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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

ROY WARDEN, Plaintiff, IN FORMA PAUPERIS vs RICHARD MIRANDA, et al.,

Defendants.
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CV-11-0460-TUC-DCB PLAINTIFF’S RESPONSE TO DEFENDANTS SECOND MOTION FOR SUMMARY JUDGMENT ORAL ARGUMENT REQUESTED THE HON. DAVID BURY

COMES NOW Roy Warden, Plaintiff in the above captioned case, with his Response to Defendants’ Second Motion for Summary Judgment and his Request the Court Deny said motion, for reasons set forth in the Affidavit of Roy Warden, in Plaintiff’s Separate Statement of Material Facts, and as set forth below:
1.

Plaintiff filed his claim in 2011; however, the Court has not yet afforded Plaintiff the benefit of a Scheduling Conference, much less any discovery, from which Plaintiff might obtain additional facts with which to “flesh out” his claim against Defendants.

2.

Hence, Plaintiff respectfully submits: Defendants premature Motion for Summary Judgment is no more than an attempt to “railroad” Plaintiff. The U.S. Supreme Court has ruled Summary Judgment

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“…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)
3.

Nevertheless, in an excess of caution, Plaintiff herein submits his Response to Defendants Second Motion for Summary Judgment, his Separate Statement of Material Facts and the Affidavit of Roy Warden, all of which clearly demonstrate there are several material facts in dispute, including, but not limited to, Defendant Robinson’s presence in Armory Park on May 1, 2010, the date she and several “Unidentified Officers, working in concert with exclusive use permit holder Paul Teitelbaum, violated Plaintiff’s right to free speech and assembly, as set forth in the First Amendment. (Affidavit of Roy Warden, PSOF 14) STANDARD REQUIRED FOR SUMMARY JUDGMENT

Regarding the Federal Rules of Civil Procedure Rule 56 ( c ) and Defendants Motion for Summary Judgment the U.S. 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 Plaintiff’s Separate Statement of Material Facts filed with this document, Plaintiff disputes various of Defendants asserted facts, and presents evidence that Defendant Robinson was present in Armory Park on May 1, 2010. (Affidavit of Roy Warden, PSOF 14)

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MEMORANDUM OF POINTS AND AUTHORITIES Defendants, in their Motion for Summary Judgment and Statement of Material Facts, use an impressive 57 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 2010 exclusive use permit grantor, the identity of the 2010 exclusive use permit holder, etc, all in an effort to convince the Court that Defendants and permit holders conduct, on May 1, 2010, was lawful. However, in spite of their excessive verbiage, Defendants’ conspicuously ignore1 the law of the ninth circuit, as set forth in Gathright v City of Portland, 439 F.3d 573 (9th Cir 2006) which puts a dagger through the heart of Defendants contention the City of Tucson has the lawful 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 set forth in the ordinance. Gathright at 575 In Warden v Miranda, the holders of an exclusive use permit, issued pursuant to a Tucson City Ordinance, denied entry to Armory Park to Plaintiff

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City Attorney Mike Rankin issued a memo dated April 12, 2006 which cited Gathright as 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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Warden, who often aggressively speaks in opposition to the “open border” message conveyed by the “pro raza” Armory Park permit holders. On May 1, 2010 Defendant Robinson and other TPD Officers, working in concert with permit holder Paul Teitelbaum, and other members of a radical “proraza” open border group, prevented Plaintiff Warden from entering Armory Park for the purpose of political speech. (PSOF 14) 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 permittee’s use of a Park.” Gathright at 575 “According to the City’s policy, a permittee may order a person to leave an open event when that person “unreasonably” interferes with the permittee’s use of the licensed space. The police will enforce that order and the attendee’s 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 4:20-5:1) 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: ***

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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 6:4-12) Moreover; Defendants contend: “(T)he City has a legitimate interest in preventing Plaintiff Roy Warden—a counter protestor of a permitted event— from interfering with the message of the permit holder. A City can issue permits to groups seeking to make exclusive use of [City Property] for expressive activity during a limited period of time.” (DMSJ 10:14-20. 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 11:1-4. Internal citations omitted) Significantly; none of the case citations used by Defendants to support their position were ninth circuit decisions. Moreover; the sole Supreme Court decision cited by Defendants—Hurley 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.

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Thus; Garthright is “on point” with the legal issues now considered by this Court. Plaintiff, who disdains Defendants practice of using parsed snippits of extra jurisdictional decisions to obfuscate the issues and render conduct “lawful” when clearly it is not, instead presents whole selections of Gathright, which concluded it was violation of the First Amendment for the City of Portland to issue an exclusive use permit which 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 Gathright’s 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 Court’s decisions in Ward and Hurley.” Ibid. 576 “Hurley held that the State of Massachusetts could not require the organizers of an annual St. Patrick’s 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 one’s own is forced upon a speaker intimately connected with the communication advanced, the
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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speaker’s 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. Patrick’s 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 parade’s organizers to communicate a message they did not endorse.” Ibid., 576577 “We disagree with the City’s 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 procession…As 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 organizer’s message for First Amendment purposes. Gathright v. City of Portland, 315 F. Supp. 2d 1099, 1103 (D. Or. 2004).” Ibid., 577 “Applying Ward’s criteria to the facts before us, we conclude that the City’s 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 City’s 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 City’s policy is not narrowly tailored, we do not reach whether it leaves open ample alternative channels of communication.” Ibid., 577. “The City’s 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

