The Public Space Ordinance is narrowly tailored to the government's interest of ensuring
the safety of citizens and the safe and unhindered passage of vehicles through the streets. The
" requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial
governmental interest that would be achieved less effectively absent the regulation . . the
means chosen [must not Be]] substantially broader than necessary to achieve that interest."
Rock, 491 U.S. at 799; see also United
14
States v. Albertini, 472 U.S. 675, 689 (1985); Clark, 468 U.S. at 297. The regulation need not
be the least intrusive or restrictive means of serving the legitimate government interest. Id.
The District's Public Space Ordinance requiring a permit for the use of public space directly
and effectively advances its interest in the public's safety and the unimpeded flow of traffic.
Without this ordinance, the District would have less control over its streets and could not deal
as effectively with obstructions that threaten the public's safety and the flow of traffic. The
ordinance specifically states that the use of public space cannot endanger the public or
substantially interfere with pedestrian or vehicular traffic. Sec. 100.l(a), (b) . Although plaintiff
suggests that less restrictive means of achieving the interests of public safety and the
interference of traffic may exist,[6] this does not invalidate the narrowly drawn Public Space
Ordinance. See Rock, 491 U.S. at 799; see also White House Vigil, 746 F.2d 1518 (Park
Service regulation restricting demonstrations and other activities on sidewalk in front of White
House narrowly tailored even though the measures not the only nor most effective means to
deter illegal activity). Cf. Oliveri, 801 F.2d at 606 (NYC' s complete restriction of sidewalk to
protesters not drawn solely to further the governments conceded interest in public safety,
therefore not narrowly tailored).
[6 Plaintiff suggests that "If [the District] wanted to keep signs off from certain parts of the
pavement, [the District could just close down certain parts of the pavement" and leave the
remaining area open for persons such as himself who wish to exercise their First Amendment
rights. Trans. 40.]
15
The District’s Public Space Ordinance leaves open ample alternative channels of
communication. Plaintiff may communicate his message within the 1600 block of Pennsylvania
Avenue as a pedestrian. Plaintiff may remain in the position he and his platform have sat for
the past decade in Lafayette Park, some thirty feet from where plaintiff desires to relocate, He
simply cannot block the street with his large, heavy platform or impede the passage of
emergency vehicles. "[T]here has been no showing that the remaining avenues of
communication are inadequate." Rock 491 at 802; see also Concerned Jewish Youth v.
McGuire, 621 F.2d 471 (2d Cir. 1980) (Restrictions on protesters in front of Russian Mission
minimal where group permitted to demonstrate diagonally across from Mission), cert. denied
450 U.S. 913 (1981).
The Court has upheld other permit requirement regulations for public space on either side
of this block of Pennsylvania Avenue. Permit requirements for First Amendment activities on the
sidewalks and fences of the White House have been upheld. White House Vigil, 746 F.2d 1518.
Similarly, permit regulations refusing protesters the right to camp in Lafayette Park have been
upheld because they were content-neutral, narrowly tailored to promote a significant
government interest, and left alternative avenues of communication open. Clark, 468 U.S. 288
(1984).
Because the District’s ordinance requiring a permit for the use of public space is content-
neutral, narrowly tailored to promote a significant government interest, and allows for sufficient
alternative channels of communication, the regulation is
16
valid under the First Amendment as a reasonable regulation of the manner and place of
speech. "And by the same token, the First Amendment permits the police to contain or disperse
demonstrations that have become violent or obstructive." Wash. Mobilization Comm. v.
Cullinane, 566 F.2d 107, 119 (D.C. Cir. 1977) (emphasis added). Accordingly, Count 12 must
be dismissed.
B. Fourth Amendment Claim
Plaintiff claims that his rights guaranteed under the Fourth Amendment of the U.S.
Constitution were violated by Captain Radzilowski. Comp. Count 13. Plaintiff states that the
basis of his claim under this amendment is that his arrest was unlawful. Trans. 9. Because
Captain Radzilowski had probable cause to arrest plaintiff, arrested Mr. Thomas in good faith
after he disobeyed repeated police orders to remove his obstruction from Pennsylvania Avenue,
and the arrest was reasonable when viewed from Captain Radzilowski's perspective, plaintiff's
Fourth Amendment rights were not violated.
