United States v. Thomas, CR 87-60, 87-64

Transcript Continued

DEFENDANT WILLIAM THOMAS: Okay.

THE COURT: They said in response to that motion that the regulations under which you were charged here specifically defined camping so as to include sleeping or making preparations for sleep, and they also argued that the Supreme Court of the United States has rejected your First Amendment defense to this charge.

Now I will read you what the regulations say if you want me to.

They say that "Temporary structure may not be used outside designated camping areas for living accommodation activities such as sleeping or making preparations to sleep paren (including laying down of bedding for the purpose of

sleeping) paren."

And it goes on to say:

"The above activities constitute camping when it reasonably appears in the light of all the circum- stances that the participants in conducting those activities are in fact using the area as a living accommodation, regardless of the intent of the participants or the nature of any other activities in which they may also be engaging."

Now, in a separate part of the regulations camping is specifically defined to include, as I said before, sleeping or making preparations for sleep.

Now in the case of Clark versus The Community for Creative Nonviolence, otherwise known as CCNV, in 1984 -- and I can't change this -- the Supreme Court of the United States held that a prohibition on camping in Lafayette Park was valid as a time, place, and manner restriction even when applied to prohibiting sleeping in the park during a demonstration.

You are aware of that?

DEFENDANT WILLIAM THOMAS: I am aware of that, Your Honor, but my position is that, first, what the Supreme Court dealt with in CCNV was a case of individuals, and the Supreme Court repeats this more than once, that you are dealing with individuals sleeping in tents, and I believe that the rendition of the regulation that you just gave is

truncated somewhat.

My recollection is that the regulation says that camping is using an area for living accommo- dations such as sleeping or preparations to sleep, such as laying down bedding materials, storage of property, preparation of food, erection of a tent or a shelter, breaking ground, making fires.

The above-listed activities constitute camping when it reasonably appears in light of all the circumstances that what the participants are doing is using the area for living accommodation purposes.

And my position is that reasonably sleeping in and of itself, or sleeping with blankets to protect one's self from the cold so that one doesn't die of exposure, cannot be considered to be living accommodations.

Living accommodations, my position is, has to include more than simply protecting one's self from dying of exposure and nodding off during the course of the demonstration.

Now, the only other thing that the Government has alleged, although they put in the information that "parenthesis (using tents, shelters, and other structures for sleeping) end parenthesis" -- There is no evidence in that. There is nothing in any of the government's motions that there was any use of tents or shelters or other kinds

of structures.

And I spoke to Mr. Burgess before this hearing and asked him whether you would be taking evidence today, and he said no.

If there is an evidentiary hearing, we can establish quite clearly and beyond any doubt that there was no structures or tents or any other kinds of shelters involved here.

All that was involved was that we were apparently sleeping, that we were in the words of the Government "Conscious of goings-on around us at times," and there were some, which are listed, Government's opposition to the motion to dismiss, on, I think, page, page 2, a list of items which were observed in the area around the seven defendants.

Well, at an evidentiary hearing we can also show that there were more than seven individuals in that area.

The list is a small flag, signs, and many of the articles, none of the articles, I think, have anything to do with living accommodations. There is no toilet article there.

There is no cooking utensils there. There is no earthbreaking utensils there.

And now I am perhaps getting a little ahead of myself.

Perhaps I --

THE COURT: You certainly are.

You are way off this motion.

DEFENDANT WILLIAM THOMAS: Oh.

Well, I think that the motion is reasonably and -- appears -- and that is all I am relying on here, and I think it should be dismissed because we haven't done anything causing an injury, and assuming that we were sleeping, I don't see how that can reasonably be considered to be using an area for living accommodation purposes.

THE COURT: Very well.

Your motion to dismiss as a matter of law will be denied.

Now that does not mean I am going to say that if you--

You are renewing the motion should the case go to trial at the conclusion of the Government's case-in-chief.

DEFENDANT WILLIAM THOMAS: Well, could I make a motion?

THE COURT: You have already made a motion.

And that is the ruling.

Let's proceed to the next notion.

You have moved to dismiss the indictment for intentional ex post facto enforcement?

DEFENDANT WILLIAM THOMAS: Right.

