NO.

J10-035408-01

ROBERT GRODEN

§ § § § §

IN THE MUNICIPAL COURT

STATE OF TEXAS

v.

OFTHE

CITY OF DALLAS, TEXAS

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH AND/OR TO DISMISS

NOW COMES ROBERT GRODEN, Defendant, in the above-entitled and

numbered cause, and files this his Brief in Support of Defendant's Motion to Quash

and/or to Dismiss to supplement the arguments and authorities submitted to the Court

at the hearing on November 16, 2010, in this matter, and would show further to the

Court as follows:

I.

As previously argued to this Court, the Complaint upon which this case is based,

filed on July 23, 2010, should be quashed and this case dismissed for the following

seven distinct reasons:

1. The Complaint is defective in that it was improperly and substantially changed long after Mr. Groden was arrested and originally charged.

As previously demonstrated the pending Complaint is the third Complaint filed in

this matter and asserts an alleged violation of City Ordinance § 32-10 (sale of

merchandise in "areas under the control of the Park Board"), which is not a charge for

which Mr. Groden was arrested, jailed, and originally charged on June 13, 2010

(vending on public property that has an express defense for selling "magazines", which

is what Defendant was allegedly doing when arrested. See § 50-156(b )(8)). The State

has presented the Court with no legal authority to support its claim that upon realization

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH AND/OR TO DISMISS 3253710.1/SP/11284/0101/112310

PAGE 1

that a defendant has been erroneously arrested and charged, it can totally change

charges and therefore switch horses in midstream (as opposed to merely clarifying the

charge or making it more specific), as the State attempts to do here in a violation of

Defendant's due process rights.

2. The Complaint is defective because the ordinance upon which it is based is not applicable to the alleged conduct at issue in this case - selling a magazine in Dealey Plaza.

Defendant is a well-known author and expert on the subject of the assassination

of President Kennedy. For over fifteen years, he has sold his publications in Dealey

Plaza, including the magazine at issue in this case, yet he has never been prosecuted

like this for an alleged violation of City Ordinance § 32-10. Why? Because the

Ordinance simply does not apply to the sale of magazines, nor to Dealey Plaza.

First, § 32-10 does not apply to the sale of all things. It only applies to the sale of

certain specified things. The Ordinance expressly applies to the sale of "food, drinks,

convections, merchandise or services." Defendant is not charged with selling any food,

drinks, convections, or services. Rather, the State contends that Defendant was selling

"merchandise", in the form of a magazine. However, "merchandise" is not defined in the

ordinance, and it certainly is not defined to include magazines. In fact, the Ordinance

upon which the arrest and original charge against Defendant were based was § 50-156,

which applies to the sale of "goods" on public property, but "goods" is expressly limited

to so as not to include "magazines." See § 50-156(b)(8). If magazines are not "goods",

then they should not be considered "merchandise" under § 32-10, particularly without

expressly stating so.

Second, the Ordinance only applies to "areas under the control of the Park

Board." Nowhere in the Ordinance is that stated to include "Dealey Plaza."

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH AND/OR TO DISMISS 3253710.1/SP/11284/0101/112310

PAGE 2

Furthermore, there is no sign or posting in Dealey Plaza to indicate that it is claimed to

be an area "under the control of the Park Board." In fact, it is not. As previously

demonstrated, Dealey Plaza has, since 1993, been designated by the United States

Department of Interior as part of a National Historic Landmark District. (See attached

Exhibit A). Thus, Dealey Plaza cannot be "under the control of the Park Board" when it

is a designated National Historic Landmark, and the State has offered nothing to

demonstrate otherwise.

Third, Ordinance § 32-10 only applies to circumstances where "a written

agreement or permit issued from the office of the Park Board permitting the sale of such

items" can be obtained. In this case, the City offers no "written agreement or permit

issued by the office of the Park Board permitting the sale of' magazines in Dealey

Plaza. This is further evidence that the Ordinance simply does not apply to the activities

for which this Defendant has been charged. The State has offered no response

whatsoever to this point.

