Professional Documents
Culture Documents
8
9
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12
13
14 ROBERT ROSEBROCK, ) Case No. CV10-01878-SJO (SSx)
)
15 Plaintiff, )
)
16 vs. ) PLAINTIFF’S NOTICE OF MOTION
) AND MOTION FOR SUMMARY
17 DONNA BEITER, DIRECTOR OF ) JUDGMENT
THE VETERANS )
18 ADMINISTRATION GREATER )
LOS ANGELES HEALTHCARE )
19 SYSTEM, in her official capacity; )
RONALD MATHIS, CHIEF OF )
20 POLICE OF THE VETERANS ) Motion for Summary Judgment
ADMINISTRATION GREATER ) Filed: October 25, 2010
21 LOS ANGELES HEALTHCARE )
SYSTEM, in his official capacity. ) Hearing Date: November 15, 2010
22 ) Time: 10:00 a.m.
Defendants. ) Courtroom: 1
23 ______________________________ )
24
25
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9
10
11 UNITED STATES DISTRICT COURT
12 CENTRAL DISTRICT OF CALIFORNIA
13
14
15 ROBERT ROSEBROCK, ) Case No. CV10-01878-SJO (SSx)
)
16 Plaintiff, )
)
17 vs. ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF
18 DONNA BEITER, DIRECTOR OF ) PLAINTIFF’S MOTION FOR
THE VETERANS ) SUMMARY JUDGMENT
19 ADMINISTRATION GREATER )
LOS ANGELES HEALTHCARE )
20 SYSTEM, in her official capacity; ) Complaint Filed: March 16, 2010
RONALD MATHIS, CHIEF OF ) The Honorable S. James Otero
21 POLICE OF THE VETERANS )
ADMINISTRATION GREATER )
22 LOS ANGELES HEALTHCARE ) Motion for Summary Judgment
SYSTEM, in his official capacity. ) Filed: October 25, 2010
23 )
Defendants. ) Hearing Date: November 15, 2010
24 ______________________________ ) Time: 10:00 a.m.
Courtroom: 1
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Case 2:10-cv-01878-SJO-SS Document 37-1 Filed 10/25/10 Page 2 of 27 Page ID #:351
1
2 TABLE OF CONTENTS
3 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
4 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6 A. The Proposed Public Park. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
7 B. Plaintiff Disagrees with VA’s Plan for a Proposed
8 Public Park. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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1 TABLE OF AUTHORITIES
2 FEDERAL CASES
Page(s)
3 ACLU v. City of Las Vegas,
333 F.3d 1092 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 20
4
Amoco Prod. Co. v. Village of Gambell,
5 480 U.S. 531 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6 Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7
Ark. Education TV Commission v. Forbes,
8 523 U.S. 666 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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10 Maceira v. Pagan,
649 F.2d 8 (1st Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11 Mills v. District of Columbia,
12 571 F.3d 1304 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Missouri v. Jenkins,
13 515 U.S. 70 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
14 Monsanto Co. v. Geertson Seed Farms,
130 S. Ct. 2743 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
15
NAACP Legal Defense and Education Fund v. Horner,
16 636 F. Supp. 762 (D.D.C. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17 Newsom v. Albermarle County Sch. Board,
354 F.3d 249 (4th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
18
Nuxoll v. India Prairie Sch. District,
19 523 F.3d 668 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
20 Pac. Frontier v. Pleasant Grove,
414 F.3d 1221 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
21
Planned Parenthood v. Citizens for Community Action,
22 558 F.2d 861 (8th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
23 Police Department of Chicago v. Mosley,
408 U.S. 92 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15
24
R.A.V. v. City of St. Paul,
25 505 U.S. 377 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 18, 20
26 R.G. v. Koller,
415 F. Supp. 2d 1129 (D. Haw. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
27
28
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7 Scott v. Roberts,
612 F.3d 1279 (11th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8 Starkey v. County of San Diego,
9 346 Fed. Appx. 146, 149 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10 Stilp v. Contino,
613 F.3d 405 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11 Texas v. Johnson,
12 491 U.S. 397 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Truth v. Kent School District,
13 551 F.3d 850 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
14 Tucker v. City of Fairfield,
398 F.3d 457 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15
Tucker v. Department of Education,
16 97 F.3d 1204 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
17 United States v. Grace,
461 U.S. 171 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
18
United States v. Playboy Entertainment Group,
19 529 U.S. 803 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
20 University of Texas v. Camenisch,
451 U.S. 390 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
21
Ward v. Rock Against Racism,
22 491 U.S. 781 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
23
STATUTES AND REGULATIONS
24
25 4 U.S.C. § 8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
26 38 C.F.R. § 1.218(a)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 12, 13, 20
27 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
28
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1 OTHER AUTHORITIES
2 Paul Finkelman, Bondage, Freedom, & The Constitution,
17 Cardozo L. Rev. 1793, 1826 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3
Kenneth L. Karst, Equality as a Central Principle in the First Amendment,
4 43 U. Chi. L. Rev. 20, 29 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5 Douglas Laycock, The Death of the Irreparable Injury Rule,
103 Harv. L. Rev. 687, 708-709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6
William Manchester, The Glory and the Dream: A Narrative History of
7 America, 1932-1972, 561 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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1 INTRODUCTION
2 This case involves federal officials who have misused their authority by
3 engaging in viewpoint discrimination against Plaintiff Robert Rosebrock, a
4 68-year-old veteran. The undisputed evidence demonstrates that Defendants have
5 repeatedly barred Mr. Rosebrock from hanging a United States flag union down on
6 the fence of the VAGLAHS complex while permitting him - every week for 66
7 weeks - to display the United States flag union up in precisely the same location.
8 The undisputed evidence - and Ninth Circuit case law -- also demonstrate that Mr.
10 flag union up from the one he was expressing when he displayed it union down.
12 different United States flag displays constitutes action forbidden by the First
Amendment: the suppression of a political viewpoint the government disfavors.
13
In opposition to Plaintiff's Motion for a Preliminary Injunction Defendants
14
argued that there was no viewpoint discrimination because the regulation the VA
15
police were purporting to enforce was viewpoint neutral. This argument
16
miscronstrues the nature of Plaintiff's claim. Plaintiff is not challenging the VA
17
regulations. He is challenging the VA's 66 week pattern of ignoring its regulations
18
when Mr. Rosebrock was hanging the American flag in the traditional manner on
19
VA property, and the VA’s subsequent vigorous enforcement of its regulations
20
only when Mr. Rosebrock began to hang the flag union down.
21
In opposition to Plaintiff's Motion for a Preliminary Injunction Defendants
22
argued that there was no viewpoint discrimination because Mr. Rosebrock
23
displayed his flag in the traditional manner and union side down in the context of
24
protests against VA policies. This argument also misconstrues what this case is
25
about. Displaying the flag in the traditional manner no more communicates the
26
same viewpoint as displaying it union side down than a “F**CK THE DRAFT”
27
sign conveys the same message as a sign with a peace symbol on it, even if both
28
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1 signs were carried in a march against the Vietnam War. In other words, this case is
2 not about whether the VA allowed Mr. Rosebrock to protest its policies; it is about
3 whether the VA permitted him to express two different messages by hanging the
4 American flag in two different ways on the VA fence. The undisputed evidence
5 shows the VA allowed one and barred the other.
6 Finally, in opposition to Plaintiff's Motion for a Preliminary Injunction
8 could display the American flag union down nearby, by carrying it on the sidewalk
11 alternative forum close by to express his viewpoint. The Supreme Court, the Ninth
12 Circuit, and every other federal circuit court of appeals that has addressed the
question - has held that a First Amendment violation is irreparable injury.
13
STATEMENT OF FACTS
14
A. The Proposed Public Park.
15
The Veterans Home/VAGLAHS contains a large grass lawn on its property.
16
One entrance to the grass lawn, which the VA wants to convert to a public park, is
17
located at the intersection of San Vicente and Wilshire Boulevards. Undisputed
18
Fact (“UF”) 1. There is a locked fence at the entrance that is set back 50 feet from
19
the intersection. The public walkway in front of the fence separates the grass lawn
20
from the sidewalk. UF 2. Many widely-spaced concrete posts separate the public
21
walkway from the public sidewalk. The concrete posts are posted so far apart from
22
each other that pedestrians or bicyclists crossing can freely cross from the sidewalk
23
to the public walkway. UF 3.
24
B. Plaintiff Disagrees with VA’s Plan for a Proposed Public Park.
25
Beginning March 9, 2008, Mr. Rosebrock and a number of elderly veterans,
26
have demonstrated outside the locked fence of the grass lawn to draw public
27
attention to their cause. UF 4. They demonstrate every Sunday for 3-4 hours. UF
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1 5. Mr. Rosebrock disagrees with VAGLAHS’s refusal to develop the grass lawn
2 into a shelter for homeless veterans or otherwise use the land for the shelter and
3 care of veterans because he believes the grass lawn was specifically deeded in 1888
4 to the United States as a home for disabled veterans. UF 6.
5 C. Plaintiff Hangs the United States Flag Union Up to Convey a
Particular Viewpoint.
