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Roy Warden, Publisher Common Sense II 3700 S Calle Polar Tucson Arizona 85730 roywarden@hotmail.com

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

) ) ) ) Plaintiff, In Pro Se ) vs ) ) KATHLEEN ROBINSON, individually ) and in her official capacity as Assistant ) ) Chief of the Tucson Police Department, ) ) et al. ) ) Defendants. )

ROY WARDEN,

CV-13-O283-TUC-DCB PLAINTIFFS RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT ORAL ARGUMENT REQUESTED THE HON. DAVID BURY

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COMES NOW Roy Warden, Plaintiff in the above captioned case, with his Response to, and Request that, the Court Deny Defendant Robinsons Motion for Summary Judgment, for reasons set forth in the Affidavit of Roy Warden, in Plaintiffs Separate Statement of Material Facts, and as set forth below:
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Plaintiff, who has not yet been afforded the opportunity to conduct any discovery, respectfully submits: Defendant Robinsons premature Motion for Summary Judgment is no more than an attempt to railroad Plaintiff. The U.S. Supreme Court has ruled Summary Judgment should be denied, or the hearing on the motion to be continued, if the nonmoving has not had the time to make full discovery. Celotex v Catrett, 106 S.Ct, 2554, 477 U.S. 326 (1988)

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2.

Plaintiff herein submits his Response to Defendant Robinsons Motion for Summary Judgment, his Separate Statement of Material Facts and the Affidavit of Roy Warden, all of which demonstrate there are several material facts in dispute, including, but not limited to, Defendant Robinsons presence in Armory Park on May 01, 2011, when she violated Plaintiffs right to free speech and assembly, as set forth in the First Amendment. (PSOF 8, Affidavit of Roy Warden) STANDARD REQUIRED FOR SUMMARY JUDGMENT

Regarding the Federal Rules of Civil Procedure Rule 56 ( c ) and Defendant Robinsons Motion for Summary Judgment, the US Supreme Court has clearly stated: Credibility determinations, weighing of evidence, and drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether his ruling is on motion for summary judgment or for directed verdict; evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor. Anderson v Liberty Lobby, Inc. 106 S.Ct. 2505 (1986) PLAINTIFF HAS PRESENTED MATERIAL FACTS IN DISPUTE In the Affidavit of Roy Warden and the Plaintiffs Separate Statement of Material Facts, filed with this document, Plaintiff disputes various facts asserted by Defendant Robinson, and presents evidence that Defendant Robinson was present in Armory Park on May 1, 2011. (PSOF 8) MEMORANDUM OF POINTS AND AUTHORITIES Defendant Robinson, in her Motion for Summary Judgment and Statement of Material Facts, uses an impressive 52 pages to set forth facts, legal arguments, case citations, exhibits, affidavits, TPD Reports, hand drawn maps, Tucson City Ordinances, selected photographs, the identity of the 2011 exclusive use permit grantor, the identity of the 2011 exclusive

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use permit holder, etc, all in an effort to convince the Court that Defendant Robinsons conduct, and civilian conduct, on May 1, 2011, was lawful. However, in spite of her excessive verbiage, Defendant Robinson conspicuously ignores1 the law as set forth in Gathright v City of Portland, 439 F.3d 573 (9th Cir 2006) which puts a dagger through the heart of her contention the City of Tucson has the authority to grant an exclusive use permit to organizers of a community meeting in a public park, which also permits them to deny entry, on the basis of viewpoint, to a member of that same community. Gathright v City of Portland, 439 F.3d 573 (9th Cir 2006) In Gathright, the holders of an exclusive use permit, issued pursuant to a Portland City Ordinance, denied entry to a public park to Plaintiff Gathright, an evangelical political speaker who often aggressively spoke in opposition to the pro-gay message conveyed by the Gay Pride event holders. Police subsequently arrested Plaintiff Gathright for violating the entry prohibitions proscribed by the ordinance. In Warden v Robinson, the holders of an exclusive use permit, issued pursuant to a Tucson City Ordinance, denied entry to Armory Park to Plaintiff Warden, who often aggressively speaks in opposition to the open border message conveyed by the permit holders. Defendant Robinson, assisted by several TPD Officers, subsequently prevented Plaintiff Warden from entering Armory Park, for the purpose of political speech, on May 01, 2011. (PSOF 8)

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City Attorney Mike Rankin issued a memo dated April 12, 2006 which cited Gathright as the authority which prevented TPD from denying Plaintiff entry into Armory Park on April 10, 2006 for the purpose of public speech in opposition to the open border message of exclusive use permit holders. (PSOF, Exhibit 1)