3. The Complaint is defective because it does not allege that rules and regulations were promulgated and posted in Dealey Plaza by the Park Board as required by City Code § 32-11; nor does it specify the particular posted rule or regulation that Defendant supposedly violated.

While the State claims that Defendant violated § 32-10, it has ignored the related

§ 32-11, and the Complaint in question has totally omitted reference to § 32-11. That

provision expressly requires the Park Board to adopt rules and regulations for the

management of public parks and to post any such rules and regulations "within the

specific park so regulated." The defective Complaint at issue does not allege that the

Park Board has adopted rules and regulations for Dealey Plaza. In fact, it appears that

no such rules and regulations have been adopted. Furthermore, the Complaint does

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH AND/OR TO DISMISS 3253710.1/SP/11284/0101/112310

PAGE 3

not allege that rules and regulations are posted in Dealey Plaza. In fact, no rules and

regulations adopted by the Park Board have been posted in Dealey Plaza. More

specifically, there is no rule or regulation prohibiting the sale of magazines posted in

Dealey Plaza as required by § 32-11. Thus, Defendant has not been provided with fair

notice of the City's position that the sale of his magazines in Dealey Plaza is considered

to be a violation of § 32-10.

Moreover, the defective Complaint does not allege what rule or regulation posted

in Dealey Plaza was supposedly violated by Defendant. That defect is obviously the

consequence of the Park Board's failure to even promulgate such rules and regulations

in the first instance, and its additional failure to post same. The City simply should not

be permitted by this Court to seek to prosecute this Defendant for selling a magazine in

Dealey Plaza when the very Ordinance upon which it bases such prosecution does not

appear to apply to the sale of magazines in the first instance, does not appear to apply

to Dealey Plaza, and when the City Park Board is required to promulgate rules and

regulations and to post same in the areas where they seek to enforce them, but the City

has wholly failed to do so in this case.

4. The Complaint is defective because it is not alleged that the City has legal authority to enforce restrictions on sales of publications pertaining to the subject of a national public controversy and the exercise of First Amendment rights in Dealey Plaza, an area designed by the United States Department of Interior as a National Historic Landmark District; nor does the Complaint state the legal basis for any such claim of Park Board authority to "control" Dealey Plaza.

As previously shown, Dealey Plaza is part of a National Historic Landmark

District and has been so since the United States Department of Interior declared it as

such in 1993. The State has offered no legal basis for the City Park Board to assert

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH AND/OR TO DISMISS 3253710.1/SP/11284/0101/112310

PAGE 4

"control" over property specifically designated as a National Historic Landmark by the

United States Department of Interior; nor does the Complaint allege any basis for same.

The Ordinance upon which the Complaint against Defendant is based, Code § 32-10,

only applies "in areas under the control of the Park Board." As part of a National

Historic Landmark District, Dealey Plaza cannot be under the "control" of the City Park

Board, and that is why the Park Board has not promulgated or posted rules and

regulations in Dealey Plaza asserting otherwise.

In Boardley v. United States Department of Interior, 615 F.3d 508 (D.C. Cir.

2010), it was held that "parks" are quintessential examples of traditional public forums

for purposes of First Amendment analysis and that any system of prior restraints of

expression (such as permit requirements) bears a heavy presumption against its

constitutional validity; and thus, the permit requirement for distribution of leaflets in a

national park was held to be unconstitutional. Id. at 525. (See copy of Boardley opinion

presented to the Court at the November 16, 2010 hearing).

In the case before this Court, there could hardly be a better example of a public

forum (Dealey Plaza) for the exercise of First Amendment rights on the subject of

national public controversy (the JFK assassination); and that is the very reason why it

was designated a National Historic Landmark.

5. The Complaint is defective because it does not allege that permits or agreements to sell magazines on the JFK assassination in Dealey Plaza are available and are issued upon application for same.

