Shortly after stating (1) "each of Ms. Picciotto's signs ...
19
is the proper 4 feet in length and 4 feet in width, (2) "Ms. Picciotto ... remains free to display her banners or flags in Lafayette Park, In Lafayette Park... (at the same time she is in possession of two signs, under circumstances where) no violation would occur," Mr. Meyers' letter proceeds to issue the fiat:
"the attachment of the banner or flag to these signs exceeds the size restrictions
of Park Service regulations requiring that signs "may not be elevated in a manner so
as to exceed a height of six (6) feet above the ground at their highest point,
[and may not be arranged or combined in a manner so to exceed the size limitations set
forth in this paragraph.
"Accordingly, the addition of the banner or flag to Ms. Picciotto's 4 feet by 4 feet
signs clearly exceeds the size as well as height requirement for signs in Lafayette Park."
It's a shame these arguments are appearing in Motion for Sanctions against an Opposition to Reconsider Denial of a TRO. Or course, the reason for this anomaly is merely that defendants didn't raise these issues at the TRO hearing, as they should have.[23]Owing to the sanctionable nature of Defendants' empty Opposition, again we can only imagine what Mr. Meyers' might try to sell a jury as a "rational connection" between being free to have two flags and two sign WHILE requiring that the flags be handheld. [24] Burlington, supra.
[23 But then, of course, defendants couldn't possibly have been expected to produce Mr. Meyers' letter and photographs at the TRO hearing, for the undisputable reason that those objects didn't exist at the time of the TRO hearing.]
[24 However, this discussion would be premature even in the context of Defendants' Motion to Dismiss, (filed January 11, 1995). In the matter of a 42 USC 1985(3), whether or not whatever beliefs Mr. Meyers' might choose to testify about are believable is a question for the jury (rather than the Court) to decide.
"It may well be that the weight of the evidence would be found on a trial to be
with the defendant. But it may not withdraw these witnesses from cross
examination, the best method yet devised for testing trustworthiness of testimony.
And their credibility and the weight given to that opinion is to be determined
after trial, in the regular manner." Sartor v. Arkanasas Gas Corp., 321 U.S.
620, 628 (1944)]
20
THE LETTER AND PERMITS
"(E)ven if Ms. Picciotto possesses a demonstration permit, the National Park
Service's regulations still apply to permittees. Section 3 of any demonstration
permit clearly states: all laws, rules and regulations applicable to the area covered
by this permit remain in effect."
Particularly since defendants have chosen to reserve this specific dodge until so late in the pre-trial process [25] before trying to circumvent the fact finding process with Mr. Meyers' system, the Court needs to consider the self-evident fact that the letter attempts to represent itself as a permit limitation.
"The limitations attached to any given permit would be reviewable under the
APA's arbitrary and capricious standard. See Citizens to Preserve Overton Park
v. Volpe, 401 U.S. 402, 416-417 (1971)." United States v. Picciotto,
875 Fed 343, 347 (1989).
Again, without a rational connection between the facts found and the choice made," defendants have no case.
Then there's another problem. Assuming the letter has the authority to impose the restrictions which it seeks to impose, it is very difficult to figure out (1) how defendants can deny plaintiffs' allegations against Mr. Robbins. Supra, footnote
[25 A copy of Ms. Picciotto's permit was affixed to the Complaint, Declaration of William Thomas, Exhibit 3.]
21
4.(Motion to Dismiss, pg. 4)
Moreover, if the letter actually contains, as it purports, a legitmate response to Thomas' November 10, 1994 letter to Mr. Robbins, it runs afoul of principles Mr. Robbins knew, or should have known.
"The 19-day delay runs afoul of principles in A Quaker Action Group v. Morton, 515 F.2d
7617, 735 (1975) (a fixed deadline for administrative action on an application for a
permit 'is an essential feature of a permit system.' 24 hours suggested as maximum
time for action, permit to be deemed granted if no action is forthcoming within
the time limit). See Shuttlesworth v. Birmingham, 394 U.S. 147, 162- 164." United States
v. Abney, 534 F.2d 984, 986 n. 5 (D.C.Cir 1976).
Frankly, however, this seems nothing more than an insult to the intelligence of the common man. "Rights" are things that are inalienable, like the exercise of a First Amendment "right." A "permit," on the other hand permits a person to do something which, like driving is not a "right."
Because plaintiffs believe that Concepcion has a "right" to have two flags and two signs. They do not believe she needs a permit. However, because defendants were threatening to arrest her for exercising her "right," in an effort to exercise that "right" without being terrorized by defendants, they conpromised and got a "permit." [26] But, 36 C.F.R. 7.96(g)(5)(XIII)
"specifies that 'a permit' may contain additional conditions and time limitations. By
it's own terms, the language allows the Park Service only to attach specific limitations
to individual permits as part of its permit-granting
[26 If there's any need for it, plaintiffs are amply prepared to present lots of evidence to establish beyond doubt that the Park Service routinely permits demonstrations including
"structures." ]
22
procedure, not to adopt rules applicable
to the general public." Picciotto, supra, at 348.
In sum, here is a very tardy post hoc letter from Mr. Robbins via Mr. Meyers, seeking to impose specific limitations on the holder of a permit, allowing 'two signs and two flags," which the permit did not specifically impose. If this letter doesn't look like an attempt to coverup things that should (supervisory responsibility) and shouldn't (police misconduct aimed at disrupting the exercise of considtutionally protected activity) have been done, it at least shows an opportunity for review "under the APA's arbitrary and capricious standard." See Citizens to Preserve Overton Park v. Volpe, supra.