UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

MARY HUDDLE, ET AL., DOCKET NO. CA 88-3130
PLAINTIFFS WASHINGTON, D. C.
JANUARY 9, 1989
VS. 9:00 A.M.

RONALD WILSON REAGAN, ET AL.,
DEFENDANTS

TRANSCRIPT OF MOTIONS HEARING
BEFORE THE HONORABLE JOYCE HENS GREEN
UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFFS: WILLIAM THOMAS, PRO SE

FOR FEDERAL DEFENDANTS:

MICHAEL L. MARTINEZ, AUSA
U. S. ATTORNEY'S OFFICE
555 4TH STREET, N.W.
WASHINGTON, D. C. 20001

RICHARD ROBBINS, ESQUIRE
RANDOLPH MYERS, ESQUIRE
THE SOLICITOR'S OFFICE
DEPARTMENT OF INTERIOR

FOR DEFENDANT
DISTRICT OF COLUMBIA:

ARTHUR D. BURGER, ESQUIRE
OFFICE OF CORPORATION COUNSEL
1350 PENNSYLVANIA AVE., N.W.
WASHINGTON, D. C. 20004

 

OFFICIAL COURT REPORTER: GORDON A. SLODYSKO
4806-A U.S. COURTHOUSE
WASHINGTON, D. C. 20001
(202) 535-3404

 

COMPUTER-AIDED TRANSCRIPTION OF STENOGRAPHIC NOTES

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PROCEEDINGS


THE COURT: GOOD MORNING, MR. THOMAS, GOOD MORNING, MR.
MARTINEZ, GOOD MORNING, MR. BURGER AND OTHERS.
THE DEPUTY CLERK: CIVIL ACTION 88-3130, MARY HUDDLE,
ET AL., VERSUS RONALD WILSON REAGAN, ET AL, MR. THOMAS FOR THE
PLAINTIFF, MR. MARTINEZ AND MR. BURGER FOR THE DEFENDANTS.
THE COURT: A FEW MOMENTS AGO I RECEIVED A FAIRLY
SIZABLE COMPENDIUM OF PLAINTIFFS' PAPERS, WHICH APPARENTLY WERE
FILED WITH THE GUARD, DESPITE THIS COURT'S ORDER, ON JANUARY
6TH, AT A TIME UNKNOWN. THE COURT HAD ORDERED, AND CONVEYED
THIS ORDER BY MEANS OF A TELEPHONIC RESPONSE, THE ONLY WAY WE
CAN DO IT IN THIS CASE, TO THE PLAINTIFFS THAT THEY HAD TO HAVE
THEIR PAPERS IN BY 5:00 O'CLOCK ON THE 5TH OF JANUARY, WHICH WAS
ALREADY AN EXTENSION OF THE TIME WHEN IT HAD BEEN DUE. THEY
WEREN'T IN ON THE 5TH.
I WILL CONSIDER THEM AFTER THE HEARING. I HAVE NOT
READ THEM BECAUSE WE ONLY GOT THEM A FEW MINUTES AGO. AND WE
ONLY GOT THEM BECAUSE I THOUGHT IT WAS UNUSUAL THAT WE HADN'T
RECEIVED ANYTHING FROM THE PLAINTIFFS AND WE CHECKED WITH THE
CLERK'S OFFICE, AND THERE THEY WERE. SO I ASSUME THAT THE
DEFENDANTS MAY NOT HAVE SEEN THEM EITHER, OR IF THEY HAVE, THEY
HAVE AN ADVANTAGE OVER THE COURT.
MR. MARTINEZ: YOUR HONOR, WE RECEIVED THEM AT
APPROXIMATELY 5:30 OR 6:00 P.M. ON FRIDAY, THE 6TH OF JANUARY.
THE COURT: ALL RIGHT,

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MR. THOMAS: IF I MAY.
THE COURT: MR. THOMAS, COULD YOU EXPLAIN WHAT
HAPPENED?
MR. THOMAS: THE CONDITIONS THAT WE'RE WORKING UNDER
ARE, I THINK, INCREDIBLE. YOU WOULD HAVE TO SEE THEM TO BELIEVE
THEM. I DIDN'T RECEIVE THE MESSAGE THAT THE PAPERS WERE DUE ON
THURSDAY UNTIL 6:00 O'CLOCK ON FRIDAY, AFTER I SERVED THEM ON
MR. MARTINEZ. WE WERE AWAY FROM OUR ANSWERING MACHINE FOR ALL
THAT TIME AND DIDN'T KNOW ABOUT IT.
ADDITIONALLY, THE PAPERS THAT I SERVED ARE IN DISARRAY.
AND IN LIGHT OF MR. MARTINEZ'S FILINGS, I THINK THAT THE CASE
HAS TAKEN ON AT THIS POINT A MUCH BROADER ASPECT THAN IT HAS --
THAN IT SHOULD HAVE. AND IN ORDER TO TRY TO PUT THINGS INTO
ORDER, I HAVE BOILED IT DOWN TO THESE FILINGS HERE, WHICH
ADDRESS, IN ADDITION TO WHAT I FILED THE OTHER DAY, SOME OTHER
MOTIONS THAT MR. MARTINEZ GAVE ME ON FRIDAY: A RESPONSE TO MY
MOTION TO STRIKE HIS EXHIBIT 4 AND A SUPPLEMENTAL PLEADING TO
HIS MOTION TO DISMISS. SO, I WOULD LIKE TO SUGGEST THAT THE
PAPERS THAT THE COURT HAS NOW BE STRICKEN FROM THE RECORD AND --
THE COURT: NOW, WHICH PAPERS, SO WE HAVE IT VERY CLEAR
WHAT YOU'RE TALKING ABOUT, SIR, BECAUSE IT'S VERY UNUSUAL TO DO
IT THIS WAY. I'LL HAVE TO TELL YOU THAT. YOU HAVE FILED THE
MOST RECENT PAPERS, AND I ASSUME YOU ARE REFERRING TO STRIKING
YOUR PAPERS?

