1/17/89 - Redacted Clarification of Complaint Continued...
(By Lt. Merillat) "Myself and several officers remained in the area. I was in concert with Captain Canfield of the Second District of the Metropolitian Police Department at which time Mr. Canfield was trying to get the General Counsel from the District of Columbia to authorize him to remove the structure to abate the nuisance of having a temporary abode on the sidewalk which is District of Columbia property.... It was approximately one hour, maybe one hour and fifteen minutes before Mr. Canfield received approval from General Counsel to have the structures removed, and to abate the nuisance." Exhibit 50, testimony of Lt. Merillat, USA v. Thomas, USDC, CR 83-056, May 19, 1983 at 50. C. 35, 36, 39; AmC. l4, 56.
"...I directed (Thomas) that Captain Canfield would be discussing something with him, reference to abating a nuisance, and I asked him to depart the structure... At that time, Captain Canfield opened the curtain himself, directing Mr. Thomas to abate the nuisance or he would be subject to arrest." Exhibit 5l, USA v. Thomas, Cr 82-056, testimony of Merillat, transcript at 51. COMPARE Exhibit 52, Deposition of Michael Canfield, July l0, l986, p. 66. C. 35, 36, 39; AmC. l4, 56.
"We were looking at a law with regard to public nuisances, which is a common law principle." Exhibit 53, ERA, CA 83-l243, Robbins testimony, May 3, 1983, Trial Transcript, at 67. C. 20, 2l; AmC. l, ll, l2-l6, 4l, 42.
55. "I had accompanied the United States Park Police to the White House sidewalk to ask the individuals who had those large ... signs on the White House sidewalk to remove them, and we were there to prepare for an arrest situation should they fail to comply with that request." Exhibit 55, Robbins testimony May 3, l983, ERA v. Watt, at 51. C. 33, 36; AmC. l4.
"Ms. Concepcion and Mr. Dorrough were directed to remove the signs, which they did, Mr. Thomas was directed 'don't bring them back'." Exhibit 56, testimony of Lt. Merillat, USA v. Thomas, USDC, CR 83-056, May 19, 1983 at 75. COMPARE Amended Complaint, Thomas Declaration, p. l2. C. 33, 36; AmC. l4.
amend the "background" (infra para. 7l), it is obvious that defendants' concerns about just plain "signs" pre-dated Mr. Parr's suggested background amendments and any "structures," which "came later. What was occurring up there was a large four foot by eight foot sheets of plywood with writings on them, and there were several demon-strators, both individuals and collec-tively, using generally more than a dozen of those plywood signs, and sometimes substantially more than a dozen...." Exhibit 58, Deposition of Richard Robbins, ERA v. Watt, November 2l, 1983 at l3. C. 78; AmC. 45.
60. "The Park Police originally tried to get the U.S. Attorney to paper the case as arson, but the papering people refused, pointing out that even if they had evidence that he set the structure on fire (which apparently they do not), the structure was not a 'building,' and the D.C. Code specifically requires that a person burn a building to commit an arson. According to AUSA Dan Cisin (in an off-the-record conversation), the Park Police left, then came back about an hour later and cornered the chief papering assistant in an office for an hour and a half until the AUSA agreed to paper the case as a felony destruction of property -- White House gate, just to get rid of them....
"After I got the indictment/arraignment notice, I saw the AUSA assigned to this case in the Grand Jury room, William (J.J.) Jackson, in the hall of the courthouse, and asked him how in the world he could indict this case. He said that even though I was right that there was no evidence of malicious intention to destroy the White House gate, the Grand Jury relied on 'reasonable inferences' arising from the fire to constitute the malicious intent....
"I've had several conversations with AUSA Marc Tucker, to whom this case is assigned for trial before Judge Webber. Marc is not overwhelmed with the case, and I have told him all of the above. He says he does not think 'reasonable inferences' get you past an MJOA on destruction of property,
and if that's all he has -- reasonable inferences -- he will try to get his supervisors to dismiss. (The case is still very political.) -- He also told me the reason the case is in Superior Court is the Park Police/Secret Service were not having any luck in District Court getting Mr. Thomas locked up, so they decided to change courts and maybe things would improve." Exhibit 60, Public Defender Service Memorandum, Allie Sheffield to Charles Ogletree, July 26, l983, parenthesis in the original. C. 62, 78; AmC. 3, ll, 3l, 4l, 54, 56.
policy but the clutter of street people and protest signs have disappeared from in front of the White House." Exhibit 64-C; COMPARE Exhibit 57. On March l8, l983, the President's News lamented, "the bums are back, littering the White House gates with their hand lettered messages ... (which) the Park Service describes as ... vague anti-nuke gibberish." Exhibit 64-D. C. 86; AmC. 42.
