UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
William THOMAS, et al., Docket No. CA 92-0537
Plaintiffs, Washington, D. C.
March 4, 1992
vs. 10:15 a.m.
MANUEL LUJAN, et al., FILED
Defendants. MAY 15, 1992
CLERK, U.S. DISTRICT COURT
APPEARANCES: District OF Columbia
For the Plaintiff, Pro Se

William Thomas:
For the Plaintiffs, THOMAS A. BECKETT, ESQ.
Concepcion Picciotto and Ellen Thomas:

For the Defendants: JOHN CLEARY, ESQ.

TRANSCRIPT OF STATUS CALL
BEFORE THE HONORABLE STANLEY SPORKIN
UNITED STATES DISTRICT JUDGE

Court Reporter: Beverly J. Byrne
Official Court Reporter
Room 6812 U.S. Courthouse
Washington, D. C. 20001
(202) 535-3299

Proceedings recorded by stenomask, transcript produced from dictation.

PROCEEDINGS
THE DEPUTY CLERK: William Thomas, et al, versus
Manuel Lujan, et al., Civil Action 92-537.

THE COURT: Mr. Cleary, do you have a report?

MR. CLEARY: I do, Your Honor.

THE COURT: Would counsel please identify himself for the Court here,

MR. BECKETT: Your Honor, I'm Tom Beckett. I'm representing Ms. Ellen Thomas and Concepcion. Mr. Thomas is still pro se.

THE COURT: Okay. Pleased to have you.

MR. CLEARY: Your Honor, I would like to hand up -- I think where we left off yesterday was what is the status of the property.

THE COURT: Yes.
In other words, this is an inventory?

MR. CLEARY: It is for the two -- here is what happened. The 29th of February, Saturday morning, at 4:00 a.m., arrests -- there was a series of, you know, walking through regular beats by the Park Police through Lafayette Park, and the people were observed sleeping with their personal belongings. And they had been warned on numerous prior occasions.

arrests were made, six for camping, one for interfering. Two of the arrests for camping are two of the plaintiffs here, Ms. Ellen Thomas and Concepcion Picciotto. Mr. William Thomas, who was here yesterday, was not arrested.

THE COURT: He was not arrested at all?

MR. CLEARY: No.

THE COURT: But why did they take his bike then?

MR. CLEARY: I don't know -- I mean, I will tell you what I know. I don't know if he said it was his bike or not. But this is the inventory of the two people that are plaintiffs, as to what was taken.

THE COURT: I see.

MR. CLEARY: And as the Court can see, it's a voluminous amount of material, and it is very consistent with camping and living in Lafayette Park. The material is at Hains Point. It is being held as evidence. The problem -- if I could hand up one other document.

THE COURT: Yes.

MR. CLEARY: If I could hand up also -- these are the citations that were issued for these two individuals. Oh, let me give a copy to -- and this is how it works. It's a citation offense. It's similar to a traffic violation, although there are criminal penalties.

As you can see, it has the name of the person and

the offense of camping. The most important thing for present purposes is at the bottom there is a court appearance, and that's before the Magistrate. That's room 1825B at the bottom stamped in there.

THE COURT: And that's our Magistrate?

MR. CLEARY: That's our Magistrate right here in Federal Court.

THE COURT: Yes.

MR. CLEARY: Now, what the pattern is, it's my understanding here, they pick out -- the officer picks out April 15th. That's the third Wednesday of April. So they have a prearranged date that all of these are handled for the month or for the week, or whatever. So that's the court date, 4/15/92, 9:00 a.m., mandatory appearance, for these people to go and have a court date.

Let me explain what the procedural consequence of that is, and then go back to the chronology as to the property. The procedural consequence is that is a court -- that is a criminal case. And that's where a challenge like this should have been brought under Rule 41(E), motion for return of property. It should have been brought before the Magistrate within the criminal context, and not by a collateral civil challenge, as is being attempted here.

THE COURT: Now, how -
- Well, let me finish as to the property.
MR. CLEARY:

THE COURT: Why are we going to run these people around?

MR. CLEARY: Well, let me finish as to the property The property, -- well, no decision has been made about prosecuting the cases, or if they are prosecuted what i the evidence that will be needed.

There have been occasions in the past when the evidence is photographed and returned to people in Lafayette Park. My information -- again, I only had two business hours to get a handle on this.

THE COURT: Yes.

MR. CLEARY: Is that very shortly, in the next two or three business days, that decision will be made, you know, an assessment as to what is needed for evidence and what is not, will be made, and the rest of the stuff could be returned.

