UNITED STATES DISTRICT COURT
Plaintiffs' Statement of Material 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 ISSUES OF MATERIAL FACT
TO WHICH THERE EXISTS A GENUINE DISPUTE
Pursuant to Local Rule 108(h) plaintiffs provide the
following statement of material facts about which there exists a
genuine issue in opposition to defendants' statement of material
facts in support of their to dismiss the Amended Complaint, or,
for summary judgment thereon ("Deft's Facts").
1. Defendants contend, "Plaintiffs in this action are three
perennial demonstrators in Lafayette Park. Amended Complaint at
p. 1." Plaintiffs dispute this characterization to the extent
outlined in Plaintiffs' Motion to Reschedule the Preliminary
Injunction Hearing, IDENTITY CRISIS, and stare decisis, pages 4 -
10. Questions of "what" plaintiffs may or may not be, or the
nature of their activities in Lafayette Park -- involving factual
issues bearing on plaintiffs' First and Ninth Amendment claims
(e.g., Buckley v. Veleo, 424 U.S. 1) should be reserved for a
jury. Compare, Deft's Facts, para. 1.
2. Defendants have indicated no legitimate government
interest that justifies decreeing that flags are signs.
3. In this action, plaintiffs allege that the regulations
have been purposefully utilized as a pretext for harassing
plaintiffs, and others, without furthering any legitimate
interest, but with an intent to suppress, stifle or chill the
exercise of plaintiffs First Amendment exercise. Compare, Deft's
Facts, para. 5.
4. Plaintiffs Reply to Defendants' Response to Plaintiffs'
Motion to Reschedule the Preliminary Injunction Hearing, R. 65,
at pp. 19-21, does not, as defendants pretend, negate plaintiffs'
allegations of constitutional and statutory violation in
defendants attack of plaintiffs sign and flag display under color
of the sign-size regulations. On the contrary, pages 19-21
highlight the absurdity of Mr. Myers' "fiat" concerning flags and
signs, and emphasizes that defendants should have presented
testimony, subject to cross examination, to support DEFENDANTS'
hotly contested proposition that there was no constitutional and
statutory violation by defendants. Id. pg. 20, n. 23, Compare,
Deft's Facts, para. 6.
5. Plaintiffs dispute that "The officers treated the
plaintiffs civilly in connection with their enforcement of sign
size regulations." Quite the opposite, plaintiffs have
specifically alleged "threats and intimidation" amounting to
"extreme emotional distress." E.g., Am. Com., COUNT 8. Who said
what, and their demeanor are issues for the jury. Compare,
Deft's Facts, para. 6.
6. Particularly since, (1) "(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), (2) "Ms.
Picciotto ... remains free to display her banners or flags in
Lafayette Park" (id), and (3) prohibiting plaintiffs from
displaying the two flags and two signs in the manner that
plaintiffs have done since at least October, 1988, and as
depicted in Defendants Exhibits 2 & 3 furthers no legitimate
government interest; the fact that "plaintiffs' "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," is a legal question, already settled by the
Circuit Court. United States v. Picciotto, 875 F2d 343, 349
(1989).. Compare, Deft's Facts, para. 6.
7. Although 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, it does not limit the height of flags, or
prohibit leaning a flag against, or even tying a flag to, a sign.
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 arrangement of a stationary SIGNS, but makes no
reference to flags. Without a clearly legitimate government
interest that is serves by prohibiting Concepcion from leaning
her constitutionally protected flag against her constitutionally
protected sign, the prohibition must be considered arbitrary and
capricious. Compare, Deft's Facts, para. 8
9. Testimony and cross examination should determine whether
Mr. Myers letter of January 20, 1995 amounts to a post hoc policy
rationalization belatedly supplied by to provide the necessary
binding standards where the regulation has none.
Respectfully submitted this 6th day of June, 1995.
2817 11th Street N.W.
Washington, D.C. 20005