Memorandum

(ii) FREEDOM OF THOUGHT AND EXPRESSION

On an equally lofty plane, plaintiff thinks he's fighting for, "the right to speak freely and to promote diversity of ideas and programs ... one of the chief distinctions that sets us apart form totalitarian regimes." Am. Com. pg. 12.

"Plaintiffs maintain that they sincerely want to conduct their demonstrations within the boundaries of legitimate time, place, and manner restrictions.... to avoid criminal sanctions and the concomitant interruption of their expressive demonstration." Thomas v. United States, 696 F. Supp. 702, 707. Declaration of William Thomas ¶ 3.

As plaintiff sees it, by promoting respect for wisdom and honesty (see, Pl's Exhibits 18, 19), respect for human life, and policies of "Peace through Reason," he's

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locked in ideological conflict with a monolithic system, founded on deceit and profound disrespect for human life which enforces its' mindless dictates through a policy of "Peace through Strength." Within this framework his arrest on May 26th is seen as indicative of the deceitful, disrespectful system he imagines. Infra, Yelling "Fire!",

(iii) THE CONFLICT

Here is the heart of the conflict, plaintiff practicing his religious belief (Matt. 5:0) in the concept of "Peace through Reason." (Is. 1:19)), using the only meager means available -- his body and his sign -- to communicate; Captain Radzilowski, in service to the political ideology of "Peace through Strength," removed plaintiff at the expense of due process, human dignity and the most sacred ideals of democracy. Of course, this is all very abstract, dealing as it does with ideals, but, truth, justice, freedom and equality were, under the Constitution, considered, honored ancient traditions, supposed to be sacred. [13]

Bombastic as both parties positions may seem, it is still difficult to understand, how a modest wooden sign, or even a "structure," can threaten "the ability of the executive branch to function in an orderly fashion (much less) respond to threats and crises affecting the entire free world?"

On this heroic creed defendants spin a finely crafted arguement,

"(P)laintiff 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


[13 Is the "free world" more than an abstraction?]

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impede the passage of emergency vehicles. " [14]

Defendant Radzilowski expounded on the ever present, but never knowing, when need to maybe have to "sterilize the area." As shown by his quick action on the video tape (Exhibit V.T, segment 9), defendant sterilized the area quickly and efficiently, dispite plaintiff's reluctance to cooperate.

D. CONSTITUTIONAL CLAIMS

"(R)ights are not fundamental because they find mention in the written instrument; they find mention there because they are fundamental. (F)undamental rights also rest in part on the words of the document, especially those of the Ninth Amendment, 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,' and of the Fifth and Fourteenth amendments protecting 'life, liberty, and property' against government's acting 'without due process of law.'" American Constitutional Interpretation, Walter F. Murphy, page 930 (1986).

Pursuant to three provisions of the Bill of Rights the Court has jurisdiction, and -- if the fact finding process ascertains the accuracy of his allegations -- is vested with the responsibility to protect the free expression of religious or political beliefs in a public forum. The court can, and should draw a line to protect these most fundamental of human rights by granting the relief requested.


[14 Even if the sign is a structure, defendant Radzilowski's hypothetical concern that "emergency vehicles and motorcades" might not be able to squeeze by plaintiff's sign, still leaves significant unanswered questions. Since the "street" is at least seven lanes wide (the center lane nearly twice the width of the other lanes), and there is only room enough for one (1) "emergency vehicle" to pass through the barricades at a time; because plaintiff's sign is only four (4) feet wide and can be easily moved by one person; how plaintiff's sign threaten to obstruct traffic, or what "legitimate government interest" might reasonably justify defendant Radzilowski's hyper-vigilance against plaintiff's modest sign? Pl's Facts ¶ ¶ 24, 31, 33, 39, 41]

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1. THE FIRST AMENDMENT

The First Amendment provides:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Plaintiff's sign, with written words, in Lafayette Park, embodies at least three First Amendment clauses. Defendant's arrest of plaintiff directly impacted those rights.

2. THE FIFTH AMENDMENT

In pertinent part the Fifth Amendment provides:

"No person shall be () deprived of life, liberty, or property, without due process of law."

Defendant Radzilowski's arrest of plaintiff amounts to making up the law. Subsequent to defendant's "law" plaintiff suffered arrest, termination of expressive activity, and abuse of the criminal judicial process.

"The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." Marbury v. Madison, 1 Cranch 138, 163 (1803).

3. THE NINTH AMENDMENT

The Ninth Amendment provides:

"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.

In Buckley v. Veleo, 424 U.S. 1, the Court discussed "quantity and quality," and required "exacting scrutiny" to balance equality of speech for wealthy and poor. Here the "quantity" of plaintiff's expression depends on the "quality" of the exposure of his

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sign to public view.

Simply stated, although the right of individuals to harmlessly engage in exercising the fundamental freedoms of thought (religious belief) and expression in a public forum, without being subject to physical and psychological torment arrest, intimidation at the hands of salaried or contract Government agents, may not specifically be enumerated in the Constitution, but for the sake of civilized society, it must be recognized as a right inherently "retained" by the people.

E. BIVENS CLAIMS

Defendants recognize that "(p)laintiff also cites to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1970), and 42 U.S.C. §§ 1983 and 1985(3),"

1. JURISDICTION

Althought Defendants posit plaintiff, "raises no specific allegations with respect to these citations." (Fed. Defts' Memo, pg. 3, ftn. 1), the principles on which plaintiff relies are straightforward and not hard to comprehend,

"Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges. immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." White House Vigil for ERA v. Clark, 746 F.2d 1518,1528, citing Hague v C.I.O, 307 U.S. 496 (1939)

2. DEFENDANT RADZILWOSKI

It is beyond doubt in this Nation's jurisprudence that nonspeech conduct

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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.]

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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." ]

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"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) ]

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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.