Defendants Memorandum, Continued

Plaintiffs contend, and the Court appears to construe, that these displays were authorized either by the permit obtained by Ms. Picciotto, which provided, inter alia, that plaintiff could display "2 signs; 2 flags;"[9] or, alternatively, under the "small group" exception regulations found in 36 C.F.R. 7.96(g)(2)(i), which allows demonstrations involving fewer than 25 participants may be held without a permit, and further provides that such demonstrators are not restricted in their "use of portable signs or banners." 36 C.F.R. 7.96(g)(3)(vii)(E). (Emphasis added.) However, examination of the regulations found in 36 C.F.R. 7.96 in its entirety, and of the permit issued to Ms. Picciotto, indicates that neither of them authorizes the manner in which plaintiffs displayed their flags.


[9 See Exhibit 3 to Plaintiff's Complaint, attached hereto for the convenience of the Court as Exhibit 4.]

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The permit issued to Ms. Picciotto indeed authorized her display of "2 signs and 2 flags," however, it does not autnarize her to display such signs and flags in any manner which she saw fit. Instead, the permit, like all permits issued by the Park Service, contained the explicit direction that a permittee is "[r]esponsible for reading and adhering to" regulations applicable to "signs, structures and camping in Lafayette Park." Permit, p. 1, at Exhibit 4. In addition, the permit also states that "[a]ll laws, rules and regulations applicable to the area covered by this permit remain in effect." Permit, p. 2 at Exhibit 4. Thus, plaintiff Picciotto was not authorized by her permit to display the signs or the flags in a manner which otherwise violated the regulations applicable to Lafayette Park. And, in this case, the one other applicable rule was the sign-size limitation found in 36 C.F.R. 7.96(g) (5) (x) (B) (2), which limits the total height of her display to 6 feet. Therefore, the officers acted under the clear authority of the regulations in seeking to have plaintiffs remove the flags from their position in excess of the 6-feet height limitation.[10]

The "small group" exception likewise offers no protection of the manner in which plaintiffs displayed the flags. That


[10 Arguably, the officers could have requested plaintiff Picciotto to take down her entire sign display as violative of the height requirement, since the flags were connected to the signs to form one display. See Photographs at Exhibit 2. However, since only the flags were on poles which extended above the height limit, it was certainly reasonable for the officers to declare the flags, rather than the entire display, to be in violation of the regulations.]

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provision's treatment of signs and banners leaves demonstrators free in their "use of portable signs or banners." 36 C.F.R. 7.96(g)(3)(vii) (E). Again, the display at issue was not a portable display, but was a stationary signs and therefore, not permissible under the small group exception.[11] Moreover, the portable sign/banner provision contained in the small group exception is completely consistent with the objectives of the regulatians found at 36 C.F.R. 7.96(g) (5) (x) (B) (2) concerning stationary signs. In both provisions, the Park Service has balanced the rights of individuals to use signs and banners for expression by leaving them free to display large signs and banners (which certainly may include flags), but to do so by carrying such large signs or banners rather than erecting or positioning them as part of a stationary structure. See 36 C.F.R. 7.96(9)(5)(x)(B)(1) and (2). Neither provision allows for the manner of display of chosen by plaintiffs, which was to employ large banners (the flags), and attach them to stationary signs rather than carry them.

Thus, the officers neither violated any well-established rights of plaintiffs, nor acted unreasonably in their actions


[11 The small group exception provision permits the erection of temporary structures such as "small lecterns or speakers' platforms." Ms. Picciotto's sign displays cannot reasonably be see to fall into either of these categories, and are identified by her as signs. Moreover, demonstrators who fall within the small group exception are also subject to all other regulations applicable to the area of their demonstration. See 46 Fed. Reg. 55,959-55,965 (November 13, 1981), attached hereto at Exhibit 5. "This amendment does not, of course, allow persons to demonstrate in violation of the other requirements of S 50.19 [predecessor citation to current regulation], other applicable laws or regulations...." 46 Fed. Reg. 55,960.]

