SAFEGUARDING WHOSE FREEDOM?
On about April 15, 1999 and again
on about April 19th US Park Service rangers hand-delivered a Park Closure Notice
to the site of Thomas' continuous vigil in Lafayette Park. The
Notice announced that, "to provide security to the President
and visiting heads of state for the NATO 50th Anniversary Summit,"
portions of Lafayette Park would be closed from noon on April
23rd until 6:00 pm, April 25th.
Thomas fired off a reply,
but didn't receive a response.
Since the very first time Lafayette
Park was closed for purported "security concerns," Thomas
had been involved. In 1987, just a couple of days before Gorbachev's
first visit to the US, Thomas received a copy of the first ever
Park Closure Notice. Due to the short notice, Thomas' only option
was to file in the District Court for a temporary
The government cried, "Security!"
Owing to the short time available to prepare for the hearing,
Thomas could only point out that the government presented no facts
to back their "security" claims, and predict that if
the court allowed this extraordinary closure it would be like
letting the camel get his nose into the tent, and the court could
expect things would only get worse.
"If the Court renders judgment
grounded only on the untested 'opinions' of police officials --
as might appear to
be the case should this matter end here -- then we must humbly
wonder: why not simply replace this judicial system with a system
of police commissioners?" Thomas argued in opposition to
the government's motion to dismiss.
Thomas failed to convince the
court to halt the closure. However the judge, somewhat sensitive
to the value of the First Amendment, did order the police to allow
that Thomas' signs remain in the areas slated for closure. Ultimately,
the government's security claims managed to evade any factual
review. Because Gorbachev's visit had ended, the court refused
to conduct a preliminary injunction hearing on the grounds that
the issue was "moot." Thomas' urged the court to conduct
a factual inquiry, arguing that the issue was not "moot"
but was likely to be repeated.
Jumping ahead to April 23, 1999, there were at least 200 police
officers in the park before 9:00 am. At about 10:30 Park Police
officers Watson and Bergo approached Thomas to advise him that
sections of the park would be closed beginning at noon. Officer
Bergo, noting that he "was in charge of the park today,"
asked what Thomas planned to do.
Thomas explained he didn't want to make any rash decisions,
and was still mulling it over. He said that he would let them
know once he had made a final decision. At 11:45 Thomas handed
Officer Bergo a copy of an Illegal
Park Closure Notice, his position paper.
"I suppose you just printed
this out." Officer Bergo said.
"Actually I printed it out
yesterday, I just hadn't finally decided what I was going to do.
Show it to your supervisors, please." Thomas requested.
Promptly at noon police forces
began clearing the park.
Concepcion and Ellen moved their signs out of the closed area.
Thomas remained with his sign, but none of the police said anything
As the minutes passed, and the police seemed to be ignoring
him, Thomas began to think the Empire may have capitulated to
his demands, that he may have won the battle.
He soon discovered he was mistaken.
With about a thousand Albanian
demonstrators chanting angrily in the background -- "Send
the troops, Now!" "Bomb NATO Bomb!" -- Thomas was
approached by two Park Police lieutenants.
who Thomas didn't recognize, reminded him of the Mario video character.
"Are you aware that you're
supposed to leave at 12 o'clock" Lt. Melachuk began.
"I know that we got a Notice
saying that. This is my position on that." Thomas offered
a copy of his position paper, Illegal Park Closure Notice.
"We already have
that." Lt. Melachuk, displayed the copy Thomas had given
"Well, whatever, whatever,
you just need to be on the other side of the fence right now."
Lt. Mario advised.
"Based on this I don't think
the closure is legal." Thomas responded, displaying his Illegal
Park Closure Notice.
"Yeah, it's only for one
day." Lt. Mario countered.
"The Park Service Notice
says three days." Thomas informed him.
"Three days? Oh, okay, maybe
you're right." Lt. Mario admitted.
"So, what would my charge
be if I don't go?"
"Why do you care?"
Lt. Mario asked.
"I care because NATO is
supposed to be safeguarding freedom, and what I'm doing here is
exercising the most fundamental aspects of freedom.-- communication,
expression. I mean you know me. I'm not a threat. Just one little
sign. I've been here for years. I've never caused any problems."