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THE COURT: ALL RIGHT. YOU HAD FILED ON THE 6TH OF
JANUARY WHAT IS CAPTIONED AS "PLAINTIFFS' OPPOSITION TO THE
FEDERAL DEFENDANTS' SUBMISSION OF JUDGE OBERDORFER'S ORDER OF
SEPTEMBER 16, 1988, DEFENDANT MICHAEL CANFIELD'S SUBMISSION OF
MAGISTRATE BURNETT'S MEMORANDUM OF DECEMBER 15, 1987, AND
INNUENDOES OF LITIGIOUSNESS." NOW, YOU WANT THAT STRICKEN?
MR. THOMAS: I WANT THAT STRICKEN, YES.
THE COURT: IN ENTIRETY?
MR. THOMAS: YES.
THE COURT: LET ME MAKE A NOTE. JUST A MOMENT.
ALL RIGHT. WHAT ABOUT "PLAINTIFFS' RESPONSE TO FEDERAL DEFENDANTS' MOTION TO DISMISS"?
MR. THOMAS: THAT, TOO.
THE COURT: THE ENTIRE PACKAGE. ALL RIGHT.
WHAT ABOUT "PLAINTIFFS' RESPONSE TO THE DISTRICT OF
COLUMBIA'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT"?
MR. THOMAS: THAT ALSO. I HAVE AN EDITED VERSION OF
THAT THAT I WOULD LIKE TO SUBMIT NOW.
THE COURT: I JUST TAKE THEM ONE AT A TIME.
MR. THOMAS: OKAY.
THE COURT: NOW, ANYTHING ELSE -- THOSE WERE THE ONES
THAT WERE FILED ON THE 6TH OF JANUARY. ANYTHING ELSE IN YOUR
FORMAL FILINGS THAT YOU WOULD LIKE TO HAVE STRICKEN ALSO, OR DO
THOSE REMAIN OF RECORD?
MR. THOMAS: JUST THOSE THREE. EVERYTHING ELSE

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REMAINS.

THE COURT: ALL RIGHT, I TAKE IT THE GOVERNMENT HAS NO
OBJECTION AT THE MOMENT?
MR. MARTINEZ: I HAVE NO OBJECTION, YOUR HONOR,
ALTHOUGH I SUPPOSE THAT PUTS US AT THE SAME DISADVANTAGE THE
COURT IS AT.
THE COURT: WELL, WE'LL TAKE THINGS STEP-BY-STEP,
BECAUSE IT'S A LITTLE UNUSUAL.
NOW, WHAT DID YOU WANT TO HAVE SUBSTITUTED IN THE PLACE
OF THOSE THREE FILINGS?
MR. THOMAS: THESE FOUR DOCUMENTS. WOULD YOU LIKE ME
TO READ YOU THE TITLES?
THE COURT: YES, WOULD YOU, AND THEN PASS THEM UP?
MR. THOMAS: "CLARIFICATION OF COMPLAINT", "RESPONSE TO
THE FEDERAL DEFENDANTS' SUPPLEMENTAL MOTION TO DISMISS",
"RESPONSE TO THE DISTRICT OF COLUMBIA'S MOTION TO DISMISS", AND
"PLAINTIFFS' OPPOSITION TO FEDERAL DEFENDANTS' SUBMISSION OF
JUDGE OBERDORFER'S ORDER, DEFENDANT MICHAEL CANFIELD'S
SUBMISSION OF MAGISTRATE BURNETT'S MEMORANDUM, AND INNUENDOES OF
LITIGIOUSNESS."
THE COURT: HAVE THE ORIGINALS OF THESE BEEN FILED
DOWNSTAIRS IN THE CLERK'S OFFICE?
MR. THOMAS: NO, THEY HAVEN'T, BUT I HAVE COPIES IN
THOSE BOXES THERE.
IN ADDITION TO THAT, I WOULD LIKE TO FILE THIS APPENDIX

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THAT'S ON THE TABLE THERE.

THE COURT: AN APPENDIX?
MR. THOMAS: THAT APPENDIX THERE, IN SUPPORT OF
THOSE --
THE COURT: WHAT APPENDIX?
MR. THOMAS: IT'S ON THE TABLE HERE.
THE COURT: THAT THING THAT'S ABOUT A FOOT HIGH?
MR. THOMAS: YES, MA'AM.
THE COURT: WHY DO YOU NEED AN APPENDIX, IF I MAY ASK?
MR. THOMAS: BECAUSE IN THE CLARIFICATION OF THE
COMPLAINT, AND THROUGHOUT THE OTHER PLEADINGS, I MAKE SPECIFIC
REFERENCES TO ALLEGED FACTS, AND I WOULD LIKE TO SUPPORT THEM
WITH DOCUMENTATION AT LEAST TO THE SAME EXTENT THAT EXHIBIT 4
SUPPORTS THE GOVERNMENT'S CLAIMS.
THE COURT: MR. THOMAS, WE ALREADY HAVE THE SECOND OF
THE AMENDED COMPLAINTS. WE HAD A COMPLAINT, WE HAD A FIRST
AMENDED COMPLAINT, WE'VE HAD A SECOND AMENDED COMPLAINT. DOES
THIS CHANGE ANYTHING IN THE COMPLAINT?
MR. THOMAS: NO, MA'AM. IT ONLY SEEKS TO CLARIFY THE
COMPLAINT. THE APPENDIX IS PRIMARILY IN SUPPORT OF THE
CLARIFICATION OF THE COMPLAINT. IN THE MOTION TO DISMISS, MR.
MARTINEZ MENTIONED THAT THE COMPLAINT LACKED CLARITY, AND SO --
THE COURT: BEFORE I ACCEPT THAT FOOT-HIGH APPENDIX TO
THE COMPLAINT, 1'M GOING TO ASK YOU TO GIVE ME A SUMMARY OF WHAT
IT IS, IN WRITING, THAT IS THERE IN THAT APPENDIX. IT IS REALLY

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UNUSUAL AT A STAGE AT THIS POINT, MR. THOMAS, AND WE'VE HAD THIS
SET FOR SOME TIME.

