DC Defendant's Reply to Plaintiff's Opposition to..Summary Judgment


William Thomas, et. al.       |   
      Plaintiffs pro se,      | 
       v.                     |          C.A. No. 95-1018
                              |       Judge Charles R. Richey
The United States, et. al.    |      
      Defendants.             | 


In his complaint , plaintiff made three claims against the District of Columbia defendants arising out his arrest for failure to obey a police order following his refusal to remove his 4' x 4' x 4' sign assemblage (for which he had no permit) from the street in the 1600 block of Pennsylvania Avenue. He asserts that his arrest violated his First Amendment, Fourth Amendment and Ninth Amendment rights. (Compl. Counts 12, 13, 14)

The District of Columbia defendants ("District defendants") have shown in their Motion to Dismiss or for Summary Judgement that there has been no First Amendment violation since both the public space permit regulations and the traffic regulations (including the "failure to obey" provision) are legitimate time, place, and manner restrictions which are content neutral, tailored to promote a significant government interest and providing ample alternative channels of communication. See District Defendants' Memorandum of Points and Authorities in support of Motion to Dismiss at pp. 11-


17. The District has also shown that there has been no Fourth Amendment violation because Captain Radizlowski had a good faith, reasonable belief that there was probable cause to arrest plaintiff for his refusal to obey a police order. (District defendants Memorandum of pp. 17-21.) Finally, District defendants showed that plaintiff has utterly failed to articulate any violation of other constitutional rights that would support his claimed Ninth Amendment violation. (District defendants Memorandum at pp. 21- 23.)

In support of their Motion, the District defendants submitted a Statement of Material Facts not in Dispute. Plaintiff, despite a 44 paragraph submission entitled "Plaintiff's Statement of Facts as to which there Exist Genuine Material Issues", has in fact only disputed one fact submitted by District defendants: whether it takes one or two people to move the plaintiff's sign assemblage. See Plaintiff Statement Facts as to which there exists a genuine material Issue. (But, in fact, plaintiff's submission show the immateriality of the dispute, since these show that the sign structure is "somewhat cumbersome" to move. [Ellen Thomas Declaration par. 6]

As shown below, and for all the reasons stated in District defendants original motion, the complaint should be dismissed or in the alternative, summary judgement granted to District defendants.

Ninth Amendment

In his complaint and original pleadings, plaintiff failed to articulate any rights not enumerated in the Constitution which he


contends were violated in any way by defendants. Nor does he do so in his opposition. He simply (and incorrectly) states:

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 ferment, arrest, intimidation ... may not be specifically enumerated in the Constitution, but ... must be recognized as a right inherently "retained" by the people. (Plaintiff's Mem. at p. 23)

In fact, such a right is enumerated in the Constitution as the First Amendment. As shown below that right has not been abridged. Plaintiff articulates nothing further regarding this claim and it must be dismissed for failure to state a claim upon which relief can be granted.

Fourth Amendment

It is undisputed that plaintiff had no permit to place his signage assembly in pennsylvania Avenue [Transcript of TRO hearing, May 30, 1995, p. 9 ("Transcript")]; that District of Columbia regulations require such a permit [24 DCMR 100.1]; that MPD Capt. Radzilowski informed plaintiff that he must remove his sign back to the Pennsylvania Avenue sidewalk [Transcript, p. 7, 30-31]; that in doing so he cited generally to the authority of D,C. regulations in the D.C. Municipal Regulations, and that plaintiff refused to obey this order, instead questioning the Captain's authority, and that plaintiff was then arrested for failing to obey a lawful police order. [Transcript p. 7, 31. See also District Defendants Statement of Material Facts not in Dispute par. 4,5,9,10.]

Plaintiff asserts that he never disobeyed a lawful police order since Captain Radzilowski had neither a subjective good faith


belief that plaintiff was in violation of a District law nor objective probable cause to arrest him. Plaintiffs Memorandum p. 3,4,6,8-9,10.

