UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
William Thomas, et. al. | C.A. No. 94-2742
Plaintiffs pro se, | Judge Charles R. Richey
The United States, et. al. |
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS' MOTION FOR PARTIAL RECONSIDERATION
AND IN SUPPORT OF
DEFENDANTS' MOTION TO DISMISS THE COMPLAINT,
OR, IN THE ALTERNATIVE,
SUMMARY JUDGMENT IN THEIR FAVOR 
Defendants have filed concurrent with this memorandum
motions for (1) partial reconsideration of the Court's April 12,
1995 denial of qualified immunity to Officers O'Neill and Keness
on plaintiffs' claims regarding removal of two flags, and (2) for
dismissal or summary judgment on all claims. Defendants move for
partial reconsideration in order to clarify and reiterate that
the regulations applicable to stationary signs apply to both
permit holders and to persons who fall within the "small group"
exception who use stationary signs. See Memorandum Opinion of
Charles R. Richey United States Judge, at pp. 19-21. Those
regulations restrict all stationary sign displays in Lafayette
Park, whether pursuant to permit or as part of a small group
demonstration, to a maximum size of four feet in length, four
[1 Defendants also respectfully file this memorandum in
opposition to plaintiffs' motion for partial reconsideration of the
Court's April 12, 1995 Order.]
feet in width, and one-quarter inch in thickness, and may extend
no higher than six feet in height from the ground at their
highest point, in any arrangement or combination. 36 C.F.R.
7.96(g)(5) (x) (B)(2). The undisputed arrangement of plaintiffs'
flags in this action violated that regulation because plaintiffs'
flags extended well above the six-feet height limitation, and the
defendant officers acted reasonably in enforcing the regulations
to plaintiffs flags. Therefore, the officers are entitled to
qualified immunity on this claim.
In addition, defendants move for final disposition of all
claims in this action because the undisputed facts and the
applicable law make clear that plaintiffs' have not stated claims
on which they would be entitled to relief against any of the
defendants in their individual capacities, or against the United
States or the agency defendants, and all defendants are entitled
to judgment as a matter of law.
The operative facts of this case are not in dispute apd have
been explicated in numerous pleadings in this action. Since the
Court has already reviewed the extensive pleadings in this action
and garnered the facts as asserted by plaintiffs, they will not be repeated here. These facts, which defendants do not dispute for purposes of this motion, illustrate that none of the actions
taken by any of the individual defendants were violative of any
of plaintiffs' well-settled constitutional rights, or otherwise
[2 See "Background" section in April 12, 1995 Memorandum
Opinion at an 2-4.
prompted by improper motive. Instead, these facts are clear that
the defendants acted reasonably in enforcing the valid laws and
regulations concerning activities and demonstrations in Lafayette
Plaintiffs themselves have made clear to the Court they do
not challenge the applicable park regulations in this action.
See Motion for Partial Reconsideration of Court's April 12, 1995
Order at p. 3. Rather, plaintiffs challenge the enforcement of
those regulations to their activities. However, as the
undisputed facts of this case make clear, the enforcement actions
taken by the individual defendants fall well within the
parameters of settled law which provides qualified immunity to
these defendants, who reasonably acted within the scope of their
duties in connection with the cornplained of events. Moreover,
since the regulations were reasonably enforced and there was no
violation of plaintiffs' rights, there is no basis for anv
liability to plaintiffs on the part of the United States, and
plaintiffs have not made a showing of entitlement to declaratory
or injunctive relief, Therefore, this action should be dismissed
against all defendants, or, in the alternative, summary judgment
entered in their favor.
STATEMENT OF THE CASE
Plaintiffs in this action, three perennial demonstrators in
Lafayette Park, have brought this action against the United States,
the National Park Service, the United States Park Police and three
individual federal employees, alleging, inter alia, that certain
Park Police officers are arbitrarily and "without probable cause"
enforcing against them certain of the regulations governing
demonstrators in Lafayette Park. The plaintiffs seek a permanent
injunction against such arbitrary enforcement or threats of
enforcement, as well as an injunction prohibiting the Park Service
from assigning certain officers to duty in Lafayette Park. Amended
Complaint, p. 2.