"For example two individuals who have in the past and are presently maintaining a daily demonstration in front of the White House have had as many as twenty-five signs or placards leaning against the White House fence.... It is the judgment of the National Park Service that certain restrictions can be placed upon the stationing of signs or placards ... which would enhance the park visitor's experience in viewing the White House, and respond to security concerns without impairing the demonstrator's ability to convey a message.
"To accomplish the purpose of minimizing potential threats to the White House and the President, and for the other purposes outlined above the National Park Service is amending present regulations to prohibit signs or placards on the White House sidewalk, except those that are being hand-carried by an individual."
"Further the proposed rule would apply only to sidewalks contiguous to the White House. A substantial number of alternative forums exist close to the White House sidewalks where these restrictions do not apply." Exhibit 68, Fed. Reg. April 22, 1983; COMPARE inter alia para. 76; emphasis added. C. 25, 90; AmC. 42.
69. "On April 22, l983, the Park Service published new 'interim regulations' regarding demonstrations and the placement of property on the White House sidewalk. 48 Fed. Reg. 17352. Although promulgated without prior public notice, or opportunity for public comment these interim regulations were effective immediately. On April 27, 1983 (Concepcion Picciotto, Robert Dorrough, and William Thomas) were arrested for violating the interim regulations. Two days later the (ERA) suit was filed challenging the regulations on both procedural and constitutional grounds.
"On May 3,1983 an evidentiary hearing was held on the plaintiffs' first motion for a Temporary Restraining Order enjoining enforcement of the regulations. At the conclusion of this hearing the Court granted the motion on the ground that 'good cause' had not been shown for waiving the notice and comment requirement for informal rulemaking set forth in the Administrative Procedure Act, 5 USC 553. Subsequently, on May 17, the interim regulations were republished by the National Park Service as a proposed rulemaking with an additional comment period extending to May 31. 48 Fed. Reg 22248.... These final regulations were to become effective eighteen days later on July 4. . .
"A hearing was held on June 30th and on July 1st the Court issued a Memorandum and Order on the ground that 'good cause' had not been shown for shortening the 30 delay in effectiveness required by the Administrative Procedure Act 5 USC, 553." Exhibit 69, ERA v. Clark, USDC CA 83-1243, Memorandum and Order, J. Bryant, filed April 26, 1984. Thomas Declaration in support of Complaint, para. 37. C. 39, 86, 93; AmC. l5, 4l-43.
White House sidewalk regulations were aimed. "The presence of a number of large signs certainly was cited as a problem." Exhibit 70, Deposition of Patricia Bangert, ERA v. Watt, November 2l, 1983 at 63; see also Exhibit C. C. ll; AmC. 42, 43.
7l. "On April 27, 1983 at approximately 1320 hours the undersigned officer observed Ms. Picciotto and Mr. William Thomas sitting on the fence line in the 1600 block of Pennsylvania Avenue with three demonstration signs next to them. They were both asked by Sgt. Weber if the signs belonged to them, and they stated yes. They both were advised that they were in violation of 36 CFR 50.19(e)(9) for signs on the White House sidewalk, and were advised to take the signs and carry them, or they would be arrested for the violation. They both sat by and did not move the signs and both of them at approximately 1327 hours were placed under arrest by the undersigned, and transported to D-1 for processing." Exhibit 7l-A, Cilvanus Woods report, April 27, 1983; Exhibit 7l-B, photographs of the "crime." C. 39; AmC. l5.
v. Clark, CA 83-l243, April 26, l984, at p. 22. C. 40-44, 63, 86, 93; AmC. 4l-43.
"Recently the U.S. Secret Service and the U.S. Park Police have alleged that protest signs leaning against the White House fence pose a threat to the life of the President in that they might be used to scale the fence.
