Plaintiffs' Statement of Facts


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


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). [1]

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 [2]) 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, Exhibit 4.]


"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.

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, supra.

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, 1995.

Respectfully submitted this 7th day of July, 1995.

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