Memorandum Opinion

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


     William Thomas, et. al.       |          C.A. No. 94-2747
           Plaintiffs pro se,      |          Judge Charles R. Richey
                                   |
               v.                  |
                                   |
     The United States, et. al.    |
           Defendants.             |

MEMORANDUM OPINION OF CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE

INTRODUCTION

Before the Court is the Defendants' Motion to Dismiss or, in hte alternative, for Summary Judgment. [1] The Plaintiffs have filed an Opposition thereto as well as a cross-Motion for Summary Judgment. Also before the Court is the Plaintiffs' Motion for Partial Reconsideration of the Court's April 12, 1995 Memorandum Opinion.

Upon consideration of the Plaintiffs' Amended Complaint, the filings by both parties, and the applicable law, the Court shall


[1 The Defendants have also styled their Motion as one for partial Reconsiderationof Court's April 12, 1995 Order denying qualified immunity on the Plaintiffs' claims regarding removal of the flags.]

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grant the Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment and deny the Plaintiffs' Motion for Summary Judgment. The Court further finds that the Plaintiffs have jailed to show any grounds which would warrant reconsideration of the Court's April 12, 1995 Memorandum Opinion and Order and, therefore, shall deny the Plaintiffs' Motion for Resconsideration.

BACKGROUND

The Plaintiffs in this action, three anti-nuclear demonstrators in Lafayette Park, filed suit against the United States, the National Park Service, the United States Park Police, and three individual federal employees seeking a permanent injunction against arbitrary enforcement or threats to enforce Park Service regulations governing demonstrations in Lafayette Park, 37 C.F.R. 7.96 et seq., and seeking an injunction prohibiting the Park Service from assigning certain officers to duty in Lafayette Park. Amended Complaint, p. 2. Based on the record before the Court, the relevant facts are as follows. On at least one occasion, Plaintiff Conception Piciotto obtained a permit from the Park Service to conduct a "White House Anti-Nuclear Vigil" In Lafayette Park. Complaint, Exh. 3. In her permit application,

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Piciotto specified that she would be using, among other things, "2 signs [and] 2 flags." Id. The permit expressly required Piciotto to read and adhere to the Park Service regulations concerning signs, structures, and camping in Lafayette Park, Id.

At their demonstration site, the Plaintiffs erected a display that included two stationary signs with a pole affixed to the side support of each sign. The poles protruded several feet over the top of the signs and more than six feet above the ground. A flag was attached to each pole. The Plaintiffs' entire display, including signs, supports, poles, and flags, exceeded six feet in height. Defendants' Statement of Material Facts, p. 2; Defendants' Exh. 2. The Defendant officers required Piciotto to revome the flags from the display. In the Amended Complaint, the Plaintiffs allege that the officers harassed the Plaintiffs under color of the Park Service regulations, and iproperly threatened to arrest the Plaintiffs if they failed to remove signs, flags, and a plastic cooler form their demonstration site in Lafayette Park. Amended Complaint, p. 3.

The Plaintiffs fileld the instatn case along with an application for a Temporary Restraining Order ("TRO"). Following a hearing on January 9, 1995, the Court denied the Plaintiffs' Motion for a TRO and consolidated a hearing on the preliminary

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injunction with a hearing on the merits, pursuant to Fed. R. Civ. P. 65(a)(2). On January 11, 1995, the Defendants filed a Motion to Dismiss on the grounds that the Plaintiffs failed to state a claim and that the Defendants were entitled to qualified immunity. On April 12, 1995, the Court issued an Order granting the Defendants' Motion to Dismiss the individual Defendants on all claims except the Plaintiffs' claim regarding the two flags that the officers required Plaintiff Concepcion Piciotto tp remove from their signs in Lafayette Park. [2] With respect to the remaining issue, the