I REALIZE THE DISABILITIES UNDER WHICH YOU MAY BE
LABORING; BUT NONETHELESS, YOU BROUGHT THIS ACTION. I'VE GIVEN
YOU THE RIGHT TO FILE YOUR FIRST AMENDED COMPLAINT AND YOUR
SECOND AMENDED COMPLAINT. I HAVE EVEN SAID THAT I WILL ACCEPT
YOUR PAPERS LATE ALTHOUGH THEY SHOULD HAVE BEEN FILED BY THE 3RD
OF JANUARY AND I SAID FOR YOU TO FILE THEM BY THE 5TH OF JANUARY
AT 5:00 O'CLOCK, AND THAT WAS DISREGARDED AND YOU FILED THEM ON
THE 6TH. BUT NOW YOU'RE ASKING ME TO ACCEPT A FOOT HIGH OF
PAPERS, AND THERE SEEMS TO BE NO REASON WHY YOU NEED TO HAVE AN
INDEX OR AN APPENDIX FILED. AND IF THERE IS A REASON, IF THERE
IS A REASON, I WILL ASK THAT YOU GIVE ME A SUMMARY AS TO THE
PACKAGES THAT YOU HAVE THERE SO THAT -- IT'S JUST EXTRAORDINARY
YOU'RE GOING TO HAVE TO GIVE ME AN ANALYSIS OF THAT IN WRITING
SO THAT IT'S GOING TO BE A USEFUL TOOL IF I ACCEPT IT. ALL
RIGHT?
MR. THOMAS: I THINK I MIGHT BE ABLE TO SUMMARIZE IT
NOW ORALLY.
THE COURT: YOU'RE GOING TO DO THAT AS PART OF YOUR
ARGUMENT, IS THAT RIGHT? BECAUSE I DO HAVE A JURY TRIAL THAT'S
SUPPOSED TO START AT 10:00. I HAD PREDICATED THIS ON HALF AN
HOUR PER SIDE. I WILL NOT TAKE THE 12, 13 MINUTES WE'VE USED
NOW AS PART OF YOUR ARGUMENT, BUT I WILL START RIGHT NOW AT THIS
MOMENT WITH YOUR ARGUMENT AND THEN LISTEN TO THE GOVERNMENT'S

7

SIDE AND THEN COME BACK 10 YOU AGAIN AND, IF NECESSARY, BACK TO THE GOVERNMENT AGAIN.

YOU CAN DIVIDE YOUR TIME AS YOU WISH, BUT YOUR HALF AN
HOUR BEGINS NOW.
MR. THOMAS: OKAY. I'LL DO IT IN WRITING.
THE COURT: ALL RIGHT. SO YOU WANT TO START YOUR
ARGUMENT?
MR. THOMAS: OKAY.
THE COURT: YOU CAN DO IT IN ANY FASHION YOU WISH, MR.
THOMAS, IF IT IS EASIER FOR YOU. I CERTAINLY AM HERE TO LISTEN.
I JUST WANT TO HAVE YOU MAKE WHATEVER POINTS YOU BELIEVE ARE OF
GREATEST IMPORTANCE FOR ME TO CONSIDER.
MR. THOMAS: WELL, I THINK THE MOST IMPORTANT THING TO
CONSIDER AT FIRST IS THE COURT OF APPEALS' LATEST DECISION IN
THE -- IT'S ATTACHED TO THE GOVERNMENT'S SUPPLEMENT AT EXHIBIT
1. AND I THINK THAT --
THE COURT: IS THIS JUDGE FLANNERY'S UNDERLYING
DECISION? IS THAT WHAT YOU'RE REFERRING TO?
MR. THOMAS: YES.
THE COURT; ALL RIGHT.
MR. THOMAS: I THINK THAT THE IMPORTANCE OF WHAT WE'RE
TRYING TO BRING BEFORE THE COURT IS HIGHLIGHTED IN THE END OF
THE COURT OF APPEALS' DECISION, WHERE THE COURT SAYS THAT IT'S
LEFT WITH A PUZZLE. AND THAT'S WHAT THIS CASE IS ABOUT. THE
COURT COULDN'T FIGURE OUT WHY THE THOMASES HAD MADE ATTEMPT


8

FIND OUT WHAT THEY COULD DO AND STILL RAN AFOUL OF THE
REGULATIONS.

WHAT WE ARE SUGGESTING IS THAT THE REASON THE COURT WAS
LEFT WITH THAT PUZZLE IS THAT WE DIDN'T ACTUALLY RUN AFOUL OF
THE REGULATIONS, BUT THAT THE DEFENDANTS HAVE MADE IT APPEAR
THAT WE'VE BEEN RUNNING AFOUL OF REGULATIONS. AND THE
GOVERNMENT IS TRYING TO SAY THAT THERE IS NO SUBSTANCE TO WHAT
WE'RE SAYING, AS I SEE IT, BECAUSE THEY HAVE CONVICTED ME A
PERCENTAGE OF THE TIME, MAYBE 33 PERCENT OF THE TIME, FOR
VARIOUS THINGS THAT THEY'VE ARRESTED ME FOR.
FIRST PROBLEM WITH THIS IS THAT IT IGNORES ALL THE
OTHER PLAINTIFFS. SECOND PROBLEM WITH THIS IS THAT IF WHAT I'M
ALLEGING IS TRUE, THAT, FIRST, THE GOVERNMENT MADE THESE
REGULATIONS FOR THE PURPOSE OF SUPPRESSING THIS ACTIVITY THAT WE
ARE ENGAGED IN BECAUSE THEY KNEW THAT IT WAS PROTECTED UNDER THE
CONSTITUTION AND THEY HAD NO OTHER WAY TO SUPPRESS IT.
SECONDLY -- PARDON ME.
THE COURT: THAT'S ALL RIGHT.
MR. THOMAS: SECONDLY, NO ONE HAS HEARD ABOUT OUR
ATTEMPTS AND THE RESULTS OF OUR ATTEMPTS TO RECEIVE CLARIFICATION IN THE CRIMINAL ACTIONS. AND THIS IS PART OF THE INDEX,
AND THIS IS WHY I THINK THAT IT'S IMPORTANT. IN THE CRIMINAL
ACTIONS, IT WAS VERY CLEAR THAT THE ISSUES -- IT WAS MADE VERY
CLEAR BY BOTH JUDGE RICHEY AND JUDGE FLANNERY THAT THE ISSUES
THAT WE ARE TRYING TO RAISE HERE WERE IMMATERIAL TO THOSE