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Thus; excepting the arrest, Gathright is on point with the factual issues now considered by this Court. Regarding the Portland City Ordinance at issue in Gathright, the Court said: Portland enforces the right of permit holders sponsoring an event to evict any member of the public who espouses a message contrary to what the permit holder wants as part of its event. Under Portland City Code (PCC) 20.08.060, [i]t is unlawful for any person unreasonably to interfere with a permittees use of a Park. Ibid., 575 According to the Citys policy, a permittee may order a person to leave an open event when that person unreasonably interferes with the permittees use of the licensed space. The police will enforce that order and the attendees failure to obey the permittee is a Class C misdemeanor under Oregon criminal law. Ibid., 575 The Tucson City Ordinance at issue in Warden, Code Section 21-4(a) (b)(6), authorizes the Director of Parks and Recreation to approve exclusive use permits. (DMSJ 3:12-15) Tucson City Code Section 21-3(7)(4) protects the permittees rights through its general prohibition on disturbing or interfering with a permit holder, as follows: Sec. 21-3(7)(4). Relating to miscellaneous activities. No person in a park shall: *** Interfere with permittees. Disturb or interfere unreasonably with any person or party occupying any area, or participating in any activity, under the authority of a permit license or reservation. (DMSJ 4:12-18) Moreover; Defendant Robinson maintains: (T)he City has a legitimate interest in preventing Plaintiff Roy Wardena counter protestor of a permitted event from interfering with the message of the permit holder. A

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City can issue permits to groups seeking to make exclusive use of [City Property] for expressive activity during a limited period of time. (DMSJ 7:21-24. Internal citations omitted). (A)n exclusive use permit holder has a First Amendment right to conduct the event and convey its message within the permitted area without interference from competing activeties or protests. (DMSJ 8:6-8. Internal citations omitted) Significantly; none of the case citations used by Defendant Robinson to support her position were Ninth Circuit decisions. Moreover; the sole Supreme Court decision cited by Defendant RobinsonHurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 115 S.Ct. 2338 (1995)was concerned with parade groups, not city park functions, making a distinction between parade events intended to send a particular message, which may exclude participants on the basis of viewpoint, and public park events, which may not exclude. Thus: the City Ordinances under review in Gathright and Warden are virtually identical, both in their language and in their application. Subsequently; the Gathright Court set forth the law regarding the intersection of two First Amendment rights: on the one hand, the classic right of an individual to speak in the town square; on the other hand, the interest organizations have in not being compelled to communicate messages not of their choosing. Gathright at 575. Thus; Garthright is on point with the legal issues now considered by this Court. Plaintiff, who does not follow Defendants practice of obfuscation by the use of parsed snippits of extra jurisdictional decisions, instead presents whole selections Gathright, which concluded it was violation of the First Amendment for the City of Portland to issue an exclusive use permit which