Even plaintiff conceded that he refused to obey Captain Radzilowski's order to move his sign assemblage from the street. Transcript, p. 7.Thus, there can be no dispute that the captain had a good faith belief and probable cause to arrest plaintiff for failure to obey a police officer pursuant to 18 DCMR 2000.2 (a criminal offense, see D.C. Code 40-612(19)).

But plaintiff contends the order to move was not a lawful one because (a) the charges were later "no-papered" [Plaintiff opposition at p. 6, 73; (b) Captain Radzilowski didn't then specifically identify the bases for his order to move and just "made up the law" [Plaintiff's opposition at, p. 7,8,22]; (c) the sign assembly was not an "obstruction" or security threat [Plaintiff Opposition at p. 14] and (d) his sign complied with federal regulatory requirements concerning size and construction. [Plaintiff Opposition at p. 13]

None of plaintiff reasons or argument suffice.

The existence of probable cause for an arrest is determined without regard to later disposition of the charges. There may be a myriad of reasons why the charges were dropped or "no papered" including simple exercise of prosecutorial discretion and allocatisn of scarce governmental resources. The disposition of the charges is simply of no consideration in considering the validity of the arrest. District of Columbia v. Grandy, 458 A.2d


414 (D.C. 1983)

It is undisputed that Captain Radzilowski informed plaintiff that he needed a permit, and cited generally to the D.C. Municipal Regulations. Moreover, he hardly "made up the law": 24 DCMR 100.1 establishes a permit requirement for use of public space and 24 DCMR 2001.2 requires a permit to "... place, leave, ... on any public space any obstruction to travel..."[1]

Moreover, not only was there specific authority for Captain Radzlowski's explanation to plaintiff of the permit requirements, plaintiff himself is more than aware of the general existence of permit requirements - and of the potential for arrest for failure to have one. See Plaintiffs Statement of Material Facts in Dispute, par. 44 ("On May 22, 1995 Matteo Fareirra put Thomas' sign on the closed section of Pennsylvania Avenue. Three Secret Service agents threatened to arrest Mr. Fareirra unless he removed the sign from the street." See also Ellen Thomas Declaration, par. 4 to the same effect.

Plaintiff makes much of Captain Radzilowski's testimony at the TRO hearing that he would seek legal counsel "now that it is after the fact" before determining if he "still could" charge plaintiff

[1 Counsel notes that this section was incompletely cited in its initial Memorandum in support of its Motion to Dismiss by reference only to the section, not the chapter of the DCMR, see p. 19, perhaps leading to confusion with provisions of chapter 18 of the DCMR. Counsel apologizes for any confusion that resulted. (See also 24 DCMR 121.1 requiring a permit for any "temporary place of abode in any tent, cart, van...."Fortunately, the parties here need not enter a debate whether his sign assemblage is a "cart" and/or a "temporary abode".) )]


with occupying public space without a permit. Plaintiff argues that this response shows that at both the time of the arrest and even "after the fact" Captain Radzlowski was unaware of his legal authority to order plaintiff to move his sign assemblage. Plaintiff Memorandum at pp. 8-9.

The full discussion, set out below, shows the contrary. Captain Radzilowski confirms he could have arrested plaintiff at the time for his failure to get a permit, but that he was unsure whether he "now" "after the fact" could arrest plaintiff for that prior infraction. The testimony was as follows:

"The Witness (Defendant Radzilowski): "We did not charge him with occupying public space without a permit."
"The Court: But you could have?
"The Witness: Yes, Your Honor.
"The Court: And you still could?
"The Witness: I don't know. I would have to seek legal counsel on that now that it is after the fact ..." Tr. pg. 32.

Rather than showing Captain Radzilowski's lack of subjective good faith, this discussion underscores his careful attention to the bounds of his legal authority. Since the offense was a misdemeanor, the captain correctly chose to be cautious in answering hypothetically whether he could presently arrest plaintiff, for his past conduct, especially if it was not clear whether the court was asking about an arrest without a warrant. See D.C. Code 23-581. The testimony does not support plaintiff's argument.

Plaintiff's mathematical objections to the extent of his obstruction or interference with use of the street are also insufficient. The fact remains that his occupation of the public


space was undertaken without first seeking a permit, no matter how much public,space remained available.

