SUPERIOR COURT
FOR THE DISTRICT OF COLUMBIA

DISTRICT OF COLUMBIA

versus CASE No. D4369-96

WILLIAM THOMAS, Defendant.

MOTION TO DISMISS

This case is before the Court on a minor violation notice filed by the District of Columbia.

In the interests of justice and judicial economy, for the reasons set out below, and pursuant to D.C. Super. Ct,. Rules Cr. P. Cr. P. 7(c) (2) , 12(b) (1), and 12(b) (2) defendant, William Thomas, hereby moves that charges in this case be dismissed on the grounds that no offense has been committed, or, alternatively, that defendant's alleged actions were protected under the First Amendment of the Constitution of the United States.

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BACKGROUND

Axiomatic to due process is the requirement to apprise the accused of the precise charge against him, including all elements of the offense." Wittenberg v. United States, App. D.C. 366 A.2d 128 (1976). The charge of "disorderly conduct" against defendant is supported only by the arresting officer's "Criminal Incident. Report.& According to the officer's report, in it's entirety: [1]

"On 11-4-96 at approx. 1539hrs I observed a news crew in Lafayette Park. I approached the news crew and asked what they were doing. A white male approached me, later identified as Thomas, William, and yelled at me. Thomas stated they can interview me, see what these cops do, they don't want me to talk, they don't want me to tell you the truth. I informed Mr. Thomas that he needed to calm down. He stated you need to leave, get out of here. I then informed Mr. Thomas that he was causing a disturbance. (A crowd was forming, taking pictures, and surrounding me.) I informed Mr. Thomas that he needed to leave the area or he would be arrested because of the nature of the incident and because it was in front of the White House. Mr. Thomas then got on his bike and started riding around the area. I asked him if he was going to leave and he did not answer me because he had started to talk to someone in the park and was ignoring me. Mr. Thomas was given at least four chances to leave the park. Mr. Thomas was then arrested and taken to D-1 for processing. Mr. Thomas paid the $25 collatoral and was released with a court date of 11- 209-96." U.S. Park Police Officer Lombardi, Criminal Incident Record Exhibit 1.

DISCUSSION
I. NO OFFENSE WAS COMMITTED

Purely for the purposes of the instant Motion, defendant will pretend that the facts set out in Officer Lombardi's report are an accurate representation of the incident. [2] In pertinent part, D.C. Super. Ct,. Rule Cr. P. 7(c) (2) provides:


[1. On January 24, 1997 the parties appeared in D.C. Superior Court, courtroom 116, prepared for trial, . At that time the government declared it would be calling only one witness, the arresting Officer Lombardi.]

[2. For the record, and concerns of judicial economy, on January 24, 1997, council informed the court that defendant would be presenting four witness, all of whom were present in court.. By dismissing the case at this stage the court would spare itself the time necessary to hear defendant's witnesses tell a substantially different story than the account rendered in officer Lombardi's report.]

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"The information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged"

In a light most favorable to the officer, his Criminal Incident Report can be divided into to separate "Counts." In light of the wording of the statute, neither Count would constitute a violation. [3]

a. COUNT ONE

First, and apparently worst, defendant:

"Thomas, William ... yelled at me. Thomas stated they can interview me, see what these cops do, they don't want me to talk, they don't want me to tell you the truth. I informed Mr. Thomas that he needed to calm down. He stated you need to leave, get out of here. I then informed Mr. Thomas that he was causing a disturbance. (A crowd was forming, taking pictures, and surrounding me.)"

Notably, the only alleged "action" was that defendant "yelled."

[3. DDC 22-1121 provides that:

"Whoever, with intent to provoke a breach of the Peace, or under circumstances such that a breach of the peace may be occasioned thereby: (1) acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; (2) congregates with others on a public street and refuses to move on when ordered by the police; (3) shouts or makes a noise either outside or inside a building during the nighttime to the annoyance or disturbance of any considerable number of persons; (4) interferes with any person in any place by jostling against such person or unnecessarily crowding such person or by placing a hand in the proximity of such person's pocketbook, or handbag; or (5) causes a disturbance in any streetcar, railroad car, omnibus, or other public conveyance, by running through it, climbing through windows or upon the seats, or otherwise annoying passengers or employees, shall be fined not more than $250 or imprisoned not more than 90 days, or both." (June 29, 1953, 67 Stat. 98, ch. 159, 211a; 1973 Ed., 22-1121; May 21, 1994, D.C. Law 10-119, 9(9), 41 DCR 1639.)