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allowed organizers of a political event, held in a public park2, to exclude members of the public on the basis of viewpoint: The City in turn asserts its interest in protecting the right of organizations holding events not to be forced to include the words of a speaker expressing a message not of the private organizers own choosing. Gathright, 576 The City concedes that Gathrights preaching is a form of expression protected by the First Amendment. It argues, however, that its policy of allowing permittees to exclude people from events in public forums is a valid time, place or manner regulation of public property. In evaluating this proferred justification, we are guided by the Supreme Courts decisions in Ward and Hurley. Ibid. 576 Hurley held that the State of Massachusetts could not require the organizers of an annual St. Patricks Day parade to allow an organization in favor of gay rights to march in the parade. The Court explained that [p]arades are . . . a form of expression entitled to First Amendment protection, 515 U.S at 568, and that those who organize parades ha[ve] the autonomy to choose the content of [their] own message. Id. at 573. The Court established that when dissemination of a view contrary to ones own is forced upon a speaker intimately connected with the communication advanced, the speakers right to autonomy over the message is compromised. Id. at 576. Under the circumstances in Hurley, the Court concluded that the organizers of the St. Patricks Day parade had a First Amendment right not to be compelled to allow the gay-rights organization to march as part of the parade: to do so would have forced the parades organizers to communicate a message they did not endorse. Ibib., 576577 We disagree with the Citys reading of Hurley. Hurley involved the exclusion of those who wished to participate in
The Gathright Court made a distinction between parade events intended to send a particular message, which may exclude participants on the basis of viewpoint, and public park events, which may not exclude.
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the parade as marchers, not those who witnessed or opposed the processionAs the district court has here observed, [t]here is a distinction between participating in an event and being present at the same location. Merely being present at a public event does not make one part of the organizers message for First Amendment purposes. Gathright v. City of Portland, 315 F. Supp. 2d 1099, 1103 (D. Or. 2004). Ibid., 577 Applying Wards criteria to the facts before us, we conclude that the Citys policy is not a valid time, place or manner regulation of public space. See Ward, 491 U.S. at 791. Solely for the purposes of the Citys appeal, we accept its proposition that its policy is content neutral and that it has a significant interest in protecting the free speech rights of people and organizations who have obtained permits to use a public park for an event open to the public. We hold, however that the policy of allowing permittees unfettered discretion to exclude private citizens on any (or no) basis is not narrowly tailored to the legitimate interest in protecting its permittees rights under Hurley. See Ward, 491 U.S. at 798-800. Because the Citys policy is not narrowly tailored, we do not reach whether it leaves open ample alternative channels of communication. Ibid., 577. The Citys assertion that its policy is content neutral is questionable. The policy enables private citizens to exclude people from events in public forums solely on the basis of the content of their speech. Ibid., 577 See footnote 3 In Hurley, the Supreme Court made clear that every marching participant in the St. Patricks Day parade was an expressive unit, the sum of which constituted the expressive message attributable to the parades organizer Here, there is no risk that Gathrights provocations could be mistaken by anybody as part of the message of the events he protests. Ibid., 578 Gathright may be a gadfly to those with views contrary to his own, but First Amendment jurisprudence is clear that the way to oppose offensive speech is by more speech, not censorship, enforced silence or eviction from legitimately occu-

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pied public space. See Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) ([A] function of free speech under our system of government is to invite dispute.). Ibid., 578 The City cannot . . . claim that ones constitutionally protected rights disappear [where] a private party is hosting an event that remain[s] free and open to the public. Parks, 395 F.3d at 652. Ibid., 579 Because PCC 20.08.060 is not narrowly tailored to the Citys interest in protecting its permittees right under Hurley, we affirm the district courts conclusion that the ordinance is not a valid time, place or manner regulation. Ibid., 579 PCC 20.08.060 is entitled Unlawful Interference. As previously noted, it provides that [i]t is unlawful for any person unreasonably to interfere with a permittees use of a park. In City of Portland v. Lee, No. 9907-46965 (Nov. 22, 1999), the Multnomah County Circuit Court found PCC 20.08.060 unconstitutional under Wards narrow-tailoring prong because the ordinance was broad and vague as to what an unreasonable interference might be: the ordinances use of the phrase unreasonably to interfere is far too broad to not sweep into its reach any protected speech which any permittee, user, guard or police officer concludes might be unreasonable. Ibid., 579-580 LEGAL ARGUMENT Defendant Robinson contends what she refers to as the unidentified police officer who prevented Plaintiff from entering Armory Park on May 01, 2011 for the purpose of public speech, did not violate Plaintiffs First Amendment Rights (DMSJ 9:14-13:23; 15:20-16:6) Defendant states: (T)he City has a legitimate interest in preventing Plaintiff Roy Wardena counter-protestor of a permitted eventfrom interfering with the message of the permit holder. Mar-

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cavage v City of Philadelphia, 778 f.supp.2d 556, 565 (2011) (DMSJ 7:19-24) A City can issue[] permits to groups seeking to make exclusive use of [City Property} for expressive activity during a limited period of time. Sistrunk v. City of Strongville, 99F. 3d 194, 198 (6th Cir. 1996) (DMSJ 8:24-9:1) However; in holding that the enforcement of exclusive use permits, for political events held in public parks was not lawful, the Gathright Court said: (W)e accept its (the City) proposition that its policy (the ordinance allowing exclusive use permits) is content neutral and that it has a significant interest in protecting the free speech rights of people and organizations who have obtained permits to use a public park for an event open to the public. We hold, however, that the policy of allowing permittees unfettered discretion to exclude private citizens on any (or no) basis is not narrowly tailored to the legitimate interest in protecting its permittees rights under Hurley. See Ward, 491 U.S. at 798-800. Because the Citys policy is not narrowly tailored, we do not reach whether it leaves open ample alternative channels of communication. Ibid., 577. Additionally; Defendants cite Hurley v. Irish American Gay, Lesbian & Bisexual Group of Boston, 115 S.Ct. 2338 (1995) as authority to support their contention that an exclusive use permit holder has a First Amendment right to conduct the event and convey its message within the permitted area (of a public park) without interference from competing activeties or protests. (DMSJ 8:1-8) However, the Gathright Court stated: We disagree with the Citys reading of Hurley. Hurley involved the exclusion of those who wished to participate in the parade as marchers, not those who witnessed or opposed the processionAs the district court has here observed, [t]here is a distinction between participating in an event and being present at the same location. Merely being present at a