The Ordinance upon which the Complaint at issue is based, City Code § 32-10,

applies only to a person who does not have "a written agreement or permit issued from

the office of the Park Board permitting the sale of' merchandise. The Ordinance shows

on its face that it cannot be enforced where requests for such agreements or permits

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH AND/OR TO DISMISS 3253710.11SP111284101011112310

PAGES

are not accepted and where such agreements or permits are not available. In this case,

no agreements or permits are available from the City Park Board. Thus, the State

attempts to enforce a blanket ban on the sale of anything in Dealey Plaza in violation of

Defendant's First Amendment and due process rights. Such broad bands are

unconstitutionally overbroad. See Vii/age of Schaumburg v. Citizens for Better

Environment, 444 U.S. 620, 100 S. Ct. 826 (1980) (see copy of Schaumburg decision

presented to the Court at November 16, 2010 hearing). The State had no response to

this argument at the hearing on November 16, 2010, and has wholly failed to address

this point.

6. The Ordinance upon which the Complaint is based is constitutionally defective in that it is unreasonably vague and therefore unenforceable, particularly because of its chilling effect on First Amendment rights.

As previously shown, see Code § 32-10, is unreasonably vague in that does not

specifically apply to the sale of magazines and does not specifically apply to Dealey

Plaza, which is part of a National Historic Landmark District. Additionally, the City has

not promulgated or posted rules and regulations as required by City Code § 32-11.

Thus, Defendant was not provided with fair notice that he would be prosecuted for

selling his magazines on the JFK assassination in Dealey Plaza, particularly since he

has done so for fifteen years prior to his arrest in this case. Fundamental due process

requires that a citizen be given fair advance notice of what conduct is allegedly

prohibited. This should be particularly true in the area of the exercise of First

Amendment rights because of the impermissible chilling effect that enforcement of an

unreasonably vague ordinance can have on the exercise of such rights. In fact, the

utter vagueness of this particular ordinance is demonstrated by the inconsistent

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PAGE 6

enforcement and prosecution thereof and the fact that the arresting police officer based

the original arrest and charge on a totally different ordinance.

7. The Ordinance upon which a complaint is based is facially overbroad, fails to serve a compelling or substantial state interest, and is not narrowly prescribed so as not to infringe upon the exercise of free speech or free expression rights protected by both the United States and Texas Constitutions.

City Code § 32-10, which is the ordinance upon which the defective Complaint at

issue is based, is unreasonably vague and is overbroad, particularly in the State's

attempt to enforce it against Defendant's sale of magazines in Dealey Plaza, which he

has done for the last fifteen years. The only case cited by the State in support of the

prosecution of Defendant in this case is an old opinion of the D.C. Court of Appeals in

the Clark case. However, to the extent that the Clark case is inconsistent with the

Boardleyopinion presented to the Court, then the Clark case has been overruled by the

Boardley case because it is rendered by the same court but more recently - sixteen

years more recent. Furthermore, the Clark case held that the United States Department

of Interior has the constitutional authority to restrict camping in a public park without a

permit. Defendant in this case was not charged with camping in Dealey Plaza. In the

Boardley case sixteen years later, the Court held that the Department of Interior cannot

prohibit the distribution of publications in public parks because that is a violation of a

person's First Amendment rights. If the Department of Interior cannot do it, neither can

the City in Dealey Plaza, which is part of a National Historic Landmark District. The

reason that Dealey Plaza was designated as a National Historic Landmark was because

of the Kennedy assassination. It is inconceivable that the City can legally ban the

exercise of First Amendment rights in Dealey Plaza about that very subject.

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH AND/OR TO DISMISS 3253710.1/SP/11284/0101/112310

PAGE 7

II.

