FINALLY, MR. THOMAS ARGUES -- EXCUSE ME. THE
PLAINTIFFS ARGUE, AS I READ IT AGAIN, THAT THERE IS SOME SORT OF
SELECTIVE PROSECUTION OR EQUAL PROTECTION PROBLEM WITH THE
INAUGURATION COMMITTEE'S CONSTRUCTION OF VARIOUS ITEMS IN
LAFAYETTE PARK AS OPPOSED TO THINGS THAT THE PLAINTIFFS HAVE NOT
BEEN ALLOWED TO DO. I THINK UNITED STATES VERSUS GRACE IS
DISPOSITIVE OF THIS.
THE STATUTE CITED IN OUR BRIEF, AS WELL AS THE
REGULATIONS; SPECIFICALLY PROVIDE FOR THE VARIOUS ACTIVITIES OF
THE INAUGURAL COMMITTEE THAT WOULD NOT NORMALLY BE ALLOWED BY
OTHER DEMONSTRATORS OR OTHER PEOPLE. AND THE REASON FOR THIS IS
THAT THE CONGRESS AND THE SECRETARY OF INTERIOR HAVE
SPECIFICALLY FOUND THAT THE INAUGURATION IS A NATIONAL CELEBRATORY EVENT THAT COMES ONCE EVERY FOUR YEARS AND THAT FOR THAT REASON, VARIOUS THINGS CAN TAKE PLACE IN LAFAYETTE PARK THAT
MIGHT NOT OTHERWISE BE PERMITTED. AND THE REGULATIONS AND THE
STATUTE SPECIFICALLY PROVIDE FOR THAT. THE COURT OF APPEALS
SPECIFICALLY FOUND THAT THAT WAS CONSTITUTIONAL IN THE GRACE
CASE, WHICH WE'VE CITED IN OUR BRIEF.
IN THE EARLIER GRACE CASE, THE DEFENDANT -- IT WAS A
CRIMINAL CASE -- HAD ASSERTED THAT THE REGULATION WHICH
PROHIBITED STANDING IN THE CENTER ZONE OF THE WHITE HOUSE
SIDEWALK WITH A SIGN WAS UNCONSTITUTIONAL BECAUSE SHE HAD BEEN
PROSECUTED FOR VIOLATING THAT REGULATION BUT YET THE
INAUGURATION COMMITTEE, WHO HAD PUT THE PRESIDENTIAL SEAL IN THE

22

CENTER ZONE OF THE WHITE HOUSE SIDEWALK, HAD NOT BEEN
PROSECUTED. AND THE COURT OF APPEALS FLATLY REJECTED ANY SORT
OF EQUAL PROTECTION, SELECTIVE ENFORCEMENT ARGUMENT. I THINK
THE SAME THING APPLIES HERE.

AS THE ADMINISTRATIVE RECORD FOR THE LAFAYETTE PARK AND
EARLIER PARTS OF THE REGULATION DEMONSTRATE, ONE OF THE
RATIONALES FOR THE REGULATION WAS TO -- FOR AESTHETICS AND TO
MINIMIZE THE HARM THAT WAS CAUSED BY VARIOUS PROTESTERS OR
VARIOUS OTHER PERSONS OR COMPANIES OR WHATEVER IN LAFAYETTE PARK
BY A CONTINUAL PRESENCE, AND THAT HAS BEEN CLARIFIED IN THIS
CASE. IT'S BEEN TAKEN CARE OF INSOFAR AS THE INAUGURATION
COMMITTEE MIGHT CAUSE DAMAGES BECAUSE THEY HAVE POSTED A $50,000
LETTER OF CREDIT WITH THE DEPARTMENT OF INTERIOR. SO THAT IF
THE PLAINTIFFS' CONCERN IS THAT THEY ARE NOT HARMING THE PARK
BUT THE INAUGURAL COMMITTEE MIGHT, THE INAUGURAL COMMITTEE HAS,
PURSUANT 10 ITS PERMIT THAT'S BEEN GRANTED BY THE SECRETARY OF
INTERIOR, PUT UP A SUBSTANTIAL SUM OF MONEY TO COVER ANY OF
THOSE SORT OF PROBLEMS.
AND INDEED, NOTWITHSTANDING ALL OF THIS, THE PLAINTIFFS
STILL HAVE AVAILABLE TO THEM ONE QUADRANT OF LAFAYETTE PARK IN
WHICH THEY CAN CONTINUE TO MAINTAIN THEIR VIGIL. THEY HAVE BEEN
ADVISED OF THAT. IT'S POINTED OUT IN OUR PAPERS THAT THROUGHOUT
THE INAUGURAL FESTIVITIES, THEY ARE NOT BEING KICKED OUT OF
LAFAYETTE PARK. THEY CAN CONTINUE TO MAINTAIN THEIR VIGIL IN
ONE QUADRANT OF THE PARK. BUT WE'RE SIMPLY SAYING THAT IT WAS

23

CONSTITUTIONAL FOR THE SECRETARY OF THE INTERIOR TO DO WHAT HE
DID IN TERMS OF GRANTING A PERMIT TO THE INAUGURATION COMMITTEE,
AND WE BELIEVE THAT THAT IS CLEARLY WARRANTED BY THE CASE LAW
AND THE STATUTE AND REGULATIONS.