THE COURT: In that motion you say. and advise

the Court that you have been engaged in this activity, protesting and demonstrating, since 1981.

You allege that the regulation under which you were arrested and charged in the information before the Court was promulgated in 1982?

DEFENDANT WILLIAM THOMAS: That is correct.

THE COURT: Is that what you said?

DEFENDANT WILLIAM THOMAS: Yes, sir.

THE COURT: If I may summarize, you tell me if I am wrong, the gist of your argument is that you have been continuously engaged in this activity without interruption really since 1981.

DEFENDANT WILLIAM THOMAS: Yes.

THE COURT: The regulation wasn't adopted until 1982, is that right?

DEFENDANT WILLIAM THOMAS: A year and a day after I started.

THE COURT: All right.

So, therefore, you are arguing that to find you guilty of the charge set forth in the information, the regulation would have to be applied retroactively. Is that your argument?

DEFENDANT WILLIAM THOMAS: Well --

THE COURT: Retroactively to the day you began your protest. Is that correct?

DEFENDANT WILLIAM THOMAS: Yes.

THE COURT: All right.

On the other hand, the Government argues --

Do you have any other?

DEFENDANT WILLIAM THOMAS: I have something in addition to add to that I think.

THE COURT: You think?

DEFENDANT WILLIAM THOMAS: From my understanding of my reading of the law.

THE COURT: All right, I will hear you.

DEFENDANT WILLIAM THOMAS: The Government in its opposition cited the case of Weaver versus Gram at 450 U.S. 24, a 1981 case, and argues that quote, "It must be found to apply retrospectively, that is, to events occurring before its enactment," and I think it does actually, but additionally Weaver versus Gram states that, quote, "parenthesis (ex post facto) end parenthesis ban also restricts Governmental power by restraining arbitrary and potentially vindictive legislation."

THE COURT: I am aware of those authorities, Mr. Thomas.

I first denied your motion, and it holds that the arrest and charge set forth in the regulation is not an unconstitutional retrospective application of the law. Now, with respect to your motion to dismiss

for malicious prosecution and for discovery relating to that claim, I have read your papers very carefully, and, as I understand it from your papers, you have been charged with the same, or similar offenses that you are now charged with before his Court today before Judge William Bryant of this Court and Judge Joyce Green of this Court.

Is that correct?

DEFENDANT WILLIAM THOMAS: That is correct.

THE COURT: And you were also found guilty before Judge Louis Oberdorfer of this Court?

DEFENDANT WILLIAM THOMAS: I haven't been found guilty in all cases.

THE COURT: I said, and you were found guilty before Judge Louis Oberdorfer of this Court?

DEFENDANT WILLIAM THOMAS: That is correct.

THE COURT: Is that case on appeal, or did you drop the appeal?

DEFENDANT WILLIAM THOMAS: I don't think that we appealed that case.

I would like to say for the record --

THE COURT: All right.

DEFENDANT WILLIAM THOMAS: -- that the case in front of Judge Green resulted in an acquittal and --

THE COURT: Judge Joyce Green?

DEFENDANT WILLIAM THOMAS: yes, sir.

THE COURT: Did she try it or did a jury try it?

DEFENDANT WILLIAM THOMAS: She tried it. Additionally there have been some --

THE COURT: What about Judge Bryant?

DEFENDANT WILLIAM THOMAS: Judge Bryant?

THE COURT: It is still pending?

DEFENDANT WILLIAM THOMAS: No. I was convicted on that one.

THE COURT: Have you been sentenced?

DEFENDANT WILLIAM THOMAS: Yes.

THE COURT: What was the sentence?

DEFENDANT WILLIAM THOMAS: Suspended sentence.

THE COURT: All right.

Mr. Thomas, I understand your position here to be --

Will you listen?

DEFENDANT WILLIAM THOMAS: Yes.

THE COURT: I understand your position here on this motion to dismiss for malicious prosecution to be that the Government is taking its position by way of the regulation that they have adopted from time to time since you began your protest in 1981 and that these modifications of the regulations were designed specifically to reflect an official dislike, to put it kindly, for your message, or of the message that you seek to communicate by means of your protest and

summons.

Is that a fair characterization?

DEFENDANT WILLIAM THOMAS: Not precisely.