On November 17, 2010, one day after the hearing in this matter on

November 16, 2010, the United States District Court for the Central District of California

rendered an opinion in Hollywood Characters, et al. v, City of Los Angeles, et al., Case

No. CV 10-05848 (November 17, 2010) (a copy of which is attached hereto as

Exhibit B). In that case, the defendants were arrested by the Los Angeles Police

Department and charged with aggressive solicitation when they dressed up as

Hollywood characters on Hollywood Boulevard and solicited donations. The Court held

that expressive conduct was protected by the First Amendment and that the City had

not shown a compelling government interest in keeping costume performers off of

Hollywood Boulevard. Thus, in Hollywood Characters, the city's enforcement of a

solicitation ordinance was considered unconstitutional and prohibited. Similarly, the

enforcement of City Code § 32-10 against Defendant Groden's First Amendment

activities in Dealey Plaza should be prohibited. This is particularly true in this case

where Dealey Plaza is a designated National Historic Landmark, where Defendant was

engaged in First Amendment activities specifically related to the reason that Dealey

Plaza was so designated (selling a magazine on the JFK assassination), and where the

ordinance in question does not specifically apply to magazines nor to Dealey Plaza, and

the City has failed to promulgate and post any rules and regulations that prohibit

Defendant's conduct in Dealey Plaza.

III.

CONCLUSION

Defendant was charged and arrested for an alleged violation of a totally different

ordinance, upon which the State could not successfully prosecute Defendant because

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH AND/OR TO DISMISS 3253710.1/SP/11284/0101/112310

PAGE 8

the Ordinance expressly allows the sale of "magazines." Thus, the State has attempted

to totally switch horses in midstream by, for the first time, seeking to prosecute

Defendant under a totally different ordinance that does not even apply to the sale of

magazines in Dealey Plaza. That is why Mr. Groden has been permitted to sell his JFK

magazines in Dealey Plaza for fifteen years without being prosecuted under the

Ordinance that the State now seeks to charge him. The fact that the Ordinance upon

which the Complaint is based does not apply to the sale of magazines on the JFK case

in Dealey Plaza is further demonstrated by the inconsistent enforcement of the

Ordinance, the confusion of police officers as to which ordinance allegedly applies, and

the failure of the City to promulgate and post regulations in Dealey Plaza purporting to

restrict the sale of magazines and publications like those offered by this Defendant.

This Court should not allow this prosecution to go forward in violation of Defendant's

due process and First Amendment rights, particularly when the Ordinance at issue is

facially inapplicable and the attempt to enforce same against Defendant's First

Amendment activities in Dealey Plaza is overbroad, does not serve a compelling State

interest, and would have a chilling effect on the exercise of First Amendment rights in an

area designated as a National Historic Landmark District. Indeed, the State has offered

no plausible argument to support a compelling State interest in prohibiting the sale of

magazines on the JFK assassination at the very site of such assassination and which

the United States Department of Interior has for the last seventeen years deemed it

appropriate to designate as a protected area for the exercise of such constitutional

rights.

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH AND/OR TO DISMISS 3253710.1/SP/11284/0101/112310

PAGE 9

For all of these reasons and those demonstrated at the Court hearing on

November 16, 2010, the Complaint should be quashed and this case should be in all

things dismissed and Defendant's property and cash bond returned to him immediately.

This Court cannot undo Defendant's unjustified arrest and incarceration, but it can at

least stop a continuation of this erroneous prosecution.

WHEREFORE, PREMISES CONSIDERED, Defendant Robert Groden prays that

his Motion to Quash and/or Dismiss be in all things granted, that this case be dismissed,

that Defendant's property in the possession of the City of Dallas Police Department be

returned to him immediately, that his cash bond be released to him immediately, and

that he have such other and further relief to which he may be entitled.

Respectfully submitted,

D. BRADLEY KIZZI State Bar No. 1154l STRASBURGER & PRICE, LLP 901 Main Street, Suite 4400 Dallas, Texas 75202

(214) 651-4300

(214) 651-4330 (FAX)

ATTORNEY FOR DEFENDANT

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH AND/OR TO DISMISS

3253710.1/SP/11284/0101/112310

PAGE 10

CERTIFICATE OF SERVICE

The undersigned counsel certifies that on the 23rd day of November, 2010, a true and correct copy of the foregoing was forwarded to a" known counsel via First Class U.S. Mail, certified mail, return receipt requested, facsimile, and/or electronic mail in compliance with Rules 21 and 21 a of the Texas Rules of Civil Procedure.

BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO QUASH AND/OR TO DISMISS 3253710.1fSP111284101011112310

PAGE 11

EXHIBIT A

This map shows the area rncIuded In Ihe Dealey Plaza National Historic I ,,",im,lrk Dlstflct outlined In gold. Dealey Plaza and the tnple ",derpass, ",hlch The SIXth Floor Museum at Dealey Plaza proposes for : ";toration, ,lre noted In red, The S"lh floor Museum at Dealey Plaza

Opposite page: The structures, hardscape, zJOd landscape elements in Dealey Plaza have deteriorated and many elements have been modified over the years. The SIXth fioor Museum at Deaiey Plaza

51

EXHIBIT B

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.4

. I

11/17/10

1 of 11

3

4

o

UNITED STATES DISTR

COURT

CENTRAL DISTRICT

CAL FORNIA

o

11 HOLLYWOOD CHARACTERS, an ion ssociation, AS BALKE, MEL SA

, PAUL HARRELL, "TONY" TmiJEY,

Case No. CV 10-05848 DDP (CWx)

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

Mot filed on October 4, 2010)

aintiff,

OF LOS ANGELES, a muni pal enti ,OFFICER CHACON ; OFIVER GONZALES; JORDAN; OFFICER KI ,

fendants.

This matter comes before the court on a Motion for Prelimi

a ntiffs Hall

Characters,

thi

il

the

Meli sa Beithan, Paul

rell, and Terrell"

y

(co Ie ively "Plainti fs"). Plaintiffs are va ous individua

t the personas of, and dress as comic book movie

Wolverine, Batman, Superman, Catwoman, Iron Man, t

7 and ransformer, and perform on Holl

Boulevard. Plai t f

8 a lege that the City of Los

les and individual officers of

11/1

2 of 11

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s

1 ' ~l

ly \\

ff )

in

in

lai

.a J",

Fi t Amendment;

ts.

ee an

ir r

perform

t

sol c

ry njunction on

1

s

tablish i

have

i ed to

r "a 1

Boul

they appea on Holl

on the

\\

unwr tten pol

of the C y

li iting donations on Holl

performers for

in any other form of

cted spee

If

: 1 -18.)

the papers ubmitted

the parti

o 1

, the court GRANTS Plaintiffs's reque

iminary injunction.

BACKGROUND

11

ff

is a

rforme on

Bou e

three years, Tomey has been perro

(Tomey Decl. 1 .)

On June 2, 2010, Tomey wa arres ed

ficer for the Los

les Police

sidewalk of Hol ywood Boulevard in violation of

ipal Code (" .A.M.C.") s ction

.18.

1 3.)

is also a performer on Holl

Boulevard. On June 4,

roximately 1:30pm, Junt was arrested.

Junt was

Id

6 ar
,I but
1 i
i
81 of
I
I sting LAPD fficer that he was

ing arre ted for loi r ng,

s ultimately arrested for open soli itation in io t on

(Junt Decl. 1 2.)

Pla nt

ection 42.00 (b) .

s

• ['1 •

2

51

o 0,

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11/17/10

3

11

10

f and

rre are ively as 1. '![ 2; Biethan

, Catwoman, and ; Harrell , Beithan, and

of 1

8. Ike Decl. '![

roximately 7: "bloc

f L.A.l:LC. Har 11 Decl. '![ uperman on Holl 0, Dennis wa

) None f

. )

s

r

s (Dennis

rd.

loitering on s was convicted 0

none have rges.

6, 20 0, Plaintiffs iled a Complaint

les and vari po ice officers.

laint al s that Defendants violated PI

Fourth ~~endment r

s by rrest

them for

loitering, or solicit Ie cause in order to

donations on them from pe

donations.

Ex Parte

1. '![ 31.)

st 31, 2010, rary Restraining

On

ti

for a

1

ember 2,

010, the court denied without

On S

judi

TRO. (Order, Dkt. No.7.)