[2 In the Plaintiffs' Amended Complaint, it was alleged that "the actions of Officers O'Neil [sic] and Keness with respect to their relentless attempts to intimidate plaintiffs to remove the constitutionally protect [sic], NPS-permitted [sic] flags would constitute a pattern and practice of illegitimate abuse of power intended to suppress the free exercise of thought and expression." Amended Complaint, p. 6. Additionally, the plaintiffs alleged that "the manner in which Officers O'Neil [sic] and Keness were able to repeatedly threaten plaintiffs over 1) a legal sign . . . , 2) flags, not only protected by the First Amendment, but for which plaintiffs also held a balid permit . . . shows the broad, standardless nature of the regulations at issue, and how easily those regulations can be used as a pretext to suppress expressive activities." Amended Complaint, p. 7 (emphasis added).

In light of the language of the Amended Complaint, the Court ordered the parties to proceed with the question of whether the regulations at issue are "unconstitutionally bague." Order (Apr. 12, 1995), p. 2. In the Plaintiffs' Motion for Partial Reconsideration of the Court's April 12, 1995 Order, however, the constitutional challenge to any regulation. Rather, the Plaintiffs state that they allege that the regulations have been "arbitrarily enforced." Plaintiffs' Motion for Partial Reconsideration, p. 3. Accordingly, the portion of the Court's April 12, 1995 Order directing the parites to address whether the regulations are vague is moot. In turn, the only remaining issue is that which is framed by the Plaintiffs, to wit, whether the regulations were arbitrarily enforced with respect to the flags.]

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Plaintiffs do not claim that the regulations governing activity in Lafayette Park are facilally unconstitutional but, rather, they assert that the regulations were "arbitrarily enforced." Plaintiffs' Motion for Partial Reconsideration, p. 3. Specifically, the Plaintiffs allege that the officers lacked the authority tothreaten the plaintiffs because their display complied with the relevant regulations and with a permit previously issued to Plaintiff Piciotto. Id. at 7.

Because the Court declines to reconsider its April 12, 1995 Memorandum Opinion and because hte Plaintiffs ahve stated that they do not assert any constitutional challenges to the regulations, the only remaining issue in this case is whether the Plaintiffs' display complied with Park Service regulations, to which any permit they may have had would be subject. [3] Resolution of that issue will


[3 It is unclear from the pleadintgs what federal claim is asserted here. The Plaintiffs expressly disavow a constitutional challenge to the regulations themselves. The Plaintiffs contend that the regulations were "arbitrarily enforced," but also assert that they do not raise a challenge under the Administrative Procedure Act, 5 U.S. C. 551 et seq. Plaintiffs' Motion for Reconsideration, p. 3-4. It is reasonable to assume that the Plaintiffs base their instant claim on Bivins v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which involves a constitutional violation by a federal agent action under color of federal law.

To prevail under Bivens, however, the Plaintiffs must establish that they had a constitutional right to display their flags as they did. The First Amendment protects expressive activity involving "speech" in Lafayette Park. See United States v. Musser, 873 F.2d 1513, 1517 (D.C. Cir., cert. denied, 493 U.S. 983 (1989). The Plaintiffs here do not contend theat the sign-size restriction at issue is unconstitutional or an impermissible manner restriction on its expressive activity. Indeed, various provisions of the very regulations at issue have been held to be constitutionally permissible time, place, and manner restrictions. See, e.g. White House Vigil v. Clark, 746 F.2d 1518, 1534 (D.C. Cir. 1984) (size restrictions for signs on the White House sidewalk not unconstitutional); Musser, 873 F.2d at 1518 (restriction that signs in Lafayette Park be "attended" not unconstitutional). Rather, the Plaintiffs base their argument on the contention that their display complied with the park Service regulations. As resolution of the issue before the Court turns on whether the Plaintiffs' display indeed complied with the sign-size restriction, the Court need not and shall not attempt to untangle the precise federal claim or claims the Palintiffs raise in connection with their allegation that the relevant regulation was arbitrarily enforced.]

