Could J.D. have established a pattern of "arbitrary and capricious enforcement" by the Park Service if he'd had a good lawyer connecting the dots? Could a lawyer have proved that J.D. had been singled out for prosecution?
The federal magistrate took the case under advisement.
APRIL 14: J.D.'s GI Bill house was hard to notice behind the horse buggies. Three of them, lined up in the yard, were little more than frames on wheels; two more, decked out and upholstered, sat to each side of the front door on a covered porch. J.D. liked to take buggy rides up Waterline Road, around the shoulder of Doyle Mountain and into the basin of the volcano in the tallest mountains in Arizona, the San Francisco Peaks.
"The most beautiful road in Arizona, and I live right smack at the bottom of it!" he said. "God is so good to me."
When he got his boat and Bush effigy back, he said, he was going to tow them through Flagstaff behind his Amish buggy, the effigy hanging from the scaffold bolted into his boat jerking with every step of the horses, sporting a sign that reads, "Freedom of Speech Is Dead in Coconino County."
J.D. waved at four bags of trash in his pickup. "I'm getting ready for my community service," he said. "I picked this all up last week. I love picking up trash. It makes me feel powerful. It's the most meaningful thing I do. And the least controversial."
Five Great Pyrenees, two blue-tick hounds and a barrel-shaped brown mutt from the pound greeted J.D. at the gate of a dusty pen. His horses and mule were in another pen. There were four geese in the barn. Cats were everywhere-40 cats, J.D. said-except in the house and the tool shed. An ultralight airplane that hadn't flown since J.D.'s emergency landing in the parking lot of Juanita's Trading Post in 1985 took up one corner of the shed. Pistons from the Wisconsin-brand engine of his sawmill were lined up on a wooden table.
He didn't know why he hadn't called Sheriff Richards as a witness, J.D. said as he ripped up Highway 89 toward Wupatki in his '64 MG Midget. "I never even had a basic premise that all the questions would support," J.D. said. "I even forgot to ask Sam Henderson what he said to Sheriff Richards." Richards, he said, "raised his right hand and said, `I'll swear on my honor Superintendent Henderson has agreed to submit a medical retirement for you if you'll come down.'"
North of Sunset Crater, cones and hills level into a sagebrush plateau that tilts toward the Painted Desert. Approaching the Wupatki Visitor Center, the first sight over the rise was a flagpole. It was the flagpole. The very one. A tour bus was parked beside it.
The woman behind the counter greeted J.D. warmly. "I didn't recognize you with your beard growing in," she said. He asked if Rangers Watson or Fender were working, but they weren't. "I was hoping to retrieve my boat and Swiss army knife and hat and charcoal lighter," he said.
On a walk to the ruins, J.D. pointed out where the Lucky Strike set had stood, across several walls of one of the main dwellings, and where cameras were set up. "When I'd stand in front of that one," he said, "they'd film with the one up here, then I'd run up here and they'd start shooting with the other one." He showed where reinforcing bars are hidden in the orange rock of the dwelling walls. He pointed to the last dwelling he worked on, where he had pressed fresh clay into chinks between the flat rocks.
What about that can of charcoal lighter the prosecutor had made such a big deal about? "I was gonna set the effigy on fire with it," J.D. says. "The pole was to hang it on when I burned it, so it wouldn't set fire to the boat. That was if the TV cameras had shown up. Can you imagine that? Burning an effigy of the president on Presidents Weekend?
"If the television stations had shown up, I was gonna put that porta-potty up on the seat, put on that Full Metal Jacket drill sergeant's hat, and take a shit right in front of the cameras. I'd probably still be in jail."
ON APRIL 16, the verdict came in on the four sets of charges. Trespassing, tampering, vandalism: guilty, $100 fine plus $10 special assessment. Interfering with agency functions: guilty, $100 plus $10 special assessment. Disorderly conduct: guilty, 90 days, suspended, and unsupervised probation. Public assemblies and meetings: not guilty.
J.D. received notice he was being fired. The five-page letter from Park Superintendent Sam Henderson outlined J.D.'s on- and off-duty conduct, including "bizarre appearance and attire," such as reporting to work with his face painted red, white and blue, that had had a "disruptive effect" on his co-workers. The letter cited his appearance, in Park Service uniform, white hood and black armband with a Martin Luther King Jr. button pinned to it, in the front row at a Northern Arizona University presentation on the Middle East given by a CIA analyst. It cited the flagpole incident.
"MY OPINION IS he wasn't protesting the war," Superintendent Henderson said. "He was just trying to aggravate the Park Service." If J.D. were just protesting the war, Henderson said, "why did he drive all the way out to Wupatki? Why didn't he just get in the middle of San Francisco Street? He could've been seen by hundreds of people, maybe thousands. The media would've been there in seconds." Instead, J.D. had demonstrated at the Visitor Center, and the media "didn't know about it." No media people came out, although Wupatki got a telephone call from a radio station after the incident was over, Henderson said.
"I've been with the Park Service 25 years, and I've never had a personnel problem, or an employee filing complaints against me," Henderson said. "When it rains, it pours."
