Transcript Contiued

THE COURT: The Court has just, as a matter of housekeeping, received this morning an application by the United States, Linda S, Chapman, Assistant United States Attorney, for leave to file an opposition to a defendant's motion in the Ellen Thomas case for trial by jury out of time. Do you wish to file such a motion?

MS. CHAPMAN: Yes, I do, Your Honor. And, Your Honor, I didn't speak yesterday with Mr. Hurley, who was kind enough to stop by our offices to pick up a copy of that motion, so he does have a copy on behalf of Ms. Thomas.

THE COURT: All right.

If you will hand me up an appropriate order, I will sign it.

MS. CHAPMAN: I am sorry, Your Honor, but I did not come prepared with an order.

THE COURT: All right. Present one by noon tomorrow.

MS. CHAPMAN: Yes, your Honor.


THE COURT: I will grant your motion. In fact, I have already read it.

MS. CHAPMAN: Thank you.

THE COURT: Now, do you have any preferences as to how we should proceed, counsel for the defendants and counsel for the Government, to handle these series of motions?

MS. CHAPMAN: Your Honor, I think the most appropriate way to proceed, as I understand it, there are two of the defendants who filed motions. Mr. Thomas, who has filed the bulk of the motions, and Ms. Ellen Thomas, who has filed requests for a jury trial.

Your Honor, given the nature of the motions, it is our understanding that Mr. Thomas and Mrs. Thomas bear the burden on their motions, so I think it would be appropriate for them to go forward with whatever evidence and testimony they have in that respect, and we will be glad to respond.

THE COURT: All right.

MR. HURLEY: Your Honor, I would be glad to start off.

THE COURT: Wait. Wait. Please. Please.

MR. HURLEY: First of all, Your Honor, the motion we have filed --

THE COURT: Which motion do you want to address first, so we can keep them discrete and separate?


MR. HURLEY: Yes, Your Honor. The motion for a jury trial for Ms. Thomas. We feel like --

THE COURT: You have filed papers?

MR. HURLEY: Yes, Your Honor. I picked them up.

THE COURT: And the Court has read them.

MR. HURLEY: Yes, Your Honor.

THE COURT: The Court has read the opposition of the Government.

The motion is granted. For the reasons set forth in Judge Oberdorfer's opinion.

MR. HURLEY: Thank you, Your Honor.

I might ask, for the record, we be allowed to orally join the motions that Mr. Thomas has filed before this Court today.

THE COURT: Very well.

MR. HURLEY: Thank you, Your Honor.

THE COURT: What other motions do you have, Mr. Hurley?

MR. HURLEY: That is the only motion, your Honor.

THE COURT: Now just a moment.

Now all defendants listen to the Court.

I am referring to Sunrise, William Thomas, Philip Thomas -- Philip Joseph -- Scott Galindez.

Is Musser still here?



THE COURT: All the defendants that were notified to be here today, do you all join in Mr. Thomas's motion? if you do, I want you to stand up and say, "Yes."

That is all you have to say.

MS. ASINER: On behalf of Mr. Galindez and Mr. Sunrise we would join in that motion.

THE COURT: Very well.

MR. HURLEY: For the record, Ms. Thomas would also join those other motions.

THE COURT: Your name?

DEFENDANT JOSEPH: Phillip Joseph. I also join in those motions.

THE COURT: Very well, sir. Thank you.

Now, Mr. Thomas, you may come forward.

You have filed a series of motions, and I have to consider each and every word you have put forth, and I want you to realize. and I want the Government to realize, and I want every other defendant to realize, and their lawyers the Court does not take this matter lightly, any of these matters lightly.

In fact, this is serious business.

And that is the way the Court approaches this


case and intends to approach everything with respect to each of these cases.

Now, Mr. Thomas, you're on my list.

I have your motion to dismiss what you claim to be a lack of an offense.

Have you got that before you?


THE COURT: Is there anything that you wish to tell the Court today other than what is in your paper that you submitted in writing in respect to that. in respect to that discrete, separate motion?


Well,Your Honor, I have taken the time to try to put everything in a short, concise form, and I also ---

THE COURT: Mr. Thomas, I have just asked you a discrete question, a direct question.

Do you have anything you want to say to the Court that is not in your papers, or, to put it another way, do you have anything you want to say to the Court in addition to that which is in your papers?

