It is uncontested that plaintiff was arrested, publicly humiliated, incarcerated,
15
and required to squander additional hours of precious time dealing with an alleged
abuse of process, all of which caused, defendant Radzilowski should have known,
plaintiff to suffer the deprivation of various constitutional rights, purportedly for an
"obstruction," which, mathematically speaking, could not have been "an obstruction."
Pl's Facts ¶ 42, 43.
"We have often noted that restrictions of this kind are valid provided that they are
justified without reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant governmental interest, and that they leave
open ample alternative channels for communication of the information. City
Council v. Taxpayers for Vincent, ---- U. S. ---- (1984); United States v. Grace,103
S.Ct.at 1707; (1983); Perry Educational Assn. v. Perry Local Educator's Assn.,
460 U. S.460 U.S. at 45(1983); Heffron v. lnternational Society for Krishna
Consciousness, 452 U. S. 640, 647-648 (1981); Virginia Pharmacy Board v.
Virginia Citizens Consumer Council, 425 U. S. 748, 771 (1976); Consolidated
Edison Co. v. Public Service Comm'n, 447 U. S. 530, 535 (1980)." Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 297, 104 S.Ct. at 3069; see
also, United States v. O'Brien, 391 U. S. 367, 376-77 (1968),
Thus, no matter how celestial defendants' stated motives, to maintain a rational
playing field, the Court must still determine that the professed motives are "narrowly
tailored to serve a significant governmental interest." Immediately, whether or not it
was "reasonable" for defendants to attach such grandiose significance to the minute
placement and/or configuration of plaintiff's sign is a genuine issue of fact.
(e). COSMIC MOTIVES
Viewing this case in a light most favorable to everybody, both parties are
engaged in struggles of gargantuan proportions, and envision themselves protecting
freedom from chaos.
(i) SECURITY
As defendants see it the evil in this case surpasses their historical concerns for
16
"a lovely park, beautifully landscaped and exquisitely maintained" (Thomas and
Thomas, supra, 864 at 189), and strikes directly at their, "ability ... to function in an
orderly fashion and ... respond to threats and crises affecting the entire free world"
(Fed. Defts' Memo, pg. 10), proving,
"(t)he balance of harms favors denial of injunctive relief. Any potential harm to
plaintiff is speculative and almost immeasurable." D.C. Deft's Memo, pg. 9.[8]
"On the other hand ... (o)verturning the District's traffic and public space
regulations to allow the placement of one or many structures such as plaintiffs
will impede the passage of ... emergency vehicles." Id.
To exemplify the exaggeration upon which defendants' game plan is predicated,
"overturning the District's traffic and public space regulations" has absolutely nothing
to do with the matter at hand. [9]
In reality, it can be demonstrated, the seven lane pedestrian throughfare could
accomodate the placement of scores, if not hundreds of "structures " such as
plaintiff's without impeding the passage of emergency vehicles. We note that such an
"undifferentiated fear or apprehension of disturbance is not enough to overcome the
right to freedom of expression." Tinker v. Des Moines School District, 393 U.S. 503,
[8 As discussed, supra, WELL ESTABLISHED RIGHT, harm to plaintiff is concrete
and immeasurable. Elrod v. Burns, 427 U.S. 347, 373 (1976)]
[9 Plaintiff was not charged with obstructing traffic, or public space violations. Pl's
Facts ¶ 43, Pl's Exhibit 12. But if he had been, the extreme measure of overturning
the District's traffic regulations would still not be necessary.]
[10 Unless the "structures" were intentionally placed with the intent to obstruct
emergency vehicles. In that demonstrably unlikely scenerio, application of the
applicable D.C. traffic regulations would be entirely appropriate. Moreover, testimony
and evidence will demonstrate beyond doubt that previous "deterrence" measures
have already solved the sign overpopulation problem in the Park.
]
17
508, 89 S.Ct 733, 737, 21 LEd.2d 731(1969).30.
(AA). PROCEDURAL SUBTERFUGE?
Aware that plaintiff wasn't obstructing anything, Captain Radzilowski, essentially
made up an unnecessary law. Since his law had no title or citation, in order to abuse
the legitimate process in service to his illegitimate desires, he called his law, "failure to
obey a police officer," and told Officer Hebron to wirte that charge on the papers. Pl's
Exhibit 12.
At the May 30, 1995 hearing in this case counsel assumed the postion that
Captain Radzilowski's law was very similar to the D.C. Public Space Ordinance. [11]
In a spirit of concilliation, plaintiff declined to hammer on the likelihood that the
Captain's concern about adequate road space for emergency vehicles is irrational. [12]
Instead plaintiff inquired into the possibility to closing only one, two, three or even four
lanes to members of the general public who had signs which might be considered
obstructionist. Tr. pg. 40.
Rather than address the fact that plaintiff was not arrested for, not to mention
not convicted of, violating the Public Space Ordinance, or grapppling with the need to
[11 The inanity of defendants' theory is indicated by the fact that, in discussing this
theory it becomes germane to note that in promulgating regulations courts have held
the government must provide a "satisfactory explanation for its action including a
'rational connection between the facts found and the choice made'." Burlington Truck
Lines, Inc. v. United State, 371 U.S. 156, 168.]
[12 For one thing, at 15th and 17th Streets -- the only points of ingress and egress
to the closed portion of Pennsylvania Avenue -- there is space for only one vehicle to
pass at a time. Thus, there is no sound reason for concern that a proliferation of
emergency vehicles will be impeded by a "large and heavy" four foot wooden
"structure." See, Exhibit V.T. @ Segment 6 03min 48sec & 05 min 20 sec.]
18
balance the sacred ideals enshrined in the First Amendment against possibly
legitimate concerns about emergency vehicle access, counsel choose to argue that
plaintiff's arrest "does not invalidate the narrowly drawn Public Space Ordinance. See
Ward v Rock, 491 U.S. at 799." D.C. Deft's Memo, pg. 15.
This fantastic conjectural discussion is only possible if one ignores the 200 plus
years during which the street in question served as a busy traffic artery, without
obstruction to emergency vehicles. By making it necessary to discuss in detail
speculative concerns over potential emergency vehicles, that might possibly be
obstructed, by a four foot sign, on a seven lane road, now "closed to vehicular traffic,"
while even noting the possible compromise of restricting signs from only as many
lanes as might arguably be necessary to thwart obstruction of emergency vehicles, or
without articulating any factually based objection to the less restrictive compromise,
counsel exudes an impression of pettifoggery.