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public event does not make one part of the organizers message for First Amendment purposes. Gathright v. City of Portland, 315 F. Supp. 2d 1099, 1103 (D. Or. 2004). Gathright at 577 The City cannot . . . claim that ones constitutionally protected rights disappear [where] a private party is hosting an event that remain[s] free and open to the public. Parks, 395 F.3d at 652. Ibid., 579 Defendants contend their decision to exclude Plaintiff from Armory Park on May 01, 2011 was based on legitimate public safety concernsto prevent a disruption of the permit holders event, (DMSJ 10:13-14) irespective of the law proscribing the prior restraint of pure public speech, set forth by the Arizona Supreme Court in Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257 (1966), the 9th Circuit Court of Appeals in Irwin v. Mascott, 370 F.3d 924 (9th Cir. 2004), and the U.S, Supreme Court in New York Times Company v United States, 91 S.Ct 2140, 2146, 2147 (1971)3. Defendants conclude with the patently absurd contention that Plaintiffs rights were not violated on May 01, 2011 by state action, simply because 2011 Armory Park event organizers, exercising unlawful authority granted by a Tucson City Code section Defendants themselves recognized to be unconstitutional, as per the Mike Rankin letter dated April 12, 2006 (PSOF Exhibit 1), utilized the Tucson City Police Department to exclude Plaintiff from a political event held in a public park, in explicit and intentional violation of Plaintiffs First Amendment rights as defined by the Ninth Circuit in Gathright. (DMSJ 09:24-10:14)
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(T)he First Amendment tolerates absolutely no prior judicial restraints (or police restraints) of the press (or pure speech) predicated upon surmise or conjecture that untoward consequences may result. Ibid., 2140, 2146, 2147.

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SUMMARY Regarding the employment of exclusive use permits to proscribe entry of a political speaker into a public meeting held in a public park, Gathright is the law here in the Ninth Circuit. And the law, as set forth by Gathright states: the exclusion of Plaintiff Warden from Armory Park on May 01, 2011 violated Plaintiffs First Amendment rights. CONCLUSION Plaintiff is disadvantaged in this case. He is not popular with the Court. He is not a $100,000 a year lawyer working for Defendants, commanding legions of paralegals to gather every cite, proof every argument, check every fact submitted. Moreover; Plaintiff, who has spent nearly a decade opposing Defendants Open Border Policy, has angered some of the most powerful people in Pima County, especially within the legal community. However; in Warden v Robinson, Plaintiff does have the benefit of the facts, and the law, as it is clearly written in Gathright, no matter how Defendants twist or ignore it. And the law of Gathright is simple: in the Ninth Circuit it is not lawful for a city to grant exclusive permits to organizers of political events held in public parks, and then use the police to exclude public speakers who hold an opposing viewpoint. Gathright permits neither the exclusion of gadflys4 asking Gay Pride activists if they got AIDS yet?5 or, as in this case, the exclusion of a member of the community who reminds open border activists the dreams

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Ibid., 578 Ibid., 575

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of Emiliano Zapata, who fought for land reform in Mexico, and Cesar Chavez, who fought to keep illegal aliens from diminishing the wages earned by union members engaged in back-breaking labor in the melon fields of Yuma County, Arizona. Plaintiff does have the benefit of the law, as it has been clearly written. Now he awaits the Court to apply it. PRAYER Plaintiff herein prays the Court to DENY Defendant Robinsons Motion for Summary Judgment, and to grant such other relief the Court deems proper. RESPECTFULLY SUBMITTED this 03th day of January 2014. BY: ____________________________ Roy Warden, Plaintiff State of Arizona County of _____________ On this ____day of ____________________, 2014, before me the undersigned Notary Public, personally appeared Roy Warden, known to me to be the individual who executed the foregoing instrument and acknowledged the same to be his free act and deed. My Commission Expires:_______________ _________________ Notary Original and one copy filed with the Court on January 03, 2014. I hereby certify that on January 03, 2014, I personally hand served the attached document to the Office of the Tucson City Attorney and by email, on the following: Viola Romero-Wright Principal Assistant Tucson City Attorney Viola.romero@tucsonaz.gov

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