On April 12, 1995, the Court issued an Order granting
defendants' motion to dismiss the individual defendants on all
claims except on plaintiffs' claims regarding two flags that the
Park Police Officers allegedly pressured plaintiffs to remove from
Lafayette Park. The Court further ordered that the parties
prepare to proceed in this matter on the issues of whether portions
of 36 C.F.R. § 7.96 et seq., are unconstitutionally vague. Id.
On April 19, 1995, plaintiffs filed a motion for partial
reconsideration of the Court's April 12, 1995 Order at R. 72. In
their motion for partial reconsideration, plaintiffs' point out
that they "did not raise any constitutional challenge to any
regulation." Plaintiffs' Motion for Partial Reconsideration at p.
3. Rather, plaintiffs allege that the regulations at issue were
"arbitrarily ENFORCED." Id. (Emphasis in original.)
The heart of the remaining allegations, therefore, concern the
officers' application of the sign-size regulations to plaintiff
Picciotto's stationary sign display to which the flags were
attached. The Court must determine in this action whether such
[3 Order at p.2, R. 72.]
enforcement violated anyclearly established rights of plaintiffs,
or was otherwise unreasonable or motivated by improper purpose. memorandum will illustrate in detail below, plaintiffs did
not have a clearly established right to display the flags in the
manner in which they were being displayed, and the officers acted
reasonably and well within the bounds of the regulations in seeking
the removal of the over-sized portion of plaintiffs' display.
As set forth in more detail below, the operative regulations
expressly limit the height limits of any display to a maximum of 6
feet. Under these regulations, this limitation applies to any
arrangement or affixation of the display, including the arrangement
at issue in this case. The undisputed attachment of plaintiffs'
flags to plaintiff Picciotto' s signs5 violates the sign-size
regulation applicable to all stationary signs diaplayed in the
park. The officers acted reasonably to enforce these regulations
by asking plaintiffs' to remove the flags from their affixed,
Plaintiffs also contend that a permit obtained from the United
States Park Service by plaintiff Picciotto authorized the display
[4 Since the Court's April 12, 1995 Order (R. 72) dismissed
the other claims against the individual defendants, this memorandum
will focus on seeking the Court's reconsideration of the denial of
qualified immunity on the flags claim, and will demonstrate why
that claim should be dismissed. In the event that the Court should
reconsider its dismissal of any of the other claims dismissed by
its April 12, 1995 Order, defendants reserve the right to seek
relief from any such reconsidered rulings.]
[5 See Plaintiff's Reply to Defendants' Response to
Plaintiffs' Motion to Reschedule Preliminary Injunction, pp. 29-30,
at R. 65.]
of the flags. This contention either misconstrues or
misunderstands the terms of the permit. As set forth in more
detail below, Ms. Picciotto's permit explicitly requires the
permittee to abide by all other resulations applicable to park
demonstrations. Therefore, although Ms. Picciotto had a permit
which authorized her to display two signs and two flags, that
permit did not authorize her to display her flags in a manner
otherwise prohibited by regulations. Thus, even with a permit, the
sign-size regulations remained applicable to Ms. Picciotto's flags,
and the Park Police Officers acted reasonably and within the law in
seeking to have plaintiffs remove the flags from the park.
Under these facts, plaintiffs have failed to state a claim of
violation of any well-established constitutional right, and
defendants are entitled to judgment as a matter of law.
I. Plaintiffs have not stated a violation of their
constitutional or statutory rights in regard to their
display of flags under these facts.