6
As part of the weekly protests, Mr. Rosebrock hung the American flag with
7
the union up, along with a POW/MIA banner on the VA fence. Mr. Rosebrock
8 chose to hang the American flag union up to express a specific message: “I was
9 expressing the message that I believe[d] almost everyone perceives when they see
10 the flag displayed [union up] – a message of patriotism.” He hung the flag union
11 up to declare that despite his disagreement with VA, he was a “proud and patriotic”
12 American. Also, he wanted “to express a message of honor and support for
13 America’s military” by hanging the flag alongside the POW flag. UF 7.
14 He had hung the United States flag and the banners for several months
15 without any complaint from VAGLAHS until November 30, 2008, when Sergeant
16 Webb of the VA police approached Mr. Rosebrock and asked him to remove the
17 armed forces banner and Vietnam Unit flag, which were hanging alongside the
18 American and POW flags. UF 11. However, Sergeant Webb told Mr. Rosebrock
19 that he was permitted to hang the United States and POW flags on the fence. Id.
20 Mr. Rosebrock obeyed Sergeant Webb’s request. Id. Earlier in the year, Sergeant
21 Webb had also informed Mr. Rosebrock that he would not be permitted to hang any
22 flags on fence except the US and POW flag. UF 12.
23 After the November 30, 2008 encounter, Mr. Rosebrock did not have any
24 other interactions with the VA police for several months, during which he hung
25 only the United States flag – union up – and the POW/MIA banner on the fence
26 outside the great lawn. In fact, Mr. Rosebrock hung the United States flag union
27 up as a part of his protest for 66 weeks – more than fifteen months – without any
28 interference from VA employees. UF 13.
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10 citations mention that Mr. Rosebrock hung the American flag union down. During
11 the time he was cited, he only hung the American flag union side down. UF 20.
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1 down – to express once again his belief that the land deeded to the veterans’ use
2 was in danger. VA police officers demanded that Mr. Rosebrock remove the flags.
3 After he refused to take the flags down, VA police removed them. UF 24.
4 H. VAGLAHS’s Policies Punishing Mr. Rosebrock for Hanging the
United States Flag Union Down Have Chilled His Speech.
5 Mr. Rosebrock wants to continue demonstrating against VAGLAHS by
6 hanging the American flag union down on the fence. He will not do so, however,
7 because of the VA’s pattern of citing him, or ordering him to remove his flags , if
8 he hangs the American flag union down. Because hanging the US flag union down
10 continued interference with this display of the flag interferes with his message that
11 VA’s use of the land for purposes unrelated to the shelter and care of veterans
12 endangers both the veterans’ land and the veterans in need. UF 25.
LEGAL STANDARDS
13
I. SUMMARY JUDGMENT
14
If there is no genuine issue as to any material fact, the moving party is
15
entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Ass’n of
16
Christian Schs. Int’l v. Stearns, 679 F. Supp. 2d 1083, 1090-1091 (C.D. Cal. 2008)
17
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). A “material” fact is
18
one that could affect the outcome of the case, and an issue of material fact is
19
“genuine” if “the evidence is such that a reasonable jury could return a verdict for
20
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
21
The Court “construes the evidence in the light most favorable to the nonmoving
22
party.” Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005).
23
II. PERMANENT INJUNCTIVE RELIEF
24
For a plaintiff who has prevailed on the merits to obtain a permanent
25
injunction, he “must demonstrate: (1) that he suffered an irreparable injury; (2) that
26
remedies at law, such as monetary damages, are inadequate to compensate for that
27
injury; (3) that, considering the balance of hardships between the plaintiff and
28
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1 defendant, a remedy in equity is warranted; and (4) that the public interest would
2 not be disserved by a permanent injunction.” Monsanto Co. v. Geertson Seed
3 Farms, 130 S. Ct. 2743, 2756 (2010). “[I]njunctive relief has long been recognized
4 as the proper means for preventing entities from acting unconstitutionally.”
5 Correctional S’vces Corp. v. Malesko, 534 U.S. 61, 74 (2001).
6 ARGUMENT
9 In a non-public forum, the Government may not exclude speech unless the
11 served by the forum. Rosenberger v. Rector and Visitors of the Univ. of Virginia,
12 515 U.S. 819, 829 (1995). Defendants’ discrimination between Mr. Rosebrock’s
traditional display of the flag – which it permitted for well over a year – and his
13
display of the flag union down – which it repeatedly barred – is neither.
14
15 A. Defendants’ Barring of Mr. Rosebrock’s Display of the Flag
Union Down is Impermissible Viewpoint Discrimination.
16
Viewpoint-based restrictions on speech are a subset of content-based
17
restrictions. A law restricting sexually explicit adult programming is a content-
18
based restriction. See, e.g., United States v. Playboy Entertainment Group, 529
19
U.S. 803 (2000). Similarly, a law banning parades relating to the subject of
20
abortion, while permitting other types of parades would be content or subject
21
matter-based. See Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972).
22
Viewpoint-based restrictions are those that prohibit a point of view rather
23
than a whole subject matter. Rosenberger, 515 U.S. at 829. Thus, a law
24
prohibiting parades expressing a pro-life message, while permitting those
25
expressing a pro-choice message, would be viewpoint-based. See Lamb’s Chapel
26
v. Center Moriches Union Free School Dist., 508 U.S. 384, 393 (1993); R.A.V. v.
27
City of St. Paul, 505 U.S. 377, 391 (1992). Both content- and viewpoint-based
28
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1 restrictions present the danger that government will distort public debate by
2 restricting either topics or specific viewpoints from the public debate. See Geoff
3 Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 55 (1987).
4 However, viewpoint-based restrictions have the potential to create even
5 greater distorting effects than subject matter or content-based restrictions by
6 silencing only one side of the debate on an issue or subject. See R.A.V., 505 U.S. at
11 NAACP Legal Def. and Educ. Fund, 473 U.S. 788, 806 (1985); see also Truth v.
12 Kent School District, 551 F.3d 850, 851 (9th Cir. 2008) (order on denial of
rehearing en banc).
13
1. Mr. Rosebrock Communicated a Different Viewpoint by
14 Hanging the Flag Union Up Than He Did Displaying It
Union Down.
15
Mr. Rosebrock hung the flag union up to communicate one viewpoint; and
16
he hung it union down to communicate an entirely different viewpoint. He hung
17
the flag union up alongside the POW/MIA banner because he “was expressing the
18
message that I believe[d] almost everyone perceives when they see the flag
19
displayed that way – a message of patriotism. That was certainly the message I was
20
expressing by displaying the flag that way because I wanted people who witnessed
21
our protests to know that whatever our disagreement with the VA, we were proud
22
and patriotic Americans.” UF 7. Additionally, Mr. Rosebrock sought to “honor
23
and support” the United States military by hanging the flag union up as a part of his
24
protests. Id.
25
Mr. Rosebrock intentionally hung the United States flag union down to
26
convey a very different viewpoint. “I hung the flag union down not to express my
27
patriotism or support for military veterans but as a distress call. I was sending a
28
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1 signal that the VA was endangering the land and the purposes for which it was
2 deeded to the United States. I also intended to express that in so doing, they were
3 endangering the veterans, especially homeless veterans, for whose care and shelter
4 the land was deeded.” UF 15-17.
5 Not only do the undisputed facts demonstrate that displaying a flag in the
6 traditional manner expresses an entirely different viewpoint from hanging it union
7 down, but Ninth Circuit precedent and history also recognize this distinction. The
8 United States flag is replete with communicative value, and the Ninth Circuit has
10 viewpoint. See Brown v. Cal. DOT, 321 F.3d 1217, 1224 (9th Cir. 2003) (“We first
11 reject CalTrans’s argument that the flag encompasses so many different views that
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18 forward, but arrest those marchers who were burning the American flag, while
19 permitting marchers to carry the flag that was being displayed in its traditional
21 though the purpose of both marches was to protest the Iraq War. Similarly here,
22
1
Plaintiff acknowledges that this Court accepted most of Defendants’ arguments
23
at the preliminary injunction stage. However, neither the law of the case or any
24 other doctrine requires the Court to follow its conclusions from its ruling on the
preliminary injunction. See, e.g., Continental Airlines, Inc. v. Intra Brokers, 24
25
F.3d 1099, 1102 (9th Cir. 1994) (citing Univ. of Texas v. Camenisch, 451 U.S. 390,
26 395-396 (1981)). Nor should it, since the facts presented in this motion more
27 clearly demonstrate the viewpoint-based nature of Defendants’ restrictions on Mr.
Rosebrock’s display of the flag union down, and the arguments proffered by
28 Defendants are contrary to binding precedent.
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1 Mr. Rosebrock’s two different ways of displaying the United States flag
2 communicate different viewpoints. And Defendants impermissibly discriminated
3 between the two viewpoints, even if they never entirely prohibited Mr. Rosebrock
4 from displaying the flag union down.
5 2. Defendants are Engaged in a Pattern of Restricting Plaintiff’s
Expression on the Basis of His Viewpoint.
6 For 66 weeks, Mr. Rosebrock hung the United States flag, union up, without
7 any interference by the Defendants every Sunday from March 9, 2008, until June 7,
8 2009. UF 7, 10, 13. Defendants never directed Mr. Rosebrock to remove the
9 American flag, or punished him for displaying it in the traditional manner on the
10 fence. UF 7, 10-11. In fact, during this period, Sergeant Webb of VAGLAHS
11 police told Mr. Rosebrock that he would be permitted to hang the United States
12 flag union up next to the POW/MIA flag on the gates outside the grass lawn. UF
13 11, 12.
14 However, as soon as Mr. Rosebrock began to hang the United States flag
15 union down on June 14, 2009, Defendants began to discriminate against his
16 viewpoint. Shortly thereafter, Mr. Rosebrock received an email message from
17 Lynn Carrier, Associate Director of VAGLAHS, informing him that he “may not
18 attach the American flag, upside down, on VA property including our perimeter
19 gates.” She then stated: “This is considered a desecration of the flag and is not
20 allowed on VA property.” UF 18. On July 26, 2009, VAGLAHS police issued Mr.