1. Probable cause for arrest
In actions for false arrest and false imprisonment, the central issue is "whether the arresting
officer was justified in ordering the arrest of the plaintiff; if so, the conduct of the arresting
officer is privileged and the action fails." Dellums v. Powell, 566 F.2d 167, 175 (D.C. Cir. 1977),
cert. denied, 438 U.S. 916 (1978). In defending a false arrest case, a police officer
17
must show that he or she had probable cause in securing the arrest. Id. The officer is not
required to show probable cause in the constitutional sense. Lucas v. U.S., 443 F. Supp. 539
(D.C. 1977). "A lesser showing can also be made, namely that the arresting officer had
reasonable grounds to believe a crime had been committed and that plaintiff's arrest was made
for the purpose of securing the administration of the law that the officer acted in good
faith)." Dellums, 566 F.2d at 175.
The arrest of plaintiff did not violate his rights under the Fourth Amendment. Captain
Radzilowski approached plaintiff approximately one-half hour after plaintiff and another
individual dragged the platform in question into Pennsylvania Avenue. Trans. 6,28. Captain
Radzilowski advised plaintiff that he could not keep the platform in the middle of Pennsylvania
Avenue. Trans. 29. Although Radzilowski did not have a warrant to arrest the plaintiff, the
D.C. Code permits warrantless arrests in certain situations. The D.C. Code reads, in pertinent
part: "A law enforcement officer may arrest, without a warrant having previously been issued
therefor . . . a person who he has probable cause to believe has committed or is committing an
offense in his presence." D.C. Code Sec. 23-581(a) (1) (B).
Captain Radzilowski personally observed plaintiff commit several 1 offenses . The Captain
ordered plaintiff to move his platform, but plaintiff refused to obey this direct order, D.C.
Municipal Regulations state that "No person shall fail or refuse to comply with any lawful order
or direction of any police officer
18
invested by law with the authority to direct, control, or regulate traffic." 18 D.C.M.R. sec.
2000.2. "It is unlawful for any person to do any act forbidden or fail to perform any act required
in this subtitle." Sec. 2000.1.
D.C. Municipal Regulations also state that "No person shall construct, place, leave, or
cause to be constructed, placed, or left on any public space any obstruction to travel, without
first obtaining a permit from the District." Sec. 2001.2. "The term \public space' includes any
street, avenue, highway, footway, sidewalk, parking, or other public space in the District of
Columbia." Sec. 2001.1. Pennsylvania Avenue, even when temporarily closed to public
vehicular traffic, falls within the District's definition of public space. Because plaintiff disobeyed
police orders and occupied public space without a permit in direct violation of sec. 2001.2,
Captain Radzilowski had probable cause to arrest Mr. Thomas.
2. Good Faith Of Captain Radzilowski
In determining whether the officer acted in good faith, the trier of fact must not evaluate the
evidence from the plaintiff’s perspective. Safeway Stores v. Kelly, 448 A.2d 856, 862 (D.C.
1982). Rather, the trier of fact must weigh the evidence from the arresting officer's perspective.
Id. "To establish good faith an official must show that he was acting sincerely and with a belief
that he is doing right."' Wood v. Strickland, 420 U.S. 308, 321 (1975), The arrest cannot be
pretextual or made to harass an
19
individual. See Lucas, 443 F. Supp. at 543.
Captain Radzilowski acted in good faith. He was not on Pennsylvania Avenue on May 26 to
harass Mr. Thomas, but rather to discuss movie making and security with the Secret Service
and Park representatives. Trans. 25. "[T]he police may validly order violent or obstructive
demonstrators to disperse or clear the streets. If any demonstrator or bystander refuses to obey
such an order after fair notice and opportunity to comply, his arrest does not violate the
Constitution even though he has not previously been violent or obstructive." Wash. Mobilization
Comm.. 566 F.2d at 120.
Captain Radzilowski approached Mr. Thomas only after he observed his platform on the
street, and explained to Mr. Thomas that the presence of his platform on the street was illegal.
Trans. 27-29. Captain Radzilowski went on to explain to Mr. Thomas that his platform was
causing an obstruction and he lacked a permit to occupy public space. Trans. 31. Radzilowski
"tried very hard to talk to Mr. Thomas . . . [and explain] why we [the police] were doing what
[they] were doing." Trans. 32.