UNLESS THE COURT HAS ANY FURTHER QUESTIONS, THAT WILL
CONCLUDE MY ARGUMENT FOR THIS MORNING.
THE COURT: THANK YOU, MR. MARTINEZ.
MR. BURGER.
MR. BURGER: GOOD MORNING, YOUR HONOR. IF IT PLEASE
THE COURT.
AS WE POINT OUT IN THE DISTRICT OF COLUMBIA'S MOTION,
DISTRICT OF COLUMBIA WAS NOT AN INITIAL DEFENDANT IN THE INITIAL
COMPLAINT, BUT DID FIND ITSELF AS A DEFENDANT IN THE SECOND
AMENDED COMPLAINT. THE ONLY ALLEGATIONS WITH RESPECT TO
DISTRICT OF COLUMBIA, DISTRICT OF COLUMBIA DEFENDANTS, RELATE TO
MARCH OF 1983, A PERIOD APPROXIMATELY FIVE-AND-A-HALF YEARS
PRIOR TO THE FILING OF THIS LAWSUIT.
THE ARREST OF MR. THOMAS BY D. C. CAPTAIN CANFIELD TOOK
PLACE IN MARCH OF 1983, WHEN MR. THOMAS BURNED DOWN THIS A-FRAME
SIGN STRUCTURE, AND HE WAS CONVICTED FOR THAT; HE WAS CONVICTED
FOR DESTRUCTION OF PROPERTY. AND THE FIRE ACTUALLY CAUSED
APPROXIMATELY $5,000 WORTH OF DAMAGE TO THE FENCE AREA.
OF COURSE, A CONVICTION, UNDER MCCLAIN VERSUS BARRY,
WOULD PRECLUDE A CLAIM OF FALSE ARREST FOR THE UNDERLYING
OFFENSE. BUT MOST CLEARLY, FROM THE DISTRICT OF COLUMBIA POINT

24


OF VIEW, THERE'S A STATUTE OF LIMITATIONS BAR TO THIS CLAIM.
THERE IS NO ALLEGATION THAT THERE WAS ANY INVOLVEMENT BY THE
DISTRICT OF COLUMBIA SUBSEQUENT TO THE PERIOD IN MARCH OF 1983.

FURTHER, YOUR HONOR, WE ATTACHED TO OUR MOTION THE
18-PAGE REPORT AND RECOMMENDATION OF MAGISTRATE BURNETT IN
WHICH HE ASSESSED VERY CAREFULLY, AFTER TEN DEPOSITIONS WHICH HE
HIMSELF PRESIDED OVER, THAT THERE WAS NO VIOLATION OF MR.
THOMAS'S CONSTITUTIONAL RIGHTS BY CAPTAIN CANFIELD,
AND WE FURTHER ARGUE, YOUR HONOR, THAT WITH THE
DISTRICT OF COLUMBIA BEING THE ONLY DEFENDANT, CAPTAIN CANFIELD
NOT HAVING BEEN SERVED, THERE WOULD ALSO BE THE MONELL ARGUMENT
FOR THE DISTRICT OF COLUMBIA.
THANK YOU, YOUR HONOR.
THE COURT: MR. THOMAS.
MR. THOMAS: YOUR HONOR, I THINK THAT THIS PROBABLY
MIGHT MAKE WHAT I'M TRYING TO SAY CLEAR ABOUT THE FACTS. I FIND
IT ABSOLUTELY INCREDIBLE THAT THE GOVERNMENT CAN SAY WHAT IT
SAID WITH RELATION TO MAGISTRATE BURNETT'S CONDUCT OF THE
DEPOSITIONS. ALTHOUGH THE GOVERNMENT IS RELYING VERY HEAVILY ON
THAT CASE, AND ALTHOUGH MR. MARTINEZ IN HIS OPPOSITION TO THE
MOTION TO STRIKE SAYS THAT EXHIBIT 4 WAS A, HE CLAIMS, CORRECTED
VERSION OF AN APPENDIX THAT WAS ATTACHED TO ONE OF MAGISTRATE
BURNETT'S OPINIONS, HE HAS FOR SOME REASON NOT SUBMITTED THIS
OPINION. AND THIS OPINION, WHICH -- LET ME JUST TAKE OUT OF THE
APPENDIX. BECAUSE THIS I WOULD LIKE THE COURT TO READ BEFORE IT


25

READS ANY OF MY FILINGS. THIS OPINION SUGGESTS THAT THIS CASE
MUST GO TO TRIAL.

THE COURT: THIS OPINION IS MAGISTRATE BURNETT'S
OPINION?
MR. THOMAS: THAT IS MAGISTRATE BURNETT'S OPINION.
MAGISTRATE BURNETT ISSUED SEVERAL OPINIONS. THIS IS THE OPINION
THAT NONE OF THE DEFENDANTS HAVE BROUGHT INTO EVIDENCE, AND THIS
IS THE ONE THAT --
THE COURT: WHAT IS THE DATE OF THAT ONE?
MR. THOMAS: THIS IS JANUARY 13TH, 1987. AND
MAGISTRATE BURNETT GIVES, I THINK, IN HIS OPINION -- THE COURT
WILL DECIDE FOR ITSELF, BUT I THINK MAGISTRATE BURNETT'S
OPINION GIVES A MUCH DIFFERENT SLANT ON WHETHER OR NOT THERE IS
SOME BASIS, SOME SUBSTANCE TO OUR COMPLAINTS.
THE COURT: WAS THAT A FINAL OPINION OF MAGISTRATE
BURNETT, OR WAS THAT AN INTERMEDIARY, INTERLOCUTORY OPINION?
MR. THOMAS: WHAT HAPPENED WAS THAT ON JUNE 6 OF 1986,
JUDGE OBERDORFER ISSUED A PRETRIAL MEMORANDUM WHERE HE DIRECTED
MAGISTRATE BURNETT, PURSUANT TO TITLE 28, TO CONDUCT THE
DEPOSITIONS AND SUPERVISE THE DEPOSITIONS IN THE CASE. AS A
RESULT OF THAT, HE LISTENED TO TEN GOVERNMENT WITNESSES. THE
GOVERNMENT DIDN'T TAKE ANY DEPOSITIONS OF US, SO OUR SIDE OF THE
STORY DIDN'T REALLY GET INTO THE RECORD. BUT I THINK THAT THE
MAGISTRATE MAKES A STRONG CASE IN SUPPORT OF US AND THAT THESE
FACTS THAT WE ALLEGE DO NEED SOME FURTHER INVESTIGATION.