21 Rosebrock the first citation hanging the United States flag union down on the gates
22 outside the grass lawn. UF 19. Five more citations followed. UF 20.
23
Moreover, on February 21, 2010, Mr. Rosebrock hung the United States flag
24
union up alongside the POW/MIA flag. UF 23. VA police observed him doing so,
25 and they took no action against him or the viewpoint he espoused by hanging the
26 flag union up. Id. However, when Mr. Rosebrock hung the flag – this time union
27 down – alongside the POW/MIA flag a week later, VA police ordered him to
28
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8 fulfills a legitimate need.” Sammartano v. First Judicial District Court, 303 F.3d
19 government facilities from the discomfort they may feel from “offensive” speech is
20 not a reasonable basis to restrict such speech, even in a non-public forum. See
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1 See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment
2 freedoms, for even minimal periods of time, unquestionably constitutes irreparable
3 injury.”); Klein v. City of San Clemente, 584 F.3d 1196, 1207-09 (9th Cir. 2009) (it
4 remains “clear” [after Winter] that irreparable injury . . . requirement[] [is] satisfied
5 where First Amendment protections are at issue); Gentala v. City of Tucson, 213
6 F.3d 1055, 1071 (9th Cir. 2000).3 Indeed, every other circuit court that has
7 addressed the question has held that a First Amendment violation constitutes
8 irreparable injury for purposes of equitable relief. See, e.g., Scott v. Roberts, 612
9 F.3d 1279, 1295 (11th Cir. 2010); Stilp v. Contino, 613 F.3d 405, 409 (3d Cir.
10 2010).4
18 placing leaflets on parked cars violated the First Amendment satisfied the
19 irreparable injury requirement, id., even though the plaintiff was able his message
20
3
21 The irreparable injury standard is the same in both the preliminary and
permanent injunction context. See Amoco Prod. Co. v. Vill. of Gambell, 480 U.S.
22 531, 546 n.12 (1987)
23 4
Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009); Nuxoll v.
24 India Prairie Sch. Dist., 523 F.3d 668 669-670 (7th Cir. 2008); Pac. Frontier v.
Pleasant Grove, 414 F.3d 1221, 1235 (10th Cir. 2005); Tucker v. City of Fairfield,
25
398 F.3d 457, 464 (6th Cir. 2005); Newsom v. Albermarle County Sch. Bd., 354
26 F.3d 249, 261 (4th Cir. 2003); Bery v. City of New York, 97 F.3d 689, 693 (2d Cir.
27 1996); Deerfield Med. Ctr. v. Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981);
Maceira v. Pagan, 649 F.2d 8, 18 (1st Cir. 1981); Planned Parenthood v. Citizens
28 for Community Action, 558 F.2d 861, 867 (8th Cir. 1977).
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1 in almost the same location by handing those leaflets to passers-by and drivers as
2 they approached their cars. Id. at 1199 (Prior to placing them on parked cars,
3 Klein had “passed leaflets to passing pedestrians.”).
4 Defendants’ argument is also fundamentally at odds with basic First
5 Amendment principles. The First Amendment not only safeguards individuals
6 from being completely silenced by the government, but it also prevents the
7 government from treating individuals differently because of the content or
8 viewpoint of their speech (depending on the forum). See Kenneth L. Karst,
9 Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20, 29
10 (1975); see also Cornelius, 473 U.S. at 806. Accordingly, the government need not
11 succeed in silencing an individual to have violated his First Amendment rights;
12 instead, the irreparable injury is that the government has discriminated between two
13 different messages or viewpoints. See, e.g., Forsyth County v. Nationalist
14 Movement, 505 U.S. 123, 126 (1992) (Issuing permits for different prices based on
15 the potential disturbance the parade would cause violated the First Amendment’s
16 requirement for content-neutrality, even though the plaintiff would still be able to
17 obtain a permit: “A tax based on the content of speech does not become more
18 constitutional because it is a small tax.”).
19 In their opposition to Plaintiff’s motion for a preliminary injunction,
20 Defendants did not cite one case holding that if the government permitted a
21 plaintiff to express a particular viewpoint in one location, it meant that its
22 discriminating against that viewpoint in a nearby location was permissible.
23 Plaintiffs do not believe that any such precedent exists. Indeed, the availability of
24 other means of, or locations for, communication is relevant only when, unlike here,
25 the restriction is content or viewpoint neutral. See, e.g., Ward v. Rock Against
26 Racism, 491 U.S. 781, 791 (1989).
27 A. The Injuries Mr. Rosebrock Suffered Cannot Be Compensated by
28 Any Remedy at Law.
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1 Injunctive relief is the appropriate form of relief for individuals who suffer
2 constitutional injuries, including violations of their First Amendment guarantee of
3 freedom of speech. See, e.g., Gentala, 213 F.3d at 1071. By their nature, First
4 Amendment violations constitute irreparable injury for which there is no adequate
5 legal remedy. See Christian Legal Society v. Walker, 453 F.3d 853, 859 (7th Cir.
6 2006) (“The loss of First Amendment freedoms is presumed to constitute an
7 irreparable injury for which money damages are not adequate”); Campbell v.
8 Miller, 373 F.3d 834, 840 (7th Cir. 2004); NAACP Legal Def. and Educ. Fund v.
9 Horner, 636 F. Supp. 762, 766 (D.D.C. 1986). See also Douglas Laycock, The
10 Death of the Irreparable Injury Rule, 103 HARV. L. REV. 687, 708-709 (“The
11 principle [that damages are an inadequate remedy for the loss of something
12 irreplaceable] also applies to intangible rights that cannot be bought or sold in any
market. This is why injunctions are the standard remedy in civil rights [including
13
free speech] litigation.”).
14
15 Furthermore, Mr. Rosebrock is entitled to injunctive relief, as there is no
16 adequate remedy at law because the purpose of injunctive relief – particularly in
17 the context of cases of dealing with constitutional injury – is to restore the plaintiff
18 to his rightful position absent his constitutional injury. Missouri v. Jenkins, 515
19 U.S. 70, 88 (1995) (holding that victims of discriminatory conduct are entitled to
20 be restored to the position they would have occupied in the absence of the
21 discriminatory conduct); see also Laycock, Irreparable Injury, 103 HARV. L. REV.
22 at 708-709 n.106 (stating that injunctions are supposed to place a plaintiff in the
position in which he/she would have occupied had the plaintiff not suffered a
23
constitutional injury, such as a violation of his right to free speech). No other
24
remedy at law can prevent Defendants from continuing their practice of viewpoint
25
discrimination except for equitable relief. Only a court order can ensure that
26
Defendants will not engage in viewpoint discrimination against Mr. Rosebrock, as
27
they did before he hung the United States flag union down on the gates of the grass
28
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#:373
4 wishes to express by hanging the United States flag union down, while they
6 display the flag in a manner with which they are comfortable, the balance of
7 equities tips in his favor. The protection of First Amendment rights “weighs
8 heavily in the balancing of harms, for the protection of those rights is not merely a
benefit to plaintiff but to all citizens.” R.G. v. Koller, 415 F.Supp.2d 1129, 1162
9
(D. Haw. 2006) (citing Int’l Society for Krishna Consciousness v. Kearnes, 454
10
F.Supp. 116, 125 (E.D. Cal. 1978)); see also Klein, 584 F.3d at 1207-09 (it remains
11
“clear” [after Winter] that the balance-of-hardship requirement[] is satisfied where
12
First Amendment protections are at issue).
13
14 C. Granting Mr. Rosebrock a Permanent Injunction Is in the Public’s
Interest.
15 Upholding the First Amendment and ensuring that the government respects
16 the fundamental principle of viewpoint neutrality is in the public interest because
17 otherwise the government would be free to distort the public discourse by
18 restricting any individual’s expression if the government disagrees with the
19 viewpoint that the individual espouses. Klein, 584 F.3d at 1208 (“We have also
20 consistently recognized the ‘significant public interest’ in upholding free speech
21 principles, as the ‘ongoing enforcement of the potentially unconstitutional
22 regulations . . . would infringe not only on the free expression interests of
23 [plaintiffs], but also the interests of other people’ subjected to the same
24 restrictions.”); Sammartano 303 F.3d at 974 (“Courts considering requests for
25 preliminary injunctions have consistently recognized the significant public interest
26 in upholding First Amendment principles) (citing cases); see also Starkey v. County
27 of San Diego, 346 Fed. Appx. 146, 149 (9th Cir. 2009).
28
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1 equivalent to the sidewalk surrounding it. Pedestrians and bicyclists can pass from
2 the sidewalk onto the public walkway without any impediment. The concrete posts
3 placed approximately fifty feet apart from each other cannot keep passers by off of
4 the area, as they are set wide enough apart that an average car can even drive
5 through the spaces between the posts.
6 Second, Mr. Rosebrock had a reasonable expectation that his speech will be
7 protected in this forum. See, e.g., United States v. Grace, 461 U.S. 171, 180 (1983)
8 (holding that allegedly nonpublic forums that provide “no separation . . . and no
9 indication whatever to persons . . . that they have entered some special type of
10 enclave” are still public forums); Gerritsen v. City of Los Angeles, 994 F.2d 570,
11 576 (9th Cir. 1993) (same). These underlying concerns regarding a speaker’s
12 reasonable expectations must guide a court’s judgment away from a formulaic
13 approach when applying the forum analysis test. Las Vegas, 333 F.3d at 1101.
