Defendants Memorandum

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
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

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,
FOR SUMMARY JUDGMENT IN THEIR FAVOR [1]

INTRODUCTION

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.]

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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.[2] 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. ]

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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 Park.

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

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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.[3] 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.]

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enforcement violated anyclearly established rights of plaintiffs, or was otherwise unreasonable or motivated by improper purpose.[4] 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, height-excessive arrangement.

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.]

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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.

ARGUMENT

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

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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.[7] 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 [through present?].]

5, 1986).[8]

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:

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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).