26

THE COURT: LET ME ASK AGAIN: WAS THAT A FINAL OPINION
OF ALL THE OPINIONS THAT MAGISTRATE BURNETT MAY HAVE WRITTEN
DURING THE COURSE OF HIS --
MR. THOMAS: THIS WAS HIS BOTTOM LINE, YES. THIS WAS
HIS LAST ONE.
THE COURT: THAT WAS HIS BOTTOM LINE, THE JANUARY 13,
1987 OPINION.
MR. THOMAS: RIGHT.
THE COURT: ALL RIGHT.
MR. MARTINEZ: YOUR HONOR --
THE COURT: WE'LL HEAR FROM YOU IN A MOMENT, MR.
MARTINEZ.
YES, SIR.
MR. THOMAS: NOW, THE STATUTE OF LIMITATIONS, I'VE
ADDRESSED THAT. ASSUMING THE TRUTH OF OUR ARGUMENTS, THIS IS AN
ONGOING CONSPIRACY THAT IS STILL GOING ON.
WITH RESPECT TO THE STRUCTURES THAT HAVE BEEN,
ACCORDING TO THE GOVERNMENT, CLARIFIED, WE CAN ONLY ASSUME THAT
THE GOVERNMENT IS REFERRING TO THE MOST RECENT LAFAYETTE PARK
SIGN SIZE REGULATIONS THAT WEREN'T PROMULGATED UNTIL AUGUST '86.
THERE HAS NEVER BEEN ANY ADMINISTRATIVE REVIEW, THERE HAS NEVER
BEEN ANY FACTUAL REVIEW. THE GOVERNMENT NOTES THAT A
12-VOLUME -- IN I THINK IT'S FOOTNOTE 12 ON PAGE 28 OF THEIR
INITIAL OPPOSITION, THEY NOTE THAT A 12-VOLUME ADMINISTRATIVE
RECORD WAS ISSUED IN SUPPORT OF THOSE REGULATIONS. THAT HAS

27

NEVER BEEN EXAMINED. THAT RECORD HAS NEVER BEEN EXAMINED. AND
WHAT WE ARE ALLEGING AS CLEARLY AS WE KNOW HOW IN THIS COMPLAINT
IS THAT THAT 12 VOLUMES IS A CONCOCTION OF MISREPRESENTATIONS
AND HALF TRUTHS, AND -- WELL, THE FACTS HAVE TO BE KNOWN BEFORE
WHAT ELSE -- THE FACTS HAVE TO BE HEARD BEFORE WHAT ELSE IS IN
THERE CAN BE DETERMINED.

ONE REALLY STRIKING QUESTION THAT I HAVE IS: WHO IS
WILLIAM HALE? WILLIAM HALE IS MENTIONED IN THE ADMINISTRATIVE
RECORD. THERE IS A SECTION CALLED "SAMPLE PERMITS." AND I
HAVEN'T COUNTED THEM; IT'S A PRETTY FAT SECTION. I THINK THERE
ARE TWO OR THREE, PERHAPS, PERMITS FROM ME; THERE ARE A WHOLE
BUNCH OF PERMITS FROM WILLIAM HALE. SOME PEOPLE HAVE SUGGESTED
THAT WILLIAM HALE MIGHT HAVE BEEN A GOVERNMENT AGENT. I DON'T
KNOW. BUT WHAT WILLIAM HALE DID IS RECORDED IN THE
ADMINISTRATIVE RECORD.
WE DIDN'T DO WHAT WILLIAM HALE DID. THE GOVERNMENT HAD
REGULATIONS TO CLEAN UP WHAT WILLIAM HALE DID. THEY DIDN'T
CLEAN UP WHAT WILLIAM HALE DID, INSTEAD, THEY USED WHAT WILLIAM
HALE DID AS AN EXCUSE TO GET SIGNS OUT OF THE PARK. WE DIDN'T
GIVE THE GOVERNMENT ANY EXCUSE FOR THOSE REGULATIONS. WILLIAM
HALE GAVE THE GOVERNMENT THE EXCUSE, AND WILLIAM HALE DISAPPEARED. I DON'T KNOW WHO WILLIAM HALE IS. THE ADMINISTRATIVE
RECORD RELIES ON WILLIAM HALE. NOBODY KNOWS WHO WILLIAM HALE
IS. MR. ROBBINS MIGHT KNOW WHO MR. WILLIAM HALE IS, BECAUSE

28

MR. ROBBINS INCLUDED ALL OF WILLIAM HALE'S PERMIT APPLICATIONS
INTO THE ADMINISTRATIVE RECORD. THERE'S DOZENS AND DOZENS OF
POLICE REPORTS ABOUT WILLIAM HALE IN THE ADMINISTRATIVE RECORD.
WHO IS MR. WILLIAM HALE? WILLIAM HALE IS THE INDIVIDUAL THAT
THE GOVERNMENT RELIES ON FOR THE LATEST OF THESE THREE
REGULATIONS, AND WITHOUT WILLIAM HALE, THOSE REGULATIONS ARE
BASELESS.