14 The open nature of the public walkway encourages pedestrians to enter the public
15 walkway from the sidewalk, further supporting the determination that it is a public
16 forum. See id. at 1103
17 Third, the public walkway’s historic use as a public forum, in addition to the
18 fact that it is part of the class of property which, by history and tradition, has been
19 treated as a public forum, requires this Court to find the public walkway a public
20 forum. Traditionally, sidewalks, which are forums like the public walkway, have
21 been held to be public forums. See, e.g., Grace, 461 U.S. 178-179. Furthermore,
22 the government’s interest in creating a nonpublic forum is not dispositive when
23 determining the true class of the forum. See e.g., Gerritsen v. City of Los Angeles,
24 994 F.2d 570, 576 (9th Cir. 1993) (holding that streets designated to have a
25 “special ambiance” and be a non-public forum may still qualify as public forums
26 because visitors expect that the street is a public forum). See also Ark. Educ. TV
27 Comm’n v. Forbes, 523 U.S. 666, 678 (1998) (“traditional public fora are open for
28 expressive activity regardless of the government’s intent”); Las Vegas, 333 F.3d at
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Case 2:10-cv-01878-SJO-SS Document 37-1 Filed 10/25/10 Page 27 of 27 Page ID
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1 1104 (holding the intent of a government to create a nonpublic forum has no direct
2 bearing upon traditional public forum status); First Unitarian Church of Salt Lake
3 City v. Salt Lake City Corporation, 308 F.3d 1114, 1124 (10th Cir. 2002). Because
4 the public walkway is part of the class of forum that traditionally is a public forum,
5 Defendants’ efforts to classify this public walkway and the fence alongside it as a
6 nonpublic forum does not bind this Court.
18 For the reasons stated above, Plaintiff respectfully requests that the Court
19 grant his Motion for Summary Judgment and enter a permanent injunction to
20 prevent Defendants from engaging in viewpoint discrimination against him and
21 permit him to hang the flag union down for 66 weeks – the same period of time
22 they permitted him to hang it union up without any interference.
23 DATED: October 25, 2010 ACLU FOUNDATION OF SOUTHERN
24 CALIFORNIA
25 s/ Peter J. Eliasberg
Peter J. Eliasberg
26
Silvia Babikian
27 Attorneys for Plaintiff
28
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Case 2:10-cv-01878-SJO-SS Document 37-2 Filed 10/25/10 Page 1 of 17 Page ID #:377
9
10
11 UNITED STATES DISTRICT COURT
12 CENTRAL DISTRICT OF CALIFORNIA
13
14
15 ROBERT ROSEBROCK, ) Case No. CV10-01878-SJO (SSx)
)
16 Plaintiff, )
)
17 vs. ) DECLARATION OF PETER J.
) ELIASBERG IN SUPPORT OF
18 DONNA BEITER, DIRECTOR OF ) PLAINTIFF’S MOTION FOR
THE VETERANS ) SUMMARY JUDGMENT
19 ADMINISTRATION GREATER )
LOS ANGELES HEALTHCARE )
20 SYSTEM, in her official capacity; )
RONALD MATHIS, CHIEF OF )
21 POLICE OF THE VETERANS ) Complaint Filed: March 16, 2010
ADMINISTRATION GREATER )
22 LOS ANGELES HEALTHCARE ) The Honorable S. James Otero
SYSTEM, in his official capacity. )
23 )
Defendants. )
24 ______________________________ )
25
26
27
28
Case 2:10-cv-01878-SJO-SS Document 37-2 Filed 10/25/10 Page 2 of 17 Page ID #:378
EXHIBIT
1
Case 2:10-cv-01878-SJO-SS Documentof37-2
Department Filed 10/25/10
Veterans Affairs Page 4 of 17 Page ID #:380
VA Police
Greater Los Angeles HCS
Uniform Offense RePort
fl c0Py
UOR#: 2008-l l -30-141 5-3102
Lea /DOB:
Synopole:
unauthorized banners posted 9l VA fence line. During
wái conÈcted regarding-Rosebrock
Utjconta6 øth üAPO, took unauthorized pictures on tA conbolled qroperty.
Rosebrock had no wanb^ranants for his anest. Rosebrock was issued a verbal
br 38 CFR 1.21 and 38 CFR 1
sawtwo banners
on
IrlSDoclÞfÍEroBE}u|n.ÞìlccmlrcEffHnCFftvlÊ'YÆf
q'f¡¡¡ir¡r t¡¡ I ffi dürühür
cort¡¡¡
---F5'r fl ¡¡dr ¡.¡lãõ¡.ä.q ¡CiC* ¡¡t-¡ltrt
;4or*¡n li¡alr-nü- tnsbú¡rætgñrt¡Füþpdn Exhibit 1 - page 2
usAo0002
Case 2:10-cv-01878-SJO-SS Document 37-2 Filed 10/25/10 Page 5 of 17 Page ID #:381
advised ltm thotdudng hþ demonsùation hþ grct¡pror.dd
any sþnr, pbcards, orfrago torn üte VA Þnce oron VA
wa¡ br llagp of the Units Stæs of Amefta or Pdsoner of War. I hlm that
pooüng dpbcards, banneo, ordr€r r&rlals ¡s proh¡biþd by Þderal larr arÉ was
a vi¡lati¡n of 38 cFR 1.218(bl(2). Æ ürat tirp he stabd tre undecbod and wor¡ld
comply.
on sunday tlovernuer 16, 2()6, wh¡þ cond¡rcüon a ptol of ttre vebmnls l¡lerpdd
ParK I srw that hlo demo¡r¡ffic we sfriding on VA property Cn beùrpen thc
Þnce line and Wþhire s¡derdl$ wiü a bermer apprordnrddy gi( e. I conffid
Ræebrcdc a¡¡d advi!êd him üra ure plæsbß nótu hæ 6 sbp 016 ttre siderrdk
in oder b be h compl¡ânæ wÍtr 38 CFR 1.215(bN2). RæeUo& d¡r€éd üre denronsffi
onb üo ¡idar¡dkwiüror¡t inddent
on bdat'r daþ, Î{orernbêr 30, 2008, I contaed Ræebrod< and advbed h¡m ürat
the "suppofiourTmpo'^banner_srd vr۟ran uniilbg lnnging on tfie vA pmperty
Ënæ neio h violation of 3s cFR 1.219{bKt2). I dr€úed ñGobrod( b rdnda'
tt¡e banner¡. RæeHoctoùioûd dffitg tr* ne h*t a riglrtb hûE ütæe peuor
ba¡rner¡ on VAæntolled propsty.
Putlr€ -n!y contact wlth Ræebrodq e r,*ran approdr€d rre b €xpr€s3 ]d¡ mg¡rßg
br-paruopaung h!Þg demoñsffiirr. wñ¡þ gprxrarg u,ür lürn, Roinxrodr bcgüt
b takÊ picû¡r¡s d Oñcer gowrmG the uniterüified ;iüôr,
rrd rp llonr VA-coúo¡cd
property.
Rqcbtodc nmovcd t.rc tûþ bennca fr'orn thc ftncc r¡iürorn in<jdcnt
Acütg Ch¡ef llaüftt and R blic AF¿irs Chief Janreo Dundl were ndifed of üe h*lent
A pfiúgr4h of thc bann¡c wæ takrr (lcc æc*reC).
Exhibit 1 - page 3
Page2-USA00003-
Case 2:10-cv-01878-SJO-SS Document 37-2 Filed 10/25/10 Page 6 of 17 Page ID #:382
EXHIBIT
2
Case
Case2:10-cv-01878-SJO-SS
2:10-cv-01878-SJO-SS Document
Document37-2
27 Filed
Filed07/23/10
10/25/10 Page
Page17ofof11
17 Page
PageID
ID#:203
#:383
APPEARANCES FOR:
2 (Call to Order)
16 fly the flag in the way he wants, rather than the way that the
24 itself?
9 the fence --
12 has in the past been allowed to hang the flag on the fence.
16 he’s never been cited for hanging the flag either way when he’s
2 the flag upside down, given the type of property it is, given
3 the people that come to that property, hanging the flag upside
8 flag on the fence, and then you get into the issue of a
14 neutral.
25 he’s sending a message that he’s upset with what the Veterans
EXCEPTIONAL REPORTING SERVICES, INC
Exhibit 2 - page 8
Case
Case2:10-cv-01878-SJO-SS
2:10-cv-01878-SJO-SS Document
Document2737-2Filed
Filed
07/23/10
10/25/10
Page
Page
6 of12
11of Page
17 Page
ID #:208
ID
#:388
6
2 Yes?
9 date.
13 (Pause)
9 Administration property?
20 flag?
5 inconsistent.
13 the reaction that the upside down flag incites and, adjacent to
13 and then through the circuit, it may make sense not to utilize
15 Judge.
21 resources?
25 programs.
EXCEPTIONAL REPORTING SERVICES, INC
Exhibit 2 - page 12
Case
Case2:10-cv-01878-SJO-SS
2:10-cv-01878-SJO-SSDocument
Document2737-2
FiledFiled
07/23/10
10/25/10
Page
Page
10 of1611of 17
Page
Page
ID #:212
ID
#:392
10
3 amend pleadings?
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
EXCEPTIONAL REPORTING SERVICES, INC
Exhibit 2 - page 13
Case
Case2:10-cv-01878-SJO-SS
2:10-cv-01878-SJO-SSDocument
Document2737-2
FiledFiled
07/23/10
10/25/10
Page
Page
11 of1711of 17
Page
Page
ID #:213
ID
#:393
CERTIFICATION
entitled matter.