9

SANCTIONS, AND SO THAT ASPECT OF THE SITUATION, THE CONFLUENCE OF
EVENTS THAT ARE OCCURRING IN FRONT OF THE WHITE HOUSE, HAS NEVER
BEEN EXAMINED.

WHAT THE COURT IS GOING TO HEAR ABOUT IN THIS CASE, AND
WHAT NO COURT HAS HEARD ABOUT BEFORE, ARE OUR ALLEGATIONS THAT
WE HAVE BEEN BEATEN UP BY THE POLICE. AND THE COURT WILL LISTEN
TO THE POLICE'S VERSION OF THE STORY. THAT WE HAVE --
THE COURT: EXCUSE ME. WEREN'T SOME OF THOSE
ALLEGATIONS MADE, HOWEVER, IN SOME OF THE CRIMINAL CASES?
MR. THOMAS: NO.
THE COURT: NEVER?
MR. THOMAS: NO. WELL, ONE CASE WHERE IT HAPPENED WAS
A TRIAL BEFORE THIS COURT. AND THAT'S PROBABLY THE MOST
EGREGIOUS SITUATION THAT'S HAPPENED. BUT THERE ARE MANY OTHER
OCCASIONS.
ON ONE OCCASION WITH JUDGE OBERDORFER, I ALLEGED THAT A
POLICE OFFICER WAS KICKING ME IN THE HEAD, FOR EXAMPLE. THE
POLICE OFFICER GOT ON THE STAND AND ADMITTED THAT HE WAS KICKING
ME, BUT HE SAID HE WAS KICKING ME IN THE FOOT. JUDGE OBERDORFER
DIDN'T QUARREL WITH THE FACT THAT THE POLICE OFFICER WAS KICKING
ME, BUT HE NEVER DETERMINED WHERE THE POLICE OFFICER WAS KICKING
ME OR WHAT THE CIRCUMSTANCES.
AND I'M JUST GIVING YOU ONE ISOLATED INCIDENT. YOU'RE
GOING TO HEAR STORIES ABOUT CONCEPCION WITH A BLOODY FACE, WITH
A MAN WITH BLOOD ON HIS HANDS, WITH THE POLICE STANDING THERE


10

AND TELLING THE MAN TO GO AWAY. YOU'RE GOING TO HEAR LOTS OF
STORIES ABOUT PEOPLE GETTING BEAT UP WHILE POLICE ARE STANDING
THERE WATCHING AND NOT DOING ANYTHING ABOUT IT; STORIES ABOUT
SIGNS ALLEGEDLY BEING DESTROYED, WHAT THE POLICE DID ABOUT IT;
STORIES ABOUT PERMITTED MOBILE COMMUNICATIONS PLATFORM BEING
FIRST CONFISCATED, DESTROYED, AND THEN REGULATED OUT OF
EXISTENCE. AND YOU'LL HEAR THE POLICE'S SIDE OF IT. AND THERE
IS A LONG LIST OF THINGS OF THIS NATURE THAT NO COURT HAS EVER
HEARD TESTIMONY ON, NO COURT HAS EVER DECIDED WHO'S TELLING THE
TRUTH.

THE COURT: MR. THOMAS, YOU KNOW, HOWEVER, THAT THE
GOVERNMENT HAS FILED CERTAIN PAPERS THAT, IF I WERE TO AGREE
WITH THE GOVERNMENT, WOULD END THIS CASE AND THERE WOULDN'T BE
HEARING OF ANY OF THESE MATTERS THAT YOU HAVE REFERRED TO,
BECAUSE THEY'RE MOTIONS TO EITHER DISMISS OR FOR SUMMARY
JUDGMENT, BUT IT WOULD MEAN THE END OF THE CASE. YOU HAVE ASKED
ON THE REVERSE FOR A PERMANENT INJUNCTION, AND IF THAT WERE TO
BE GRANTED, THAT WOULD ALSO BE DEALING WITH THE PAPERS THAT WE
HAVE AT THIS TIME,
MR. THOMAS: I REALIZE THAT. AND WHAT THE GOVERNMENT
IS SUGGESTING IS THAT THE COURT SHOULD NOT HEAR OUR ALLEGATIONS
ON THE BASIS OF LAW. AND I'M SAYING THAT THERE ARE FACTS HERE
THAT HAVE NEVER BEEN ESTABLISHED. AND IT SEEMS TO ME THAT THE
GOVERNMENT'S LEGAL ARGUMENTS FAIL ON THAT BASIS.
IF WE ASSUME THAT, YES, THOMAS HAS BEEN RUNNING AFOUL


11

OF THE REGULATIONS FOR ALL THESE YEARS AND ALL THE OTHER PEOPLE
WHO ARE HANGING OUT WITH HIM AND THE COURTS HAVE HELD THAT HE'S
BEEN RUNNING AFOUL OF THE REGULATIONS, SO LEGALLY WE DON'T HAVE
TO LISTEN TO THE REST OF THE FACTS, THEN I THINK THE COURT CAN
GRANT THE GOVERNMENT'S MOTION AND DISMISS OUR COMPLAINT. BUT I
DON'T BELIEVE THAT THE COURT SHOULD OR IS LEGALLY BOUND TO
FOLLOW THAT COURSE.

