Plaintiffs' Statement of Material 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 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.

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