Signed Dated
9
10
11 UNITED STATES DISTRICT COURT
12 CENTRAL DISTRICT OF CALIFORNIA
13
14
15 ROBERT ROSEBROCK, ) Case No. CV10-01878-SJO (SSx)
)
16 Plaintiff, )
)
17 vs. ) DECLARATION OF ROBERT
) ROSEBROCK IN SUPPORT OF
18 DONNA BEITER, DIRECTOR OF ) PLAINTIFF’S MOTION FOR
THE VETERANS ) SUMMARY JUDGMENT
19 ADMINISTRATION GREATER )
LOS ANGELES HEALTHCARE )
20 SYSTEM, in her official capacity; )
RONALD MATHIS, CHIEF OF )
21 POLICE OF THE VETERANS ) Complaint Filed: March 16, 2010
ADMINISTRATION GREATER )
22 LOS ANGELES HEALTHCARE ) The Honorable S. James Otero
SYSTEM, in his official capacity. )
23 )
Defendants. )
24 ______________________________ )
25
26
27
28
Case 2:10-cv-01878-SJO-SS Document 37-3 Filed 10/25/10 Page 2 of 10 Page ID #:395
1 4. Over the past few years, I have seen individuals use this public walkway
2 for a variety of instances in which individuals exercised their right to free speech.
3 Specifically, I remember Los Angeles Controller Zev Yaroslavsky have an open
4 forum dialogue in this location to discuss legislation that Representative Henry
5 Waxman and Senator Dianne Feinstein authored. I also remember signs being
6 posted on the fence surrounding the Veterans Home advertising local drama
7 productions.
8 5. Beginning March 9, 2008, I too have exercised my right to free speech
9 on this public walkway. I have demonstrated, along with other veterans, outside
10 the locked fences of the grass lawn, at the northeast comer of Wilshire and San
11 Vicente Boulevards in the Brentwood area to draw public attention to our cause. I
12 strongly disagree with the VA’s refusal to develop the grass lawn into a shelter for
13 homeless veterans or otherwise use the land for the shelter and care of veterans.
14 Although all the VAGLAHS land, including the grass lawn, was specifically
15 deeded in 1888 to the United States as a home for disabled veterans, I believe the
16 VA has failed to satisfy the deed’s conditions.
17 6. In or about the summer of 2007, the VA agreed to lease part of the land
18 to be used as a public park. This lease is part of VAGLAHS’s pattern of
19 transferring portions of the land deeded in 1888 to other entities for uses unrelated
20 to the care and shelter of veterans. For example, Brentwood School, a neighboring
21 private school, leases another parcel that it uses for an athletic field including
22 tennis courts, which veterans are not allowed to access. A number of buildings on
23 the land are leased to Richmark Entertainment for use as theaters.
24 7. Although I have no general opposition to use of land for public parks or
25 theaters, I do object to this land’s being used for these purposes while there are
26 thousands of homeless veterans in Los Angeles, including some who sleep on the
27 sidewalks outside the grass lawn.
28 8. As part of our weekly protests against the VA’s failure to use the grass
2
Case 2:10-cv-01878-SJO-SS Document 37-3 Filed 10/25/10 Page 4 of 10 Page ID #:397
1 lawn for the shelter and care of disabled and homeless veterans, my fellow
2 veterans and I initially hung a United States flag with the union up, and the
3 POW/MIA banner for 3-4 hours every Sunday. Some months later, someone
4 brought a Vietnam unit flag and Support Our Troops banner, which we also hung
5 on the fence, on occasion.
6 9. When I first began my protests and hung the American flag union up
7 alongside the POW/MIA banner, I was expressing the message that I believe
8 almost everyone perceives when they see the American flag displayed that way –
9 a message of patriotism. That was certainly the message I was expressing by
10 displaying the flag that way because I wanted people who witnessed our protests
11 to know that whatever our disagreement with the VA, we were proud and patriotic
12 Americans. In addition, through its placement next to the POW/MIA banner – I
13 hung the flag to express a message of honor and support for America’s military.
14 10. I had hung the United States flag union up, the POW/MIA flag, and
15 occasionally other banners for several months without any complaint from the VA
16 police or any other VA staff until November 30, 2008. On that date, Sergeant
17 Webb of the VA police approached me and asked that I remove the Vietnam unit
18 flag and Support Our Troops banner. The United States flag and POW/MIA
19 banner were hanging right next to the armed forces banner and the Vietnam Unit
20 flag, but Sergeant Webb told me that I was permitted to keep the US flag and
21 POW/MIA flag hanging on the fence. I obeyed Sergeant Webb’s request and
22 removed the armed forces banner, while leaving the United States and POW/MIA
23 flags in place. Attached as Exhibit 2 is a true and correct copy of Sergeant Webb’s
24 November 30, 2008, Uniform Offense Report, Uniform Offense Report from a
25 Freedom of Information Act request. The redactions were not made by me.
26 11. Attached hereto as Exhibit 3 is a true and correct copy of a photograph
27 that I took on November 30, 2008. The VA police officer in the middle is
28 Sergeant Webb, and the one on the left is Officer Bowman. The man in the
3
Case 2:10-cv-01878-SJO-SS Document 37-3 Filed 10/25/10 Page 5 of 10 Page ID #:398
1 wheelchair on the right is Steve Palmer, an 87-year-old World War II veteran. The
2 photograph accurately depicts the scene on November 30, 2008 shortly before we
3 removed the Support Our Troops banner and Vietnam Unit flag (which was on the
4 fence just to right of where the photograph ends).
5 12. Earlier in 2008, Sergeant Webb had witnessed my demonstration and
6 approached me. On that occasion, I had been hanging the POW/MIA flag and the
7 United States flag, which was hanging union up, on the fence. Sergeant Webb
8 told me that I would not be permitted to hang any flags, banners, or signs on the
9 fence, with the exception of the United States flag and the POW/MIA flag.
10 Sergeant Webb’s November 30, 2008, Uniform Offense Report, attached as
11 Exhibit 2, affirms that this is what he told me on earlier in 2008.
12 13. After November 30, 2008, I did not have any other interactions with
13 the VA police for the next seven months. During that time, I or one of my fellow
14 demonstrators demonstrated every Sunday for 3 to 4 hours, and every Sunday we
15 hung one or more United States flags – union up – and the POW/MIA banner on
16 the fence outside the grass lawn. During our demonstrations, we did not hang any
17 flags, banners, or signs other than the United States flag – union up – and the
18 POW/MIA flags outside the grass lawn. During those approximately 28 weeks of
19 weekly demonstrations, no VA police officer or other VA employee ever
20 approached and asked me to remove the American flag, or attempted to remove
21 the flag himself/herself.
22 14. I grew increasingly frustrated that the VA would not begin developing
23 the grass lawn for the shelter and care of homeless veterans after I witnessed a
24 “celebrity carnival” inside the grass lawn on June 7, 2009. I was disturbed by the
25 VA’s use of the grass lawn for a carnival because I perceived it as a lack of respect
26 for the plight of homeless veterans. Therefore, I concluded that the veterans’
27 property was in danger and that veterans needed to unite to stand up
28 against the VA. As a result, I began hanging the United States flag – this time
4
Case 2:10-cv-01878-SJO-SS Document 37-3 Filed 10/25/10 Page 6 of 10 Page ID #:399
1 down, on VA property including our perimeter gates.” Ms. Carrier then added,
2 “This is considered a desecration of the flag and is not allowed on VA property.”
3 A true and correct copy of this email from Ms. Carrier is attached as Exhibit 4.
4 18. When the VA police first notified me on June 21, 2009, that I may not
5 fly the flag union down, I had been hanging the United States flag on the fence of
6 the grass lawn every Sunday for more than fifteen months without anyone from the
7 VA complaining to me, asking me to remove it, or citing me for the display. But
8 on only the second Sunday I hung the flag union down, I was admonished by
9 Lieutenant Carson in the VA police and – a few days later – by a senior VA
10 administrator for the viewpoint I had communicated.
11 19. Over the course of this fifteen month period, I had hung approximately
12 30 United States flags on the fence of the grass lawn on May 4, 2008. Attached
13 hereto as Exhibit 5 is a true and correct copy of a photo taken on May 4, 2008, that
14 accurately depicts the numerous United States flags we hung on the fence outside
15 the Great Lawn for 3-4 hours. Also, on October 5, 2008, I had hung a total of
16 about 20 flags on the fence, including more than a dozen United States flags –
17 union up – and the POW/MIA flag. Attached hereto as Exhibit 6 is a true and
18 correct copy of a photo taken on October 5, 2008, that accurately depicts the
19 numerous United States flags we hung on the fence outside the great lawn for 3-4
20 hours. The point of our demonstrations was to be visible to people who were
21 either walking or driving past the intersection of Wilshire and San Vicente
22 Boulevards and to ensure that the VA witnessed our protest. It was impossible to
23 miss our display of flags every Sunday if an individual drove or walked anywhere
24 near this intersection or was walking inside the fence of the great lawn.
25 20. Although Ms. Carrier and the VA police had demanded that I refrain
26 from hanging the United States flag union down, my fellow veterans and I
27 continued to do so every Sunday, because I believed that the VA was
28 impermissibly trying to restrict our viewpoint.
6
Case 2:10-cv-01878-SJO-SS Document 37-3 Filed 10/25/10 Page 8 of 10 Page ID #:401
1 21. On or about July 27 or July 28, 2009, I received a citation in the mail,
2 dated July 26, 2009, for “unauthorized demonstration or service in a national
3 cemetery or on other VA property.” A true and correct copy of this citation is
4 attached as Exhibit 7. No VA police officer had approached me to notify me that I
5 would be cited or asking for my personal identification. Upon the request of
6 Assistant United States Attorney Sharon K. McCaslin, a court dismissed this
7 citation on October 21, 2009.