The Metropolitan Police Department has a duty to keep the streets and sidewalks open for
the free movement of vehicular and pedestrian traffic. See Schneider v.-State, 308 U.S. 147,
160 (1939). Captain Radzilowski fulfilled this duty when he asked Mr. Thomas to return to his
location in Lafayette Park, where he had a permit to protest with the use of the platform. "The
police must direct and control demonstrators only to an extent sufficient
2
to protect legitimate state interests, which in this case [is the free circulation of traffic." Wash.
Mobilization Comm., 566 F.2d at 116.
Captain Radzilowski personally observed Mr. Thomas disobey several valid ordinances [7]
and disobey a direct police order. The arrest was made without any pretext. The Captain had
probable cause and a good faith belief that an offense had been committed, and his belief was
reasonable in light of all the circumstances. Captain Radzilowski was fulfilling his duty as a
police officer, and the arrest of plaintiff was lawful. Accordingly, Count 13 should be
dismissed.[8]
C. Ninth Amendment Claim
Mr. Thomas claims that Captain Radzilowski violated his rights guaranteed under the Ninth
Amendment because Capt. Radzilowski arrested plaintiff for having a sign on the closed street
"while skaters, bicyclists, and pedestrians were not disturbed by police for occupying space on
the same closed street." Comp. count 14. Plaintiff further believes that his arrest violated his
unremunerated right to "remain in a public place without having to suffer police harassment or
interference." Trans. 9. While our
[7 ]
Even if this court finds D.C. Mun. Regs. 100.1, 2001.2, and 2000.2 invalid, an arrest
pursuant to a presumptively valid ordinance is lawful even if the ordinance is later found to be
invalid. Green v. D.C., 710 F.2d 876, 878 (D.C. Cir. 1983).]
[8 Captain Radzilowski has not been properly served, and should be dismissed on this
ground as well.]
21
Constitution certainly protects law abiding citizens from harassment or threatening behavior by
the police or government agents, the Ninth Amendment does not give certain citizens the right
to disregard the law. The individuals in the street that Mr. Thomas refers to were not breaking
any laws, causing obstructions, nor disobeying repeated police orders.
Plaintiff’s claim that his "right" to obstruct a street falls within the protection of the Ninth
Amendment is not supported by the history of this Amendment. The Ninth Amendment states
that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people. U.S. Const. amend. IX. [S]pecific guarantees in the
Bill of Rights have penumbras, formed by emanations from those guarantees that help give
them life and substance." Griswold v. Connecticut, 381 U,S. 479, 484 (1965). The right to
marital privacy is an unremunerated right protected by our Constitution. Id. The purpose of the
Ninth Amendment is to ensure that the rights enumerated in the Constitution are not considered
exclusive. Richardson v. U.S. Dept. of Interior, 740 F.Supp. 15, 21 (D.C. 1990).
Plaintiff "has failed to in any way articulate what rights beyond those expressly enumerated
in the Constitution have been violated." - Id. The category of unremunerated rights protected by
the Constitution have been characterized as "those liberties that are \deeply rooted in this
Nation's history and tradition.'" Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (Powell,
Disobeying repeated police orders to remove an obstruction from a
22
street open to emergency vehicles, motorcades, and pedestrians in accordance with a
legitimate city ordinance does not fall under the category of rights protected by the Ninth
Amendment. Accordingly, Count 14 should be dismissed.
CONCLUSION
For the foregoing reasons, plaintiff's motion for a preliminary injunction should be denied
and Counts 12, 13, and 14 should be dismissed, or in the alternative summary judgment
entered on these counts for District Defendants.
Respectfully submitted,
___________________
GARLAND PINKSTON
Acting Corporation Counsel, D.C.
___________________
MARTIN L.
GROSSMAN
Deputy Corporation Counsel, D.C.
civil Division
__________________
WILLIAM J. EARL
Chief, Major Case Section
BY:
BRUCE BRENNAN, [280461]
Assistant Corporation Counsel, D.C.
Attorney for District Defendants
441 4th Street, N.W.,
Suite 6-S-101
Washington, D.C. 20001