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towards the plaintiffs in relation to the flags, and are entitled to qualified immunity in regards to those actions. Moreover, as the plaintiffs' form of display was not authorized, and, indeed, violated the applicable regulations, plaintiffs are not entitled to any relief in connection with their claims concerning their flags.[12] Since the officers' conduct in relation to the flags did not violate plaintiffs' rights, plaintiffs have not stated a claim concerning the flags upon which they would be entitled to any relief from any defendant, and this claim, like the others raised by plaintiffs in this action, should be dismissed.

II. Officers O'Neill and Keness acted reasonably in enforcing sign-size regulations for Lafayette Park.

In light of the clear language of 36 C.F.R. 7.96(g)(5)(x)(B)(2) prohibiting oversized signs or banners, there is no basis upon which it can be said that the officers' attempt to enforce the regulations as to plaintiffs' flags was a violation of


[12 The Court's analysis of the flag issue in its April 12, 1995 Memorandum OPinion suggests that defendants contend that plaintiffs' flags, themselves, were over-sized. See April 12, 1995 Memorandum at PPˇ 19-21. Defendants do not contend in this action that the particular flags displayed by plaintiffs were, in and of themselves, over-sized, or even that there is a size limitation applicable to flags as distinct from other signs or banners . Rather, defendants contend in this action, and indeed it is undisputed, that the combination of the flags to Ms. Picciotto's stationary sign renders the entire sign display over-sized under 36 C.F.R. 7.96(g)(5)(x)(B)(2) which applies to all "[s]igns that are not beins hand carried." (Emphasis added.) Moreover, the regulations do not carve out any special treatment for flags as distinct from other types of signs or banners, and the same regulatory authority that applies to other types of sign and banner displays in the park controls display of flags. Indeed, the Park Service interprets the regulations as applying to flags (and banners). See Letter from Randolph Myers at p. 2, attached to Defendants' Reply at R. 55.]

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plaintiffs' clearly established rights. To ths cortrary, it is undisputed that plaintiff Concepcion Picciotto's flags are attached to the top of her structure. See Exhibit 2. The combination clearly exceeds the 6-feet height limit applicable to Lafayette Park signs. See 36 C.F.R. 7.96(g)(5)(x)(B)(2) . Thus, application and enforcement of the regulation as to plaintiffs' signs was neither arbitrary nor unreasonable.

Moreover, the officers' judgement in construfng the regulation to apply to plaintiffs' signs is consistent with the Department of Interior's own interpretation of the regulations, See Letter from Randolph Myers, Attorney, National Capital Parks, dated January 20, 1995 attached to Defendants' Reply at Exhibit 1 (R, 65); see also Letter from Richard G. Robbins, Assistant Soliciter, Department of Interior, in Plaintiff's Notice to the Court at R, 621 Such agency interpretations of its own regulations are entitled t6 deference by the courts. See Marvmount Hospital Inc. v. Shalala, 19 F.3d 658 (D.C. Cir. 1994); Speisel v. Babbitt, 855 F. Supp, 402, 404 .(D.D.C. 1994) (Mr. Robbins ' interpretation of Park Service regulation upheld), appeal pending D.C. Cir. No. 94-5184.

In addition, though plaintiffs are challenging rnforcement in this action, they do not allege constitutional or statutory violation in the manner of enforcement of the sign-size regulations to plaintiffs sign and flag display. Indeed, from plaintiffs' pleadings, it is apparent that the officers treated the plaintiffs civilly in connection with their enforcement of the regulations. See, e.s., Plaintiffs Reply to Defendants' Response to Plaintiffs'

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Motion to Reschedule the Preliminary Injunction Hearing, R. 65, at pp. 19-21.

In sum, the Park Service Officers' application of the lawful regulation concerning sign-size limitations to plaintiffs display was in no way a violation of plaintiffs' rights. Indeed, such application seems required by the plain language of the regulation, and is consistent with the stated policy objectives and interpretations of the regulation by the agency's counsel. Therefore, the officers are clearly entitled to qualified immunity on these claims.