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determine whether the officers acted without authority to require that the Plaintiffs remove their flags from the display. Upon consideration of the entire record herein, the Court holds that the Defendants are entitled to summary judgment with respect to the Plaintiffs' remaining claim.

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DISCUSSION

I. THE DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF
LAW BECAUSE THE PLAINTIFFS' DISPLAY DID NOT COMPLY WITH
PARK SERVICE REGULATIONS

Summary judgment is approptiate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ.. P. 56(c). Here, the Plaintiffs argue that their display complied with the Park Service regulations or, alternatively, that they possessed a Park Service permit authorizing their display complied with the Park Service regulations or, alternatively, that they possessed a Park Service permit authorizing their display. Based on the record before the Court, the Court cannot agree. Rather, the Court concludes that summary judgment is appropriate because the plaintiffs' display did not conform to Park Service manner restrictions, to which the Plaintiffs' permit was subject. Thus, the Defendant officers acted within their authority when they directed Plaintiffs to place the display in conformity with the regulations.

Under the Park Service regulations, signs that are not hand-carried are allowed in Lafayette Park only if such signs do not exceed specific size limitations. See 36 C.F.R.

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7.96(g)(5)(x)(B)(2). Specifically, such signs may not exceed a height of six feet above the ground at their highest point. Id. The Park Service allows larger signs, but they must be handcarried. 36 C.F.R. 7.96(g)(5)(x)(B)(1). To avoid circumvention of the size restrictions, the regulations prohibit an otherwise conforming sign to be "elevated" to exceed a height of six feet and prohibit "signs . . . arranged or combined in a manner so as to exceed the [permitted] size limitations." See 36 C.F.R. 7.96(g)(5)(x)(B)(2); 51 Fed. Reg. 7564-65 (Mar. 5, 1986)(final rule).

According to the Plaintiffs, even though their display included two arrangements of items that exceeded a height of six feet, each arrangement comprising one flag and one sign, those items were not "signs . . . arranged or combined in a manner so as to exceed the size limitation," as contemplated by the regulation. See 36 C.F.R. 7.96(g)(5)(x)(B)(2). The Plaintiffs argue that the regulation does not speak tothe display of flags in Lafayette Park, and that their permit authorized them to display the flags as they did. Plaintiffs' Opposition to Defendants' Motions for Dismissal and Summary Judgment, p.3. The Plaintiffs' argument thus turns on whether their flags are considered "signs" for the purposes of 36 C.F.R. 7.96(g)(5)(x)(B)(2).

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Notwithstanding the Plaintiffs' argument to the contrary, the Court finds no basis upon which to conclude that the Plaintiffs' flags, which are essentially cloth having expressive indicia, are not "signs" within the meaning of hte regulation. In this regard, the Court notes that a similar provision of the regulation at the Court notes that a similar provision of hte regulation at issue, 36 C.F.R. 7.96(g)(5)(viii))), includes as within the meaning of "signs" those items that are made of "cardboard, posterboard or cloth." See 36 C.F.R. 7.96(g)(5)(viii) (restricting signs on the White House sidewalk) (emphasis added). The Court considers this a persuasive indication that, for purposes of section 7.96(g)(5)(x)(B))(2), the term "signs"also contemplates signs made of cloth. In light of the foregoing, the Court finds that the cloth items protruding above the height restrictions in the Plaintiffs' display were properlsy considered "signs" for the purposes of 36 C.F.R. 7.96(g)(5)(x)(B)(2), regardless of whether or not they could also be considered flags. Because the Plaintiffs' display included signs arranged and combined in such a manner as to cause the Plaintiffs' display to exceed the regulatory height restriction of 36 C.F.R. 7.96(g)(5)(x)(B)(2), the Court concludes that the officers acted within their authority in requiring removal of the offending items.