IN THE APPENDIX -- AND I THINK THAT MR. MARTINEZ GAVE
HE BEST ARGUMENT THAT I CAN GIVE AS TO WHY THE APPENDIX SHOULD
BE HERE. OUR COMPLAINT, HE SAYS, IS UNCLEAR. SO WHAT WE'VE
DONE IN THE CLARIFICATION OF THE COMPLAINT IS TO GO OVER THE
YEARS AND TO BRIEFLY STATE WHAT WE BELIEVE TO BE KEY INCIDENTS
THAT SUPPORT AND CLARIFY OUR COMPLAINT. AND FOR THE COURT'S
CONVENIENCE AND FOR EVERYBODY'S CONVENIENCE SO THAT WHAT WE'RE
SAYING IS CLEAR, WE HAVE COMPILED ALL OF THESE DOCUMENTS TO
ESTABLISH, FACTUALLY, AT LEAST, THE VALUE OF -- THE GENUINENESS,
VERACITY OF WHAT WE'RE SAYING, BECAUSE WE DON'T THINK THAT WE
FAILED TO MEET ANY HIGHER PLEADING, AND WE THINK THAT THE
APPENDIX WILL SHOW THAT WE DIDN'T FAIL TO MEET ANY HIGHER
PLEADING.
AS FAR AS THE PRESIDENT GOES, AND AS FAR AS THE -- OH.
ONE OF THE THINGS, FOR EXAMPLE, THAT'S CONTAINED IN THIS
APPENDIX ARE THE GOVERNMENT'S MOTION TO DISMISS ON THAT
12-VOLUME -- THE GOVERNMENT'S MOTION FOR A JUDGMENT ON THE
12-VOLUME ADMINISTRATIVE RECORD AND OUR OPPOSITION TO THAT

29

MOTION, I THINK THAT COMPARING THOSE TWO SUBMISSIONS SHOWS THAT
THERE IS A WHOLE LOT OF QUESTION ABOUT THE PROCESS THAT THE
GOVERNMENT WENT THROUGH AND THE REPRESENTATIONS THAT THE
GOVERNMENT MADE IN THEIR ADMINISTRATIVE RECORD -- A PROCESS AND
REPRESENTATIONS THAT HAVE BEEN LAID OUT IN EXHIBITS, I BELIEVE
IT'S 122 OF THE APPENDIX, 122-A AND B. THE CONTROVERSY IS LAID
OUT THERE. NO ONE HAS EVER EXAMINED THIS. NO ONE HAS EVER
DETERMINED WHETHER OR NOT WHAT THE GOVERNMENT WAS SAYING WAS
TRUE OR WHETHER OR NOT THEY MADE IT ALL UP. THAT'S WHAT THE
CASE IS ABOUT.

TORTS. WE'RE NOT CLAIMING TORTS. WE'RE CLAIMING THAT
WE'VE SUFFERED TORTS. BUT THE TORTS ARE MERELY A BY-PRODUCT OF
THE ALLEGED CONSPIRACY, BECAUSE WHAT THE GOVERNMENT HAS DONE IS
TO DEPRIVE US OF ANY PROTECTION FROM THE POLICE. THEY HAVE
PASSED THESE REGULATIONS. WE'LL SHOW, IF WE'RE GIVEN THE
OPPORTUNITY TO GET TO THE FACTS, WE'LL SHOW THAT THE REGULATIONS
HAVE BEEN SELECTIVELY APPLIED AGAINST US. AND THAT'S HOW THESE
WHAT COULD BE CHARACTERIZED TORTS COME ABOUT: BECAUSE THE
REGULATIONS GIVE THE IMPRESSION THAT WE'RE CRIMINALS, THE POLICE
OFFICERS BEHAVE IN A WAY THAT THEY WOULDN'T NORMALLY BEHAVE
TOWARDS US. WE WOULD LIKE TO HOPE -- TO THINK THEY WOULDN'T
NORMALLY BEHAVE THAT WAY.
AND AS FAR AS ADMINISTRATIVE RELIEF GOES, THERE IS
EVIDENCE IN THERE, JUST PARTIAL EVIDENCE, OF ATTEMPTS THAT WE'VE
MADE TO GET ADMINISTRATIVE RELIEF OVER THE YEARS.

30

WE DIDN'T SAY THAT CONCEPCION HASN'T SLEPT. WE DIDN'T
SAY THAT AT ALL. WHAT WE SAID WAS THAT CONCEPCION HASN'T LAID
DOWN. IF WE DID SAY THAT CONCEPCION HASN'T SLEPT, WE MISSPOKE.
CONCEPCION HASN'T LAID DOWN.
NOW, THIS MAY SEEM INCREDIBLE, AS THE COURT OF APPEALS
THOUGHT IT MAY SEEM INCREDIBLE THAT I GET BY WITH AS LITTLE
SLEEP AS I DO. BUT THOSE ARE MATTERS OF FACT THAT HAVE NEVER
BEEN DETERMINED. AND ALTHOUGH IT MAY SEEM INCREDIBLE TO THE
GOVERNMENT, WHO DOES NOT LIVE THE TYPE OF EXISTENCE THAT I LIVE,
IT'S TRUE. WHAT WE'RE SAYING IS TRUE. WHAT THE GOVERNMENT IS
SAYING IS FALSE. AND THAT'S WHAT'S AT ISSUE HERE: WHETHER OR
NOT WE'RE TELLING THE TRUTH OR THEY'RE TELLING THE TRUTH.
THAT'S WHAT THE COURT HAS TO DETERMINE.
IMMUNITY, WE DO GO TO IMMUNITY. IMMUNITY, OFFICIALS
ARE ENTITLED TO IMMUNITY IF THE LAW WASN'T CLEARLY ESTABLISHED
AND IF THEY DIDN'T KNOW THAT WHAT THEY WERE DOING VIOLATED THE
LAW. WE'RE SAYING THAT THEY KNEW THAT IT VIOLATED THE LAW; THEY
WANTED TO GET RID OF THE SIGNS; THE ONLY WAY THEY COULD DO IT
WAS TO VIOLATE THE LAW. NO IMMUNITY FOR THAT.
PART OF OUR ATTEMPTS TO GET ADMINISTRATIVE RELIEF
INCLUDES LETTERS TO THE WHITE HOUSE, SOME OF WHICH WE HAVE
RECEIVED RESPONSES TO. SO THE PRESIDENT IS INVOLVED, TOO,
ASSUMING THERE IS ANYTHING TO BE INVOLVED IN.
THIS DISPUTE IS NOT ONLY WITH FEDERAL REGULATIONS
THIS DISPUTE IS ALSO WITH DISTRICT OF COLUMBIA REGULATIONS. THE

31


DISORDERLY CONDUCT REGULATION HAS BEEN USED REPEATEDLY, AND VERY
SELDOM, IF EVER, WITHOUT ANY PROBABLE CAUSE TO LOCK US UP. AND
SO THAT GOES TO ANY ARGUMENTS ABOUT FEDERAL REGULATIONS WOULD BE
NOT GROUNDS FOR AN 83 OR AN 85 SUIT.

