UNITED STATES DISTRICT COURT
Plaintiffs' Statement of Facts
FOR THE DISTRICT OF COLUMBIA
William Thomas, et. al. | C.A. No. 94-2742
Plaintiffs pro se, | Judge Charles R. Richey
The United States, et. al. |
PLAINTIFFS' STATEMENT OF
FACTS TO WHICH THERE EXISTS NO GENUINE DISPUTE
Pursuant to Local Rule 108(h), plaintiffs hereby submit a statement of material
facts as to which there exists no genuine issue.
1. Since June, 1981 plaintiffs have "engaged in twenty-four-hour-a-day vigils on
the sidewalk bordering Lafayette Park, across the street from the White House."
United States v. Picciotto, 875 F.2d 343,347 (DDC 1989). 
2. Plaintiffs' vigils have had "a symbolic purpose." United States v. Thomas,
864 F.2d 188, 193.
3. The caption under a photograph of Concepcion Picciotto, published in the
Berlitz Travel Guide (1991) states, "It is the right of every American to set up stand
[1 36 CFR 7.96(g)(1) provides: "(T)he term 'demonstration' includes ... holding
vigils or religious services and all other like forms of conduct which involve the
communication or expression of views ... which has the effect, intent or propensity to
draw a crowd or onlookers."
As recently as March 5, 1985 defendant Robbins explicitly claimed that the Park
Service had no desire to preclude "continuous vigils" from Lafayette Park. Federal
Register,/ Vol. 51 No. 43, pg. 7559, 2nd col., March 5, 1985, for Mr. Robbins' name
see, id. 7556, 2nd col.]
(with 2 signs and two flags ) and make a point in Lafayette Square." Plaintiffs' Third
Motion for Sanctions, February 9, 1995 Exhibit 2-C. This documented fact shows
plaintiffs' vigils as a veritable First Amendment landmark, likely to be understood by
visitors from around the world.
4. Defendants make no pretense, and the record contains no hint, that
plaintiffs' vigils, signs, and/or flags threatened any legitimate government interest, or
resulted in any damage or harmful effects. See generally, the Record.
5. As the Court earlier noted, "It is beyond doubt in this Nation's jurisprudence
that nonspeech conduct sometimes qualifies as expressive conduct protected by the
First Amendment... Plainly, the alleged coercion of the Plaintiffs not to display their
flags in the case at bar involves such protected nonspeech conduct..." Order, April 19,
1995, pg. 19.
6. Defendants have moved for dismissal of the complaint on the grounds of
"official immunity." Absent any factual basis in the record to support such a claim,
defendants' rely entirely upon a letter, written by Randolph Myers, dated January 20,
1995, and first delivered to Thomas conveyed through unconventional method of
attaching it as Exhibit 1 to Defendant's Opposition to Plaintiffs' Motion to Reconsider
Denial of Plaintiffs' Application for a TRO, or, Alternatively to Dismiss the Complaint as
Frivolous, Exhibit 1.
7. Mr. Myers' letter, purports to have been written on behalf of Richard
Robbins, in response to Thomas' letter of November 10, 1995, which stated, in part:
[2 Parentheses added from Park Service Permit, Defendants' Motion to Dismiss,
8. Mr. Myers' letter arrived fully 70 days after the fact, which it purports to
address -- November 10, 1994 to January 20, 1995.
9. Mr. Myers' letter lacks authority, and is based solely on personal opinion,
"We believe that your signs, as currently constructed, fail to conform to the
regulations." Myers letter, pg. 2, para. 2.
10. Mr. Myers' letter discusses "flags" at considerable length. An examination
of Thomas letter makes it clear that Thomas made absolutely no mention of "flags."
Complaint, Exhibit 3.
11. Since the flag incidents didn't occur until after Thomas wrote the letter to
which Mr. Myers purports to respond, it is beyond dispute that those parts of Mr.