Now, Plaintiffs once again argue that they are enti 0

tive relief.

iffs argue that the LAPD's two

P

enforcement

icies

related t L.A.M.C.

(concern

aggressive olicitation) and 41.18 (concerning

obstruct strian travel/loitering) - are unconstitut y

at them by defendants. (PIs.' Mem. 2:67.) The firs

y 0 ctice that Plaintiffs allege is a policy

3

1

rd

11/1

a

4

11

10

o

y

6. )

r

a

li

s of

or

rmer on

when there was no

s a

and

violation

on

: 6- 8.)

P inti f

tate

accordingly s

1

ng on

1- .)

inti

1

1

forum

that they

li it

there. Acco

s

1 \ J... J

y argue

13:6-

se

unction.

re

argue

of a policy or practice in

ace by Defendant of

r oliciting donati

or engag

treet performers

in any other form of protected speech.

- 9.)

LEGAL STANDARD

on Holl

t meet exact

n any case where a pa y seeks a prel

na

in

l

c iteria.

Onder

129 S. Ct.

\

I ,

preliminary

unction must e tab ish t t:

are likely 0 succeed on the merit

/ \

\ i

1 . re ~l

y

uffer irreparabl harm in the absence of preliminary re i f;

the balance of t es tips in their favo ; and (4) a

iminary injunction is in the

ic interest.

577 F.3d 1015, 1021 (9th C r. 2009)

Fur hermore, a

ainti f eeking i unctive reli f must establ s

4

y

n

ly

22

11 Ii

5

11

o

t

o

l' r

1 . ' If

1 0

DISCUSSION

iffs cla

tha they were r s

Ci Y cy of arrest

t

Denni . ~~ 4,6; Harrel

c . ~ 6;

omey De 1.

6,7. )

fendants argue

t

tanding and, in the Iternati

court considers the

ri

f Sf

of

court is obl

o consider

argue that Plaintiffs' injury is not

that, therefore, Plaintiffs

ck st

F.3d

2010 vJL 3607033,

t

t to demons rate Article II standing t

injunction stage, a plaintiff must make

cl r ho'd

n ry in fact);

20 F.3d 1187, 1197 n.6 (2010).

rt disagrees. Contrary to Defendants' a

have made a sufficient showing that they are

ly 0

r irrmediate harm in the absence of a preliminary

n

is sensitive that "[pJast exposure to il egal

"in itself show a present case or controversy regardi

ive relief."

4 4 O.S. 488, 49 -4

5

It

~.

L l

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11/17/10

6 of 11

10

a

t

ts

because

1

'lI 1 ;

. 'lI 8;

than

cl. 'lI

Plaintiff Balke Iso ta s that he

. )

t

r donations when he performs on

11

a t. (Balke Decl. 'lI 4. )
rtf fenda s of r t

or to sugge that intif s' f
i , for e, no evidence in the rs have continued to perform on Holl

have

fendants

fered evidence 0 rebut Plaintif

a legations that their arrests were targeted at costumed r

The court is satisfied, based on Plaintiffs decl rat ons

individual ar sts, which occurred during four separate an

that Pla tiffs have an on-going and leg timate fear of

d both their costumed performance on Holl

their active 0 citation of t

therefore.

Plain

evidence f no less than six individual arre of

pe formers on Holl

Boulevard on no less than

ur

occasions.

The court, therefore,

to consi r

s of Plaintiffs'

ication.

evidence of the underl ng for the va i

is in the arrest records submitted by Plainti fs n

These records, however, are form

more than ist the charg ordinance.

Balke Decl., Ex. A; Ha rel Decl., Ex. D.)

6

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11/17/10

7 of 11

10

ng

n unct

like ihood of

f

harm, the balance

interest.

1

S. Ct. at 376.

In

Ii

rits, the

onal speech."

7

that t is well e tled that "solicitation i

entitled to

ti

ional

ect

00 );

3

3 8

) .

The court is als

rcui 's recent

ion in

o

( 9

ir. 2009) (en banc)

In

i

the ongstanding princ

e

t "protections

Amendment are nowhere s ronger than in stree

zed for First Amendment purposes as traditi

at 1035-36.