"In order to clearly demonstrate that 1) any determined individual with a desire to climb the fence could do so without the aid of a protest sign, and 2) that the Secret Service's Executive Protective Division is well prepared to deal with any individual who does climb the fence, I climbed to the top of the fence, with no intention whatsoever to set foot on the White House grounds, before jumping back to the sidewalk." 2/ Exhibit 75-B, Letter from Thomas from SS files, May 5, 1983; see also Exhibit 75-A, SS Report May 6, l983. C. 4l-44, 86, 88, 93; AmC. 4l-43.
2/ After almost two years, and many inconveniences, charges against Thomas were dismissed without show of probable cause upon motion for dismissal on the grounds of destruction of evidence by Secret Service.
foot pole. We feel that a six foot maximum length of any support would serve the purpose of the regulation...." Exhibit 77, letter dated May 27, 1983 from U.S. Park Police Chief Lynn Herring. C. 4l-44, 63, 86, 93; AmC. 4l-43.
Q: (By Mr. Vanderstar, counsel for ERA plaintiffs) "Now, with respect to the comment in prefatory comments in the Federal Register of June l7, l983, I believe there is a reference to editorials in the local newspapers which are critical of some of the activities that have taken place on the White House sidewalk in recent months.
"I was wondering how those articles came to your attention."
A: (By Mr. Robbins) "I have read them in the news-paper." Q: "Which newspaper?" A: "Washington TIMES is the one that comes most readily to mind."
Exhibit 79, Robbins deposition ERA v. Clark, CA 83-l243, November 30, l983, p. 53; see also Letter to the "Presi-dent's News" (Exhibit 80-A), and letter to/from defendant Reagan himself (Exhibit 80-B). C. 86, 93; AmC. 4l-43.
permit conditions. Exhibit 86, 36 CFR 50.l9(8)(v). C. 23, 24, 8l; AmC. 53-56.
"No signs or placards shall be permitted on the White House sidewalk except those made of cardboard, posterboard or cloth, having dimensions no greater than three feet in width, 20 feet in length, and l/4" in thickness." Exhibit 87, 36 CFR 50.l9(e)(9). C. 2l, 3l, 32, 49-69, 90, 9l, 93; AmC. 36-39, 4l-43, 53-56.
a missile..." which was perfectly within the dimensions prescribed by "law." Exhibit 89-A, U.S Park Police report, Officer Guentz, July 25, 1983. COMPARE Exhibit 89-B, Lt. Clipper testimony. C. 3l, 32, 63, 90, 9l, 93; AmC. 38, 39, 4l-43, 46, 53-56.
9l. "To my knowledge, per Deputy Chief Lindsey and the commander of the Central District substation, I have been advised that William Thomas does have a permit for the vigil there at 1800 Pennsylvania Avenue, Lafayette Park side. Per the Deputy Chief, the Commander of Operations Division, Chief Lindsey, we have all been advised that that permit does not permit the participants of that vigil to camp in Lafayette Park." Exhibit 9l, Testimony, Officer Haynes, USA v. Thomas, 84-255, transcript at 783, September 24, 1984. C. 63, 69, 73, 76-93; AmC. 38, 39, 4l-56.
May 8, 1984. C. 89, 90, 9l; AmC. 33, 38, 39, 4l-56.
throwing signs down, and smashing other materials. ... I asked (Thomas) whether the property that was on the sidewalk was to be removed, and he said 'yes,' and he began to separate the signs which he intended to keep for the signs which he intended to remove." Exhibit 97, U.S. Park Police report, Officer Manso, May 31, 1984. C. 73; AmC. 38, 39.
98. "The undersigned officer arrested seven subjects subse-quent to having observed them lying on the ground in a prone position." Exhibit 98, Park Police report, Officer Haynes. C. 82, 83, 84, 85; AmC. l9, 20.