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Assuming, arguendo, that Thomas' "yelled" the alleged words, and that a parenthetical "crowd" did form, "surrounding" Officer Lombardi -- even "taking pictures" -- the information fails to indicate that Officer Lombardi felt threatened by this "crowd," or that defendant's words were likely to "annoy, disturb, interfere with, obstruct, or be offensive" to anyone, other than Officer Lombardi.

Plainly, the instant information flatly fails to intimate that Mr. Thomas':

"action had any disturbing effect on the citizens present..... Consequently, Mr. (Thomas') conduct cannot be said to have constituted a breach of the peace as far as they were concerned and it is well established that disturbing policemen is not disorderly conduct. The Illinois Appellate Court in Oratowski v. Civil Service Commission of City of Chicago, 3 Ill.App.2d 551, 123 N.E.2d 146 (1st Dist. 1954), stated the applicable proposition as follows:
'It is apparent from this statement of the law that words addressed to an officer in an insolent manner do not without any other overt act tend to breach the peace because it is the sworn duty and obligation of the officer not to breach the peace and beyond this to conduct himself so as to keep others from so doing'." Lawrence Landry, et al. v. Daley, et al., 288 F.Supp. 189 at 193. USDC N.D. Ill., E.D. (1968), (parenthesis substituting).

Since the Information asserts facts which were simply disturbing to the policeman, it fails to present evidence of probable cause of "disorderly conduct," this First Count must be dismissed.

b. COUNT TWO

Second, and again imagining Officer Lombardi's account to be factually accurate, apparently distinct from the purported act of "yelling," he also charges:

"I informed Mr. Thomas that he needed to leave the area or he would be arrested because of the nature of the incident and because it was in front of the

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White House. Mr. Thomas then got on his bike and started riding around the area. I asked him if he was going to leave and he did not answer me because he had started to talk to someone in the park and was ignoring me. Mr. Thomas was given at least four chances to leave the park."

Once again, there is no indication of any likelihood that Thomas' "action" was likely to "annoy, disturb, interfere with, obstruct, or be offensive" to anyone, other than Officer Lombardi.

Moveover, it is clear that Officer Lombardi did not arrest Mr. Thomas for the "act" of "yelling," but rather for the separate act of "ignoring ... at least four chances to leave the park." The statute does not include failure "to leave the park" within the (in)action proscribed under the "disorderly conduct" statute.

In sum, taken together Counts One, Two and the entirety of Officer Lombardi's Criminal Incident Report fail to set forth probable cause to support an allegation that Mr. Thomas' actions constitute an offense.

II. DEFENDANT'S ACTIONS WERE PROTECTED
UNDER THE FIRST AMENDMENT

Although defendant, and witnesses, would dispute the factual representations made in Officer Lombardi's Criminal Incident Report, more germane to the instant Motion are several, readily verifiable relevant facts which are absent from the report.

First, notwithstanding Officer Lombardi's cryptic reference to "nature of the incident and because it was in front of the White House," it is well-established that Lafayette Park
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is not a "no noise" area. [4]

"By no reasonable measure does Lafayette Park display the characteristics of setting in which Government may lay claim to legitimate interest in maintaining tranquility, for purposes of determining whether application of decibel level regulation to park would violate First Amendment, considering park's status as primary assembly point for First Amendment activity aimed at influencing national policies, its location across street from White House, its exposure to every form of urban commotion, and government's own policy of issuing rally and demonstration permits for use in park. U.S.C.A. Const.Amend. 1." United States v. Nomad, 968 F.2d 86, 296 U.S.App.D.C. 350

Second, defendant has devoted the last sixteen years of his life to regularly communicating with the general public on issues of broad concern, in Lafayette Park. To this end defendant seeks to be available to those who may be interested in the issues

[4. "Certain types of places are so vital to a healthy and robust public discourse that they are accorded special status under the first amendment.... The public sidewalk here is one such forum....

