Memorandum in support of Appellant's Motion for a Stay Pending Appeal
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT
September Term, 1995
USDC No. 94cv02747 William Thomas, et al., Appellants
United States of America, et al., Appellees
MEMORANDUM IN SUPPORT OF APPELLANT'S MOTION FOR A STAY PENDING APPEAL
On October 10, 1995 U.S. Park Police officers hand delivered a Notice to
Concepcion Picciotto and Ellen Thomas, signed by Richard G. Robbins, an Appellee
in the matter at bar and defendant in the Court below. Mr. Robbins' letter "demands
that you bring the signs at your demonstration vigil located in Lafayette Park into
conformity with National Park Service regulations. " Exhibit 1
Mr. Robbins contends that, "On August 22. 1995, the United States District
Court confirmed that such signs violate Park Service regulations in Thomas v. United
States, No. 94-2747 (D.D.C.). " Mr. Robbins states, "the platform attachment to
stationary signs as well as the attachment of flags onto stationary signs violated Park
The District Court held no evidentiary hearing, and Appellees presented no
evidence that the sign did not comply which measurement or structural requirements
set out in the regulation. Without making any factual determination as to whether the
sign violated park regulations, the Court merely held, "Plaintiffs had not asserted that
their sign did not fall within .... statutory bans,"  and, therefore, "the officer was
entitled to official immunity." Order, April 12,, 1995, pgs 14, 15.
[1 On appeal Appellant will also show that the he had sufficiently alleged the sign in question was within the statutory bans; under F.R.C.P. 12(b)(6) Appellant was entitled to an assumption that the sign was withinthe statutory bans, ad that, prior to any factual hearing to determine the true dimensions of the sign, it was an error for the Court to assume, the officer was entitled to official immunity.]
On appeal we will establish, as documented in the record below, that the
purported "platform attachment," was nothing more than the base of a sign which was,
in fact, perfectly in compliance with the applicable regulations. 36 C.F.R 7.96(g)(5)(x)
et. seq. We will confirm that this base had always been "attached to" the signs, but
which has been raised 13 inches above the ground. We will also show the regulations
specifically provide "that the term,'structure' does not include signs," and, although the
regulation specifically stipulates that "a sign my not be raised to a height greater than
six feet, it does not do not prohibit the base of a sign from being elevated above the
ground, nor does it prescribe a specific configuration to which the permitted "braces
that are reasonably required to meet support and safety requirements," must conform.
With respect to the attachment of flags onto stationary signs, we will point out
where the record shows that the Park Service does have the authority to issue, and
has issued permits that allow for "structures" which exceed the height of the flag sign
The resolution of Thomas v. United States, Civil Action No. 94-2747 (D.D.C.),
does not constitute a decision that the "attachments" Mr. Robbins complains of are
"Certainly, a criminal prosecution founded on an agency rule should be held to
the strict letter of the APA." United States v. Picciotto, 875 F.2d 345, 347
Appellant suggests that, if we are to be civilized, Appellant should be permitted
a full opportunity to resolve this matter in civil litigation before being subjected to
criminal prosecution as a forum to determine the factual dimensions of the objects in
question, and whether those dimensions constitute a criminal violation..
"Before a person is threatened with jail for such a violation, the government
must ensure that the rule itself is not in violation of the law." United States v.
Picciotto, 875 F.2d 345, 3__ (1989) .
Moveover, as can be seen in the last two sentences in the last paragraph of the
first page of Exhibit 2, the Park Service is using the decision under appeal as legal
authority to deny permits.
Therefore Appellant hereby moves this Court to issue a Stay against the District
Court's Order during the pendency of the appeal in order to secure plaintiffs rights to
free expression, and assembly.
Respectfully submitted this 30th day of October, 1995.
William Thomas, Appellant, pro se
2817 11th Street NW
Washington, D.C. 20038