THIS COURT ISN'T THE ONLY COURT THAT HAS FOUND SOME
DIFFICULTY WITH CONVICTING PEOPLE UNDER THESE REGULATIONS.
THERE HAVE BEEN A NUMBER OF OTHER JUDGES WHO HAVE ALSO ACQUITTED
PEOPLE, JUDGE OBERDORFER FOR ONE. ALTHOUGH JUDGE OBERDORFER HAS
CONVICTED PEOPLE, JUDGE OBERDORFER HAS ALSO ACQUITTED A LOT OF
PEOPLE.
AND I WOULD LIKE TO SAY IN EXHIBIT 2 OF THE
GOVERNMENT'S LATEST SUBMISSION, JUDGE OBERDORFER'S ORDER IN THE
STEPHEN SEMPLE CASE, DATED DECEMBER 8TH OF THIS YEAR, JUDGE
OBERDORFER EXPRESSES, I THINK, A VERY IMPORTANT QUESTION. HE
SAYS THAT WE'RE NOT CRIMINALS AND HE SAYS THAT TO USE THE
CRIMINAL PROCESS AGAINST US IS A STRAIN ON THE JUDICIAL SYSTEM.
THAT'S THE PROBLEM THAT I SEE HERE, WE'RE NOT CRIMINALS, YET
WE'RE GOING TO JAIL FOR DOING SOMETHING THAT'S NOT CRIMINAL.
ONE THING THAT CAME OUT VERY CLEARLY IN BOTH OF THE
CRIMINAL TRIALS WAS THAT WE HAVE NEVER CAUSED -- THERE'S NO
DAMAGE THAT THE GOVERNMENT CAN ATTRIBUTE TO US. AESTHETICS?
THAT BOILS DOWN TO EITHER WE'RE UGLY OR OUR SIGNS ARE UGLY. AND
I DON'T THINK EITHER OF THOSE ARE GROUNDS TO PUT US IN JAIL.
EITHER WE'RE UGLY OR OUR SIGNS ARE CONSIDERED TO BE UGLY.
SO I THINK THAT BASICALLY, THIS APPENDIX WOULD

32

ILLUSTRATE THAT OUR CLAIMS AREN'T VAGUE. I THINK THAT MAGISTRATE BURNETT'S MEMORANDUM OF JANUARY 13TH, 1987,
ILLUSTRATES THAT, IN HIS OPINION, ANYWAY, HIS WORDS, THE CASE
MUST GO TO TRIAL.

THERE WAS ONE OTHER THING. IF I MAY GET THE PAPERS
BACK THAT I HAD STRICKEN.
THE COURT: YOU WANT THEM BACK, THOSE THAT YOU HAD
STRICKEN?
MR. THOMAS: THE ONES THAT I HAD STRICKEN. FOR TWO
REASONS: ONE IS THAT I WOULD RATHER NOT GET -- THAT THE COURT
GET CONFUSED --
THE COURT: I WON'T GET CONFUSED,
MR. THOMAS: YOU CAN HAVE THEM IF YOU WANT.
THE COURT: AND EVEN IF WE ORDERED THEM STRICKEN AND
SUBSTITUTED THE REST OF YOURS IN LIEU THEREOF, AND I'M INCLINED
CERTAINLY TO DO THAT, THE ORIGINAL FILINGS ARE DOWNSTAIRS IN THE
CLERK'S OFFICE, OR PERHAPS IT'S IN THIS JACKET.
MR. THOMAS: OKAY.
THE COURT: IT'S GOING TO HAVE TO GO THROUGH A
MECHANICS. BUT IF YOU NEED TO USE THEM AND YOU WANT TO TAKE MY
COPY --
MR. THOMAS: I JUST NEED ONE EXHIBIT THAT I WOULD LIKE
TO POINT OUT TO YOU THAT I DIDN'T INCLUDE IN THIS HERE, IN TODAY'S FILING, BECAUSE I WAS JUST TOO EXHAUSTED AND I FORGOT ABOUT IT.

33

THE COURT: THESE ARE THE THREE THAT YOU HAVE ASKED,
MR. THOMAS, TO HAVE STRICKEN. AND I WOULD ASK THAT I GET THEM
BACK AGAIN IN THE NEXT MOMENT OR TWO.
MR. THOMAS: I WOULD JUST LIKE TO TALK ABOUT EXHIBIT 4
AND SHOW YOU, IF I MAY, SOMETHING THAT --
THE COURT: EXHIBIT 4 HAS BEEN STRICKEN?
MR. THOMAS: THIS IS GOVERNMENT'S EXHIBIT 4.
THE COURT: OH, ALL RIGHT.
MR. THOMAS: IN SUPPORT OF THEIR FIRST COMPLAINT. THE
POINT IS -- I'M NOT SURE THAT I CAN FIND IT HERE.
THE COURT: DO YOU WANT TO HELP HIM, MRS. THOMAS?
MR. THOMAS: OH. I FILED IT IN A DIFFERENT -- I FILED
IT IN THE OPPOSITION TO THE MOTION TO STRIKE EXHIBIT 4.
ATTACHED TO MAGISTRATE BURNETT'S MEMORANDUM FROM THE 17TH IS AN
APPENDIX A, AND IN HIS RESPONSE TO THE MOTION TO STRIKE EXHIBIT
4, MR. MARTINEZ REPRESENTED THAT IT WAS A CORRECTED VERSION
OF --
THE DEPUTY CLERK: EXCUSE ME. YOUR TIME IS UP.
THE COURT: JUST FINISH YOUR SENTENCE.
MR. THOMAS: OF THE MAGISTRATE'S APPENDIX, ATTACHED TO
MY MOTION TO STRIKE EXHIBIT 4 IS A COPY OF EXHIBIT 4 WITH THE
ACTUAL CORRECTIONS MADE TO IT, AND SO IT HASN'T REALLY BEEN
CORRECTED. I THINK OUR EXHIBIT TO THAT MOTION TO STRIKE SHOWS
THAT IT WASN'T CORRECTED.
THE COURT: THANK YOU. LET THE RECORD SHOW YOU'VE

34

RETURNED THE PAPERS TO THE COURT.