Plaintiffs have made clear in their motion for partial
reconsideration that they are not challenging the validity of the
regulations applicable to signs and banners displayed in Lafayette
Park. See Plaintiffs' Motion for Partial Reconsideration of the
Court's April 12, 1995 at p. 3. Therefore, the remaining issue is
a narrow one; specifically, whether the officers were reasonable in
their view that plaintiffs' sign display, which included the
arrangement of flags along the sides of the signs protruding
several feet above the display, exceeding the height limitations
for stationary signs in violation of 36 C.F.R. §
7.96(g)(5)(x)(B) (2). This regulation limits the height of any sign
displayed in Lafayette park to a maximum of 6 feet above the
ground.6 Particularly relevant to this action, the regulation
prohibits the arransement or combination of signs so as to exceed
the maximum 6 feet height.
Critical to the analysis of the flags issue is the undisputed
fact that the flags were displayed as part of two stationary signs
attended by plaintiff Picciotto. The flags were on poles attached
to the side supports of Ms. Picciotto's stationary signs, and
protruded over the top of the structures several feet into the air.
See Photographs at Exhibit 2. In view of the plain language of
the regulation, as well as the interpretive guidance by the Park
Service provided in the Federal Register at the time this rule was made final, the officers reasonably enforced this restriction to
prohibit plaintiffs' signs, since the flags attached alongside the
signs extended well above 6 feet. See Exhibit 2.
In drafting the sign-size regulation, the Park Service clearly
intended to establish a 6-feet height limitation on all stationary
signs, and the regulation explicitly addresses the issue of
attachment or arrangement of a stationary sign display so as to
exceed this height limitation. See 51 Fed. Reg. 7556-7568 (March
[6 For the convenience of the Court, a copy of this
regulation is attached to this Memorandum at Exhibit 1.]
[7 The photographs accompanying this memorandum were taken
[date], but depict the type of arrangement plaintiffs used during
the December 1994 time period in which this action was filed and
In view of this clear regulatory objective, the officers acted
reasonably and under the authority of the regulation in construing
plaintiffs' stationary display with attached flags on poles taller
than 6 feet to be in violation of the size restriction. Under
these facts, it cannot be said that the officers acted in violation
of some "clearly established" right of plaintiffs to display the
flags in that manner, nor can it reasonably be said that they acted
with improper motive towards plaintiffs. Rather, the officers
acted under the authority and guidance of the regulations
themselves, and with a reasonable understanding that the
regulations applied to plaintiffs' flags display. Moreover, the
officers understanding and interpretation of the regulations is
consistent with the interpretation by the agency's counsel, who
has, by letter, informed plaintiffs that the attachment of the
flags to the display in this manner violates the regulation. See
[8 For the convenience of the Court, these pages are
attached hereto at Exhibit 3. The defendants direct the Court's
attention in particular to pages 7564-7565 wherein the following
passages describing the purposes of the regulation are found:
- To accommodate individuals and groups who wish to have larger signs, the National Park Service has exempted all hand-carried signs from these size limitations. This allows demonstrators to have large signs, which includes banners, but assures that the signs will not cause damage...
- To avoid circumvention of the size limitation on stationary signs, the final regulations also prohibit a conforming-size sign from being elevated to exceed a height of six feet above the ground....
- Also to avoid circumvention of the size limitations the final regulations prohibit the arrangement or combination of stationary signs so to exceed the permitted size limitations....]
Letter from Randolph Myers, Attorney, National Capital Parks, dated
January 20, 1995 attached to Defendants' Reply at Exhibit 1 (R.
65); Letter from Richard G. Robbins, Assistant Solicitor,
Department of Interior, in Plaintiff's Notice to the Court at R.
62. Thus, the officers' reasonable conduct, consistent with the
agency's regulations and within the scope of their duties, entitles
them to the protection of qua lified immunity, and this action
should be dismissed against them in their individual capacities.
See e.s., Anderson v. Creishton, 483 U.S. 635, 107 S.Ct. 3034,
(1987); Carlson v. Green, 446 U.S. 14, 18 (1980); Baker v.
McCollan, 443 U.S. 137, 140 (1979); Davis v. Passman, 442 U.S. 228,
239 (1979); Siesert v. Gillev, 895 F.2d 797 (D.C. Cir. 1990).