THE COURT: All right.

DEFENDANT WILLIAM THOMAS: Close.

THE COURT: Perhaps you can do it better than I can.

DEFENDANT WILLIAM THOMAS: I think that the Government -- I think the record is clear that the Government promulgated these regulations with respect to proposed demonstrations by the Community For Creative Nonviolence in 1981 and '82.

My contention here is that, although the Government promulgated the regulations for that reason, they have been selectively applied against me.

THE COURT: All right.

DEFENDANT WILLIAM THOMAS: And I have some exhibits to --

THE COURT: I understand you have exhibits to support your claim of selective enforcement of the law. Is that right?

DEFENDANT WILLIAM THOMAS: Well, I think that they may go to the intent or to indicate some intent on behalf of certain others of the Government.

THE COURT: All right.

Have they been marked?

DEFENDANT WILLIAM THOMAS: Yeah, they are marked. I've handed them to Ms. Chapman to review.

THE COURT: All right, Mr. Thomas.

MS. CHAPMAN:: Your Honor, if I could have just time to look at these.

THE COURT: You may.

(Ms. Chapman and Mr. Dominguez reading.)

DEFENDANT WILLIAM THOMAS: They are Exhibits 17, 18, and 19 is what I have them marked as, sir.

THE COURT: All right, sir. They will be --

THE DEPUTY CLERK: Defendant's Exhibits 17, 18, 19, received.

(Defendant Thomas's Exhibits Nos. 17, 18, and 19 were marked for identification and received in evidence.)

DEFENDANT WILLIAM THOMAS: Number 17 is --

THE COURT: Do any of these exhibits --

Well, let me look at the exhibits.

(Clerk hands to the Court.)

THE COURT: You don't have to tell me what they are, I will read them.

DEFENDANT WILLIAM THOMAS: Okay.

(The Court reading.)

THE COURT: Where did 17 come from?

DEFENDANT WILLIAM THOMAS: 17 is a page from a transcript of a hearing.

THE COURT: Before Judge Oberdorfer?

DEFENDANT WILLIAM THOMAS: Judge Bryant on July 5th of 1983.

THE COURT: Ali right, sir.

DEFENDANT WILLIAM THOMAS: Case number --

THE COURT: Just a moment.

Then you put in Exhibit 18, which is a newspaper story from --

DEFENDANT WILLIAM THOMAS: The Washington Post.

THE COURT: Washington Post.

DEFENDANT WILLIAM THOMAS: May 10th, 1985. The relevant wording --

THE COURT: I have read Exhibit 18.

What are they doing in that picture, cleaning up "Reaganville"?

DEFENDANT WILLIAM THOMAS: No, Your Honor, there was -- That is a long story.

There was an individual who had strewn quite a bit of trash, I suppose, around the park, and the Park Service is cleaning it up in those pictures.

It didn't have anything to do with what we were

doing or with the signs.

THE COURT: All right.

All right. I have read your Exhibit 19 also.

Now, Mr. Thomas, do you have any other evidence on this motion?

DEFENDANT WILLIAM THOMAS: No.

THE COURT: You have no evidence other than your own belief and these exhibits to support your proposition that you have been singled out for prosecution under this regulation, that you have been singled out by the Government for this prosecution, arrest and prosecution, because they don't like your message?

DEFENDANT WILLIAM THOMAS: I can show that others similarly situated have not been prosecuted.

THE COURT: How many?

Do you know their names?

DEFENDANT WILLIAM THOMAS: I believe that I have names in my records.

THE COURT: Are you prepared to present them to the Court today?

DEFENDANT WILLIAM THOMAS: No, not today.

As I said, I didn't think that this was going to be an evidentiary hearing.

THE COURT: Well, sir, I gave you notice of what the hearing was about, and you know, you have a copy of the

consolidation order that all pretrial proceedings in these combined cases were consolidated before this member of the Court, unfortunately, because I had the first one.

So, if you don't have any evidence other than what you have put forth thus far, your motion is denied.

Now I have granted your motion for a jury trial.

DEFENDANT WILLIAM THOMAS: Uh-huh.

THE COURT: I assume you don't haven't any quarrel with that, unless you want me to reverse myself.