99. "The 'Chinon' 35 mm camera which had been used to photograph the undersigned during the arrests ... appeared to have been loaded with film. It was with this camera that Ms. Ellen Benjamin and Mr. William Thomas photographed the arrest of Mr. Dorrough. Subsequently Ms. Thomas used the camera to also photo-graph the arrest of Mr. William Thomas." Exhibit 99-A, Park Police report, Haynes June 22, 1984; Exhibit 99-B, Park Police report, Sgt. Jones, June 18, 1984. C. 85, 86, 87, 88; AmC. l9, 20, 53.
l00. "Sergeant Wilkins stated that on the day of the incident, June 6, l984 he was working the second relief as car 102.... Sergeant Wilkins identified the following mem-bers of the United States Park Police who were on the scene: l) Deputy Chief J. C. Lindsey, 2) Lt. Bruce Clements." Exhibit l00, Park Police report, Sgt. Jones, November 8, l984. AmC. 54, 56.
"Officer Haynes ... while he spoke with precision, and exactitude, and painstaking care, had selective memory ... and unable to remember even testimony that he clearly specifically had given in the court hours earlier, failed to remember making, on some occasions, earlier arrests of the defendants, contradicted representations of the manner in which he inventoried the property....
"Now, the Court's ruling today does not mean that ... it has ... become unnecessary ... to reach the several most significant constitutional questions that someday, someway, with perhaps other defendants, perhaps the same will be addressed.
"To continue with this trial would transform the trial from a prosecution into a persecution, and accordingly the respective motions for judgment of acquittal are as to each of the defendants granted." Exhibit l05, USA v. Thomas, USDC 84-255, September 25, l984 transcript at 1025. C. 86.
l09. "On June 23, l984, I awoke and made my way to the park and the signs only to discover that once again there had been a police raid and the demonstrators had been removed from the park. The signs were still there so I claimed responsibility for the signs and attempted to take posses-sion of them but was refused and told that the signs were being confiscated as abandoned property. I said again I would claim them. 'No,' I was told, they were being confiscated as prisoner property. The signs were broken up by the Park Police with sledgehammers." Exhibit l09, paras. 36-39, Declaration of Robert Dorrough. C. 47, 93; AmC. 42.
Interior, with slippery results. Exhibit lll-A, Order, Judge Oberdorfer, July l9, l984; Exhibit lll-B, letter from Thomas to Department of Interior, National Park Service, et al, July 2l, l984. See also, e.g., Exhibit lll-C, Thomas letter to Robbins, September l6, l985; Exhibit lll-D, Thomas petition to Robert Bedell, OMB, September l6, l985; Exhibit lll-E, Bedell letter to Thomas (undated); lll-F, Thomases' letter to Robbins, June 3, l986; lll-G, Robbins letter to Thomas, July 3, l986. C. 62, 69, 93; AmC. 56.
report, September l8, l984. C. 93; AmC. 56.
ll7. "When Thomas was removed from the tree (October 10, 1984) and arrested, people under the supervision of Deputy Chief J.C. Lindsey of the U.S. Park Police prepared to remove the signs. Lindsey was talking with Richard Robbins, Assistant Solicitor of the Department of the Interior. I had seen and talked with both men in the park many times. I went up to them and told Mr. Lindsey that Thomas had asked me to watch over the signs; that I was an associate and supporter of the vigil of which these signs were a part; that I had an interest in the survival of the vigil and of mankind; to please leave the signs alone; that I was pre-pared to take care of them.
"With a smirk and a sarcastic tone, Mr. Lindsey said that it was his responsibility to protect Thomas' property while Thomas was under arrest. I said that I had been asked to look after the property and would do so. Mr. Lindsey asked if I had anything in writing. I said that I did not, but that many people had heard Thomas ask me to watch the signs. Mr. Lindsey ignored me, and continued with his work, which by this time had begun to involve the destruction of the signs. Mr. Robbins smiled.
"I ran over to Thomas' mobile speaker's platform and began pushing it off through the park. I was stopped. Mr. Lindsey told me that if I 'continued to interfere' I would
be arrested. Watching Mr. Lindsey`s workers battering one of the large signs into pieces (by smashing it with long poles, and crowbars), I told Mr. Lindsey it was obvious he was not interested in 'protecting Thomas' property,' but that, quite to the contrary, his interest was in destroying the anti-nuclear vigil of which I was a part and which I was trying to protect. Again he threatened me with arrest and I stepped aside." Exhibit ll7, Affidavit of William C. Wardlaw, December 21, 1985. C. 49, 50, 85; AmC. 47, 49, 50, 53, 56.
