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.]
9
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.]
10
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.]
11
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.]
12
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'
13
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.]
14
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
15
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.
16
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
17