Myers' letter which take such great issue with "flags" could not possibly have been "in
response" to Thomas' letter. Complaint ¶¶ 6-8 and ¶¶ 11-17, see also Thomas
Declaration in Support of the Complaint ¶¶ 6-19..
12. Mr. Myers' letter raises a reasonable inference that it was truly produced as
an "impermissible, ex post facto excuse for the unconstitutional, "tragic, ultimately
lethal attitudes of the author's subordinates"" Motion to Strike Mr. Myers' Letter from
the Record pursuant to Federal Rules of Evidence 102, 104(a)(b), 403, and 901(a),
filed February 9, 1995.
13. In addition to the aforesaid undisputed shortcomings, Mr. Myers' letter fails
to determine that defendants interpretation is rational, serves any legitimate
government interest, or that defendants had any reasonable grounds to suspect
plaintiff violated a "well-established" regulation. Supra, ¶ 4.
14. The record shows that defendants have not answered any of these
challenges to the fundamental integrity of Mr. Myers' letter, yet there is no other
testimony or evidence in the record of this case to support defendants' contention that
plaintiffs were violating any regulation. See generally, the Record.
15. Notwithstanding these shortcomings, Mr. Myers' letter purporting to make,
on Mr. Robbins' behalf, the legal decisions related to plaintiffs claims in this case, it
represents compelling evidence that Mr. Robbins is vested with precisely the authority
by which he is alleged to have violated 42 USC 1985(3) and 1986, Am. Com., pgs. 6-
7, see also, Plaintiffs Motion for Partial Reconsideration, filed April 19, 1995, Exhibit 1.
16. Although the Court declined to strike Mr. Myers' letter from the record at
this time, the Court did, correctly, decide, "the Court shall not consider the letter at any
stage in the proceedings unless and until it is submitted in a form which has
evidentiary value" (Order, July 3, 1995, pg. 2), mooting any "factual" disputations
defendants may have had with regard to ¶¶ 5-15, supra, and ¶¶ 17-28, infra.
17. Plaintiff Concepcion Picciotto had a valid Park Service permit which
specifically allowed "two flags and two signs." Declaration of Thomas in Support of
the Complaint, Exhibit 2.
18. Plaintiffs have regularly displayed the two flags and two signs, precisely as
depicted in Defendants Reply (Exhibits 2 & 3) since at least October, 1990. Order,
April 12, 1995, pg. 20.
19. "(E)ach of Ms. Picciotto's signs themselves is the proper 4 feet in length
and 4 feet in width." Randolph Myers' letter, January 20, 1995, pg. 2, Exhibit 1 to
Defendants' Opposition to Reconsideration of the TRO, Filed January 23, 1995
20. "Ms. Picciotto ... remains free to display her banners or flags in Lafayette
Park." Id., Myers' letter.
21. "Flags" are different than "signs." Order, April 12, 1995.
22. One single incident involving plaintiffs' signs and flags displayed in the
manner of which defendants complain resulted in judicial review. That case was
resolved in plaintiffs' favor, when Judge Joyce Hens Green Ordered defendants to
return the same two flags after defendants had seized them. Declaration of Thomas
in Support of the Complaint, Exhibit 3; Order, April 12, 1995, pg. 18.
23. Defendants O'Neill and Keness threatened to arrest plaintiff Thomas under
the pretext that two signs were "structures." Thomas Declaration in Support of the
Complaint ¶¶ 6-10.
24. The sign regulation provides for "the term "structure" does not include
signs ... exclusive of braces that are reasonably required to meet support and safety
requirements and that are not used so as to form an enclosure of two (2) or more
sides." See generally, 35 C.F.R 7.96(g)(x)(B)(2).
25. The regulation does not specify any configuration to which sign braces
must conform. The regulation does forbid elevating a sign more than six feet above
the ground, but does not forbid raising the base of the sign thirteen inches above the
ground. See generally, 35 C.F.R 7.96(g)(x)(B)(2)..
