UNITED STATES DISTRICT COURT
DC Defendant's Reply to Plaintiff's Opposition to..Summary Judgment
FOR THE DISTRICT OF COLUMBIA
William Thomas, et. al. |
Plaintiffs pro se, |
v. | C.A. No. 95-1018
| Judge Charles R. Richey
The United States, et. al. |
DISTRICT OF COLUMBIA DEFENDANTS' REPLY TO PLAINTIFF'S OPPOSITION TO DISTRICT OF COLUMBIA'S MOTION FOR SUMMARY JUDGEMENT
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-
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.
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:
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.
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)
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.
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..."
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
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
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. 
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.
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.
CHARLES F. C. RUFF
Corporation Counsel, D.C.
MARTIN L. GROSSMAN
Deputy Corporation counsel, D.C.
WILLAM J. EARL
Chief Major Case Section
Assistant Corporation Counsel, D.C.
Attorney for Defendants
441 4th Street, N.W.,
Washington, D.C. 20001
CERTIFICATE OF SERVICE
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
William Thomas, Pro SeBRUCE BRENNAN
2817 llth Street, N.W.
Washington, D.C. 20001
Asst. U.S. Attorney
555 4th Street, N.W.
Washington, D.C. 20001
Assistant Corporation Counsel, D.C.