MR. THOMAS: MAY I JUST ASK WHAT I SHOULD DO WITH THIS?
THIS WAS IN THE APPENDIX. THIS I WANT THE COURT TO LOOK AT MORE
THAN ANY -- BEFORE IT LOOKS AT ANY OF THE OTHER PLEADINGS.
THE COURT: THAT WAS IN THE APPENDIX, YOU SAY, THE ONES
THAT YOU'RE PROFFERING TO ME NOW?
MR. THOMAS: RIGHT. THIS IS EXHIBIT 3 IN THE APPENDIX.
THE COURT: WHY DON'T YOU KEEP IT FOR JUST A MOMENT
WITH THE APPENDIX. LET ME SEE IF THERE IS ANYTHING FURTHER FOR
THE GOVERNMENT SAY. SINCE THEY HAD THEIR MOTION, THEY TOO HAVE
TWO CHANCES AT THE LECTERN. MR. MARTINEZ.
MR. MARTINEZ: JUST A COUPLE POINTS, YOUR HONOR,
BRIEFLY.
IN RESPONSE TO YOUR QUESTION ABOUT MAGISTRATE BURNETT'S
OPINIONS, AT THE CONCLUSION OF THE TEN DEPOSITIONS THAT HE
PRESIDED OVER IN 1986, WE WERE ORDERED TO -- BOTH THE D. C.
GOVERNMENT AND THE FEDERAL DEFENDANTS WERE ORDERED TO FILE
DISPOSITIVE MOTIONS IF THEY CHOSE, AND BOTH GOVERNMENTS FILED
MOTIONS TO DISMISS OR FOR SUMMARY JUDGMENT. MAGISTRATE BURNETT
ISSUED THREE OPINIONS:
ONE, HE SAID THAT IT WAS HIS RECOMMENDATION THAT
OFFICER CANFIELD OF THE DISTRICT OF COLUMBIA SHOULD BE DISMISSED
AS A DEFENDANT.
TWO, HE FOUND THAT THE ONLY INDIVIDUAL DEFENDANT IN
THAT CASE, J, C. LINDSEY, WHO IS ALSO, I BELIEVE, AN INDIVIDUAL

35

DEFENDANT IN THIS CASE, SHOULD BE DISMISSED AS AN INDIVIDUALLY
SUED DEFENDANT.

IN THE THIRD OPINION, WHICH IS THE ONE THAT MR. THOMAS
IS TRYING TO BRING TO THE COURT'S ATTENTION TODAY, MAGISTRATE
BURNETT LOOKED THROUGH IT AND DETERMINED THAT INSOFAR AS THE
GOVERNMENT WAS SUED OFFICIALLY, THAT THE MATTER, IN HIS VIEW,
PROBABLY SHOULD PROCEED TO A TRIAL BECAUSE HE THOUGHT THAT THE
NUMBER OF ARRESTS RAISED A QUESTION OF FACT IN THE CASE. WE
FILED -- THE FEDERAL DEFENDANTS FILED OBJECTIONS TO MAGISTRATE
BURNETT'S OPINION, ON THAT OPINION, AND WE FILED A STATEMENT
SUPPORTING HIS OTHER OPINION IN WHICH HE SAID THAT MR. LINDSEY
SHOULD BE DISMISSED.
THE BOTTOM LINE WAS THAT JUDGE OBERDORFER HAD ALL OF
THESE RECOMMENDATIONS AND OBJECTIONS AND WHAT-NOT AND THEN DID
NOT ACCEPT MAGISTRATE BURNETT'S RECOMMENDATION AND DID DISMISS
THE THOMAS CASE. SO WHILE WE CERTAINLY DON'T OBJECT TO THE
COURT LOOKING TO WHAT MAGISTRATE BURNETT SAID, THE HISTORY OF
THE CASE WAS THAT JUDGE OBERDORFER, WHEN HE LOOKED AT IT, DID
NOT ACCEPT MAGISTRATE BURNETT'S RECOMMENDATION ON THAT POINT.
WITH REGARD TO THE 12-VOLUME ADMINISTRATIVE RECORD ON
THE LAFAYETTE PARK REGULATION, AS WE NOTE IN OUR BRIEF, THAT IS
ON FILE IN THE EARLIER THOMAS CASE. IT'S RATHER EXTENSIVE, AS
YOU MIGHT IMAGINE, AND WE WOULD REFER THE COURT TO IT IF THE
COURT IS SO INCLINED TO LOOK AT IT, RATHER THAN FILE A WHOLE NEW
COPY IN THIS CASE.