26. The signs for which defendants threatened to arrest plaintiff are the proper
4 feet wide by four feet in length and 1/4 inch in thickness, and are not elevated to a
height greater than 6 feet above the ground. Am. Com. Exhibit 3, see also Randolph
Myers' letter, January 20, 1995; Thomas' Declaration, March 1, 1995.
27. The signs do not form an enclosure of two or more sides, and are more
safe and stable as a result of raising the base thirteen inches above the ground.
Notice to the Court, Ellen Thomas' letter, February 23, 1996; Thomas' Declaration,
March 1, 1995, ¶ 30.
28. In short, it is undisputed that plaintiffs' sign complied with all the provisions
of the applicable regulation, and defendants have not implied any legitimate
government interest justifies prohibiting plaintiffs from raising the base of their signs
above the ground. See generally, the Record, and 35 C.F.R 7.96(g)(x)(B)(2).
29. After what Officer O'Neill described as "an amiable conversation" with
plaintiff Thomas regarding a third person, Esyededeea Aesfyza, Officer O'Neill
arrested Thomas. See, Officer O'Neill's Case Incident Report, Defendants Motion to
Dismiss Exhibit 2, compare, Plaintiffs Reply to Defendants' Opposition to Plaintiffs'
Motion to Reschedule the Preliminary Injunction Hearing, R-65 pgs. 19-21.
30. Previous to that conversation Officer O'Neill had expressed predisposition to
Mr. Aesfyza's illegal activities as opposed to Picciotto's constitutionally protected
activities. Thomas Declaration in Support of the Complaint, ¶¶ 4-6; Picciotto
Declaration in Support of the Complaint, ¶¶ 4, 5.
31. According to Officer O'Neill's report, "because of THOMAS' antics a group
formed, initially of the other demonstrators and homeless who frequent the park and
then of tourists who had come from a bus," and O'Neill arrested Thomas, charging
him with disorderly conduct. Defts' Memo, February 14, 1995, Exhibit 2.
32. "Attracting a group or onlookers," defines "demonstration." See, ftn. 1,
33. Charges against Thomas were dropped. There is no evidence that
Thomas was disorderly, that the conversation concerned anything other than
ideological disputes, or that the incident would have occurred if not for Officer O'Neill's
antagonistic participation. Thomas Declaration in support of the complaint, ¶ 7.
34. Defendants O'Neill and Keness harassed plaintiffs under color of the
camping regulation, without any discernable cause. E.g., Ellen Thomas Declaration,
December 21, 1994, pages 1 & 2, Concepcion Picciotto Declaration, December 21,
1994, ¶ 6.
35. The pattern and practice of harassment pursued by defendants under color
of the camping regulation included physical assault. E.g., Declarations of Wade
Varner, December 21, 1995, February 24, 1995, and David Jackson, February 24,
Respectfully submitted this 7th day of July, 1995.
"As you know I have been maintaining a vigil, with signs, in Lafayette
Park for a number of years now. This vigil figured, quite unintentionally, in a
series of regulatory cycles. Personally, I feel I am already indirectly responsible
for too much "bad law." This letter is an attempt, prompted by recent law
enforcement opinions and threats, to break that cycle. ()
"(I)n the unlikely event that you too think this 'sign' is a 'structure' under
the applicable regulatory provisions, please specify the precise structural
alterations you believe would be required to bring the 'structure' into compliance
as a 'sign.' ADDITIONALLY, PLEASE MAKE THAT INFORMATION
AVAILABLE TO ME AS SOON AS POSSIBLE SO WE CAN DISCUSS
POSSIBLE CORRECTIVE MEASURES THEREBY AVOIDING A BASELESS
ARREST, AND THE UNNECESSARY DISRUPTION OF MY RELIGIOUS
ACTIVITY." EMPHASIS, in original. SEE ALSO, Thomas' Declaration, March
1, 1995, ¶ 30.
2817 11th Street N.W.
Washington, D.C. 20005