Memorandum in support of Appellant's Motion for a Stay Pending Appeal



September Term, 1995
USDC No. 94cv02747
William Thomas, et al., Appellants


United States of America, et al., Appellees


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 Service regulations."


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," [1] 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 configuration.

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 criminal.
"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 (1989).
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