Sheriff Richards said, "Clearly the man was sincere in his belief and his cause. He was very dedicated to that or he wouldn't have gone to those extremes. He wasn't ranting or raving." Over a long period of time, Richards said, J.D. had seen the issues he was raising being ignored. ÔHe felt like things he was espousing were not making any difference," Richards said. "He began to use successively more bizarre techniques."
Richards said he heard Sam Henderson agree to work with J.D. to "facilitate his legitimate retirement." He said he didn't hear anything about medical retirement or money amounts.
"You don't often in a national park see a person in a rowboat up on a flagpole," Richards said. "This is probably the most unusual event I've ever encountered in a suicide attempt."
MAY 3: J.D. was excited. He had appealed his case to the 9th U.S. Circuit Court of Appeals. And he had found a rule in a handbook on magistrate court that he thought might get his case overturned. He was waiting for the magistrate to respond to his request for a reversal. "Why won't he call me? Why won't he talk to me?" J.D. said. "He won't answer my mail. He wants me to just evaporate. Pestilence! A plague upon my house! Frogs and locusts!"
He was getting ready to go before the Merit Systems Protection Board to try to get his job back. Meanwhile, he said, the Park Service was dunning him for $2,000 it said he owed to his retirement fund.
"The government-they're shady little shits, man," said J.D. "They can tie shit up, and they're gonna try and tie up my retirement. Any goddamned thing they can do at all just to keep me from surviving, they're gonna do it. They've got all the resources, all the legal eagles sitting waiting. And I'm their number-one priority, getting rid of that crazy man. Nobody else will say a thing if we can get rid of that outspoken critic."
Among the documents the National Park Service filed with its Merit Systems Protection Board were memos between Superintendent Henderson, his employees (including J.D.) and the Park Service's district supervisors.
On February 25-nine days after the flagpole incident-Henderson wrote J.D. that he didn't intend to prevent J.D.'s freedom of expression, but insisted J.D. report for work with no adornment on his Park Service uniform and no "face paint, stage makeup or other items of personal adornment which may be considered distracting or disruptive to the work of others." A March memo from another supervisor said many employees felt the Park Service was "wimpy" with J.D. "because NPS management is afraid of legal actions that Protiva always seems to bring."
Every form in a stack of 33 written up by J.D.'s supervisor, dated March 4 through April 16, carried this identical language: "J.D. came to work today wearing a black armband and a Martin Luther King badge on his uniform. These adornments are in noncompliance. ... I requested that J.D. comply with the uniform/appearance requirements. He refused and was dismissed on administrative leave for the day."
On the first form, J.D. responded: "To say that a memo has power over the U.S. Constitution is ludicrous... therefore I will enjoy all the rights granted me by the U.S. Constitution." The rest of the forms he refused to sign.
Six park personnel sent memos to Henderson between February 7 and 16, protesting J.D.'s appearance and behavior. One wrote that "the costume consisting of women's undergarments pulled down over his face is sexual harassment." One said he has "the appearance of some sort of bank robber or terrorist." Another said "his actions degrade us all." Several said they were afraid he was going to "freak out" or "snap."
February 6, ten days before the flagpole arrest, Superintendent Henderson wrote that he heard J.D. "was trying to think of things to do that would substantiate his mental condition...he would sit on top of the Wupatki flagpole if he could figure out how to get up there."
The same day, Henderson wrote to his district supervisors: "I told him on January 25 that his behavior would have to get more and more bizarre before the NPS could initiate action requiring an examination regarding his fitness for duty. He certainly seems to be trying!
"... . We will continue to build our case. All these extreme exercises of his rights may help us remove him eventually."
J.D.'S APPEAL of his firing to the Merit Systems Protection Board was denied last August 1. He hasn't gotten a job since then, although he said he's tried. Prospective employers, including Flagstaff, Coconino County, Northern Arizona University and the state, were Ôignoring me totally," he said.
On a warm afternoon last October, J.D. hitched his flagpole gear behind his buggy and, as promised, rode through Flagstaff and the NAU campus, the hooded Bush effigy twitching from the scaffold of the raft.
Called earlier this month and asked how he was, J.D. said, "Miserable." He said he was denied unemployment benefits but was getting food stamps. While his employment situation was in a "downward spiral," he was cheered by an anonymous Christmas card he received, postmarked in Flagstaff, containing two $50 bills.
His latest APS bill listed an "adjustment to a previous month's statement." Besides this month's charges, it demands $624.02. APS has buried a meter in the ground and no longer reads the one on his house, he said. He was paying his meter-theft fine in $50-per-month installments.
Nothing technical about the way J.D. hooked his magnet to the meter; he just held it below the meter and it clamped on by itself. "If anybody wants to know how to do it," he said, "just call me and I'll show 'em how."
Once again, Presidents Day is approaching, and J.D. said he plans to take his buggy and a little trailer on a tour through Wupatki. On the trailer, he said, will be his orange boat and his scaffolding. On the scaffolding, he added, will be the Bush effigy.
part 2 of 2