8 22. Nevertheless, beginning August 9, 2009, I received a total of five
9 additional citations under 38 C.F.R. § 1.218 (a)(9). True and correct copies of
10 these five citations are attached as Exhibit 8. However, again, no VA police
11 officer had approached me to notify me that I would be cited or asking me for my
12 personal identification. Three of these citations under this regulation mention that
13 I hung the United States flag union down. During the period of time during which
14 I was cited, I only hung the flag union side down along side the POW/MIA flag.
15 23. On December 7, 2009, Assistant United States Attorney Sharon K.
16 McCaslin requested that the Court dismiss the five additional citations against me,
17 and the Court complied with this request.
18 24. After the government dropped the charges against me, my fellow
19 veterans and I continued to protest the VA’s failure to use the grass lawn for
20 homeless and disabled veterans. However, I decided not to hang the flag United
21 State flag union down, alongside the POW/MIA flag, on the fences of grass lawn
22 because I was concerned about being cited again even though I believed I had a
23 right to do so.
24 25. February 21, 2009, marked our l00th demonstration at the grass lawn.
25 As part of the demonstration, my fellow veterans and I held a press conference to
26 unveil our “Grand Plan” for the veteran land, which calls for using federal funds
27 allocated to the VA to transform the grass lawn into a state-of-the-art medical
28 facility for veterans and also a housing complex for the thousands of homeless
7
Case 2:10-cv-01878-SJO-SS Document 37-3 Filed 10/25/10 Page 9 of 10 Page ID #:402
EXHIBIT
1
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 2 of 31 Page ID #:405
Exhibit 1 - Page 10
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 3 of 31 Page ID #:406
EXHIBIT
2
J[.
Case 2:10-cv-01878-SJO-SS
Fscilihr: Grester l-osAngeles HCS Document 37-4 Filed 10/25/10 Page 4 of 31U0R#:
Page ID #:407
?00€1'l 301 415-31G;
0C weapon used: Ho
tsatsn ulsed: Ho
Frrearrn 0rawn. Ho
Firearm Used: Ho
Exhibit 2 - Page 11
*'b
| 4uilrry. vrE6l,Et t_-u5 -H,ilHEtH5 nrri} UUHF: IUUU'I'I ifu'I{+ I J-J'IU J
Rosebrock removed the firuo banners from the fence rirrithout incident,
hU 01k
Acli^sJttfh:nd publicAfi"iffiere notified of the
incident. A photograph of the bannes uurs taken (see attached).
.tAJ gk{*
Page 2
Exhibit 2 - Page 12
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 6 of 31 Page ID #:409
EXHIBIT
3
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 7 of 31 Page ID #:410
Exhibit 3 - Page 13
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 8 of 31 Page ID #:411
EXHIBIT
4
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 9 of 31 Page ID #:412
aolnch:l1342831028/
This message is in follow up to your communications this week regarding the display of the American
flag on Sunday, Jwe 21,20A9. Please be reminded that you may not attach the Ãmerican flag, upside
down, anywhere on VA property including our perimeter gates. This is considered a desecratiôn õf tne
flag and is not allo¡ved on VA property. We have received complaints from veterans and other concerned
citizens who are offended by this improper display. Your cooperation in this matter is appreciated.
Sincerely,
Lynn S. Çarrier
Associate Director, Administration and Support Services
VA Greater Los Angeles Healthcare System
EXHIBIT
5
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 11 of 31 Page ID
#:414
Exhibit 5 - Page 15
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 12 of 31 Page ID
#:415
EXHIBIT
6
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 13 of 31 Page ID
#:416
Exhibit 6 - Page 16
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 14 of 31 Page ID
#:417
EXHIBIT
7
Case 2:10-cv-01878-SJO-SSl..kiiad
Document
Etatffi37-4 Filed
Dlstrlfi 10/25/10 Page 15 of 31 Page ID
court
#:418
ViolatiOn Hofoe
e085602 Douc*
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PAY TTIIS AIF6UI{T
- { tlQn$ rf.dcarhrr{rr
COURT.}A
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Exhibit 7 - Page 17
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 16 of 31 Page ID
#:419
S'-eTlU.a$T 0r f:'qtrifiF_ f {:idt_'SE
lFr-r ,:.r:r-t,!trr:r i;i;il-" :irarl ,n'i:*;.Jrl oi :t,{]r'1._fti;
=-{-e,\i-arrq.f'4ffitu*rr
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nr t!-r fl^^* n r; 4 t-^Ai.
Exhibit 7 - 18
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 17 of 31 Page ID
#:420
EXHIBIT
8
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 18 of 31 Page ID
#:421
tntteA' Staiss Fistrict ffcurt
. Wolstl*n Hotlfie
rr ttlfr.r- lt{rLEl (:l' fif ,\bnf, iP':r.'r
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Exhibit 8 - Page 19
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 19 of 31 Page ID
#:422 "* s
5
T,."J r !.1:: !.lI ilr r' I I I j il.r"slE r.1: A 1_15,.5
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Exhibit 8 - Page 20
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 20 of 31 Page ID
#:423
4d nr. ts:clur+.qrjr,.T
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Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 21 of 31 Page ID
#:424
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Exhibit 8 - Page 22
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 22 of 31 Page ID
#:425
fUnftpd Slates tristnict
Viola$on Hotice
qli.r.\r ll1F* ll-lrir
0981"71-4
YOU AFIE C"HA.H,GED ',rjlTH THE FULLO'$I'|FIG Yl0[ATlOf,\
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Exhibit 8 - Page 23
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 23 of 31 Page ID
#:426.E
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Exhibit 8 - Page 24
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 24 of 31 Page ID
#:427
Exhibit 8 - Page 25
United States District Court ,--qve1e--
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 25 of 31 Page ID
#:428
20855s4
YOU ARE CHARGED WITH THE FOLLOWING VIOLATION
N)
(3
A,r1 I ¿¿u{r
og
u,l (,ìlrÊt.lr,"irt
Offense Charged p CFF Ë USC ¡ Slate Codo
CIo
LN oN AUGUST T, 2009, AT APPROXIMATELY
f"ii.\:I l]\'litrrl (Jr 10:58A.M., I (OFFICER DAVIS, R) V/AS ON V.A.
co CONTROLLED PROPERTY IN FULL POLICE
,Þ I-INIFORM, DRIVING A MARKED VEHICLE, AND
ASSIGNED TO PATROL ONE DUTIES. I OBSERVEI
- -\,
f) '. ¡ , ", ,- t 1' ;.'- t.r¡;)
'\
(.' r.. \
È ,n,- ,i ÀA:tì6,¿-rì9 A GROUP OF INDIVIDUALS HOLDING LARGE
V/OODEN POLES V/ITH UPSIDE DOV/N AMERICA
i, r'., \
\ i i'-T rr Ì'/ FL4.G-,.THESE INDIVIDIJALS ATTACHED THE
DEFENDANT INFOHMATION FLAGS TO THE ENTRANCE TO THE VETERANS
PARK. PER ORDERS FROM HEADQUARTERS A C'
V/AS ISSUED TO ROBERT ROSEBROCK FOR 33 CI
1.218 (a)(9) DISPLAY OF PLACARDS OR pOSTING ,
MATERIALS ON VA PROPERTY.
VEHICLE DESCRIPTION
of 'rll-Lap\ ;4-æ-
, ì ,iir ii.ì..1. t'i ì. i,.r, : l
My sìgnature signilies that I havo received a copy of this violalion notice. lt is not an admission of guilt.
I prom¡se to appear for the hear¡ng at lhe lime and place inslrucled or pay the total collateral due.
X Defendant S¡gnature
Exhibit 8 - Page 26
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 26 of 31 Page ID
#:429
EXHIBIT
9
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 27 of 31 Page ID
#:430
Exhibit 9 - Page 27
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 28 of 31 Page ID
#:431
EXHIBIT
10
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 29 of 31 Page ID
#:432
Exhibit 10 - Page 28
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 30 of 31 Page ID
#:433
EXHIBIT
11
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 31 of 31 Page ID
#:434
Exhibit 11 - Page 29
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 1 of 31 Page ID #:404
EXHIBIT
1
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 2 of 31 Page ID #:405
Exhibit 1 - Page 10
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 3 of 31 Page ID #:406
EXHIBIT
2
J[.
Case 2:10-cv-01878-SJO-SS
Fscilihr: Grester l-osAngeles HCS Document 37-4 Filed 10/25/10 Page 4 of 31U0R#:
Page ID #:407
?00€1'l 301 415-31G;
0C weapon used: Ho
tsatsn ulsed: Ho
Frrearrn 0rawn. Ho
Firearm Used: Ho
Exhibit 2 - Page 11
*'b
| 4uilrry. vrE6l,Et t_-u5 -H,ilHEtH5 nrri} UUHF: IUUU'I'I ifu'I{+ I J-J'IU J
Rosebrock removed the firuo banners from the fence rirrithout incident,
hU 01k
Acli^sJttfh:nd publicAfi"iffiere notified of the
incident. A photograph of the bannes uurs taken (see attached).