24 DCMR 100.1 which does set criteria for granting a permit, that include considerations of danger to the public and interference with pedestrian or vehicular traffic, nevertheless is concerned with occupation of the public space. There is no doubt that plaintiff and his sign assemblage occupied the public space.

That was the basis for Captain Radzilowski ordering him to move. Transcript of TRO hearing May 30, 1995 at p. 31, 32 42. He also testified that it obstructed the roadway, which needed to be clear for motorcades and public safety vehicles in the event of an emergency. Transcript, p. 30, and therefore a permit would be required under 24 DCMR 2001.2 regarding "obstructors to travel."

Moreover, Plaintiff objection that his sign assemblage is capable of being moved by one person doesn't remove or alleviate the permit requirement or make its placement less of an occupation of public space or less an interference with traffic in the event of an emergency.

As plaintiff's evidence itself reveals, movement of the sign assemblage is "somewhat cumbersome." Ellen Thomas Declaration, par. 6. The issue is not how many people are required to move the structure but the fact that it may need to be moved. [2]

[2 In their Statement of Material Facts Not in Dispute, the District defendants included the fact that two people are required to move it. The number of people required to move the sign assemblage is not material, upon refection: it is the fact that the sign assemblage is not self-locomoting, as are pedestrians (whether carrying signs or merely walking), but must be moved somehow and is "cumbersome" to move.]


Ironically, plaintiff's conduct in this instance only underscores,the interference and obstruction that his occupation of this space with his sign assemblage can cause. No matter how few or many are needed to move the sign assemblage or the degree to which it is cumbersome; plaintiff's conduct reveals that it will not readily be moved if he has anything do with it. Here, he declined to cooperate with an order to move because he was not given a citation to specific statutory authority and a determination from legal counsel that in fact he had to move. Should on emergency arise in which the area must either be cleared for safety or security reasons, or for passage of emergency vehicles, what information will plaintiff demand to ensure his cooperation? and how quickly will he cooperate? Whatever the content of plaintiff's messages on his signs and whatever the number of people required to move the sign assemblage, the government has a significant interest for reasons of public safety, in enduring through a permit system that no use is permitted of the public space that cannot be expeditiously removed when required or that one who is ordered to quickly move does so.

Finally, plaintiff argues that the order he admittedly disobeyed was not lawful since his sign met the federal regulations for the size and construction of signs permitted in Lafayette Park. Plaintiff states that this definition, at 36 CFR 7.96(g), "precisely describes tkie obj ect" the District must show is a "structure" if City is to prevail." Plaintiff's Memorandum at p.



Plaintiff is mistaken. It is District law and regulations, not federal law and regulations, that govern his occupation of the District's public space and his presence with his sign assemblage in District of Columbia streets.

It is simply undisputed that plaintiff (a) refused to obey Captain Radzilowski's order to move his sign assemblage which (b) was occupying public space without a permit. Therefore, as a matter of law, this court must find that Capt. Radzilowski had a good faith belief that plaintiff violated the law and probable cause to arrest him. Dellums v. Powell, 566 F. 2d 167, 175 (D.C. Cir. 1977) (Cert. den. 438 U.S. 916 (1978).

In his pleadings, plaintiff presents a section suggesting his arrest also violated his Fifth Amendment rights to due process since Captain Radzilowski was "making up the law." Plaintiff's Memorandum at p.22. However, plaintiff has pled no such violation in his complaint, and thus this argument need not be considered by the court . While the plaintiff proceeds Dro se, he has had substantial exposure to and participation in the legal process and should be required to properly plead the claim. However, should the court allow plaintiff some latitude in this regard, the Fifth Amendment claims set out in the pleadings must be dismissed not only due to the failure to articulate the deprivation claimed, but also because, as shown in the section above, the arrest was made pursuant to valid regulations of the District of Columbia, and thus plaintiff had ample notice to provide due process.


Plaintiff has set out a Bivens claim, suggesting violation of 42 USC 1983, 1985. However he has not asserted any damages as a result and these claims must be dismissed for that reason as well as for the same reasons the corresponding alleged constitutional violations must be dismissed.