[Ftn. 66] See Perry Educ. Assn. v. Perry Locnl Educators' Assn. 460 U.S. 37. 45. 103 S.Ct 948, 954. 74 L.Ed.2d 794 (1983). The classic statement of the public forum doctrine is found in Justice Roberts's opinion in Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954. 83 LEd. 1423 (1939):
'Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges. immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied'." White House Vigil for ERA v. Clark, 746 F.2d 1518, 1526. 66.

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he raises on a twenty-four hour basis. See, Exhibits 2 & 3.

Notably, Officer Lombardi briefly mentions that he had, "observed a news crew in Lafayette Park. I approached the news crew and asked what they were doing." Officer Lombardi fails to note that before he "approached the news crew and asked what they were doing," Mr. Thomas had been speaking to the news crew.

Obviously, the absence of any information in his Criminal Incident Report might indicate that Officer Lombardi didn't think it was important to explain why he felt he needed to ask the news crew "what they were doing," or, for that matter, exactly "what" it was "they were doing" which justited his attention in the first place.

Officer Lombardi also neglected to mention that after he disrupted Mr. Thomas' conversation with the news crew, Mr. Thomas, in a perfectly calm and moderate voice [5] informed Officer Lombardi that he had no legal authority to prohibit the news crew from using their video camera in the Park.

Because Officer Lombardi makes only one fleeting reference to the news crew, the Criminal Incident Report does not explain what happened to the news crew, and makes no direct link between the alleged "yelling," or the apparent resolution of that particular incident, and the subsequent incident -- when "Mr. Thomas was given at

[5. For the Record, Thomas denies "yelling," or even raising his voice at any point in the entire incident, or using anything nearly approximating the words attributed to him in the Criminal Incident Report.

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least four chances to leave the park" -- which resulted in his arrest.

"The police have a duty to keep streets and sidewalks open for the movement of traffic ... but, in applying it, the police must direct and control demonstrators only to the extent sufficient to protect legitimate state interests, such as, free circulation of traffic and free access to public buildings. In ordering obstructive demonstrators to 'move on'" the initial police objective not be merely to clear passage, not to disperse demonstrators or suppress the free communication of their views." Washington Mobilization Comm. v. Cullinane, 666 F2d 107 (D.C. Cir. 1977).

Even if this honorable Court feels compelled to accept the idea that Officer Lombardi hsd probable cause for a charge of "disorderly conduct" becauae Thomas "yelled," the Criminal Incident Report reflects that Mr. Thomas was actually arrested not for "yelling," but because he "ignored .... at least four chances" to disperse. Therefore, because the Criminal Incident Reports does not imply that Thomas was inhibiting the circulation of traffic or free access to anyplace, the Officer's authority to order Thomas to "move on" exceeded the extent sufficient to protect any legitimate state interest, and the charge should be dismissed under the First Amendment.

Respectfully submitted this ___ day of February, 1997,

William Thomas

CERTIFICATE OF SERVICE

I William Thomas, hereby state that, on this ____ day of November, 1989 I caused a copy of the foregoing Plaintiffs' Application for a Temporary Restraining Order to be hand-delivered to the Office of U.S. Attorney at Judiciary re, 555 4th Street N.W., Washington, D.C.

_____________________________

William Thomas


PLAINTIFFS' RULE 205 (a) CERTIFICATION

I William Thomas, hereby state that, to the best of my knowledge I have hand delivered a copy of every paper filed in this case to the office of Michael Martinez, Assistant U.S. Attorney at Judiciary Square, 555 4th Street N.W., Washington, D.C.

Respectfully submitted,

_____________________________

William Thomas
1440 N Street, N.W. Apt. 410
Washington, D.C. 20038
202-462-0757

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