Memorandum

A. THE APPLICABLE LEGAL STANDARDS

Plaintiff begins from the assumption that the sole justification of the judicial system stems from it's role as a fact-finding mechanism, empowered for the purpose of developing evidence to the end that truth may be ascertained and proceedings may be justly determined. Fed. R. Evid. 102. Upon this assumption plaintiff believes the Court will arrive at the logical conclusion that it should test the facts in this case.

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1. MOTION TO DISMISS

When presented with a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and its allegations must be taken as true. Moreover, any ambiguities or uncertainties concerning the sufficiency of the claims must be resolved in favor of the plaintiff. See Hughes v. Rowe, 449 U.S. 5, 10 (1980); Scheuer v. Rhodes, 416 U.S. 232, 236 (1979); see also Wright C Miller, Federal Practice and Procedure 6 1357 (1969). As the Supreme Court has stated, in appraising the sufficiency of the complaint,

"We follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45 (1957) (footnote omitted).

Thus, Plaintiffs' Statement of Facts as to Which there Exist Genuine Material Issues ("Pl's Facts"), filed this date, should be accepted as true.

2. MOTION FOR SUMMARY JUDGMENT

On a Motion for Summary Judgment, Rule 56 requires,

"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

In reviewing a motion for summary judgment, the court must consider the pleadings, related documents, and evidence in a light most favorable to the non-moving party. Adickes v. Kress C Co., 398 U.S. 144 (1970).

Summary judgment is appropriate "even in the face of some factual disputes, where the undisputed facts demonstrate that one party is entitled to judgment as a

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matter of law..." Esser v. Phillips, 710 F.2d 292, 296-97 (7th Cir.), cert. denied, 464 U.S. 918 (1983) (citations omitted). Summary judgment is inappropriate, however, "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986).

B. PLAINTIFF'S ARREST
1. FACTS

There aren't many facts in dispute as to the arrest. Contrary to defendants' representations, however, those facts preclude defendants' instant motions.

The essential facts are, (1) plaintiff had a sign, and, (2) with the explicit intention of communicating on issues of broad public concern, (3) plaintiff placed the sign in an area "closed to vehicular traffic," but open to the general public, which (4) impelled defendant Radzilowski to cause plaintiff's arrest, under color of a "failure to obey a police officer," (5) thereby terminating the exercise of plaintiffs' communicative activities, and finally (6) defendant's baseless charge was dismissed. Plaintiff's Statement of Facts as to Which There Exist Genuine Material Issues ¶¶ 23-44, ("Pl's Facts"), see also, Pl's Exhibit 12.

2. FACTUAL SUBTERFUGE?
(a) "Good Faith"

Seeking to establish defendant Radzilowski's "good faith," counsel's argumentation mistakenly fails to consider the quintessential fact that the Corporation Counsel threw the baseless charge out of court. Pl's Exhibit 12.

"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.

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In other words, counsel must show "that the arresting officer had reasonable grounds to believe a crime had been committed and that plaintiff's arrest was made for the purpose of securing the administration of the law." Dellums v. Powell, 566 F.2d 167, 175, emphasis added. [1]

The Court must grant defendant's perception great weight. Safeway Stores v. Kelly, 448 A.2d 856, 862. As counsel perceives it, the fate of the earth literally hangs upon defendants' actions, i.e.,

"At stake is not merely the safety of one man, but also the ability of the executive branch to function in an orderly fashion and the capacity of the United States to respond to threats and crises affecting the entire free world." Fed. Defts' Memo, pg. 10, compare, infra, Cosmic Motives.[2]

Under the facts of this case, from counsel's perspective, the Court is forced to believe the hairline positioning of plaintiff's "structure" was so crucial to the welfare of the "free world" that the Captain "sincerely believed" he just didn't have time to inform plaintiff he was violating D.C.M.R. 100.1, or identify anything plaintiff was obstructing, much less to call the Corporation Counsel to make sure plaintiff's arrest wasn't just an abuse of process that would ultimately, and at great expense to plaintiff, be pitched out of Court, creating an appearance of wrong-doing sufficient to bring the instant


[1 In a herculean attempt to rise to this formidable challenge, counsel, with nothing to work with save the groundless insistence that plaintiff actually violated the regulation, ignores the fact that the case was thrown out of court, and pads D.C. Deft's Memo (pgs. 18, 19) with ex post facto insinuations that plaintiff additionally violated other D.C.M.R. provisions, at least equally inapplicable to the issue at hand.]
[2 Fact, hyperbole, paranoia? These are questions for a jury. In fairness, plaintiffs note, this unlikely perspective may be gaining popularity. See, Plaintiff's Notice of Related Case, filed this date.]

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matter to it's present position.. SEE Thomas Declaration ¶¶ 1-5.