DEFENDANT WILLIAM THOMAS: I think that I can't remember exactly what I put in the papers.

THE COURT: Look at your papers.

Do you want to sit down and take a look at it right now?


Maybe this will save you some time, and the other people some time.

(Defendant William Thomas and Ms. Asiner conferring informally.)

DEFENDANT WILLIAM THOMAS: I tried to organize this in sequential order, and I do have a couple of things to add.

First, I have what I have marked as Defendant's Exhibit 13, which is a copy --

THE COURT: All right.

You may tender it. Any objection on the part of the Government?

MS. CHAPMAN: No, Your Honor.

THE COURT: All right.

It will be received.

THE DEPUTY CLERK: Defendant Thomas's exhibit 13 received in evidence.

(Defendant Thomas' Exhibit No. 13 was marked for identification and received in evidence.)

THE COURT: Hand it up to the clerk.

DEFENDANT WILLIAM THOMAS: A copy of the Federal Register from June 3, 1982, and on page 24301 of that exhibit, the words, "Regulations banning the use of parks for living accommodations are designed not to stifle First Amendment


expression but rather to protect undesignated parks from activities for which they are not suited and impacts which they cannot sustain."

THE COURT: Slow down.

My court reporter -- He is one of the greatest in the country, but he can't do it that fast I don't think.

DEFENDANT WILLIAM THOMAS: "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."

Now, I would just like to refresh the Court's memory on Defendant's Exhibits 1 and 2 that I submitted at the last hearing that we had on March 25 of 1987.

Exhibit 2 contained representations made by U. S. Attorney Craig Lawrence, quote, "Sleeping is not really the issue here. What is at issue is camping in the park and what would be conducting typical camping activities."

I would like to also non proffer Defendant's Exhibit 14, which is a letter that I received from Richard Robins, It is dated July the 3rd.

THE COURT: Any objection?

MS. CHAPMAN: Other than relevance, Your Honor, no.

THE COURT: All right.

It will be received.


THE DEPUTY CLERK: Defendant's Exhibit 14 received into evidence.

(Defendant Thomas's Exhibit No. 14 was marked for identification and received in evidence.)

DEFENDANT WILLIAM THOMAS: This letter was responding to a letter which I had sent to Mr. Robins requesting a definition of the term, "casual sleeping,"

During the course of this activity that I have been carrying out, I have been trying to conform my behavior so as not to offend these regulations, and I think that the relevance of this exhibit is that the Government has been using different pretexts to avoid setting up or allowing me to know what I could do and what I couldn't do in order to continue my continuous presence.

Also from Exhibit Number 2 that was filed on the March 25 hearing, the Government stated the position that a continuous presence is proper.

And that I think brings us back to the Abney decision, and the Supreme Court, and that is, I think, 534 Fed. 2d 984, where the Court held that incidental sleep which occurs during the course of a vigil must be considered sufficiently expressive in nature to implicate First Amendment scrutiny.

I think that the question that the Court has to


consider first is reasonable.

The Government in its opposition to my motion to dismiss for Lack of offense cited a number of cases at page 5 of their opposition.

THE COURT: Now, Mr. Thomas, I am going to ask you if you will be kind enough to --

You filed a motion. You filed a whole series of notions. And I want you to address only the motion to dismiss for lack of an offense.

That is all we are talking about now.


THE COURT: If you want to just take all your notions wholesale, I will be glad to do it, but don't think from your point of view, I don't think that is the businesslike way to do it, or from the Government's point of view.

DEFENDANT WILLIAM THOMAS: That is what I am endeavoring to do.

THE COURT: You say that, you said in that motion that sleeping or making preparations to sleep is different from camping, and you further argued in that motion that even if you were sleeping it is still not an offense under the regulations, since sleeping, incidental to an around-the- clock vigil is protected by the First Amendment to the Constitution.

And then you filed a sworn declaration to the


effect that you were engaged in this round-the-clock vigil or protest at the time of your arrest. Is that correct?


THE COURT: And then -- Anything else with respect to this discrete offense on that issue, that motion?

I don't want to talk about the others now.

DEFENDANT WILLIAM THOMAS: No. I think what we have to concentrate on here, because what the Government said in response to that motion, at page 5, they listed a number of cases.

THE COURT: Well, they said -- and I will summarize it for you --

Transcript Continued

Case Listing --- Proposition One ---- Peace Park