304, June 4, 1982, 36
CFR 50-27(a), written by the office of defendant Robbins.)
There can be absolutely no question that the camping
regulation might serve a substantial interest, because the Supreme
Court majority opinion unmistakably notes that the issue which
prompted the regulation was a proposed demonstration involving 100
persons in 50 tents, a proposal which threatend unsustainable
impacts to park resources.
However the dissenting Supreme Court opinion noted that there
were facts in that case which might well indicate the impetus of
the regulation had been a desire to mute expression of "political"
opinions, rather than to protect resources.
Of course that is not a question in this case. As I see it
the question with regard to the camping regulation is quite simple.
Did my activities impact park resources in an unsustainable manner?
First it is my contention that defendants will not be able
provide evidence that my continuing efforts to symbolize individual
responsibility and committment through a continuous presence in
Lafayette Park have impacted the park in any unsustainable manner.
Second I believe the evidence will easily convince a reasonable
person that certain defendants ordered, supervised, encouraged or
condoned the enforcement of camping regulations against me. In the
event that the evidence supports these propositions then, I
believe, the Court should be constrained to find that no probable
cause existed for my arrests under the camping regulations.
Next there is the issue of the White House sidewalk
regulations, purportedly promulgated as "reasonable time place and
manner restrictions which further substantial governmental
interests, most notably the security of the President..." (ERA v.
Clark, 746 F2d 1520). James C. Lindsey and Jerry S. Parr are
identified at page 1524 and 1525 of the ERA opinion as "officials
with special expertise in the field of White House security. Those
officials testified at length as to the security rationales
underlying each regulation..."
I have alleged that those two individuals gave false testimony
to the court with the intent to deceive the Court into thinking
that my signs created a threat which actually did not exist.
The Magistrate asked Mr. Martinez: "Are you suggesting if law
enforcement officers purposely and knowingly give perjured
testimony at trial as part of conspiracy, they would be immune in
a civil rights suit if there was an actual affirmative purpose to
frame someone?" (November 14, 1986 summary judgment arguments at
pages 125 and 126).
Even Mr. Martinez admitted that he would not present such an
argument.
I also claim that Mr. Robbins and Ms. Bangert participated in
an effort to frame my harmless signs as a threat to presidential
security. If the evidence bears these allegations out I believe we
would have a very serious situation.
The secondary purpose of the White House sidewalk regulations
was to further a "substantial governmental interest in aesthetics."
Regardless of my personal opinions on that subject there is no
challenge made to that so-called interest in this suit. On July
19, 1983 the offensive signs moved across the street to a position
in Lafayette Park which the defendants themselves suggested, and
which the Court of Appeals noted as a readily available alternative
which made the government's restriction all the more reasonable.
Which brings us to the Most recent regulation, 36 CFR
50.19(e)(11)(12), that went into effect on April 5, 1986,
eliminating the signs I had formerly used, and which, I allege is
being arbitraarily and capriciously abused to color my arrest and
harassment.
I think that perhaps the most obvious indication of bad faith
on behalf of the defendants is their persistance in refusing to
negotiate their alleged problems with me. This refusal is actually
noted in the Federal Register of March 6, 1986, and blatantly
evident in a letter which I received from Mr. Robbins dated July 3,
1986, that letter has been made part of the record in this case.
Starting at page 90 of the November 14th transcript Magistrate
Burnett questioned me at some length on the subject of whether I
had ever received instructions as to how I might modify my behavior
to comply with the regulations. Quite possibly if I had ever been
civily treated by the defendants, or given some clear indication of
what they would permit this case, not to mention considerable
personal suffering and inconvience might have been avoided.
I have no power. This Court does have the power to define
fact, and thereby, reality as it applies to society.
I think it is self-evident that for almost six years now I
have been doing something which I have been able to continue ONLY
because the law unreservedly protected what I was doing.
What is also self-evident is that step by step new regulations
have been introduced that have had the effect of making it
progressively more difficult for me to continue doing what had
previously been continued.
It is also self-evident that this step by step progression has
been facilitated by building regulation upon regulation. So that
the latest "sign" regulation is founded on the judicial base of the
earlier "camping," and "White House sidewalk" regulations.
My Complaint here is that this Court should not allow this
pyramiding of regulatory restraint to continue if only because it
is based upon a foundation of lies and/or delusions both in the
Administrative Records of the regulations, and the sworn testimony
given by various defendants for the purpose of falsely convincing
various courts of the validity of the regulations.
For these reasons I ask this Court to allow me to proceed on
the Motions for Joinder of Parties filed September 22, 1986,
October 3, 1986, ansd November 21, 1986, as well as upon the
Opposition to Federal Defendants Motion for Judgment on the
Administrative Record.
I believe that to do otherwise would only burden the judicial
system, as it would necessitate the filing of seperate law suits
to address those issues.
I believe that the Court should allow me to proceed upon the
premise that the defendants have been taking sneak shots at the law
to the detriment not only of myself but to the very principles of
democratic society; simply because they have not offered any
plausable alternative by which to explain the "incredible number of
incidents ... on which reasonable minds might well differ as to the
arresting officers' subjective intent and whether their actions
involved police misconduct" (Magistrate's Recommendation, January
13, 1987, pg. 9). Therefore I also think that unless I am
permitted to consolidate my civil rights claims, with a hearing to
determine whether the most recent regulations, issued March 5,
1986, are constitutional, and unless this Court examines the
actions of Lt. Irwin and Officer Waite as set forth in the Motions
for joinder denied by the Magistrate's orders of January 13, 1987,
that I will also be prejudiced in any attempts I might make to
challenge the basic question at issue in this matter.
The government agents who are defendants in this case are
vested with the obligation to uphold laws which strengthen the
commonweal of society. Similarly my signs are plain statements to
the fact that I too pursue the commonweal.
My hope for a trial is to find out exactly what happened. All
I'm going on at this point is my experiences, and I'm interested in
finding out the truth."
I do not think that the defendants can take exception to
the assertation that to promote diversity of ideas and programs is
one of the chief distinctions that sets us apart from totalitarian
regimes. I believe this case provides a regretable illustration as
to why the right to engage in that promotion, must be protected
against censorship or punishment. There is no room under a
democratic Constitution for a more restrictive view, for the
alternative would lead to standardization of ideas either by
legislatures, courts, or dominant political or community groups."
Respectfully submitted this _____ day
of January, 1987.
____________________________________
William Thomas, Plaintiff Pro Se
1440 N Street NW, #410, DC 20005
(202) 462-3542
____________________________________
Ellen Thomas, Plaintiff Pro Se
1440 N Street NW, #410, DC 20005
(202) 462-3542
Case Listing --- Proposition One ---- Peace Park