United States v. Thomas

CR 87-62, 87-64

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 ali the circum- stances that the participants in conducting those activities are in fact using the area as a living accommodation, regard- less 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, prepara- tion 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.

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 estab- lish 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 bc dismissed because we haven't done any- thing causing an injury, and assuming that we were sleeping, I don't sec 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 1952.

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 interrup- tion 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 regula- tion 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 demon- strations by the Community For Creative Nonviolence in 1981 and '82.

My contention here is that, although the Govern- ment 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.

Transcript Continued
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