MARY HUDDLE and PHILIP JOSEPH, et. al., )
)
Plaintiffs, Pro Se )
) CA 88-3130-JHG
versus )
) Judge Joyce Hens Green
RONALD WILSON REAGAN, et. al., )
________________________________________)
In the interests of equal protection before the law, efficiency, economy, and justice, plaintiff moves this Court to enjoin further prosecution in USA v. Philip Joseph, USDC Cr. 87-243 until the Court has determined whether 36 CFR 7.96(i)(1), as alleged by the Complaint in this matter, has been applied as a component in an impermissible scheme intended to suppress plaintiff's religious and communicative practices.
The basis for this motion is more fully explained in an accompanying Memorandum of Points and Authorities.
For the Court's convenience a proposed ORDER is attached.
Respectfully submitted this 30th day of November, l988,
_____________________________
Philip Joseph,
Plaintiff, Pro Se
P.O. Box 27217
Washington, D.C. 20038
_____________________________
David Niblack, Esq.
419 Seventh Street, N.W.
Washington, D.C. 20004
(202) 393-0123
INTRODUCTION
In criminal action USA v. Joseph, USDC Cr. 87-243, presently pending before this Court, plaintiff (there defendant) Philip Joseph has filed motions to dismiss the charge against him on various grounds. SEE, Motion to Dismiss, USA v. Joseph, USDC Cr. 87-243, filed November 30, 1988. A defense motion to dismiss CR. No. 88-243 on grounds of selective and/or malicious prosecution would also be within the realm of possibility. However, as discussed below, plaintiff believes that judicial expediency and justice can only be well served by resolving the issue of selective enforcement in this civil proceeding rather than in the pending criminal matter.
Plaintiff submits that by taking the allegations of the Complaint and Amended Complaint as true -- which would be appropriate at this point -- 36 CFR 7.96(i)(1), the regulation under which Mr. Joseph is charged, stands exposed as one component in a regulatory scheme which was designed and applied as an impermissible effort to disrupt, suppress, or terminate plaintiff's constitutionally protected activities, and subject him to criminal prosecution under color of criminal "camping."
Viewed in this light plaintiff's criminal prosecution must be seen as persecution for the exercise of socially beneficial, Constitutionally protected activity -- under color of a regulation born of a conspiracy embracing criminal actions -- in the guise of "due process": a situation which, if proven, threatens the right of plaintiff and every citizen of the United States to
When the Supreme Court considered Constitutional questions regarding 36 CFR 7.96(i)(1) -- formerly codified as 36 CFR 50.27(a)-- Justice Brennan's dissent noted a "substantial (but minimally scrutinized) possibility" of questionable impetus:
"There are facts in this case that raise a substantial possibility that the impetus behind this revision may have derived less from concerns about wear and tear on parks, than from other more `political' concerns.... (M)y intention is to illustrate concretely that Government agencies by their very nature are driven to overregulate public forums to the detriment of First Amendment rights, that facial viewpoint-neutrality is no shield against unnecessary restrictions on unpopular ideas or modes of expression, and that in this case in particular there was evidence readily available that should have impelled the Court to subject Government's restrictive policy to something more than minimal scrutiny." CCNV v. Clark, U.S. S. Ct. slip opinion 82-1998, June 29, 1984, dissent at pages 14-16.
The Constitution's First Amendment guarantees free speech and expression. Yet it has been agreed that the Government may adopt `reasonable time, place, and manner' restrictions.
Under the established test four elements must be satisfied:
(1) the regulation must not be intended to suppress expression
and must not distinguish between subject matters or viewpoints;
(2) it must serve a significant interest; (3) it must be narrowly
tailored; and (4) it must leave open ample alternative channels
of communications. SEE, United States v. O'Brien, 391
U.S. 368 (1968)
Plaintiff humbly submits that if it reasonably appears a regulation was intended to suppress expression there is no ground upon which a Court need question further.
"For example, in evaluating the ordinance before us in this case, the city might be pursuing either of two objectives, motivated by two very different judgments. One
objective might be the elimination of `visual clutter,' attributable in whole or in part to signs posted on public property. The aesthetic judgment underlying this objective would be that the clutter created by these signs offends the community's desire for an orderly, visually-pleasing environment. A second objective might simply be the elimination of the messages typically carried by the signs. In that case the aesthetic judgment would be that the signs' messages are themselves displeasing. The first objective is lawful, of course, but the second is not. THE (GOVERNMENT) MIGHT EASILY MASK THE SECOND OBJECTIVE BY ASSERTING THE FIRST AND DECLARING THAT SIGNS CONSTITUTE VISUAL CLUTTER. IN SHORT, WE MUST AVOID UNQUESTIONED ACCEPTANCE OF THE CITY'S BARE DECLARATION OF AN AESTHETIC OBJECTIVE LEST WE FAIL IN OUR DUTY TO PREVENT UNLAWFUL TRESPASSES UPON FIRST AMENDMENT PROTECTION." City Council v. Taxpayers for Vincent, 104 S.Ct. 2139 (1984), EMPHASIS ADDED.
On the occasion of one arrest Judge Charles Richey dismissed "camping" charges and noted:
"The Government stated that it had 'no interest in prohibiting any of these defendants from sleeping in the park' and that its only interest in this case was in 'enforcing the regulations' at issue." United States v. Thomas, CR 87-62, Order, filed April 23, 1987, at page 2, J. Richey, emphasis in the original. SEE Plaintiff's Exhibit 1, hereto.