DEFENDANT WILLIAM THOMAS: No, I certainly don't have any quarrel with that.

I would not like you to reverse yourself.

THE COURT: All right.

Just a moment.

You have also filed a motion to proffer evidence in support of defense of necessity.

DEFENDANT WILLIAM THOMAS: Exactly.

THE COURT: That motion is that, even assuming you violate the regulation, you did so because of your belief or beliefs, a vow of poverty which you have taken, and the alleged threat of death as a result of a possibility, by, quote "nuclear proliferation," unquote.

Is that correct?

DEFENDANT WILLIAM THOMAS: I think I can say precisely.

THE COURT: Well, you have a whole list of things.

You want to put forth evidence in support of this?

Dealing with nuclear war, nuclear weapons, religious, and other theories about nuclear war.

The effects and capacity of nuclear weapons. Heads of state. International law. A treatise including, but not limited to, the treaties of Westphalia, the Kellogg- Bryan Pact, the United Nations Charter, tribunals set up to hold and conduct the Nurenberg trials, American nuclear weapons treaties, the right of a citizen, as you put it, to meet their obligations to divine or international law.

Is that right?

DEFENDANT WILLIAM THOMAS: Yes, Your Honor, I wrote that.

THE COURT: And that is the basis of your motion?

DEFENDANT WILLIAM THOMAS: Yes.

THE COURT: Assuming that you believe all of those things, the Court finds that they do not make out the legal defense of necessity, and accordingly that motion will be denied.

Now, Mr. Thomas, -- this applies to all the defendants -- you have also filed a motion to dismiss by reason of an Act of God, is that right?

DEFENDANT WILLIAM THOMAS: Yes.

THE COURT: Now, you filed that yesterday?

DEFENDANT WILLIAM THOMAS: I think I filed it day before yesterday with a motion.

THE COURT: We didn't get it until yesterday.

DEFENDANT WILLIAM THOMAS: That is possible. Right. I filed --

THE COURT: Are you aware of this, Ms. Chapman?

MS. CHAPMAN: Your Honor, I found this in my mailbox as I was on my way over here to court.

THE COURT: Have you read it?

MS. CHAPMAN: Yes, I have, Your Honor.

THE COURT: Now, if I understand you correctly it was brought in to me, and I -- when I was trying to eat some lunch yesterday. Your theory here is that you have engaged in this protest and were engaging in this activity on the day of your arrest in the instant case because God told you to do it?

DEFENDANT WILLIAM THOMAS: Yeah, you could say --

THE COURT: Pardon?

DEFENDANT WILLIAM THOMAS: Yes.

THE COURT: And that to have done otherwise would have been a violation of the free exercise of rights clause which all citizens enjoy under the First Amendment, or the Bill Rights, to the Constitution. Is that correct?

DEFENDANT WILLIAM THOMAS: I think that is fairly accurate.

THE COURT: Fairly accurate? Is it right or not?

DEFENDANT WILLIAM THOMAS: Yes.

THE COURT: All right. It is right.

DEFENDANT WILLIAM THOMAS: Yes.

THE COURT: Let me ask you this, Mr. Thomas. Does your act of demonstrating and protesting with these signs and whatever else you do or are alleged to have done at or near the Lafayette Park at the time of your arrest in this case, form a central part of your religious belief?

DEFENDANT WILLIAM THOMAS: I believe that it is my religious belief --

THE COURT: I just ask you yes or no --

DEFENDANT WILLIAM THOMAS: I think that is reflected in the --

THE COURT: The answer to the question is yes --

DEFENDANT WILLIAM THOMAS: Yes.

THE COURT: -- or no? And your answer is yes?

DEFENDANT WILLIAM THOMAS: Yes.

THE COURT: Now let me just digress for a moment. It is important.

You want me to decide this question, or do you want a jury to decide this question, involved in whether you are sincere in your contention here under the free exercise clause of the First Amendment, or do you want the Court to decide?

DEFENDANT WILLIAM THOMAS: Do I want a jury to decide?

THE COURT: That question of whether you are sincere in stating what you have stated to me this afternoon, or do you want a jury to decide that question?

DEFENDANT WILLIAM THOMAS: Can I consult with an attorney?