36

IT'S DISINGENUOUS FOR MR. THOMAS TO STAND HERE AND SAY
THAT THE RECORD HAS NEVER BEEN EXAMINED. IT WAS FILED IN THE
THOMAS CASE AFTER MR. THOMAS FILED A MOTION FOR PRELIMINARY
INJUNCTION TO SEEK TO ENJOIN THE LAFAYETTE PARK REGULATION IN
APRIL OF 1986. WHEN WE FILED OUR MOTION FOR JUDGMENT ON THE
ADMINISTRATIVE RECORD AND OUR OPPOSITION TO THE MOTION FOR A
PRELIMINARY INJUNCTION, MR. THOMAS WITHDREW HIS MOTION FOR A
PRELIMINARY INJUNCTION,
HE AGAIN IN THE SECOND THOMAS CASE, THOMAS VERSUS NEWS
WORLD COMMUNICATIONS, AGAIN MOVED FOR A PRELIMINARY INJUNCTION
TO ENJOIN THE REGULATION AFTER IT HAD BEEN IN EFFECT AT THAT
POINT FOR A YEAR AND THREE MONTHS. JUDGE OBERDORFER REJECTED
THAT, NOT EXPLICITLY, BUT AT LEAST IMPLICITLY, IN DISMISSING
BOTH CASES, AND HE DISCUSSES AT SOME LENGTH IN THE TWO
PUBLISHED OPINIONS THE CONSTITUTIONALITY OF THE LAFAYETTE PARK
REGULATION, WHY IT'S NOT VOID FOR VAGUENESS.
SO I DON'T THINK IT'S REASONABLE FOR MR. THOMAS TO
STAND HERE AND SAY THAT THE REGULATION HAS NEVER BEEN LOOKED AT
OR THE ADMINISTRATIVE RECORD HAS NEVER BEEN LOOKED AT.
AND MY THIRD POINT IS THAT THIS QUESTION ABOUT WILLIAM
HALE AND WHO IS HE, HE MANIFESTLY IS NOT A GOVERNMENT AGENT. IN
FACT, FROM MY EARLY DAYS AS AN ASSISTANT U. S. ATTORNEY IN THIS
DISTRICT, I RECALL HAVING AT LEAST TWO OR THREE CIVIL CASES IN
WHICH I DEFENDED THE GOVERNMENT AGAINST MR. HALE. THE CASES
WERE DISMISSED. I THINK THERE WERE THREE OF THEM. THEY WERE

37

ALL DISMISSED BY JUDGE JOHNSON.

IF THE COURT IS REALLY INTERESTED, WHICH I DOUBT, I CAN
PROVIDE A COPY OF THE THREE OPINIONS. THEY ALL DEALT WITH
VARIOUS ACTIVITIES OF MR. HALE IN LAFAYETTE PARK, VARIOUS -- I
THINK HE CAUSED DAMAGE TO A TREE; I THINK HE CAUSED SOME OTHER
VIOLATIONS. MR. HALE WAS CONVICTED, OR AT LEAST THE CIVIL SUITS
WERE DISMISSED. SO MR. THOMAS, YOU KNOW, IS WRONG WHEN HE SAY'
THAT MR. HALE IS A GOVERNMENT AGENT.
UNLESS YOU HAVE ANY FURTHER QUESTIONS, YOUR HONOR, THAT'S ALL I HAVE TO SAY.
THE COURT: ANYTHING FURTHER, MR. BURGER?
MR. BURGER: YES, YOUR HONOR. JUST VERY BRIEFLY.
THE DECEMBER 15TH, 1986, REPORT AND RECOMMENDATION AND
OPINION BY MAGISTRATE BURNETT IS THE ONLY OPINION BY MAGISTRATE
BURNETT WHICH RELATES TO THE DISTRICT OF COLUMBIA AT ALL. HAD
THERE BEEN A SUBSEQUENT OPINION BY MAGISTRATE BURNETT, WE WOULD
HAVE BROUGHT THAT TO THE COURT'S ATTENTION. BUT THE JANUARY
OPINION OF MAGISTRATE BURNETT DOES NOT REFER TO THE DISTRICT OF
COLUMBIA.
SECONDLY, YOUR HONOR, WITH RESPECT TO THE DISTRICT OF
COLUMBIA'S STATUTE OF LIMITATIONS ARGUMENT, THE PLAINTIFFS IN
THE PAPERS THAT THEY SUBMITTED TO ME ON FRIDAY EVENING AT 5:00
O'CLOCK MADE NO REFERENCE TO STATUTE OF LIMITATIONS. MR. THOMAS
SAYS THERE IS A CONSPIRACY ALLEGATION AGAINST THE GOVERNMENT. I
DON'T KNOW WHICH GOVERNMENT HE'S REFERRING TO WHEN HE SAYS THAT.

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BUT THERE HAS BEEN NO ALLEGATION IN ANY OF THE PAPERS FILED BY THE PLAINTIFFS AS TO ANY ALLEGATION BY ANY D.C. DEFENDANT AFTER MARCH OF 1983, NOR AM I AWARE OF ANY AFTER THAT DATE.

MR. HANSON: FRIEND OF THE COURT.
THE COURT: SIR? ARE YOU CONNECTED WITH THIS CASE WHAT IS YOUR NAME, PLEASE?
MR. HANSON: PERMISSION TO SPEAK AS A FRIEND OF THE COURT.
THE COURT: WHAT IS YOUR NAME, PLEASE?
MR. HANSON: CHRISTOPHER WAYNE HANSON.
THE COURT: ARE YOU A PARTY TO THIS CASE? HAVE YOU
SIGNED ANY OF THE PLEADINGS?
MR. THOMAS, IS THE GENTLEMAN A PARTY TO THE CASE?
MR. THOMAS: NO.
THE COURT: ALL RIGHT. SIR, IF YOU WILL HAVE A SEAT,
THEN, PLEASE. ALL RIGHT? YOU MAY HAVE A SEAT, SIR.
MR. HANSON: THE CASE HAS ALREADY BEEN ADJUDGED BY GOD. THE FAITHFUL WATCHMEN HAVE BEEN WATCHING FAITHFULLY, AND RONALD REAGAN GAVE UP HIS NUCLEAR ARMS SEVEN YEARS LATER, PRAISE GOD.
THE COURT: MR. THOMAS, I WILL ACCEPT THE PLEADINGS THAT YOU HAVE FILED AND TENDERED TODAY IN LIEU OF THE THREE THAT
WERE FILED WITH THE GUARD'S DESK ON THE 6TH OF JANUARY.
MR. LEVIN, CAN YOU HAVE A SEAT, PLEASE, OR LEAVE THE
COURTROOM. EITHER WAY, SIR. YOU CAN LEAVE THE COURTROOM IF YOU
CHOOSE TO DO SO.