The criminal prosecution pending against plaintiff Joseph is not an isolated incident. Although Joseph has been convicted on one occasion for allegedly violating the "camping" regulation, there have been quite a few other prosecutions in this district, charging nearly identical circumstances, which have resulted in acquittals (e.g.US v. Picciotto, Cr. No. 83-187, J. Oberdorfer, US v. Casimer Urban Cr. No. 84-_____, J. Johnson, US v. Thomas, et al, Cr. No 84-255, J. J.H. Green, US v. Sanchez, Cr. No. 88-239, J. Johnson). What appears is that there is no clear consensus among various courts as to what constitutes a violation.
The proposed Temporary Restraining Order filed in this case on November 23, 1988 addresses the precise issues of fact which
Instead of agreeing to such definitions the government has chosen to subject Joseph to criminal prosecution. As Judge Oberdorfer once pointed out, a civil litigation is the civilized method of resolution.
"The idea (should be) to have these problems resolved in a sort of civilized way, instead of having police swoop down on people and put them in paddywagons and take them to the station and then have them tried in a criminal way, where they are fingerprinted and mugged and, if they are guilty, go to jail...." USA v. Thomas, USDC Cr. No. 83-186, December 21, 1983, Tr. pg. ___.
The Court may readily perceive that the question presented here falls within that category of harm "capable of repetition, yet evading review."
"(T)he threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, and threats of prosecution under color of the statutes, to harass appellants and discourage them and their supporters from asserting and attempting to vindicate...Constitutional rights...." Dombrowske v. Pfister, 380 U.S. 482 (1965).
In the past (supra, page 3), the Government has acknowledged that "its only interest in this case was in 'enforcing the regulations at issue.'" Plaintiff asserts that the government will not be able to provide a more compelling "interest" at this moment either.
In the instant matter "the threat to the plaintiff's federally protected rights (is surely) one that cannot be eliminated by (their) defense against a single criminal prosecution":
"(T)he allegations in this complaint depict a situation in which defense of the state's criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court's disposition and ultimate review in this court of any adverse determination. These allegations, if true, clearly show irreparable injury." Dombrowski v. Pfister, 380 U.S. 485-486.
Plaintiff recognizes it is a longstanding policy that:
"Courts of equity should not ... act to restrain a criminal prosecution when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Younger v. Harris, 401 U.S. 44 (1970).
In the forum of a criminal prosecution, where the government will seek to limit testimony and evidence to September 5, 1988, and to deny Mr. Joseph access to documents in the government's possession which would relate to a claim that the regulation is not being legitimately applied, but is part and parcel of a "regulatory scheme" intended to color "protected" activity as "criminal," the plaintiff's rights cannot be adequately protected, and resolution of plaintiff's civil claim would necessitate duplication of legal proceedings.
"Restraining equity jurisdiction within narrow limits is ... important under our Constitution in order to avoid a duplication of legal proceedings and legal sanctions where a single suit would be adequate to protect the rights asserted." Younger v. Harris 401 U.S. 44 (1970).
As it happens the Court already presides in both the criminal and civil actions involved in this matter.
"It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot ... avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, whatever difficulties a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution.
Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is exercise our best judgment, and conscientiously perform our duty." Ex parte Young, 209 U.S. 143 (1907), quoting C.J. Marshall in Cohens v. Virginia, 6 Wheat. 264, 404.
Before determining whether plaintiff Joseph is "criminal" under this regulation, this Court should squarely resolve the question of whether the regulation was "criminal" in the first instance.
If the allegations of the Complaint and Amended Complaint are true then the rights asserted certainly cannot be adequately protected in a single criminal prosecution.
Respectfully submitted this 30th day of November, l988,
_____________________________
Philip Joseph,
Plaintiff, Pro Se
P.O. Box 27217
Washington, D.C. 20038
_____________________________
David Niblack, Esq.
419 Seventh Street, N.W.
Washington, D.C. 20004
(202) 393-0123
I, William Thomas, hereby certify that, on this ____ day of November, 1988, I served a copy of the foregoing Motion to Stay Ongoing Criminal Prosecution, by hand-delivering it to the office Assistant United States Attorney Michael Martinez, at 555 4th Street, N.W., Washington, D.C. 20001.
________________________
William Thomas
MARY HUDDLE and PHILIP JOSEPH, et. al., )
)
Plaintiffs, Pro Se )
) CA 88-3130-JHG
versus )
) Judge Joyce Hens Green
RONALD WILSON REAGAN, et. al., )
________________________________________)
Upon consideration of plaintiff's Motion to Stay Ongoing Criminal Proceedings in the matter Of United States v. Philip Joseph, USDC CR. No. 88-243, and any opposition thereto it is, this ___ day of __________________, 1988 hereby
ORDERED that the criminal proceedings in United States v. Philip Joseph, USDC CR. No. 88-243 be and hereby are stayed pending resolution of civil action USDC CA. No. 88-3130.
____________________________________
Joyce Hens Green
UNITED STATES DISTRICT COURT JUDGE
COPIES OF THIS ORDER TO:
AUSA Thimi Mina
Judciary Square
555 4th Street, N.W.
Washington, D.C. 20001
AUSA Michael Martinez
Judciary Square
555 4th Street, N.W.
Washington, D.C. 20001