THE COURT: You certainly may. (The defendant consulting with Ms. Asiner and Mr. Hurley.)

THE COURT: Yes, Mr. Thomas?

DEFENDANT WILLIAM THOMAS: Well, I think that if I can just draw your attention --

THE COURT: I have just posited with you and the other defendants and their distinguished and able lawyers a question, and all I want is an answer yes or no.

Now, this is a murky area, Mr. Thomas, and a very sensitive area, at least with this member of the Court.

Do you want the jury to decide it or do you want me to decide it?

DEFENDANT WILLIAM THOMAS: Well, it seems to me that you would probably be better versed in the rights of an individual under the law, but I am not sure that I have proffered enough evidence.

I think that I can support my sincerity in this matter.

THE COURT: The question is: are you willing to waive a jury on the issue raised by your action to dismiss by reason of an Act of God, as you described it?

DEFENDANT WILLIAM THOMAS: Yes.

THE COURT: Will all of the defendants please indicate whether they agree with that or not?

Ms. Asiner.

MR. HURLEY: May I ask the Court's indulgence?

THE COURT: Yes, sir. Ms. Asiner.

MS. ASINER: Yes, on behalf of Sunrise, Your Honor; he would ask the Court to decide that issue.

THE COURT: Is that also on behalf of Mr. -- Who is your other client today?

MS. ASINER: And on behalf of Mr. Galindez.

THE COURT: All right. Thank you.

MR. HURLEY: Your Honor, Ms. Thomas would also join in that action.

THE COURT: To have the Court decide?

MR. HURLEY: To have the Court decide it.

THE COURT: Very well. Sir?

THE DEPUTY CLERK: Mr. Joseph, Your Honor.

DEFENDANT PHILIP JOSEPH: Philip Joseph. I will go ahead with the same.

THE COURT: In other words, you waive a jury on this issue?

DEFENDANT PHILIP JOSEPH: Yes, sir.

THE COURT: Does that include everybody? Mr. Sunrise? Have we gotten everybody's --

MR. HURLEY: I believe so, Your Honor.

THE COURT: -- assent? My question to you is do we have everybody's assent to waive a jury on Mr. Thomas's motion to dismiss by reason of an Act of God?

THE DEPUTY CLERK: That is correct, Your Honor.

THE COURT: Does the Government have any objection to the Court's deciding this question?

MS. CHAPMAN: No, I don't, Your Honor.

DEFENDANT PHILIP JOSEPH: Excuse me, Your Honor.

THE COURT: Yes.

DEFENDANT PHILIP JOSEPH: I would like to change

mine, - I would like to have a jury decide it.

THE COURT: You have already waived it.

It is too late.

You may be seated.

Mr. Thomas, and counsel, and other defendants, the Court understands that you have put forth in your motion here a sincere belief that what you did was based on religious grounds or an Act of God.

Is that correct?

DEFENDANT WILLIAM THOMAS: Yes, sir.

THE COURT: All right.

That being the case, does the Government have a response?

MS. CHAPMAN: Your Honor, I will do the best I can, having just received the motion shortly.

Your Honor, I don't believe that, regardless of the insincerity of religious beliefs, that that is a recognized legal defense to breaking the law.

THE COURT: Are you familiar with Professor Lawrence Tribes' treatise and well-known book in the field of American constitutional law, Ms. Chapman?

MS. CHAPMAN: Your Honor, I am not intimately familiar with it, but I know I have looked at it, Your Honor.

Your Honor, I would just briefly object to any of these defendants being allowed to prefer their religious

beliefs, again however sincere they may be, as a defense at this time, because I don't think it is appropriate. That would be all, Your Honor

THE COURT: You mean -- Does the Government wish to prove any governmental interest in preventing Mr. Thomas from sleeping in the park or the other defendants?

MS. CHAPMAN: Your Honor, the Government has no interest per se in prohibiting any of these particular defendants from sleeping in the park.

The Government's interest is in enforcing the regulations which are designed to protect the national park lands.

THE COURT: Anything else?

MS. CHAPMAN: No, your Honor.

THE COURT: Do you wish to cross-examine Mr.Thomas at all?

MS. CHAPMAN: No, I do not, Your Honor, thank you.