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“In Hurley, the Supreme Court made clear that every marching participant in the St. Patrick’s Day parade was an expressive unit, the sum of which constituted the expressive message attributable to the parade’s organizer… Here, there is no risk that Gathright’s 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 occupied 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 one’s 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 City’s interest in protecting its permittees’ right under Hurley, we affirm the district court’s 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 permittee’s 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 Ward’s narrow-tailoring prong because the ordinance was broad and vague as to what an “unreasonable” interference might be: “the ordinance’s 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

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LEGAL ARGUMENT Defendants contend the “Unidentified TPD Officer” who prevented Plaintiff from entering Armory Park on May 1, 2010 for the purpose of public speech, did not violate Plaintiff’s First Amendment Rights (DMSJ 9:14-13:23; 15:20-16:6) Defendants state: “(T)he City has a legitimate interest in preventing Plaintiff Roy Warden—a counter-protestor of a permitted event—from interfering with the message of the permit holder.” Marcavage v City of Philadelphia, 778 F.Supp.2d 556, 565 (2011) (DMSJ 10:13-17) “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 10:17-20) 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 City’s policy is not narrowly tailored, we do not reach whether it leaves open ample alternative channels of communication.” Gathright at 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

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Amendment right to conduct the event and convey its message within the permitted area (of a public park) without interference from competing activities or protests.” (DMSJ 11:1-7) However, regarding Hurley the Gathright Court stated: “We disagree with the City’s 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 procession…As 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 organizer’s 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 one’s 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 1, 2011 “was based on legitimate public safety concerns” (DMSJ 13:11-24) irrespective of the law proscribing the prior restraint of pure public speech, even by court order, 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 “predicated on the surmise or

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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.” New York Times, 2140, 2146, 2147.

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conjecture that untoward consequences may result.” New York Times, 2140, 2146, 2147. Moreover; regarding the integrity of their “public safety” argument set forth above, Defendants “shoot themselves between the eyes” with the following statement: “In this case the unidentified officer did not exclude Plaintiff Roy Warden based on the content of his speech; rather he was excluded because his message was the opposite of the Coalition’s message” (DMSJ 14:13-15) Frankly; since the 2006 “Riot in Armory Park” the leadership of the “pro-raza” activist groups have deplored Plaintiff’s assertions that “open border radicals have betrayed the revolutionary dreams of Emiliano Zapata and labor activist Cesar Chavez, who worked to exclude Mexican Illegals in order to protect his farm worker’s union,” for the simple reason such words anger and discourage their followers, resulting every year in declining participation in the May Day Armory Park event. Thus; it was message content concerns, not public safety concerns that motivated Defendants conduct on May 1, 2010. Defendants conclude with the patently absurd contention that Plaintiff’s rights were not violated on May 1, 2011 by state action4, 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 Plaintiff’s First Amendment rights as defined by the Ninth Circuit in Gathright. (DMSJ 10:1-16)

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(DMSJ 13: 1-23)

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Defendants also contend that the “unidentified police officer” who “allegedly threatened Plaintiff Roy Warden with arrest if he did not move more than 1,000 ft. away from the permitted exclusive use area in Armory Park did not violate his First Amendment rights.” (DMSJ 14:1-16) Furthermore, Defendants state: “Here, the Coalition expressly identified Roy Warden as a potential agitator who may incite violence. The City had a substantial government interest in restricting Plaintiff Roy Warden as a counter-protestor, from entering the exclusive use area.” (DMSJ 14:26-15:7) And finally Defendants state: “The restrictions did not prevent Plaintiff Roy Warden from speaking within close proximity to the permitted area. The photographs of the May 1, 2010 rally show that the counterprotest area existed in close proximity to the permitted group’s activity—the counter-protestors were located directly across the street fro the Coalition’s fenced in exclusive use area in Armory Park. The photographs also demonstrate that there were sufficient alternative avenues for Plaintiff Roy Warden and the other counter-protestors to express their protected speech.” (DMSJ 15:7-17) Here, Defendants directly contradict their previous admission that on May 1, 2010 an “unidentified Defendant TPD officer threatened Plaintiff with arrest if he did not move more than 1,000 feet away from Armory Park.” (DMSJ 7:21-26) If the Court is now confused by Defendants various claims about what they did in Armory Park on May 1, 2010 and why they did it, Plaintiff concedes he is confused too—which is why the Court should DENY Defendants Motion for Summary Judgment and set a date for a scheduling conference so that Plaintiff may commence discovery.

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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: as a matter of law the exclusion of Plaintiff Warden from Armory Park on May 1, 2011 violated Plaintiff’s 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,” contrive 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 the case at bar, Plaintiff does have the benefit of the facts, and the law, as it is clearly set forth 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 use the police to exclude public speakers who express an opposing viewpoint. Gathright permits neither the exclusion of “gadflys5” asking gay pride activists if they “got AIDS yet?6” or, as in this case the exclusion of a member of the community who reminds open border activists the dreams of

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Ibid., 578 Ibid., 575

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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 and stated herein. Now he awaits the Court to apply it. PRAYER Plaintiff prays the Court to DENY Defendants Motion for Summary Judgment, and to grant such other relief the Court deems proper. RESPECTFULLY SUBMITTED this 06th 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 06, 2014. I hereby certify that on January 06, 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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