Moreover, since no violation of plaintiffs' rights occurred, plaintiffs have stated no claim upon which they are entitled to relief against the United States or any subdivision thereof. Therefore, plaintiff's claims concerning the flags, like all of their other claims, should be dismissed against all defendants.

III. Plaintiffs are not entitled to declaratory or injunctive relief under these facts.

Under these facts, plaintiffs have made no showing of entitlement to declaratory or injunctive relief in connecti'on with their claims.l3 Indeed, as plaintiffs themselves make clear, they do not seek the invalidation of the regulations at issue. Rather,


[13 The Court's April 12, 1995 Memorandum Opinion indicated that the qualified immunity of the individual defendants "does not effect [sic] the Plaintiffs' request for declaratory and injunctive relief." However, review of plaintiffs Amended Complaint reveals that the plaintiffs do not appear to seek declaratory relief, but that they do seek to enjoin assignment of Officers O'Neill, Keness, and "X" from assignment to Lafayette Park, and "to enjoin [defendants from] subjecting plaintiffs to unnecessary abuse, under color of regulations..." Amended Complaint at pp. 9-10.]

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their challenge concerns the alleged unlawful enforcement of the regulations as to their activities in Lafayette Park. However, as the Court's April 12, 1995 Memorandum Opinion illustrates, with respect to four out of five of their allegations, even accepting such allegations as true for purposes of this motion, plaintiffs have failed to state facts which d~monstrate violation of any of their rights. See PPˇ 5-17 of April 12, 1995 Memorandum Opinion. Therefore, with respect to those four allegations, not only have plaintiffs have failed to state claims upon which they are entitled to damages from the individual defendants, they have also failed to demonstrate that they are entitled to declaratory or injunctive relief. Plaintiffs motion for partial reconsideration states no factual or legal bases upon which the Court should reconsider its dismissal of those claims against the individual defendants. In the absence of a violation of any of plaintiffs' rights in connection with the complained of events, all defendants are entitled to dismissal of these claims, or to judgment as a matter of law.

Therefore, the sole issue remaining in this case is whether a reasonable basis existed for applying the sign-size limitations to plaintiff Picciotto's display involving the two flags. As the above analysis makes clear, the enforcement of the sign-size regulations to the manner in which plaintiffs displayed their flags, like the other matters raised by plaintiffs, was also well- supported by the regulations, and was carried out in a reasonable manner. Therefore, plaintiffs have stated no facts which would

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warrant the grant of any declaratory ruling or the injunctive relief they have requested.

It is well established that injunctive relief is an extraordinary remedy and that the party seeking it has a substantial burden of proof. American Coastal Line Joint Venture v. United States Lines. Inc., 580 F. Supp. 932, 935 (D.D.C. 1983). Under these undisputed facts, plaintiffs have failed to met their burden of showing entitlement to this extraordinary remedy. Indeed, under these facts, plaintiffs have not demonstrated entitlement to any relief. In their claims challenging enforcement by the Park Police Officers of valid regulations applicable to their demonstrations in Lafayette Park, plaintiffs have alleged no conduct which could support a finding that agy of their rights have been infringed. Thus, plaintiffs have not stated facts to support their claims of violation, and this action must be dismissed against all defendants.

CONCLUSIONS

For the reasons set forth herein, as well as the reasons stated by the Court in its analysis of the majority of plaintiffs' claims, the undisputed facts make clear that plaintiffs have not stated claims upon which they are entitled to any type of relief. The plaintiffs lawfully have been subjected to enforcement of the regulations pertaining to their activities as perennial protestors in Lafayette Park. Such activities are subject to the type of reasonable time, place, and manner regulations which the defendant officers reasonably aPplied to the plaintiffs under these facts.

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Therefore, plaintiffs have not demonstrated that any violation of their rights took place, and all of the defendants are entitled to dismissal or judgment in their favor.

Respectfully Submitted,

__________________________________
ERIC H. HOLDER, Jr. DC Bar #303115
United States Attorney

__________________________________
KIMBERLY N. TARVER, DC Bar #422869
Assistant United States Attorney

OF COUNSEL:
Randolph J. Myers, Esq.
Office of the Solicitor
United States Department of Interior

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