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
5
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.
6
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,"