Plaintiffs' Memorandum in Support of Injunction


     William Thomas, et. al.       |          C.A. No. 94-2742
           Plaintiffs pro se,      |          Judge Charles R. Richey
               v.                  |
     The United States, et. al.    |
           Defendants.             |



On October 10, 1995 E.S. Park Police officers hand delivered a Notice to Concepcion Picciotto and Ellen Thomas, signed by Richard G. Robbins which "demands that you bring the signs at your demonstration vigil located in Lafayette Park into conformity with National Park Service regulations." Exhibit 1.

Mr. Robbins contends that,"On August 22, 1995, the United States District Court confirmed that such signs violate Park Service regulations in Thomas v. United States, No. 94-2747 (D.D.C.)." Mr. Robbins states, "the platform attachment to stationary signs as well as the attachment of flags onto stationary signs violated Park Service regulations."


Unless we are mistaken, the Court refrained from making any factual determinations about the sign in question. Instead of determining that the sign violated park regulations, it seems the Court merely held, "Plaintiffs had not asserted that their sign did not fall within ... statutory bans," and, therefore, "the officer was entitled to official immunity." Order, April 12, 1995, pgs 14, 15.


On appeal we will point out that the purported "platform attachment," was, in fact, nothing more than the base of the sign, which had always been "attached to" the signs, but which has been raised 13 inches above the ground. We will also point out that, the regulation specifically provides "that the term, 'structure' does not include signs" (36 C.F.R 7.96(g)(5)(ix)(l)), and that the regulations do not prohibit the base of


a sign from being elevated above the ground.[1]

With respect to the attachment of flags onto stationary signs, we will point out that the Park Service does have the aughority to issue permits that allow for "structures" which exceed the height of the flag sign configuration.

"Certainly, a criminal prosecution founded on an agency rule should be held to the strict letter of the APA." United States v. Picciotto, 875 F.2d 345, 347(1989)

We are not satisfied that the resolution of Thomas v. United States, Civil Action No. 94-2747 (D.D.C.), constitutes a firm decision that hte "attachments" Mr. Robbins complains of are actually criminal. Plaintiffs suggest that, if we are to be civilized, plaintiffs should be permitted a full opportunity to resolve this matter in civil litigation before being subjected to criminal prosecution.

"Before a person is threatened with jail for such a violation, the government must ensure that the rule itself is not in violation of the law." United States v. Picciotto, 875 F.2d 345, 3__(1989).


Therefore plaintiffs hereby move this court to issue an injunction during the pendency ofthe appeal in order to secure plaintiffs rights to free expression.

For the Court's convenience a proposed Order is attached.

[1 On appeal we also intend to argue that we had sufficiently alleged that the sign in question was within the statutory bans; were entitled to an assumption that the sign was within the statutory bans, and that, prior to any factual hearing, it was an error for the Court to assume, the officer was entitled to official immunity.]


Respectfuly submitted this 12th day of October, 1995

William Thomas
2817 11th Street N.W.
Washington, D.C. 20005