It is beyond doubt in this Nation's jurisprudence that nonspeech conduct
23
sometimes qualifies as expressive conduct protected by the First Amendment. Tinker v
Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 508 (1969). Plainly, the
alleged coercion of plaintiff not to display his sign in a non-obstructive manner involves
such protected nonspeech conduct. See Stromberg v. California, 28j U.S. 359,
369-70 (1931); Milwaukee Mobilization for Survival v. Milwaukee City Park Comm'n,
477 F. Supp. 1210, 1218 (E.D. Wis. 1979).
Plaintiff specifically alleged that, by arresting him, under color of regulation, for
the harmless display of a sign in an area "open to the general public," Captain
Radzilowski acted unreasonably.[15]
Although counsel does argue,
"[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."
(D.C. Deft's Memo, pg. 20),
much to his credit, he acknowledges that the legitimate police responsibility to remove
obstructions or arrest the violent may not be used as a pretext for arresting
[15 Rightly, the Court has questioned plaintiff's legal claim against the District of
Colombia. Tr. pgs. 14-22. It is plain on it's face, however, that plaintiff was
persecuted under color of District of Columbia authority. Pl's Exhibit 12. Even if the
District of Columbia didn't have anything to do with plaintiff's arrest, that fact would not
invalidate a Section 1983 claim against Captain Radzilowski.
Over the years, it has been judicially noted, Thomas has claimed he was
"repeatedly arrested, beaten, harassed and otherwise mistreated by the police in
retaliation for his activities." United States v. Thomas, 557 A.2d 1296, 1297-99, n. 4.
(Dist. Col. 1989)),. Cf. Thomas v. United States, 696 F. Supp. 702, 706. These
claims have never received any factual review. To avoid the tragedy of punishing
"courage or conscience" (United States v. Thomas and Thomas, 864 F.2d 188, 199
(1988).), this Court should conduct such an inquiry. See, infra, A FOOL FOR A
LAWYER.]
24
demonstraters who are non-violent or unobstructive. Id. In any fairness the Court
must consider that this defendant professed, under oath, to an appreciation of the
appropriate nature of "signs in the street," and swore that was "no problem" (id.), but
can be seen on videotape actually threatening a person for having a sign on the
street.. Pl's Facts ¶ 39. Notwithstanding defendants' insinuation that police
interference with the public display of signs is so inconsequential a matter that plaintiff
may not state a claim, other courts have held differently.
"(A) police officer forcibly took a poster from a young woman peacefully
standing on a public sidewalk and destroyed it. Although not every
encounter between a citizen and a policeman warrants extended judicial
scrutiny and review, the implications of this apparently inconsequential
incident raise important questions about the constitutional guaranty of
freedom of expression, and require us to determine the circumstances in
which police officers may be required to respond in damages in an action
brought (under) 42 USC Sections 1983 and 1985(3)..." Glasson v.
Louisville, 518 F.2d at 901, cert denied, 423 U.S. 930. [16]
[16 In pertinent part 42 U.S.C. Section 1983 provides,
"Every person who, under color of any statute, ordinance, regulation, custom, or
usage of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. For the purposes of this section, any
Act of Congress applicable exclusively to the District of Columbia shall be considered
to be a statute of the District of Columbia."
In pertinent part 42 U.S.C. Section 1985(3) provides,
"If two or more persons in any State or Territory conspire or go in disguise on
the highway or on the premises of another, for the purpose of depriving, either directly
or indirectly, any person or class of persons of the equal protection of the law, or of
equal privileges and immunities under the laws; in any case of conspiracy set forth in
this section, if one or more persons engaged therein do, or cause to be done, any act
in furtherance of the object of such conspiracy, whereby another is injured in his
person or property, or deprived of having and exercising any right or privilege of a
citizen of the United States, the party so injured or deprived may have an action for
the recovery of damages occasioned by such injury or deprivation, against any one or
more of the conspirators." ]
25
"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. Here, ,
four days after the arrest, defendant Radzilowski admitted that he still didn't know
whether he had legal authority to arrest plaintiff. Pl's Facts ¶ 43.
Aside from the facts, the Court has before it counsel's argumentation,
"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."..D.C. Deft's Memo,
pg. 20.[17]
The Easter Bunny may or may not be from Duluth, but on a motion for
summary judgment the Court should not be bound by defendant's bald, self-serving
portrayals. When "'confronted with a case of prosecution for the expression of an
idea through activity ... we must examine with particular care the interests advanced
by (the government) to support its prosecution.' Id. 418 U.S. at 411." Texas v.
Johnson, 109 S. Ct. 2541, 2542. (1989).
[17 "(A)n official would not receive qualified immunity if he 'knew or reasonably should
have known that the action he took within his sphere of official responsibility would
violate the constitutional rights of the [plaintiff] or if [the official] took the action with the
malicious intention to cause a deprivation of constitutional rights or other injury'."
Hobson v. Wilson, 737 F.2d 1, 24, citing Wood v. Strickland, 420 U.S.308, 322, see
Bell v. Hood, 327 U.S., at 684 (footnote omitted); see Bemis Bros. Bag Co. v. U.S.,
289 U.S. 28,36 (1933) (Cardoza, J.); The Western Maid, 257 U.S. 419, 433 (1922).]
[18 There is little question that "Section 1985(3) extended to purely political animus to
reach conspiracies formed because a person 'was a Democrat, if you please, or
because he was a Catholic, or because he was a Methodist or because he was a
Vermonter (quoting Cong-Globe, 42d Cong. 1st Sess. 567 (1871))..' Brotherhood of
Carpenters and Joiners v. Scott, 103 S. Ct. 3360." Hobson v. Wilson,737 F.2d 16, n. 44.
"[T]he legislative history behind section 1985(3) unmistakably LEADS to the
conclusion that discrimination [on the basis of political affiliations or beliefs] was
intended to be actionable.')." Id, at 21 (parentheses in original), citing, Private
Conspiracies to Violate Civil Rights, 90 Harv.L.Rev. 1721, 1728 (1977) ]
26
Unless or until more becomes apparent, there are only two possibilities: either
Captain Radzilowski had a sincere belief that plaintiff's sign was obstructing the street,
when he ordered Officer Hebron to arrest plaintiff, or he was acting, without probable
cause, singularly or in concert, to deprive plaintiff of the constitutionally protected right
to display a sign in the a public park, or to punish plaintiff for exercise of the most the
fundamental of human rights. Motive is a question for a jury.