.tAJ gk{*
Page 2
Exhibit 2 - Page 12
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 6 of 31 Page ID #:409
EXHIBIT
3
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 7 of 31 Page ID #:410
Exhibit 3 - Page 13
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 8 of 31 Page ID #:411
EXHIBIT
4
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 9 of 31 Page ID #:412
aolnch:l1342831028/
This message is in follow up to your communications this week regarding the display of the American
flag on Sunday, Jwe 21,20A9. Please be reminded that you may not attach the Ãmerican flag, upside
down, anywhere on VA property including our perimeter gates. This is considered a desecratiôn õf tne
flag and is not allo¡ved on VA property. We have received complaints from veterans and other concerned
citizens who are offended by this improper display. Your cooperation in this matter is appreciated.
Sincerely,
Lynn S. Çarrier
Associate Director, Administration and Support Services
VA Greater Los Angeles Healthcare System
EXHIBIT
5
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 11 of 31 Page ID
#:414
Exhibit 5 - Page 15
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 12 of 31 Page ID
#:415
EXHIBIT
6
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 13 of 31 Page ID
#:416
Exhibit 6 - Page 16
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 14 of 31 Page ID
#:417
EXHIBIT
7
Case 2:10-cv-01878-SJO-SSl..kiiad
Document
Etatffi37-4 Filed
Dlstrlfi 10/25/10 Page 15 of 31 Page ID
court
#:418
ViolatiOn Hofoe
e085602 Douc*
YOtrrl.RE CF.4HG:=D W|TH fHe ru
tlrt i}!}t rr Cft r?i i r*ra},pri{ r-'lt!'r'F
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c o on{ V#
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lw t*r
i --*J-5PS -
Fsrreiure .dm3*rt
+ $35 l"raoasErnq FF?
PAY TTIIS AIF6UI{T
- { tlQn$ rf.dcarhrr{rr
COURT.}A
E ltstrr i{rr rt -s 3131tt1 o,
I Uclr-:Ft :*{atr.l
Exhibit 7 - Page 17
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 16 of 31 Page ID
#:419
S'-eTlU.a$T 0r f:'qtrifiF_ f {:idt_'SE
lFr-r ,:.r:r-t,!trr:r i;i;il-" :irarl ,n'i:*;.Jrl oi :t,{]r'1._fti;
=-{-e,\i-arrq.f'4ffitu*rr
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Exhibit 7 - 18
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 17 of 31 Page ID
#:420
EXHIBIT
8
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 18 of 31 Page ID
#:421
tntteA' Staiss Fistrict ffcurt
. Wolstl*n Hotlfie
rr ttlfr.r- lt{rLEl (:l' fif ,\bnf, iP':r.'r
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Exhibit 8 - Page 19
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 19 of 31 Page ID
#:422 "* s
5
T,."J r !.1:: !.lI ilr r' I I I j il.r"slE r.1: A 1_15,.5
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l:-alc!;'r:!:::rr fll-W ntr.r bl::rnl:ii:lr dLigl r;:
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Exhibit 8 - Page 20
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 20 of 31 Page ID
#:423
4d nr. ts:clur+.qrjr,.T
5
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Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 22 of 31 Page ID
#:425
fUnftpd Slates tristnict
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#:426.E
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Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 24 of 31 Page ID
#:427
Exhibit 8 - Page 25
United States District Court ,--qve1e--
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 25 of 31 Page ID
#:428
20855s4
YOU ARE CHARGED WITH THE FOLLOWING VIOLATION
N)
(3
A,r1 I ¿¿u{r
og
u,l (,ìlrÊt.lr,"irt
Offense Charged p CFF Ë USC ¡ Slate Codo
CIo
LN oN AUGUST T, 2009, AT APPROXIMATELY
f"ii.\:I l]\'litrrl (Jr 10:58A.M., I (OFFICER DAVIS, R) V/AS ON V.A.
co CONTROLLED PROPERTY IN FULL POLICE
,Þ I-INIFORM, DRIVING A MARKED VEHICLE, AND
ASSIGNED TO PATROL ONE DUTIES. I OBSERVEI
- -\,
f) '. ¡ , ", ,- t 1' ;.'- t.r¡;)
'\
(.' r.. \
È ,n,- ,i ÀA:tì6,¿-rì9 A GROUP OF INDIVIDUALS HOLDING LARGE
V/OODEN POLES V/ITH UPSIDE DOV/N AMERICA
i, r'., \
\ i i'-T rr Ì'/ FL4.G-,.THESE INDIVIDIJALS ATTACHED THE
DEFENDANT INFOHMATION FLAGS TO THE ENTRANCE TO THE VETERANS
PARK. PER ORDERS FROM HEADQUARTERS A C'
V/AS ISSUED TO ROBERT ROSEBROCK FOR 33 CI
1.218 (a)(9) DISPLAY OF PLACARDS OR pOSTING ,
MATERIALS ON VA PROPERTY.
VEHICLE DESCRIPTION
of 'rll-Lap\ ;4-æ-
, ì ,iir ii.ì..1. t'i ì. i,.r, : l
My sìgnature signilies that I havo received a copy of this violalion notice. lt is not an admission of guilt.
I prom¡se to appear for the hear¡ng at lhe lime and place inslrucled or pay the total collateral due.
X Defendant S¡gnature
Exhibit 8 - Page 26
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 26 of 31 Page ID
#:429
EXHIBIT
9
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 27 of 31 Page ID
#:430
Exhibit 9 - Page 27
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 28 of 31 Page ID
#:431
EXHIBIT
10
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 29 of 31 Page ID
#:432
Exhibit 10 - Page 28
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 30 of 31 Page ID
#:433
EXHIBIT
11
Case 2:10-cv-01878-SJO-SS Document 37-4 Filed 10/25/10 Page 31 of 31 Page ID
#:434
Exhibit 11 - Page 29
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 1 of 17 Page ID #:435
9
10
11 UNITED STATES DISTRICT COURT
12 CENTRAL DISTRICT OF CALIFORNIA
13
14
15 ROBERT ROSEBROCK, ) Case No. CV10-01878-SJO (SSx)
)
16 Plaintiff, )
)
17 vs. ) PLAINTIFF’S STATEMENT OF
) UNDISPUTED MATERIAL FACTS
18 DONNA BEITER, DIRECTOR OF ) AND CONCLUSIONS OF LAW IN
THE VETERANS ) SUPPORT OF HIS MOTION FOR
19 ADMINISTRATION GREATER ) SUMMARY JUDGMENT
LOS ANGELES HEALTHCARE )
20 SYSTEM, in her official capacity; )
RONALD MATHIS, CHIEF OF )
21 POLICE OF THE VETERANS )
ADMINISTRATION GREATER ) Complaint Filed: March 16, 2010
22 LOS ANGELES HEALTHCARE )
SYSTEM, in his official capacity. ) The Honorable S. James Otero
23 )
Defendants. )
24 ______________________________ )
25
26
27
28
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 2 of 17 Page ID #:436
-1-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 3 of 17 Page ID #:437
-2-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 4 of 17 Page ID #:438
-3-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 5 of 17 Page ID #:439
-4-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 6 of 17 Page ID #:440
-5-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 7 of 17 Page ID #:441
14 property.
UF17. Mr. Rosebrock was expressing Declaration of Robert Rosebrock, ¶ 15.
15
an entirely different viewpoint by
16
hanging the United States flag union
17
down on the fence and gate
18
surrounding the Great Lawn from the
19
one he was expressing by hanging it
20
union up. He hung the United States
21
flag union up to express his patriotism
22
and support for military veterans, but
23
he hung the flag union down as a
24
distress call.
25
26
27
28
-6-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 8 of 17 Page ID #:442
-7-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 9 of 17 Page ID #:443
-8-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 10 of 17 Page ID
#:444
-9-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 11 of 17 Page ID
#:445
27 U.S. 819, 829 (1995); Lamb’s Chapel v. Center Moriches Union Free School
28 Dist., 508 U.S. 384, 393 (1993); R.A.V. v. City of St. Paul, 505 U.S. 377, 391
(1992).
-10-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 12 of 17 Page ID
#:446
7 Limmer, 465 F. Supp. 493, 498 (N.D. Tex. 1979) (“The courts have
8 consistently held that the denial of First Amendment rights inflicts irreparable
10 and rev’d in part on other grounds, 663 F.2d 619 (5th Cir. 1981); see also
12 injury because the plaintiffs could display their political messages in other
ways); cf. Southeastern Promotion, Ltd. v. Conrad, 420 U.S. 546, 556 (1975)
13
(stating that whether there was an alternative forum “is of no consequence”);
14
Cinevision Corp. v. City of Burbank, 745 F.2d 560, 567 n.19 (9th Cir. 1984)
15
(asserting that entertainers should not be excluded from a public forum
16
“simply because there may be alternative forums where they could perform”)
17
(citing United States v. Grace, 461 U.S. 171 (1983)).
18
19
5. The availability of alternative means of communication is relevant to
20
determining whether a restriction on speech violates the First Amendment
21
only where – unlike here – the restriction is content or viewpoint neutral.
22
See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
23
24
. By engaging in viewpoint discrimination, Defendants have violated Mr.
25
Rosebrock’s First Amendment rights. Cornelius, 473 U.S. at 806; see also
26
Brown, 321 F.3d at 1224 (9th Cir. 2003) (finding that the defendant’s policy
27
of prohibiting the hanging of United States flags but allowing the hanging of
28
other signs and banners on freeway overpasses was a viewpoint-based
-11-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 13 of 17 Page ID
#:447
1 restriction).