THE COURT: But, you see, these people need some of these things. I would assume a bike is a very important item to them. I mean, that's something that --

MR. CLEARY: Well, I mean, they don't have a First Amendment right to a bike. The problem -- they have had harassment case after harassment case in this Court, and they have lost every single one. And I would like ta hand up one other decision from Judge Joyce Green. This is pending appeal.

And again, the harassment here is just not a well-founded claim. It --

THE COURT: I know it may well be you don't have the harassment. What I want to do is get these people back their property. Now, how do I have to do that? Do I have to wait for some bureaucrat to make a decision three days --

MR. CLEARY: Well, it's not a bureaucrat, Let me explain what the problem is.

THE COURT: What would you call that person?

MR. CLEARY: What happens here -- they would have been papered the next day.

THE COURT: I'm not using it pejoratively. I don't know what else to call the person.

MR. CLEARY: Let me explain the two tracks that --

THE COURT: Give me some name to call him, and I'll call him that. Go ahead.

MR. CLEARY: Let me explain the two tracks that could have been followed here.

THE COURT: Go ahead.

MR. CLEARY: Had they been booked through the central cellblock and actually incarcerated, they would have been papered or no-papered the next day and this decision would have been made by now.

They were put through a much more mild form of arrest. They were basically detained, ticketed, and sent

away. So that puts it on a slower time track. The next court appearance is April 15th. So they have no -- that's why this is on a different time track than a typical --

THE COURT: If somebody took your car and told you you couldn't have it until April 15th because you parked your car illegally, what would you do?

MR. CLEARY: Well, you would have to be in the right forum, which they are not.

THE COURT: Oh, come on. That's not -- keep it quiet down there. Come on, I can't be tested this way. Give them back their property, okay. Take a photograph and have it back to them --

MR. CLEARY: Your Honor, it's just completely improper for them to try and --

THE COURT: It may well be improper, but they are citizens of the United States, They have been --

MR. CLEARY: I understand that.

THE COURT: They are citizens of the United States, and they have property that they are entitled to have. And you're giving me every procedural roadblock to prevent them from getting their -- you know, that's what Judges are here for.

MR. CLEARY: Your Honor, they are not allowed to file a lawsuit to get evidence back of a criminal offense.

THE COURT: Well, look --

MR. CLEARY: It just can't be.

THE COURT: Can I tell you what you do. Go to the Court of Appeals and the Supreme Court. I'm ordering you to give back their property by noon today. And if you don't want to give it back -- please -- look, I'm going to empty this courtroom. There is going to be no outbreak here. This is serious business, and he is making a serious argument. Now, I want these people to have -- photograph their property, and that will be the evidence. If the Magistrate Judge has some difficulty in doing that, then let them come to me. I'LL be the one responsible for giving the property back.

But why should these people not have this property? I can't understand that.

MR. CLEARY: your Honor, it's evidence in a criminal case. I have made my argument.

THE COURT: Okay.

MR. CLEARY: I move for a stay of this order for 24 hours until --

THE COURT: No there will be no stay. Give me an order. At noon today they are to get back all of their property. It's to be photographed, and give them back their property.

MR. CLEARY: Well, your Honor, let me just say, in terms of hours, minutes, and seconds. it is impossible to get their property back by noon today. But --

THE COURT: What would you like? How much time would you need? Do you want 5:00 o'clock today?

MR. CLEARY: Again, without -- I'm not consenting, obviously, to that. But 5:00 o'clock, the impossibility would be --

THE COURT: All right. By close of business today, 5:00 o'clock, let them have their property back.

MR. CLEARY: And again, I move for a stay of one day.

THE COURT: Deny the stay.

MR. CLEARY: Very well.

THE COURT: Do you want to convince me otherwise? What do you want to be heard about?

MR. THOMAS: I would like to ask also for the Court to restrain the government from repeating this same --

THE COURT: No, I'm not going to restrain. I don't know what you're going to be doing. And I'm not going to restrain them. This is a TRO I'm issuing. I'm getting your property back.

As you know, this is Judge Richey's case. And whatever happened here on the substance, you're going to have to take it up with him. And it may well be that, you know, you might be right, I don't know what you did or what you didn't do. You're still going to have to answer to the criminal charges here.

MR. THOMAS: Not me, thank God, Your Honor.

THE COURT: What I'm doing is getting your property back. Because you should have your bicycles and you should have these other pieces. Because I assume you need the bicycles to move, that you use the bicycles to get around. Am I right?

MR. THOMAS: This is true.

THE COURT: Okay. And you need them. You are going to get everything back. In other words, let them photograph everything. And I assume that you will agree that the photograph will be -- you will not object, counsel, is that correct, to the photograph being the evidence of what was found at Lafayette Park?

MR. BECKETT: That's correct. That's what I was going to suggest.

THE COURT: That you would concede that?