I THINK THAT REASON AND LOGIC AND TRUTH AND ALL OF THE
THINGS THAT I BELIEVE THE FRAMERS OF THE CONSTITUTION WERE
PUSHING FOR STRONGLY SUGGEST THAT THE COURT SHOULD LISTEN TO ALL
THE FACTS IN THIS CASE, BECAUSE IF WHAT I'M SAYING IS TRUE AND
THIS COURT DOESN'T DETERMINE WHETHER OR NOT IT'S TRUE, THEN, AS
THE COURT SAID, THE COURT OF APPEALS SAID IN MR. MARTINEZ'S
EXHIBIT, THE TRAGEDY IN THIS CASE IS GOING TO BE THAT, FIRST US,
WHO ARE -- WELL, THE COURT SAID WE MIGHT BE COURAGEOUS OR
COMMITTED OR TRAGIC. I THINK THE TRAGEDY IS GOING TO BE THAT --
I DON'T KNOW IF I CAN SPEAK FOR ALL OF US, BUT I MYSELF AM GOING
TO GET LIFE IN JAIL ON THE INSTALLMENT PLAN. OUR PROGENY ARE
GOING TO BE DEPRIVED OF THE RIGHTS OF THE FIRST AMENDMENT
BECAUSE OF THE PRECEDENT THAT THIS CASE HAS SET. AND I DON'T
THINK THAT THE COURT SHOULD JUST TURN A BLIND EYE TO THE FACTS
BECAUSE THE GOVERNMENT SAYS, "HE'S A CRIMINAL."
AND I THINK THAT JUST, TO ME -- THE COURT SAYS HERE IN
THIS DECISION, IF I READ IT CORRECTLY, THAT MEDITATING OR
RESTING CAN BE A VIOLATION OF THE CAMPING REGULATION, AND I



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THINK THAT THAT'S MAINLY WHAT THIS PRELIMINARY INJUNCTION IS
ABOUT, AND THAT'S MAINLY WHAT THE AMENDED COMPLAINT IS ABOUT.
IF MEDITATING OR RESTING, OR JUST BLINKING, CAN BE GROUNDS TO BE
ARRESTED FOR USING THE PARK FOR LIVING ACCOMMODATIONS AS THE
CAMPING REGULATION DEFINES A VIOLATION, THEN CERTAINLY IT WOULD
SEEM TO ME THAT IF SOMEBODY IS USING A MOBILE HOME TO PROTECT
THEMSELVES FROM THE ELEMENTS, TO MAKE COFFEE, TO SIT AROUND AND
SORT OF BE AT HOME AND PROTECTED FROM THE ELEMENTS, THAT, TOO,
HAS TO BE CAMPING, BECAUSE THE REQUISITES OF CAMPING ISN'T JUST
CLOSING YOUR EYES; IT GOES MUCH FURTHER.

IT'S CLEARLY ESTABLISHED, I DON'T THINK THE GOVERNMENT
CAN ARGUE, THAT THE GOVERNMENT IS COMPELLED TO ALLOW DEMONSTRATIONS TO THE SAME EXTENT -- BY INDIVIDUALS TO THE SAME EXTENT IT ALLOWS DEMONSTRATIONS BY ITSELF.
NOW, I'M NOT TRYING TO STOP THE PRESIDENTIAL
INAUGURATION. I'M JUST SAYING -- AND THIS IS ANOTHER THING, AND
IF THE COURT LISTENS TO THE FACTS, I THINK IT WILL BE
ESTABLISHED. SINCE AT LEAST 1982, CONCEPCION HAS NOT LAID DOWN.
SHE SITS UP. NONETHELESS, SHE GETS ARRESTED AND SHE GETS CITED
FOR CAMPING. I THINK THAT SHE WOULD NEVER GET CONVICTED, BUT
THE HARASSMENT THAT SHE GOES THROUGH AS A RESULT OF THIS 1S
OUTRAGEOUS, THE REASON SHE DOES IT IS BECAUSE SHE'S TERRIFIED
OF COMING INTO COURT AND GOING TO JAIL. BUT THERE IS GROSS
INEQUITY, I THINK, FOR HER TO BE SUBJECTED TO POLICE CONTACTS OR
ABUSE BECAUSE SHE CLOSES HER EYES WHILE SHE'S SITTING UP WHEN

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THESE TRAILERS ARE THERE.

WE CAN GIVE EVIDENCE WHERE WE HAVE HAD PERMITS TO CARRY
ON A DEMONSTRATION, BEEN TOTALLY IN COMPLIANCE WITH OUR PERMITS,
AND WE'VE HAD THINGS SEIZED FROM US. ONE OCCASION IN
PARTICULAR, IN MARCH, THE WEEK OF THE CONVICTIONS THAT WERE THE
UNDERLYING MATTER IN THE COURT OF APPEALS' DECISION, WE HAD A
PERMIT TO HAVE A PUBLIC SPEAKER'S PLATFORM. WE HAD IT SEIZED
BECAUSE, ALLEGEDLY, IT WAS ABANDONED PROPERTY. I WAS STANDING
WITHIN TEN FEET OF IT, GETTING READY TO ASSEMBLE IT, AND THE
POLICE CAME UP AND TOOK IT. I SHOWED THE PERMIT TO THE
COMMANDING OFFICER ON THE SCENE. AND I CAN SUBSTANTIATE THIS
VERY WELL. I HAVE LOTS OF EVIDENCE, PHOTOGRAPHS AND EVERYTHING.
YET, AT THE SAME TIME, THE GOVERNMENT CAN BUILD A GREAT
GRANDSTAND -- WHICH IS OKAY; I'M NOT COMPLAINING ABOUT THAT.
I'M JUST SAYING THAT IF THEY CAN DO THAT, THEN WE SHOULDN'T BE
HAVING OUR PERMITTED COMMUNICATIONS DEVICES CONFISCATED FOR NO
REASON. AND I THINK THAT'S MAINLY WHAT THE CASE IS ABOUT.
SUMMING UP, I THINK THAT THE COURT SHOULD NOT JUST
DISMISS THIS ON LEGAL, I WOULD SAY, HYPOTHETICALS. I THINK THE
COURT SHOULD LISTEN TO SOME FACTS, AND I THINK THAT THERE'S A
VERY SERIOUS QUESTION HERE OF GROSSLY INEQUITABLE APPLICATION OF
LAWS AND REGULATIONS.
I'LL SAVE WHAT TIME I HAVE LEFT, IF I MIGHT.
THE COURT: ALL RIGHT, MR. THOMAS.
MR. MARTINEZ, WILL YOU BE FIRST?