2
3 7. Violation of First Amendment rights – even temporarily – constitutes
4 irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of
5 First Amendment freedoms, for even minimal periods of time,
6 unquestionably constitutes irreparable injury.”); see also Klein v. City of San
7 Clemente, 584 F.3d 1196, 1207-09 (9th Cir. 2009) (it remains “clear” [after
8 Winter v. Natural Resources Defense Counsel, Inc., __ U.S. __, 129 S.Ct. 365
11 First Judicial Dist. Court, 303 F.3d 959, 973 (9th Cir. 2002) (“The Supreme
12 Court has made clear that ‘the loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury’ for
13
purposes of issuance of a preliminary injunction.”) (quoting Elrod, 427 U.S.
14
at 373).
15
16
8. Every Circuit Court of Appeal that has addressed the question has held that a
17
violation of First Amendment rights constitutes irreparable injury. See, e.g.,
18
Scott v. Roberts, 612 F.3d 1279, 1295 (11th Cir. 2010) (holding that a
19
violation of the First Amendment constitutes irreparable injury for purposes
20
of a preliminary injunction) (citing Elrod, 427 U.S. at 373); Stilp v. Contino,
21
613 F.3d 405, 409 (3d Cir. 2010) (same); Mills v. District of Columbia, 571
22
F.3d 1304, 1312 (D.C. Cir. 2009) (holding that a violation of the First
23
Amendment constitutes irreparable injury for purposes of a preliminary
24
injunction) (citing Elrod, 427 U.S. at 373); Nuxoll v. India Prairie Sch. Dist.
25
#204, 523 F.3d 668 669-670 (7th Cir. 2008) (same); Pac. Frontier v.
26
Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir. 2005) (same); Tucker v.
27
City of Fairfield, 398 F.3d 457, 464 (6th Cir. 2005) (same); Newsom v.
28
Albermarle County Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (same); Bery
-12-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 14 of 17 Page ID
#:448
1 v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996) (“Violations of First
2 Amendment rights are commonly considered irreparable injuries for the
3 purposes of a preliminary injunction.”); Deerfield Med. Ctr. v. City of
4 Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981); Maceira v. Pagan, 649
5 F.2d 8, 18 (1st Cir. 1981); Planned Parenthood of Minnesota, Inc. v. Citizens
6 for Community Action, 558 F.2d 861, 867 (8th Cir. 1977).
7
8 9. The Ninth Circuit has also held that the loss of First Amendment freedoms
11 F.3d 1045, 1057 (9th Cir. 1995) (the loss of First Amendment freedoms
-13-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 15 of 17 Page ID
#:449
7 bought or sold in any market. This is why injunctions are the standard
8 remedy in civil rights [including cases of violated free speech rights] and
9 environmental litigation.”)
10
11 12. Because Mr. Rosebrock wants to continue hanging the United States flag
12 union down and has ceased doing so due to Defendants’ interference, and
because a threatened loss of First Amendment rights constitutes irreparable
13
injury, Mr. Rosebrock is entitled to permanent injunctive relief. American-
14
Arab Anti-Discrimination League, 70 F.3d at 1057 (“We therefore agree . . .
15
that their claim is ripe for review, because the chill to their First Amendment
16
rights is an irreparable injury that cannot be vindicated by post-deprivation
17
review . . .”).
18
19
13. The purpose of injunctive relief, particularly in the context of cases of
20
dealing with constitutional injury, is to restore the plaintiff to his/her rightful
21
position. Missouri v. Jenkins, 515 U.S. 70, 88 (1995) (holding that victims of
22
discriminatory conduct are entitled to be restored to the position they would
23
have occupied in the absence of the discriminatory conduct); see also
24
Laycock, supra note 8, at 708-709 n.106 (stating that injunctions are
25
supposed to place a plaintiff in the position in which he/she would have
26
occupied had the plaintiff not suffered a constitutional injury, such as a
27
violation of his/her right to free speech).
28
-14-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 16 of 17 Page ID
#:450
7
8 15. The public walkway surrounding the Great Lawn, and thus also the fence
9 separating the public walkway from the Great Lawn, is a public forum.
10 Grace, 461 U.S. at 180 (“Sidewalks, of course, are among those areas of
11 public property that traditionally have been held open to the public for
12 expressive activities and are clearly within those areas of public property that
may be considered, generally without further inquiry, to be public forum
13
property.”); see also ACLU v. City of Las Vegas, 333 F.3d 1092, 1103 (9th
14
Cir. 2003) (finding that one of the three factors a court must assess in
15
determining the character of a forum is the forum’s historic use as a public
16
forum and whether it is part of the class of property which, by history and
17
tradition, has been treated as a public forum); see also Gerritsen v. City of
18
Los Angeles, 994 F.2d 570, 576 (9th Cir. 1993) (stating that streets
19
designated to have a ‘special ambience’ and be a non-public forum may still
20
qualify as public forums because visitors expect that the street is a public
21
forum).
22
23
16. Because the fences on the public walkways is a public forum, the government
24
is violating Mr. Rosebrock’s First Amendment rights by discriminating on
25
the basis of content in its pattern of unequal enforcement of 38 C.F.R. §
26
1.218(a)(9). See, e.g., Burson v. Freeman, 504 U.S. 191, 197 n.3 (1992)
27
(citing Carey v. Brown, 447 U.S. 455, 461-62 (1980)) (“Under either a free
28
speech or equal protection theory, a content-based regulation of political
-15-
Case 2:10-cv-01878-SJO-SS Document 37-5 Filed 10/25/10 Page 17 of 17 Page ID
#:451
1 speech in a public forum is valid only if it can survive strict scrutiny.”); see
2 also Rosenberger, 505 U.S. at 829 (stating that viewpoint discrimination is a
3 pernicious form of content discrimination and is impermissible, even in a
4 non-public forum).
5
6 17. Regardless of whether the fence and gate around the Great Lawn is a public
10
11 Dated: October 25, 2010 Respectfully submitted,
12 ACLU FOUNDATION OF
SOUTHERN CALIFORNIA
13
By: s/ Peter J. Eliasberg
14 Peter J. Eliasberg
Attorney for Plaintiff
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-16-
Case 2:10-cv-01878-SJO-SS Document 37-6 Filed 10/25/10 Page 1 of 3 Page ID #:452
9
10
11 UNITED STATES DISTRICT COURT
12 CENTRAL DISTRICT OF CALIFORNIA
13
14
15 ROBERT ROSEBROCK, ) Case No. CV10-01878-SJO (SSx)
)
16 Plaintiff, )
)
17 vs. ) [PROPOSED] ORDER GRANTING
) PLAINTIFF’S MOTION FOR
18 DONNA BEITER, DIRECTOR OF ) SUMMARY JUDGMENT
THE VETERANS )
19 ADMINISTRATION GREATER )
LOS ANGELES HEALTHCARE )
20 SYSTEM, in her official capacity; )
RONALD MATHIS, CHIEF OF )
21 POLICE OF THE VETERANS )
ADMINISTRATION GREATER )
22 LOS ANGELES HEALTHCARE )
SYSTEM, in his official capacity. )
23 )
Defendants. )
24 ______________________________ )
25
26
27
28
Case 2:10-cv-01878-SJO-SS Document 37-6 Filed 10/25/10 Page 2 of 3 Page ID #:453
9
10
11 UNITED STATES DISTRICT COURT
12 CENTRAL DISTRICT OF CALIFORNIA
13
14
15 ROBERT ROSEBROCK, ) Case No. CV10-01878-SJO (SSx)
)
16 Plaintiff, )
)
17 vs. ) [PROPOSED] JUDGMENT
)
18 DONNA BEITER, DIRECTOR OF )
THE VETERANS )
19 ADMINISTRATION GREATER )
LOS ANGELES HEALTHCARE )
20 SYSTEM, in her official capacity; )
RONALD MATHIS, CHIEF OF )
21 POLICE OF THE VETERANS )
ADMINISTRATION GREATER )
22 LOS ANGELES HEALTHCARE )
SYSTEM, in his official capacity. )
23 )
Defendants. )
24 ______________________________ )
25
26
27
28
Case 2:10-cv-01878-SJO-SS Document 37-7 Filed 10/25/10 Page 2 of 3 Page ID #:456
1 This action came on for hearing before the Court on November 15, 2010,
2 Honorable S. James Otero, District Judge Presiding, on Plaintiff’s Motion for
3 Summary Judgment. The Motion, Memoranda of Points and Authorities, and the
4 evidence presented having been fully considered, the issues having been duly heard
5 and a decision having been fully rendered,
6 IT IS HEREBY ORDERED AND ADJUDGED that judgment be entered in
7 favor of Plaintiff on his claim for declaratory and injunctive relief.
8 IT IS FURTHER ADJUDGED AND DECLARED that Defendants engaged
9 in viewpoint discrimination that violates the First Amendment by citing Plaintiff
10 and refusing to allow Plaintiff to hang the United States flag, union down, outside
11 the fence of the “National Veterans Park” while permitting him to hang the United
12 States flag, union down, for 66 weeks, and absent an injunction Plaintiff faces the
13 threat that Defendants will continue to violate his rights to freedom of expression
14 under the First Amendment
15 IT IS FURTHER ORDERED AND ADJUDGED that Defendants, their
16 employees, agents, and those in active concert with them, are permanently
17 restrained and enjoined from discriminating against the Plaintiff on the basis of the
18 viewpoint he expresses on VA property.
19 IT IS FURTHER ORDERED AND ADJUDGED that Defendants, their
20 employees, agents, and those in active concert with them, are permanently
21 restrained and enjoined from interfering with Mr. Rosebrock’s hanging of the
22 United States flag, union down, on the fence for 66 weeks.
23 \\\
24 \\\
25 \\\
26 \\\
27 \\\
28
1
Case 2:10-cv-01878-SJO-SS Document 37-7 Filed 10/25/10 Page 3 of 3 Page ID #:457