But, it would be an error to overlook a few glitches in defendant's picture of sincerity. First, the video tape (Exhibit V.T.) shows defendant had ample time to chat on his radio; and repeatedly decline to cite any "purpose (for) securing the administration (of any specific) law." Although the Captain was too busy to call the Corporation Counsel to make sure that arresting plaintiff wouldn't be violating the law, with the knowing, or culpably ignorant, intent to desecrate the most sacred ideas of free thought and expression, [3] defendant only paused to kindly advise that plaintiff consult his own attorney to ascertain why defendant was threatening to arrest him. [4]

Second, four days after the arrest, defendant Radzilowski clarified that he "did not charge (Thomas) with occupying public space without a permit." Tr. pg. 32, line 16. The Captain still didn't know if he was authorized by law to issue the "order," and admitted he "would have to seek legal counsel on that now that it is after the fact. But


[3 No piddling matter, this. How large the ocean of precious blood shed by government in the profession of securing these cornerstones of a free and democratic nation? On a more mundane plain, how many dollars and cents have been offered up to pay for the machinery and people power needed to shed all that blood?]
[4 Defendant's touching before the fact kindness, however, cannot be considered atonement for the interruption caused to plaintiff's life work, not to mention the public humiliation, physical discomfort, and waste of precious time suffered as a direct and proximate result of defendant, under the pretext of legal authority, thoughtlessly or maliciously (NOTE) initiating the grinding process wherein plaintiff was carried, like a slab of dead meat, tossed into a police vehicle, imprisoned, treated like a criminal, and required to spend practically a full working day resolving the legal ramifications of accruing to defendant's abuse of process. Pl's Facts ¶ 33.

NOTE "Malice ... imports ... the presence of ... an actual intent to cause the particular harm which is produced or harm of the same nature." United States v. Thomas, 557 A.2d 1296, 1299 (Dist. Col. 1989) ]

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... did not." Tr. pg. 32, lines 21, 22.

Defendant has yet to articulate a rational basis to claim that he was "acting sincerely (or) with a belief that he is doing right." Strickland, supra, see also, Pl's Facts ¶ 26, 30-32

Third, Captain Radzilowski swore,

"there can be people in the street carrying signs. We don't have a problem with that, because they can get out of the street very quickly. The problem was this large structure that Mr. Thomas had." Tr. pg. 33.

In actuality it can be seen defendant did have a problem with a person carrying signs in the street, a person who "g(o)t out of the street very quickly," after being threatened by defendant. Pl's Facts ¶¶ 39, 40; Exhibit V.T., Segment 9, @ 8m 58s,

(i). A Couple of Genuine Issues

The question of why defendant would threaten to arrest a person, even though he didn't "have a problem," embodies a genuine issue of credibility.

Counsel's "after the fact" regulatory alternatives aside (Tr. pg. 32, line 22), the simple question of defendant's animus in arresting plaintiff, at the time recorded in Pl's Exhibit V.T., is ripe for a jury.

Defendant "must do more than simply show there is some metaphysical doubt as to the material facts." Frito-Lay v. Willoughby, 863 F.2d 1029, 1034.

(b). Actual Reality

Plaintiff agrees, "the Metropolitan Police Department has a duty to keep the streets and sidewalks open for the free movement of vehicular and pedestrian traffic." D.C. Deft's Memo pg. 20. But, defendants concede,

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"The police must direct and control demonstrators only to an extent sufficient to protect legitimate state interests, which in this case is the free circulation of traffic." Wash. Mobilization Comm., 566 F.2d at 116. D.C. Deft's Memo pg. 21.

In reality, the facts here show the area "was closed to vehicular traffic," and there is no hint of "pedestrian obstruction." Defendants are certainly free to talk about "emergencies." See, generally, Defendants' pleadings. The Rules, however, require that the Court must also consider the facts. In this case, the facts leave no doubt, there was no emergency. See, Exhibit V.T., segment 9, Declaration of Ellen Thomas, generally; Thomas Declaration ¶¶ 1-5. Whether or not a jury would believe that defendant's "emergency" stories were reasonable is another genuine issue.

(i). A LAWFUL ORDER?

D.C. Defendant's most troublesome problem is the requirement that a "person shall fail or refuse to comply with any LAWFUL order..." D.C. Deft's Memo, pg. 16, EMPHASIS added. Defendants cannot reasonably prevail on their instant motions, unless plaintiff is guilty of failing to obey a lawful order.

It is axiomatic that a person is innocent until proven guilty. In District of Columbia v. Thomas, D 02107 95, defendants have had one healthy bite at the apple of establishing plaintiff's guilt, and -- after subjecting plaintiff to rude, abusive treatment -- failed. Pl's Exhibit 12.

With defendant's arguments and insinuations that plaintiff was guilty of violating any D.C. traffic regulation barred by res judicata and collateral estoppel, [5]


[5 With all due respect to prosecutorial discretion, while defendants certainly don't have to prosecute everybody who goes through a red light, it is at least inappropriate (if not violative of plaintiff's Fifth Amendment protection from double jeopardy) for defendants to invoke process against plaintiff in a criminal action, fall short of a conviction, then argue in a civil suit that plaintiff was really guilty anyway. ]

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the Court may turn its attention to the question of whether Captain Radzilowski could reasonably entertain a "sincere ... belie(f) he was doing right,"