Relevant to the present case, the

t n

o recognized performance art as a form of exp ss

protected

the First Amendment,

at 1037 n.4.

Pl intiffs do not al ege that either L.A.M.C.

o 41. 593

e

rmi sible time,

ace, or manne

8

e on 41.18(a) states that: any street, idewalk or other

r otherwise occupy any on

or molest any pedestrian thereon or so to obst

onably interfere with the free passage of strians.

S ction 41.18(b) states that: No rson sha 1 loiter in

strian subway, r on overpass! r at

rance thereto or exit there rom, or at or near any wall adjacent to such entrance or exit, or any

11 or abutment acent to freeway, street

and used for cular traff c, or adjacent

reof used for vehicular traffic, or on any

in the proximity f such br I overpass, or retai

(cont

rson shall stand for

2

3

• j

7

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11/1

o

y

.A.M.

o

t

prevent hem

t

cogniz s that

i

o

ed to support legi ima

uppress

any parti

r

a

1.

4

F.3d at 794 &

10.

He

f

\ .

inued) abutment.

ion 41.S9(b) states that: (1) No person shall r in any followi

strian or

ical contact; (D)Us vio

stures towa a person sol cited ether

a er soliciting, asking or ; (E)Persi

following r ng a rson, after the per on

has been sol cited and n rmed the solicitor that such person does not want 0 be solicited r

ive money or any other th of value to the sol

profane, offensive or abus 1 which i

likely to provoke an ate

after solicitation.

in, the court notes that Defendants have wi no evidence to rebut Plaintiffs sworn statement

not obstruct the flow of strians at the t

the plain of the L.A.M.e.

e, no rations from arresting officers

account of the various arrests, nor are there any

from the Defendants that costumed characters per Boulevard will not be arrested so long as the levant ordinances.

8

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11/17/10

9

11

o

rt

costumed performance may not be a

without

cted

i

t, "performance rt i a] form[] Fi t Ameridmerrt . II

1) ("Entertainment, rotected; mot on

s well a po tu s, prog

live entertainment, uch s

rks fall w i t h i n the First Arnendment

rant

persuaded that interest in ke

fendants have not hown

f f

costumed performers

and Plaintiffs have established a rits.

1

o

side

the balance of hardships,

fendants' policy of arrest

costumed perfo

had a

fect on their presence and solicitation of t ps

Boulevard.

Plaintiffs state that because

y

they have s per on Holl
cl. '31 11; Biethan cl. '31 8 i Dennis 4, 6; Har
11 7 ; Junt '31 5; Tomey 6, 7. ) Defendants do
Because Defendants would remain free to ar ege 1

performers who were actual

bloc

he

n iance with the L.A.M.e., the court s es no

fendants if the injunction issues. The court herefore uoe

28 that P intiffs have demonstrated that they would exper

9

d

rm 0

1

urn,

nd

Document

11/17/10

10

11

10

inj than the i unction we

i

98 F. d 390, 393 (9th Cir. 3) .

i rsuaded that i wou

injunction.

43 F.3d 4 7, involved, the district interest favo s for preliminary

mus

] • If )

signi icant

in

1

s."

2 071,

r. 1994)

that "it is always i

lic

the violation of a party's consti utiona

fo reasons the court concludes that Plaintiffs'

sted preliminary i unction must issue.

CONCLUSION

ly,

is rdered that:

a hearing on a permanent i unction 0

rial In hi

Defendants re

oined from doing any of he

1.

Arresting or cit

, or threa

to arrest or cite

Plaintiffs for obstruct

the sidewalk absent evidence

that each, individually, is bloc

strian traffic

on the sidewalk in violation of L.A.M.C. § 41.18(a);

10

h

1

-cw

11/17/10

s i

i

th

o

inti

eva

i

t

dona i

Pl

i performances s comply with L.A.M.e. § 41.59.

SO ORDERED.

November 17, 010

DEAN D.

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L •. M .. § 4 •

ong

a