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MR. MARTINEZ: WHAT'S THE COURT'S PREFERENCE, MR.
BURGER OR MYSELF?
THE COURT: IT IS ENTIRELY UP TO YOU. YOU CAN USE THE
TIME AS YOU WISH, GENTLEMEN. YOU TOGETHER, COLLECTIVELY, HAVE
YOUR HALF HOUR.
MR. MARTINEZ: GOOD MORNING, YOUR HONOR.
THE COURT: GOOD MORNING.
MR. MARTINEZ: MICHAEL MARTINEZ, FOR THE FEDERAL
DEFENDANTS.
LET ME BEGIN BY BRIEFLY RESPONDING TO WHAT MR. THOMAS
HAS SAID THIS MORNING. FIRST OF ALL, WITH REGARD TO POLICE
BRUTALITY AND DESTRUCTION OF SIGNS, THESE VARIOUS ALLEGATIONS
HAVE BEEN ALLEGED IN THE PAST AND HAVE BEEN REJECTED IN THE
PAST, BOTH IN VARIOUS CRIMINAL CASES IN WHICH THE THOMASES HAVE
BEEN INVOLVED IN AS WELL AS IN THE TWO CIVIL THOMAS CASES THAT
WE'VE REFERRED TO THROUGHOUT OUR PAPERS THAT WERE BEFORE JUDGE
OBERDORFER.
INDEED, DURING 1986, JUDGE OBERDORFER, AFTER REJECTING
A LARGE PORTION OF MR. THOMAS'S CASE, REFERRED THE MATTER TO
FORMER MAGISTRATE ARTHUR BURNETT, SR., AND MAGISTRATE BURNETT
CONDUCTED TEN DEPOSITIONS OF VARIOUS INTERIOR DEPARTMENT
OFFICIALS AND MR. CANFIELD, WHO IS ALSO A DEFENDANT, A D. C.
DEFENDANT IN THIS CASE. MOST OF THOSE DEPOSITIONS WERE OF
VARIOUS PARK POLICE OFFICERS WHO AT VARIOUS TIMES HAD BEEN
ASSIGNED TO THE LAFAYETTE PARK AREA. INDEED, ONE OF THE FOCUSES

15

OF THOSE DEPOSITIONS WAS THE CRIMINAL CASE THAT MR. THOMAS
REFERRED TO THIS MORNING THAT WAS TRIED BEFORE YOUR HONOR IN
WHICH ULTIMATELY YOU DISMISSED THE INFORMATION OR THE
INDICTMENT, WHATEVER IT WAS. SO THESE ALLEGATIONS OF POLICE
BRUTALITY AND DESTRUCTION OF SIGNS AND WHAT-NOT CAME UP IN THAT
CASE, AND ULTIMATELY THEY WERE REJECTED BY JUDGE OBERDORFER WHEN
HE DISMISSED THE CASE FOR FAILURE TO MEET THE HEIGHTENED
PLEADING STANDARD THAT IS APPLICABLE TO BIVENS TYPE SUITS.

IT'S ALSO CLEAR THAT THIS CASE, I THINK, NOW THAT
YOU'VE HAD A CHANCE TO READ OUR SUBMISSIONS AND TO HEAR A LITTLE
BIT FROM MR. THOMAS, THAT THIS IS INDEED JUST ANOTHER VERSION OF
ALLEGATIONS THAT MR. THOMAS HAS PRESENTED IN THE PAST. I THINK
THAT'S QUITE CLEAR. ALTHOUGH I HAVE NOT READ HIS LATEST
SUBMISSIONS, NOTHING I READ IN THE MATERIALS THAT HE HAS NOW
WITHDRAWN LED ME 10 BELIEVE OTHERWISE. INDEED, IN HIS MOTION
FOR ENLARGEMENT OF TIME THAT HE FILED LAST WEEK, MR. THOMAS
STATED THAT THERE WAS NOT GOING -- THAT THE FEDERAL DEFENDANTS
WOULD NOT BE HARMED BY THE ENLARGEMENT OF TIME BECAUSE NOTHING
HE WAS GOING TO SAY WAS ANYTHING THAT MYSELF HAD NOT SEEN
BEFORE. I THINK THAT'S AN INDICATION THAT MR. THOMAS RECOGNIZES
THAT ALL OF THESE VARIOUS ALLEGATIONS IN THIS CASE ARE JUST A
REHASH FROM EARLIER CASES THAT HE HAD.
ONE FINAL POINT WITH REGARD TO WHAT MR. THOMAS SAID
HERE THIS MORNING IS HE HAS -- HE STATED THAT CONCEPCION
PICCIOTTO HASN'T SLEPT SINCE 1982. THIS IS SIMILAR TO STATE-

16

MENTS THAT HE MADE IN VARIOUS OF HIS CRIMINAL CASES, MOST
RECENTLY IN THE ONE THAT WAS AFFIRMED BY THE COURT OF APPEALS,
JUDGE FLANNERY'S CONVICTION. THE COURT OF APPEALS, DURING ORAL
ARGUMENT, EXPRESSED A GREAT DEAL OF SKEPTICISM THAT SOMEONE
COULD IN FACT BE IN THE PARK CONTINUOUSLY SINCE 1982 AND NOT
SLEEP; IT'S JUST NOT HUMANLY POSSIBLE.