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The fact that the Plaintiffs obtained a permit to demonstrate with two signs and two flags does not alter the result reached here. The Plaintiffs' permit explicitly required the permittee to adhere to all other applicable park regulations. The Plaintiffs' permit thus did not authorize the arrangement of two signs and two flags in a manner prohibited by 36 C.F.R. 7.96(g)(5)(x)(B)(2). With or without the permit, the Plaintiffs could not exceed the sign-size regulations and the officers acted reasonable in requiring removal of the flags from the Plaintiffs' displays.

II. THE COURT FINDS NO GROUNDS TO WARRANT RECONSIDERATION OF
ITS APRIL 12, 1995 MEMORANDUM OPINION AND ORDER.

The Plaintiffs have moved for Reconsideration of the Court's April 12, 1995 Memorandum Opinion and Order. "A motion for reconsideration is discretionary" and "[t]he primary reasons for reconsideration of judgment are'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" National Trust m. Department of State, 834 F. Supp. 453, 455 (D.D.C. 1993)(quoting Virgin Atlantic Airways, Ltd. V. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.), cert. denied, 113 S. Ct. 67 (1992), aff'd in part and rev'd in part on other grounds sub nom. Sheridan Kalorama Historical Ass'n v. Christopher, 49 F.3d 750 (D.C. Cir. 1995). "A Rule 59(e) motion to reconsider is not simply an opportunity to reargue facts and theories upon which a court has already ruled." New Uork v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995) (per curiam). Nor are "Rule 59(e) motions . . vegicles for bringing before the court theories or arguments that were not advanced earlier." Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 705 F. Supp. 698, 701 (D.D.C.), vacated on other grounds, 707 F.Supp. 3 (D.D.C. 1989).

The Court has carefully considered the Plaintiffs' Motion for Reconsideration and the Defendants' Opposition thereto. The Plaintiffs have not stated any grounds in law or fact that would alter the Court's decision with respect to the claims not addressed herein and have, at best, merely reiterated arguments already considered by the Court. Specifically, the Plaintiffs have not demonstrated error inthe Court's dismissal of the claims against the individual Defendants because the Palintffs failed to plead their cause of action with the specificity required by law and because the Defendatns were entitled to qualified immunity.

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Therefore, the Court shall deny the Plaintiffs' Motion for Reconsideration. [4]

CONCLUSION

For the foregoing reasons, the Court shall grant the Defendants' Motion to Dismiss or, in the alternative, for Summary Judgment. The Court shall also deny the Plaintiffs' Motions for Summary Judgment and for Reconsideration of the April 12, 1995 Memorandum Opinion and the Order. The Court shall issue an Order of


[4 The Plaintiffs state in their Motion for Reconsideration that "[p]erhaps the Court has overlooked the fact that among plaintiffs' jurisdictional authorities are 42 USC 1985(3) and 1986." Plaintiffs' Motion for Reconsideration, p. 6. To the extent that this bague statement indicates any intedt by Plaintiffs to assert a conspiracy claim, the Court finds that the conclusory and factual allegations set forth inthe Amended Complaint do not even begin to meet the specificity requirements for such an allegation. See Hobson v. Wilson, 737 F.2d 1, 30 (D.C. Cir. 1984)("[C]omplaints containing only 'conslusory,' 'vague,' or 'general allegations' of a conspiracy to deprive a person of constitutional rights will be dismissed. . . . Diffuse and expansive allegations are insufficient . . . .") (quoting Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cor. 1977), cert. denied, 470 U.S. 184 (1985); Thomas v. News World Communications, 681 F. Supp. 55, 67 & n..3 (D.D.C. 1988) ("[There is a] heightened pleading standard demanding especial particularity in civil rights complaints."). Accordingly, these claims are properly dismissed.]

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even date wherewith consistent with the foregoing Memorandum Opinion.

August 22, 1995

________________________
CHARLES R. RICHEY
UNITED STATES DISTRICT COURT