Memorandum

MEMORANDUM IN SUPPORT OF PLAINTIFF'S OPPOSITION TO THE FEDERAL AND DISTRICT OF COLUMBIA DEFENDANTS' MOTIONS TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT, AND REPLY TO DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

I. PRELIMINARY STATEMENT

On May 30, 1995 this Court conducted a hearing on plaintiff's motion for a TRO. Subsequently the Federal Defendants have submitted a Motion to Dismiss or in the Alternative for Summary Judgment and in Opposition to Plaintiffs' Motion for Preliminary Injunction, a Memorandum in Support ("Fed Deft's Memo"), and a Statement of Material Facts as to Which there Exists No Genuine Issue ("Fed Defts' Facts"). Separately, on behalf of defendant Radzilowski, the Corporation Counsel has filed a Motion to Dismiss or in the Alternative for Summary Judgment, a Memorandum in Support ("D.C. Deft's Memo"), and Statement of Material Facts as to Which there Exists No Genuine Issue ("D.C. Defts' Facts").

This complaint challenges plaintiff's arrest by District of Columbia officials on May 26, 1995, when, as part of his religious and communicative activities, he placed a sign in the portion of Pennsylvania Avenue which defendants purport is closed to "vehicular traffic ... however, remain(s) open to .... pedestrians, bikers, joggers and others," and refused to remove it when ordered to do so by District of Columbia Metropolitan Police. Plaintiff alleges that arrest violated his rights under the First, Fourth, Fifth and Ninth Amendments of the Constitution of the United States." Fed Defts' Memo pg. 4. Because the facts and law relied upon are the same, plaintiff opposes both parties' pleadings concurrently.

Totally independent of the closure of Pennsylvania Avenue, plaintiff seeks,

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"a permanent injunction to ban defendants from closing, or enclosing Lafayette Park, or sections thereof." Plaintiff also seeks a preliminary injunction to enjoin defendants, pending the resolution of this complaint, or until defendants comply with provisions governing park closures, from (1) making any further changes to Lafayette Park (2) enclosing Lafayette Park with any more permanent barriers, and (3) closing the Park, except in the event of a real, certifiable emergency, for any periods." Amended Complaint ("Com."), pg. 2.

Finally, and most troubling, while defendants rely heavily on the avowal that this didn't "happen in a vacuum," plaintiff's avowed facts present a strong inference that the opposite is actually the case. .Infra, GENUINE ISSUE OF VACUUMS.

II. FACTUAL AND PROCEDURAL BACKGROUND

It is undisputed that, since 1981, plaintiff has "devoted his life to regularly communicate with the general public on issues of broad concern, in Lafayette Park." Amended Complaint at 2; Defts' Facts, ¶ 9; Thomas Declaration, ¶¶ 12, 13.

Plaintiff agrees that "there is a legitimate public interest in preserving the safety of the President" (Defts' Memo, pg. 3), except, plaintiff maintains, no rational connection has been shown linking any legitimate "security concern" to his arrest on May 26, 1995. Pl's Facts ¶¶ 20, 27.

Nor does plaintiff contest the presumption that reasonable concerns over "protection of the President from explosive devices carried by vehicles" might justify the closing of Pennsylvania Avenue "to vehicular traffic." Tr. pgs 10, 11; Am. Com. ¶¶ 14, 18. Plaintiff merely questions whether a well intentioned concern for presidential security, or the orderly procession of emergency vehicles, can excuse dispensing with due process, a concept well established from the inception of this nation, to check and balance the various branches of government, as a safeguard to

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the essential ideals upon which the nation was founded, leading plaintiff to recall the words of Justice Louis Brandeis,

"the gravest dangers to liberty lurk in insidious encroachment by men (and women) of zeal, well-intentioned, but without understanding."

Piddling as the details of the instant complaint may seem to them, counsel apparently fail to understand that under the First Amendment these details are of paramount significance. See, infra, Bivens and Constitutional Claims.

"The right to speak freely and to promote diversity of ideas and programs is ... one of the chief distinctions that sets us apart form totalitarian regimes." Terminiello v. Chicago, 337 U.S. 4 (1945); see also, United States v. Eichman 58 LW 4745 (1990); Texas v. Johnson, 109 S. Ct. 2533 (1989); Boos v. Barry, 485 U.S. 312 (1989); Airport Commissioners v. Jews for Jesus 482 U.S. 203 (1986); Brown v. Louisiana, 383 US l3l (l96l); Hague v. C.I.O., 307 U.S. 496 (1939); Spence v. Washington, 418 U.S. at 411 (1969); Tinker v. Des Moines, 393 U.S. 503; United States v. O'Brien, 391 U.S. 368 (1969); Cox v. Louisiana, 379 U.S. 536, 551 (1965); Coates v. Cincinnati, 402 U.S. 611, 615; United States v. Grace, 461 U.S. 177; Carey v. Brown, 447 U.S. 455, (1980); Gregory v. Chicago, 394 U.S. 111, (1969); Jamison v. Texas, 318 U.S. 413 (1943); Thornbill v. Alabama, 310 U.S. 88 (1940). Am. Com. pg. 12.

III. DISCUSSION

As discussed below, plaintiff believes the Federal Rules entitle him to a trial by jury to determine whether defendant Radzilowski had any reasonable basis to believe that plaintiff's sign raised a valid concern for presidential security, or the orderly procession of emergency vehicles, and, if the facts show defendant had no valid grounds to order the removal of plaintiff's sign, that this Court must fashion the appropriate legal protection necessary to check and balance defendants' awesome power, and sheild individual free thought and expression, well established from the inception of this nation, as essential ideals upon which the nation was founded.

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On the other hand, defendants argue, plaintiff has "ample alternatives." In support of this, with all due respect, meaningless suggestion, defendants rely heavily on a case the Court was faced with a very different situation,

" The issue for decision on th(at) appeal (wa)s not factual, it (wa)s legal: did the (agency) draft regulations that were 'narrowly tailored to serve a significant governmental interest'."? White House Vigil for ERA v. Clark, 746 F.2d 1518, 1529. Infra, Fool for a Lawyer?

Conversely, the issues here are factual rather than legal. Factually, the issues at bar are simpler than defendants' pleadings might lead one to believe. For example: On May 26th, 1995, would the position of plaintiff's sign (or "structure," as defendants sometimes like to call it) have caused a reasonable person to view it as a threat to the free world, the president, or any other legitimate government interest? Was plaintiff's sign so "large and heavy" that a rational person might view it as a potential obstruction to emergency vehicles? How many minutes transpired between the moment that defendant Radzilowski decided to sterilize the area, and the time that plaintiff was in a paddy wagon, and his sign had been moved to a location just "a few feet away"? Was the sign any less of an obstruction after defendant moved it? Did plaintiff's arrest disrupt his expressive activities?