THE FACT OF THE MATTER IS THESE PEOPLE HAVE CONTINUALLY
RESIDED FOR ALL INTENTS AND PURPOSES IN LAFAYETTE PARK SINCE
1981, AND THE CONFLUENCE OF THAT CONTINUAL PRESENCE WITH THESE
FEDERAL REGULATIONS BRINGS US HERE TODAY, AS IT HAS IN VARIOUS
CRIMINAL AND CIVIL PROCEEDINGS IN THE PAST.
TURNING TO OUR MOTION TO DISMISS, I WILL JUST TOUCH
BRIEFLY ON THE VARIOUS ARGUMENTS WE MAKE. IT'S NOT CLEAR TO ME
NOW, BASED ON WHAT MR. THOMAS HAS SAID THIS MORNING OR BASED ON
WHAT HE FILED ON FRIDAY, WHAT EXACTLY THE FOCUS OF HIS
COMPLAINTS IS. OF COURSE, WHEN WE WERE MOVING TO DISMISS, WE
TRIED TO TAKE THE BROADEST POSSIBLE INTERPRETATION BECAUSE I
DON'T THINK THE COMPLAINTS ARE VERY CLEAR, SO WE TRIED TO COVER
EVERY BASE POSSIBLE.
HE ALLUDED IN HIS MATERIALS THAT HE HAS NOW WITHDRAWN,
AND I DON'T KNOW IF HE'S CHANGED HIS POSITION, THAT THEY WERE
NOT ALLEGING ANY COMMON LAW TORT CLAIMS. IT SEEMS TO ME, BASED
ON THE COMPLAINT, THAT IT WAS REASONABLE FOR US TO ASSUME THAT
THERE WERE COMMON LAW TORT CLAIMS: ASSAULT, BATTERY,
DEFAMATION, ETC. WE HAVE ASSERTED IN OUR MOTION TO DISMISS, AND

17

IT HAS GONE UNCHALLENGED BY MR. THOMAS, THAT IN LIGHT OF THE
RECENT AMENDMENTS TO THE FEDERAL TORT CLAIMS ACT, IT'S CLEAR
THAT THE UNITED STATES IS THE ONLY PROPER DEFENDANT FOR THESE
COMMON LAW TORT CLAIMS, AND HE'S NOT EXHAUSTED HIS
ADMINISTRATIVE REMEDIES. SO INSOFAR AS THERE ARE COMMON LAW
TORT CLAIMS ASSERTED, I BELIEVE THAT YOU HAVE TO AS A MATTER OF
LAW DISMISS THOSE CLAIMS.

MR. THOMAS HAS ALSO FAILED TO MEET THE HEIGHTENED
PLEADING STANDARD. AS YOUR HONOR KNOWS, THERE ARE SOMEWHERE IN
THE NEIGHBORHOOD OF 15 TO 20 FEDERAL DEFENDANTS IN THIS CASE.
ALMOST EVERY ONE IS JUST MENTIONED AS A DEFENDANT, WITH NO FACTS
AT ALL TO TIE HIM TO THE ALLEGATIONS OF THIS CASE, LET ALONE
MEETING THE HEIGHTENED PLEADING STANDARD THAT'S BEEN SET FORTH
IN THE VARIOUS CASES OF THIS CIRCUIT, PARTICULARLY MARTIN VERSUS
MALHOYT, MARTIN VERSUS D. C. POLICE, AND HOBSON VERSUS WILSON.
AND JUDGE OBERDORFER RELIED SPECIFICALLY ON THIS RATIONALE IN
REJECTING THE CLAIMS AGAINST VARIOUS FEDERAL OFFICIALS IN HIS
DISMISSAL OF THE TWO EARLIER CIVIL THOMAS CASES THAT WE'VE
REFERRED IN OUR BRIEF. HE SIMPLY -- MR. THOMAS SIMPLY FAILS TO
MEET THE HEIGHTENED PLEADING STANDARD.
HE ALSO FAILS 10 MEET THE VARIOUS SECTIONS OF 42 U.S.C.
THAT HE CITES TO IN THIS CASE, PARTICULARLY 42 U.S.C. 1985,
SECTION 3, 1986, AND 1983,
THE 1985, SECTION 3 CLAIM IS BASICALLY A CONSPIRACY
CLAIM AS I READ IT, AND THIS REALLY TIES BACK INTO THE


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HEIGHTENED PLEADING STANDARD THAT I'VE ALREADY DISCUSSED. MR.
THOMAS DOES NOT DEMONSTRATE A CONSPIRACY. JUDGE OBERDORFER
SPECIFICALLY REJECTED THE CONSPIRACY CLAIM BASED ON THE SAME
ALLEGATIONS THAT MR. THOMAS IS MAKING IN THIS CASE THAT HE MADE
IN THE EARLIER THOMAS CASES.

HE CANNOT STATE A 1986 CLAIM IN THIS CASE EITHER,
BECAUSE AS WE POINTED OUT IN OUR BRIEF, AND AGAIN AS JUDGE
OBERDORFER FOUND, YOU CANNOT STATE A 1986 CLAIM UNLESS THERE HAS
BEEN A VIOLATION OF 1985, SECTION 3 FOUND.
AND HE CANNOT STATE A 1983 CLAIM AGAINST THE FEDERAL
DEFENDANTS BECAUSE 1983 APPLIES ONLY TO THE STATES. THERE IS A
LINE OF CASE LAW THAT SAYS 1983 CAN APPLY TO FEDERAL OFFICIALS
WHEN THEY'RE ACTING IN A LOCAL CAPACITY. HOWEVER, THAT DOES NOT
APPLY HERE BECAUSE THERE'S NO DISPUTE THAT AT ALL TIMES THE
FEDERAL DEFENDANTS WERE INVOKING AND RELYING UPON FEDERAL
REGULATIONS, SO THERE CANNOT POSSIBLY IN THIS CASE BE A CLAIM
THAT THEY WERE ACTING IN A LOCAL CAPACITY.
THE PLAINTIFFS ALSO SUE THE PRESIDENT. BRIEFLY, WE
STATE IN OUR BRIEF THAT YOU CAN'T SUE THE PRESIDENT IF RELIEF
CAN BE OBTAINED FROM OTHER DEFENDANTS. MR. THOMAS HAS NOT
RESPONDED TO THAT, AS I READ HIS SUBMISSIONS ON FRIDAY.
WE ALSO EXPLAIN OUR POSITION ON LACK OF PERSONAL
JURISDICTION. I DON'T KNOW AT THIS POINT IF ANY ADDITIONAL
PEOPLE HAVE BEEN SERVED PURSUANT TO YOUR HONOR'S ORDER THAT
INDIVIDUAL DEFENDANTS BE SERVED OTHER THAN THE ONES THAT WE HAVE