ll9. "Officer A. Barrett, and Officer Ken Duckworth, in the process of removing (cloth banners from the Pennsylvania Avenue side of the snow fence in Lafayette Park which read "HEY, KING RONNIE, THE POLICE STOLE OUR SIGNS!" and "THERE THEY GO AGAIN!"), Ellen Thomas attempted to impede the removal of signs by grabbing the ends of signs. While holding both her hands, the sign was cut with a knife which cut the sign somewhat in half. The signs were removed and carried as property for safe-keeping. Later I was advised not to enforce the directive any further by Sgt. Tishkevich." Exhibit ll9, Park Police report, J. Murray, 10-15-84. COMPARE Exhibit l00-B, para. 85. C. 85, 90, 9l, 92, 93; AmC. ll, 4l, 43, 45, 49, 50, 5l, 53, 54, 56.
l20. "NPS personnel were removing structures in Lafayette Park... NPS personel included Carolyn O'Hare, Rick Robbins, and numerous other NPS maintainence, Sgt. Malhoyt, Tom Clark... and P. Gavin and myself were the Park Police involved. When the NPS workers attempted to move Ellen Thomas structure... she was taken down off the top by Gavin and myself for disorderly conduct." Exhibit l20, Park Police report, May 9, l985, Officer unidenti-fiable by our record; COMPARE Declaration of Ellen Thomas, Exhibit l00-B; see also Exhibit l20-B. C. 52, 53, 69, 82, 83, 85, 89, 9l, 92, 93; AmC. l0, ll, 33, 38, 39, 4l-43, 45-47, 49, 5l-56.
l2l. "(On 6-8-85, at 0019 hrs.) Ellen Thomas was sitting upright while William Thomas was lying on his side covered up. Adjacent to Ellen Thomas, and in physical contact with her was a sign/banner being held by a small piece of wood trim. The banner appeared to be made of cloth. The sign banner was well within the restrictions for items in that area. Car 31 was notified and responded, after reviewing the applicable sections of 50 CFR concerning demonstration activities in and around the White House area it was deter-mined that the Thomases were not in violation of any of the sections. Based on this no action was taken." Exhibit l2l, Case Incident report, Sgt. Moyer, June 8, 1985, 00l9 am, emphasis added. C. 73; AmC. 42-43.
l22. "On 6-8-85, at about 0745 hours, myself along with Sgt. Walkowich, Officer Ferebee as well as Officer T. Woods, responded to the northwest gate of the White House where we observed a structure... The top of the structure contained a sign (3' x 5') ... supported by wood (3/4" x 1")....
"Thomas was issued a violation notice P949681... The struc-ture was seized and transported to D-1." Exhibit l22, Case Incident report, Officer Brown, June 8, l985, 0745 am. C. 55, 8l, 85, 89, 90, 9l.
l23. "On or about 9-l0-85 I was contacted by the U.S. Attor-ney's Office about William Thomas' CFR citation.... (T)he U.S Attorney stated that ... they had decided not to prosecute the case. Mr. Thomas was notified of this in court." Exhibit l23, Case/Incident report, Officer Brown, September 29, l985.
l30. "While checking Lafayette Park I observed (Thomas) on a blanket under a sleeping bag with his wife. He ... began arguing his personal philosophy and purpose for being in the park. I again advised him of the prohibition against laying down of bedding in the park ... his voice was ... loud.... At this time I placed him under arrest." Exhibit l30, Park Police report, signed by Sergeant Wilkins, 11-18-85. C. 54, 82, 83, 89, 90, 9l, 93.
"IN JULY OF l985 THERE WERE (quite a few) SIGNS IN LAFAYETTE PARK.... ONE OF THOSE SIGNS INDICATED THAT ... TWO INDIVIDUALS ... HAD BEEN IN THE PARK SINCE JUNE 1981."Federal Register, p. 7557, March 5, l986. (EMPHASIS added.)
"In addition to the PROBLEM OF A FEW INDIVIDUALS ... the National Park Service received at least twenty-five complaints, most requesting some action concerning Lafayette Park...." Id. (EMPHASIS added.)