"Well, you understand that
this is an unusual situation. This doesn't happen every day."
Thomas agreed, "it is an unusual situation, I feel you're
trying to close the park illegally."
"It doesn't happen every
day." Lt. Mario reasoned.
"That's true, but in a country
under the rule of law ..."
"You can live with it. You
can live with it." Lt. Mario cut it short.
"Well, okay. That's your
choice." Lt. Mario said cheerfully.
"Mr. Thomas, you realize
what your options are." Lt. Melachuk stated. "Go right
over there, about 25 or 30 feet away."
"I got that option; I'm
not sure on what my other option is." Thomas explained.
"Well, that is your
"I don't have any other
"That's right." Lt.
Thomas was curious. "Well,
what's the consequence?"
"I believe you already know."
Lt. Melachuk surmised.
"You've been here long enough,
you know." Lt. Mario observed.
"I guess I'm gonna get arrested?"
"Well, you know, you know."
Lt. Mario said, good-naturedly.
"I wonder what the charge is."
"Guess you'll find out."
Lt. Mario hypothecated.
Lts. Mario and Melachuk departed.
Thomas continued attending his
The Empire's forces remained
Again Thomas began to think that
Reason may have triumphed over Force, but that illusion was dashed
with the approach of Sgt. Turonis, Officer Bergo, and two more
Park Police officers, a third with a video camera..
"Mr. Thomas," Sgt.
Turonis began, then, referring to a paper he was holding, continued,
"You are in violation of 36 CFR 1.5(f). This area has been
closed, and you must leave the area immediately. If you do not
leave you will be arrested, and your property confiscated. I will
give you three warnings. This is your first warning. I will give
you another warning in 3 minutes."
For about fifteen seconds Sgt. Turonis and Thomas looked at
one another in silence.
"Well, Sarge, since I've
still got more than two minutes until my next warning would you
have any objection if I were to explain my position on this situation?"
"You have the time, Mr.
Thomas, say what you like." Sgt. Turonis replied.
"Thanks." Thomas said,
"As you know, under the theory of 'the rule of law' even
the government must abide by its own regulations. You're threatening
to arrest me under the authority vested in you pursuant to 36
CFR 1.5(f). However, under the provisions of 36 CFR 1.5(b), except
in 'emergency situations' the Park Service is required to publish
proposed park closures in the Federal Register. Because the Park
Service has failed to comply with the requirements for park closures,
I believe that the closure is illegal, and, therefore, your order
for me to leave the park is also illegal. So, I suggest, you reconsider
your threat to arrest me, respect the government's regulations,
and leave me alone."
Sgt. Turonis listened
politely, but remained silent.
"My problem with the failure
to publish the proposed closure in the Federal Register is that
it denies me the ability to mount a meaningful challenge to in
"You know, there was a time
when the park was never closed?" Thomas pressed for a response.
"Were you with the Park Police during Gorbachev's first visit
"No, I wasn't" Sgt.
"I was." Thomas recalled.
"Then, like now, I didn't have any notice that the government
was planning to close the park until just a few days before they
did it. So, I didn't have much time to prepare for the court presentation.
At the hearing the government called the Director of the Executive
Protective Branch of the Secret Service and the Deputy Chief of
the Park Police who both recited the
unsubstantiated phrase. 'Security Concern.' They couldn't identify
any specific "security concern," but argued that the
closure would probably never happen again, and, anyway, the closures
were only going to last for a few minutes at a time. Then they
were purposing to close a much smaller portion of the park, now
they want to close it for three straight days.
"Frankly, Sarge, I think that, at best, it's just paranoia.
There's no security concerns here. You know as well as I that
if some actual security concern actually came up you guys have
more than enough manpower here to close the park in minutes. Like
they did with Gorbachev, you could just close the appropriate
areas when something is actually happening, and leave my signs
here just the same."
Thomas paused, Sgt.
Turonis made no attempt to respond, but looked at his wristwatch,
and said, ""You are in violation of 36 CFR 1.5(f). This
area has been closed, and you must leave the area immediately.
If you do not leave you will be arrested, and your property confiscated.