MR. BECKETT: Yes.

THE COURT: And, Mr. Thomas, you'll concede that too, is that correct?

MR. THOMAS: Yes.

MR. CLEARY: The practice, Your Honor, has been that they have to sign a receipt acknowledging that the --

THE COURT: Oh, sure, they are going to sign a receipt that they're getting this. By the way, is this the complete inventory?

MR. CLEARY: Mr. Thomas does not have any property on this list. He was not arrested, and nothing of his was seized, so far as our records indicate.

THE COURT: Is that right, Mr. Thomas, you have nothing here?

MR. THOMAS: I think that's clearly in the complaint, your Honor, that the property is jointly Concepcion's and mine or mine and Ellen's.

THE COURT: Well who are these people? Could you identify who --

MR. THOMAS: This is Concepcion.

THE COURT: All right.

MR. THOMAS: Concepcion Picciotto, who is a plaintiff in the case.

THE COURT: And you are?

MS. THOMAS: Ellen Thomas.

THE COURT: And you are Ellen Thomas. All right. Now, have you looked at this? And is this the inventory of the items that were taken?

MR. BECKETT: This morning is the first time I have seen it. So we'll have to figure that out.

THE COURT: Well, have you seen these?

MR. BECKETT: Very briefly.

THE COURT: Okay. We'll issue an order then that by 5:00 o'clock today these items will be returned. They will be

photographed, and that the photographs will be substituted for evidence of what was taken at that time.

MR. CLEARY: Just one other thing.

THE COURT: Yes.

MR. CLEARY: On return, we assume that means available for pickup at Hains Point.

THE COURT: Yes. Do you need it returned at any place?

MR. CLEARY: We're not going to sort out whose --

MR. THOMAS: We would like to have it returned to Lafayette Park.

MR. CLEARY: We can't sort out who owns what in Lafayette Park.

THE COURT: No, no, no. That's going to cause the same problem, and I'm not going to -- you'll go down there, and they'll be made available to you at that point. Do you need some kind of van to get that? Can you get a van to get it out?

MR. THOMAS: We'll work that out.

THE COURT: All right. It will be available at Hains Point at 5:00 o'clock today.

MR. THOMAS: Thank you very much.

MS. THOMAS: Your Honor, may I ask a question?

THE COURT: Yes, surely.

MS. THOMAS: I'm Ellen Thomas. And I am wondering,

if anything is missing, shall we file something with you, or --

THE COURT: Well, have you looked at this list?

MS. THOMAS: I have. And I did notice that there was a white plastic bag that I had some wood carving tools -- I'm an artist -- and it isn't mentioned on there.

If it's missing, shall I bring that up with you or in the criminal case?

THE COURT: Do we know where the carving tools are?

MR. CLEARY: I haven't the slightest idea, Your Honor. As you can see from that list, this is evidence of camping, it's evidence in a criminal case. And all that stuff --

THE COURT: But she is an artist, and I understand about artists. Well, this is going to go to -- well, there is nothing I can do. I can't manufacture the --

MS. THOMAS: I will assume that they just didn't mention it and it will be there. And if not, I'LL --

THE COURT: Well if it's not there -- this will be set down for Judge Richey. Now, counsel, how do you want to proceed here? Do you want to proceed on a preliminary injunction, or what?

MR. BECKETT: I think that's what they'll want. So if I could have a little time to review the case and talk to them and come up with --

14

THE COURT: What will you do then, tell Judge Richey to set up a date --
(Brief pause.)

THE COURT: So you'll file the motion for a preliminary injunction, and then he'll set the date?

MR. BECKETT: That's right.

THE COURT: All right.

MR. BECKETT: And I'LL work with Mr. Thomas.

THE COURT: And in the meantime I'll issue the order to have the property returned.

MR. BECKETT: Okay.

THE COURT: Now, do we know where to reach you for that?

MR. BECKETT: Yes. They have my address.

THE COURT: Okay.

MR. BECKETT: Thank you, Your Honor.

THE COURT: Thank you.

MR. THOMAS: There is one other point, if I may.

THE COURT: Yes.

MR. THOMAS: And Mr. Cleary might be able to just agree to it. There were another set of signs that were also taken, and we weren't able to coordinate and have those people party to this action. So --

THE COURT: Well, they are not before me.

MR. THOMAS: That's true.
15

THE COURT: And I can't order -- all I have got is this inventory here. And I want to tell Mr. Cleary I appreciate -- you know, he had to work, I'm sure, late last night to make sure that we got this information. I can't order anything else. They are not before me. All right.

(Whereupon, the hearing was concluded at 10:30 o'clock a.m.)

CERTIFICATE
I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.

BEVERLY J. BYRNE
Official Court Reporter

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