"The National Park Service did consider closing the park to demonstrators at night. However, this limitation would preclude continuous vigils in Lafayette Park.... (T)HE NATIONAL PARK SERVICE DOES NOT WISH TO PRECLUDE THEM ... UNLESS OTHER MEASURES ARE INSUFFICIENT." Id. 7559. (EMPHASIS added.)
"The National Park Service ... also received A PETITION WITH SEVERAL THOUSAND SIGNATURES IN OPPOSITION (to the pro-posed regulation)...." Id. 7560. (EMPHASIS added)
"The American Civil Liberties Union specifically questioned the motives of the National Park Service in promulgating these regulations, suggesting that THE SOLE PURPOSE FOR THE AMENDMENTS IS TO HARASS CERTAIN INDIVIDUALS NOW DEMONSTRATING IN LAFAYETTE PARK. To support this proposition
the ACLU attached to its comments affidavits of Concepcion Picciotto, a long time demonstrator, that allege ... the Park Service is allowing private citizens to destroy demonstrators' signs...." Id. (EMPHASIS added)
"IF THE REGULATIONS ... HAVE A GREATER IMPACT ON ONE GROUP OF DEMONSTRATORS, IT IS ONLY BECAUSE THOSE DEMONSTRATORS ... [have] LARGE SIGNS." Id. (EMPHASIS added)
"Some commenters also suggested that regulations on the White House sidewalk make Lafayette Park an even more important site for demonstrations directed toward the White House. IT IS TRUE THAT RESTRICTIONS WERE PLACED ON THE SIZE, PLACEMENT AND CONSTRUCTION OF SIGNS USED ON THE WHITE HOUSE SIDEWALK IN JULY OF 1983.... THE IMPOSITION OF THOSE REGULATIONS APPEARS TO BE ... THE REASON FOR THE MOVEMENT OFLARGE SIGNS TO LAFAYETTE PARK." Id. (EMPHASIS added)
"Many of the commenters opposing the proposed regulation ... take the position either that THERE IS NO PROBLEM IN LAFAYETTE PARK OR that THE PROBLEM CAN BE HANDLED UNDER EXISTING REGULATIONS. The ACLU, for example, stated that the Park Service has misrepresented the situation and that visitors to the park find the ongoing demonstrations to be a 'thrilling example of their democracy in action.'... Id. (EMPHASIS added)
"SEVERAL COMMENTERS ... SUGGESTED A PUBLIC MEETING OR PRIVATE NEGOTIATIONS CONCERNING THE RULEMAKING EFFORT.... THIS RULEMAKING HAS BEEN THOROUGHLY ... DISCUSSED IN THE MEDIA, THROUGH EDITORIALS, ARTICLES, AND LETTERS TO THE EDITOR, AND ... COMMENTS HAVE BEEN RECEIVED FROM ALL SIDES OF THE QUESTION." (EMPHASIS added) Id. 7563. (EMPHASIS added.) COMPARE e.g. Exhibit lll-C, p. l.
"The final regulations ... leave open ample avenues of communication ... such as THE ELLIPSE...." Id. 7560. (EMPHASIS added.)
"It is not easy to draw the lines established in the final rules." Id. 7566. COMPARE Exhibit ll3-B, pp l5, l6. C. 38, 7l, 78, 79, 8l, 82, 83, 84, 85, 89; AmC. 2l, 22.
government. Exhibit l34, pp. 26-29, 65-67, 94, 95. USA v. Thomas and Thomas, CR 87-23l, Trial Transcript, December l4, l5, l988. C. 83, 86; AmC. 20, 83.
William Thomas, pro se
1440 N Street, N.W. Apt. 410
Washington, D.C. 20005
MARY HUDDLE and PHILIP JOSEPH, et. al., ) ) Plaintiffs, Pro Se, ) ) CA 88-3130-JHG versus ) ) Judge Joyce Hens Green RONALD WILSON REAGAN, et. al., ) ________________________________________)
I, William Thomas, hereby state that, on this __th day of January, l989, I hand delivered a copy of the foregoing plain-tiffs' Clarification of Complaint, to the offices of Assistant U.S. Attorney Michael Martinez, Judiciary Square, 555 4th Street, N.W., Washington, D.C., and Arthur Burger, 1350 Pennsylvania Avenue, N.W., Washington, D.C.