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IDENTIFIED IN OUR MOTION THAT HAD BEEN SERVED. I WILL NOTE,
HOWEVER, THAT I DON'T BELIEVE THAT SHOULD HALT THE COURT FROM
TAKING ANY ACTION IN THIS CASE ONE WAY OR THE OTHER BECAUSE OF
THE VARIETY OF OTHER ARGUMENTS THAT WE RELY UPON AS A BASIS FOR
YOU TO DISMISS THIS CASE.

NEXT, WE ARGUE THAT MUCH OF THIS CASE, INDEED ALMOST
ALL OF IT, IS BARRED BY THE STATUTE OF LIMITATIONS. DEPENDING
ON WHICH CLAIM YOU LOOK TO, YOU HAVE EITHER A THREE-YEAR, A TWO-
YEAR OR A ONE-YEAR STATUTE OF LIMITATIONS APPLYING, AND WE
SPELL THAT OUT A LITTLE BIT IN OUR BRIEF. THE THREE-YEAR WOULD
APPLY TO TORTS THAT ARE NOT SPECIFICALLY COVERED BY THE D. C.
STATUTE; THE ONE-YEAR WOULD APPLY TO CLAIMS LIKE FALSE ARREST,
FALSE IMPRISONMENT; THE TWO-YEAR WOULD APPLY TO ANY OF THE FTCA
CLAIMS. BASICALLY, THIS ENTIRE CASE SEEMS TO FALL ALMOST
ENTIRELY OUTSIDE OF ANY OF THE ONE-, TWO- OR THREE-YEAR STATUTES
OF LIMITATIONS, AND IT SEEMS TO ME YOU CAN DISMISS THE CASE ON
THAT BASIS.
BRIEFLY, WE ALSO ARGUE THAT THE VARIOUS FEDERAL
DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY. MR. THOMAS
ASSERTED ALMOST NO RESPONSE TO THAT IN HIS SUBMISSIONS FRIDAY.
I DON'T KNOW IF HE'S NOW AMENDED THAT IN HIS NEW SUBMISSIONS,
SINCE I HAVEN'T SEEN THEM. BUT IT SEEMS TO US THAT HE HAS
MANIFESTLY FAILED TO DEMONSTRATE HOW ANY OF THESE DEFENDANTS
VIOLATED ANY OF THE PLAINTIFFS' CLEARLY ESTABLISHED
CONSTITUTIONAL RIGHTS OR WHICH THEY SHOULD HAVE REASONABLY

20

KNOWN.

THE LAST TWO POINTS THAT WE DISCUSS IN OUR BRIEF RELATE
TO THE CONSTITUTIONALITY OF THE REGULATIONS AS THEY APPLY TO
LAFAYETTE PARK AND THE WHITE HOUSE SIDEWALK, IT IS NOT CLEAR TO
ME, AND IT HAS NEVER BEEN COMPLETELY CLEAR TO ME, WHAT EXACTLY
MR. THOMAS IS ASSERTING WITH REGARD TO THOSE. IT'S CLEAR BEYOND
PERADVENTURE NOW THAT THOSE REGULATIONS ARE CONSTITUTIONAL. THE
SUPREME COURT. OUR COURT OF APPEALS, AND VARIOUS JUDGES OF THIS
COURT HAVE EXAMINED IN SOME DETAIL AND AT SOME LENGTH VARIOUS
ASPECTS OF THE REGULATION, AND TO MY KNOWLEDGE, THE ONLY
REJECTION OF ANY OF THE REGULATION WAS MADE BY YOUR HONOR, AGAIN
IN THE CRIMINAL CASE THAT MR. THOMAS REFERRED TO, WHERE, AS I
UNDERSTAND IT, YOUR HONOR FOUND THAT THE REGULATION WAS VAGUE
INSOFAR AS THE TERM "STRUCTURE" WAS DEFINED. THAT PROBLEM HAS
NOW BEEN CLARIFIED, HAS BEEN CLARIFIED FOR THE LAST TWO OR THREE
YEARS, IN THE REGULATIONS AS THEY CURRENTLY STAND IN THE
C.F.R., "STRUCTURE" IS SPECIFICALLY DEFINED.
IF MR. THOMAS IS ASSERTING AS ONE COULD, I THINK,
REASONABLY CONCLUDE, THAT THE REGULATIONS ARE UNCONSTITUTIONAL
OR THAT THEY WERE PROMULGATED IN SOME UNCONSTITUTIONAL MANNER, I
THINK THAT'S JUST CLEARLY WRONG. AND I HAVE YET TO SEE ANYTHING
SUBMITTED BY HIM IN THIS OR ANY OF HIS EARLIER CASES WHICH WOULD
DEMONSTRATE TO THE CONTRARY. AND INDEED, NO JUDGE THAT I'M
AWARE OF HAS EVER FOUND IN A MANNER THAT SUPPORTS MR. THOMAS'S
OR THE OTHER PLAINTIFFS' ASSERTIONS.

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