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AND I WILL SUBSTITUTE THE THREE THAT YOU HAVE FILED
WITH THE COURT TODAY IN LIEU THEREOF.
INSOFAR AS THE APPENDIX IS CONCERNED, AS I SAID EARLIER
ON, AT THE INITIATION OF THIS HEARING, I WILL DEFER AS TO THE
APPENDIX. I WILL LET YOU FILE THE APPENDIX PROVIDED THAT BY THE
17TH OF THIS MONTH, BY THE 17TH, YOU FILE THAT APPENDIX,
RELATING IT SPECIFICALLY TO YOUR CLARIFICATION OF THE COMPLAINT,
SECTION BY SECTION, PAGE BY PAGE.
MR. THOMAS: IT ALREADY IS YOUR HONOR.
THE COURT: SO THAT IT HAS SOME SENSE TO THE COURT.
MR. THOMAS: IT ALREADY IS.
THE COURT: AND IF THERE IS ANY REFERENCE IN YOUR
SECOND AMENDED COMPLAINT, WHICH IS THE ONLY ONE THAT I DEAL WITH
IN THIS CASE, THEN I WOULD ASK THAT IT SPECIFICALLY REFERENCE
THE SECOND AMENDED COMPLAINT PARAGRAPH BY PARAGRAPH, SO THAT I
CAN MAKE SOME SENSE OUT OF THAT ROUGHLY FOOT-HIGH PACKAGE OF
MATERIAL. IF THAT IS SO AND YOU CAN DO THAT, WE'LL HAVE IT IN
BY THE 17TH OF JANUARY. THERE WILL BE NO EXTENSIONS.
MR. THOMAS: OKAY.
THE COURT, ALL RIGHT?
MR. THOMAS: RIGHT.
THE COURT: AND, OF COURSE, THE FEDERAL AND THE
DISTRICT OF COLUMBIA GOVERNMENTS ARE TO HAVE THEIR COPIES ON
THAT DATE, BY WHATEVER MEANS YOU TAKE.
MR. THOMAS: RIGHT.

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THE COURT: THE FEDERAL GOVERNMENT AND THE DISTRICT OF
COLUMBIA GOVERNMENT ARE TO REPLY TO THAT APPENDIX AND ANY OF
THESE THREE PLEADINGS THAT WERE FILED TODAY, SINCE YOU LOST YOUR
OPPORTUNITY TO REPLY WHEN THIS WAS FILED LATE -- YOU'RE TO REPLY
TO ALL OF THESE ADDITIONAL PAPERS BY THE 27TH OF JANUARY. AND
THERE WILL BE NO EXTENSIONS OF THAT.
I WILL ASK THAT THERE BE NO FURTHER PLEADINGS FILED BY
ANY PARTY IN THIS CASE EXCEPT FOR EXTRAORDINARY CAUSE. THAT
MEANS NO FURTHER TO CLARIFY, NO FURTHER TO RESPOND TO, NO
FURTHER TO AMEND, NO FURTHER TO ADD, NO FURTHER TO SUBTRACT,
UNTIL THE COURT HAS AN OPPORTUNITY TO READ THESE PAPERS AND TRY
AND RENDER AN OPINION.
THE MORE THAT IS FILED, THE LONGER EVERYTHING ELSE
TAKES. I KNOW YOU ALL APPRECIATE THAT THE COURT, JUST LIKE SOME
OF THE REST OF US, HAVE MANY OTHER CASES TO DEAL WITH, ONE OF
WHICH IS ALREADY TEN MINUTES LATE IN BEGINNING BECAUSE WE WANTED
TO GIVE THE FULL HEARING TO MR. THOMAS AND TO THE GOVERNMENT --
AND WHEN I SAY THE GOVERNMENT, THAT REFERS TO BOTH DISTRICT OF
COLUMBIA AND FEDERAL GOVERNMENT -- FOR THIS PARTICULAR HEARING.
I APPRECIATE YOUR EFFORTS TO STAY CONTAINED WITHIN THE TIME THAT
WE HAD SET AND THE OTHER REFERENCES THAT WE HAVE MADE AS FAR AS
PROCEDURE IS CONCERNED. AND I WISH YOU ALL A GOOD DAY.
MR. THOMAS: THANK YOU.
MR. MARTINEZ: THANK YOU, YOUR HONOR.
THE COURT: YOU'RE WELCOME.

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WE WILL TAKE ABOUT A THREE-MINUTE RECESS. I WILL ASK
THAT THE MARSHALS SEE THAT EVERYBODY IS CLEARED QUIETLY OUT OF
THE COURTROOM, AND THEN WE WILL BEGIN UPON THE NEXT MATTER, THE
SINGLETARY CASE.
OH, MR. THOMAS, WILL YOU BE SURE TO FILE DOWNSTAIRS --
MR. THOMAS: YES, I WILL.
THE COURT: -- YOUR THREE THAT WERE FILED TODAY.
MR. THOMAS: YES, I WILL.
THE COURT: ALL RIGHT.

(PROCEEDINGS CONCLUDED AT 10:10 A.M.)
CERTIFICATE OF REPORTER

I CERTIFY THAT THE FOREGOING IS A CORRECT TRANSCRIPT FROM THE
RECORD OF PROCEEDINGS IN THE ABOVE-ENTITLED MATTER.

(signed) GORDON A. SLODYSKO 9-16-1991

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