Defendants Statement

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.             |

DEFENDANTS' STATEMENT OF MATERIAL FACTS ABOUT WHICH THERE IS NO GENUINE ISSUE

Pursuant to Local Rule 108(h), defendants provide the following statement of material facts about which there is no genuine issue in support of their motion to dismiss the Amended Complaint, or, in the alternative, for summary judgment thereon.

1. Plaintiffs in this action are three perennial demonstrators in Lafayette Park. Amended Complaint at p. 1.

2. Plaintiffs 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. Amended Complaint at PĚ 2.

3. 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.

4. 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.

4. In this action, plaintiffs challenge, inter alia application of the sign-size regulations to plaintiff Picciotto's stationary sign display to which the flags were attached. See Amended Comp laint at nn see also Plaintiffs ' Reply to Defendants' Response to Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing, R. 65, at pp. 29-30.

5. Though plaintiffs are challenging enforcement 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. The officers treated the plaintiffs civilly in connection with their enforcement of sign size regulations . See, e.s., Plaintiffs Reply to Defendants' Response to Plaintiffs' Motion to Reschedule the Preliminary Injunction Hearing, R. 65, at pp. 19-21.

6. Plaintiffs' flags were displayed as part of two stationary signs which are each four feet by four feet and are 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 and over 6 feet above the ground. See Photographs at Exhibit 2.

7. 36 C.F.R. 7.96(g)(5)(x)(B)(2) limits the height of stationary signs displayed in Lafayette park to a maximum of 6 feet above the ground.

8. In drafting the sign-size regulation, the Park Service 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 36 C.F.R. 7.96(g) (5) (x) (B) (2) and 51 Fed. Reg. 7556 at 7564-7565.

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 Myers, Esq.
Office of the Solicitor
United States Department of Interior