THE COURT: Very well.

The Court will stay a short recess and everybody will remain seated.

(The Court left the courtroom at 3:19 p.m.)

THE DEPUTY MARSHAL: Remain seated and come to order.

(3:27 p.m.)

(The court reporter reading to the Court informally

at the bench from the court reporter's notes.)

THE COURT: Ms. Asiner.

MS. ASINER: Yes, Your Honor.

THE COURT: On behalf of Mr. Galindez you have heard the discrete questions I asked Mr. Thomas with respect to this particular motion.

On behalf of your client is your answer the same?

MS. ASINER: Yes it is, Your Honor.

THE COURT: Very well. Is your answer the same on behalf of Stephen Semple, also known as Sunrise?

MS. ASINER: Yes, it is, Your Honor.

THE COURT: Mr. Hurley, you have heard the questions and the answers by Mr. William Thomas.

Does Ms. Ellen Thomas adopt the same answers and position that William Thomas has proffered to the Court in this discrete motion?

MR. HURLEY: Yes, Your Honor, she does.

THE COURT: Mr. Philip Thomas, is your answer the same ?

THE DEPUTY CLERK: Your Honor, I am sorry. That is a mistake. It is Philip Joseph, his name. I am sorry.

THE COURT: Mr. Philip Joseph, is your answer the same as the other defendants in regard to this discrete

motion?

DEFENDANT PHILIP JOSEPH: Yes, Your Honor.

THE COURT: Thank you.

THE COURT: Have we covered all of the defendants, Mr. Clerk?

THE DEPUTY CLERK: Yes, Your Honor, we are.

THE COURT: Ms. Chapman.

MS. CHAPMAN: Yes, Your Honor.

The Court is obliged to tell you that under the jurisprudence --

You don't have to stand.

MS. CHAPMAN: Thank you. Your Honor.

THE COURT: -- enunciated by the Supreme Court of the United States construing the free exercise clause of the First Amendment of the Bill of Rights to the Constitution that, if a person who is a defendant, such as these defendants in the cases at bar, objects to a regulation or a requirement of law based upon a sincerely held religious belief, which is an undisputed fact here, and thus the defendants having made such a showing, and your response thereto, namely, and I just had the court reporter read it back to me, that the Government has no interest per se in prohibiting any of these defendants from sleeping in the park, that its only interest is in enforcing the regulations which are designed to protect the national park lands --

That is all you said in opposition.

I offered you an opportunity to cross-examine.

You decided.

The defendants having thus raised a sensitive and important issue under the free exercise clause of the Constitution and the critical part thereof, namely, that they sincerely did what they did based upon a sincerely held religious belief, then, and in that event, their motion to dismiss must be granted on this record.

Accordingly there is no need for any further proceedings in this case, and the defendants will be allowed to leave.

ALL DEFENDANTS: Thank you, Your Honor.

DEFENDANT ELLEN THOMAS: God bless you.

THE COURT: You see, Ms. Chapman, you have to show a compelling governmental interest in response to that.

That is a critical part of the law.

MS. CHAPMAN: Thank you, Your Honor.

THE COURT: All right.

All right, Mr. Clerk.

THE DEPUTY CLERK: Your Honor, we have one additional matter.

(Whereupon, at 3:35 p.m., the Court proceeded to other matters.)

CERTIFICATE OF REPORTER

I, M. Eugene Olsen, C.S.R., an Official Court Reporter for the United States District Court for the District of Columbia, do hereby certify that I reported in my official capacity the proceedings had and the testimony adduced in the cases of USA v. Scott M. Galindez aka Scott E. Galindez, Criminal Nos. 87-60 and 87-158, USA v. Stephen Semple aka Sunrise, Criminal No. 87-61. USA v. William Thomas, Criminal No. 87-62, USA v. Philip Joseph, Criminal No. 87-63, and USA v. Ellen Thomas, Criminal No. 87-66, in said court, on the 23rd day of April 1987.

I further certify that the foregoing 52 pages constitute the official transcript of said proceedings, hearing on motions, as taken from my shorthand notes.

IN WITNESS WHEREOF, I have hereunto subscribed my name, this the 28th day of April 1987.

Official Court Reporter

Contents

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