I will give you three warnings. This is your second warning. Do
you understand what I said?"
"Did you understand what
I said?" Thomas asked.
"I heard you." Sgt.
Turonis smiled sweetly. "I have no opinion."
"You have no opinion. Just
doing your job, huh?" Thomas asked. "I noticed a picture
in the Washington Post yesterday. It was a picture of the NATO
shield with the motto 'Safeguarding Freedom. I think it's obvious
that if there is going to be any 'freedom' there has to be a balance
with 'security'. And I'm not the only one who thinks that. In
another Post article last week, Sen. Moynihan was quoted as calling
for a 'national conversation' on the question of how much security
can you have before democracy becomes police state."
Pause, "I have no opinion."
Sgt. Turonis repeated.
"Okay, you're just doing
your job, I'm just doing mine. This park is the premier public
forum on earth and you're going to close
it. I can't figure out whose freedom you're safeguarding, so it's
my job to stand up for freedom in hopes of starting a national
conversation. In the past I've tried to address this issue in
civil challenges, but I could never get to a hearing of fact.
Now, if you're going to arrest me, I'll just have to try to explain
it in my defense against criminal charges.
"The government has to follow it's own regulations, else
we have a dictatorship. The regulations say that, 'except in emergency
situations' park closures must be published in the Federal Register
Sgt. Turonis stared blankly.
"Guess I'm repeating myself."
Thomas admitted. "No sense in trying to argue the law here
with you. Guess that's something for a judge to decide. After
all, you have no opinion anyway, right? That's probably all I
have to say."
Sgt. Turonis expressed no opinion.
"If you're going to be the
arresting officer, please make sure you attach this to your arrest
report." Thomas turned to Officer Bergo, extending a copy
of his Illegal Park Closure Notice.
"No, you can introduce it
as evidence in your defense." Officer Bergo said.
"We already have a copy
of that." Sgt. Turonis said. "We'll attach it and a
copy of the Park Closure Notice."
"Who's that?" Officer
Bergo asked, pointing to a woman with a camera seated on the curb
where Concepcion's signs used to be.
"She's from the White House."
Sgt. Turonis said, then gave Thomas his third and final warning.
The White House photographer began photographing Thomas signs
Officer Bergo applied the handcuffs,
and the same police contingent walked Thomas to the paddywagon
The the lady "from the White
House" snapped photos.
"This won't be a big problem
for you, Mr. Thomas," Sgt. Turonis, said, sticking his head
into the paddywagon. "This is a CFR violation. All you have
to do is show a picture ID, sign an agreement to appear in court,
and you can be released on citation from the substation."
"I don't have a picture
"It still won't be much
of a problem. You'll have to be sent down to Central Cell Block;
once they make positive ID, but then you'll be released from there."
From previous experience Thomas knew that process was likely to
take at least 12 to 18 hours.
At the substation, while Officer
Bergo was asking Thomas the routine questions -- name, rank, serial
number, kind of stuff -- Sgt. Turonis was buzzed into the room.
"You've probably heard,
we're having serious security problems with the demonstration
in Lafayette Park," Sgt. Turonis excitedly related news which
might make the park closure seem less than paranoid.
Having been held incommunicado
since leaving the park, Thomas hadn't any idea about what was
going on in the outside world, he asked, "What do you mean?
You're having problems with my friends? The people who work with
"No, not with your friends.
That demonstration that was in progress, an opposing group came
into the park and there are clashes between the two groups."
"Gee, I guess something
like that isn't going to help my case against security."
"That's my greatest fear
on this job, crowds." Officer Bergo murmured, momentarily
looking up from his paperwork." After Officer Bergo finished
filling in all the blanks, he locked Thomas in a holding cell.
About two hours later Officer
Bergo returned and opened the door. "You won't believe this,"
He said, "but a couple of the guys identified you, so we're
just going to let you go from here." He handed Thomas a CFR
Citation Violation Notice which listed a court date of July 21,
"Sure I believe it. I've
been a fixture around here for years. It doesn't surprise me that
a couple of your guys would admit knowing who I am, it's really
the only honest thing to do."
After walking back to the Park,
Thomas discovered the actual nature of Sgt. Turonis' "security concerns".