First Amendment

Thomas was arrested for failure to obey a lawful police order that he move his sign assemblage occupying public space for which he did not have a permit. See 18 DCMR 2001.2 and 24 DCMR 100.1 3 Taken together or separately, these regulations pass muster a acceptable time, place, and manner restrictions. They are content neutral, narrowly tailored, serve a significant government interest and leave open ample alternative means of communication. Forsyth Countv v. Nationalist Movement 112 S.Ct. 2395, 2407 (1992); Ward v. Rock Aqainst Racism 491 U.S. 781, 791 (1989); Clark v. CCNV 468 U.S. 288, 293 (1984).

Plaintiff does not challenge at all that the regulations are content neutral or that there are ample alternative means of communication. The thrust of his objection appears to be that the regulations violate the First Amendment because they are not "narrowly tailored to serve a significant government interest." Plaintiff make much of the fact that his sign assemblage took up but a small portion of Pennsylvania Avenue, leaving ample

[3 Plaintiff arguably also violated 24 DCMR 2001.2 (leaving on obstruction to travel in public space without a permit) and perhaps 24 DCMR 121.1 (maintaining a temporary place of abode without a permit) as well.]


alternative means for travel available. He further suggests that the legitimate government interest in both presidential security and in traffic safety and regulation is sufficient to prevent his occupation of Pennsylvania Avenue with his sign. But plaintiff misses the mark.

The Court of Appeals in this circuit has upheld.the District's general permit system as a legitimate time, place, and mannes restriction (even when holding that denial of a particular permit was content based and thus impermissible). Christian KniGhts of the KKK v. D.C. 972 F.2d 365 (D.C. Cir. 1992) There the District sought to shorten the parade route for a KKK march, due largely to fears that the marchers message would provoke violent reaction from on-lookers. The court struck down the permit amendment as based on the content of the speech, but upheld use of a permit system for regulation of First Amendment activities. Id at 372. The permit system here is not overly broad but is narrowly tailored to serving the government' s interests without ensuring public safety and availability of the streets to free flow of traffic, whether that be resular traffic flow in most areas, or the need to ensure immediate access and availability for Presidential motorcades and access or emergency vehicles to the area. That significant government interest is substantially heightened because the street area in question provides access to the President and upper level members of the Executive Branch of the federal government. Importantly, 24 DCMR 100.1 sets out clear criteria for application and does not give unfettered discretion to elected or


administrative personnel as criticized in Forsvth Countv v. Nationalist Movement 112 s. Ct. 2395 (sliding fee permit system with no articulated standards gives too much discretion to administrator) or City of Lakewood v. Plain Dealer 108 S.Ct. 2138 (absolute mayoral discretion, without criteria, on granting permit to place newsrack on public space too broad.)

As a matter of law defendants have shown that the regulations underlying plaintiff's arrest are legitimate time, place and manner restriction and therefore, plaintiff's First Amendment claims against these defendants ought to be dismissed or in the alternative, summary judgement granted to them.

For the reasons states above and in District defendants Memorandums in support of their Motion to Dismiss or in the Alternative for Summary Judgement, the claims against these District defendants ouqht to be dismissed or in the alternative summary judgement granted to them.

Respectfully submitted,

Corporation Counsel, D.C.
Deputy Corporation counsel, D.C.
Civil Division
Chief Major Case Section

BRUCE [280461]
Assistant Corporation Counsel, D.C.
Attorney for Defendants
441 4th Street, N.W.,
Suite 6-S-101
Washington, D.C. 20001



I hereby certify that a copy of the foregoing Defendant's Reply to Plaintiff's Statement of Material Facts In Dispute was mailed, first class postage pre-paid this 23rd day of August 1995 to:

William Thomas, Pro Se
2817 llth Street, N.W.
Washington, D.C. 20001

Marina Broswell
Asst. U.S. Attorney
555 4th Street, N.W.
l0th Floor
Washington, D.C. 20001

Assistant Corporation Counsel, D.C.