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PETER J. ELIASBERG (SBN 189110)Email: [email protected] VILLAGRA (SBN 177586)Email: [email protected] FOUNDATION

OF SOUTHERN CALIFORNIA1313 West Eighth Street

Los Angeles, CA 90017Telephone: (213) 977-9500Facsimile: (213) 977-5297

Attorneys for Plaintiff

UNITED STATES DISTRICTCOURT

CENTRAL DISTRICTOF CALIFORNIA

ROBERT ROSEBROCK,

Plaintiff,

vs.

DONNA BEITER, DIRECTOR OFTHE VETERANSADMINISTRATION GREATERLOS ANGELES HEALTHCARESYSTEM, in her official capacity;RONALD MATHIS, CHIEF OFPOLICE OF THE VETERANSADMINISTRATION GREATERLOS ANGELES HEALTHCARESYSTEM, in his official capacity.

Defendants.______________________________

)))))))))))))))))))

Case No. CV10-01878-SJO (SSx)

PLAINTIFFS NOTICE OF MOTIONAND MOTION FOR SUMMARYJUDGMENT

Motion for Summary JudgmentFiled: October 25, 2010

Hearing Date: November 15, 2010Time: 10:00 a.m.Courtroom: 1

Case 2:10-cv-01878-SJO-SS Document 37 Filed 10/25/10 Page 1 of 2 Page ID #:348

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TO ALL PARTIES AND THEIR COUNSEL:

PLEASE TAKE NOTICE THAT on November 15, 2010, at 10:00 A.M., or

as soon thereafter as the matter may be heard, in Courtroom 1 of the above-entitled

court located at 312 North Spring Street, Los Angeles, California 90012, Plaintiff

will and does hereby move for summary judgment. Plaintiffs motion is based

upon this Notice of Motion, the Plaintiffs Memorandum of Points and Authorities

in Support of the Motion for Permanent Injunction and Summary Judgment and the

concurrently filed declarations and exhibits that the Plaintiff filed and served on

October 25, 2010, the complaint, and such additional authorities and arguments as

may be presented in reply and at any hearing on Plaintiffs motion.

This motion is made following the conference of counsel pursuant to Local

Rule 7-3, which took place on July 23, 2010. Counsel for parties agreed that there

was no way to resolve this matter other than through litigation and that they would

be filing cross-motions for summary judgment.

DATED: October 25, 2010 Respectfully submitted,

ACLU FOUNDATION OF

SOUTHERN CALIFORNIA

By: s/ Peter J. Eliasberg

Peter J. Eliasberg

Attorney for Plaintiff

Case 2:10-cv-01878-SJO-SS Document 37 Filed 10/25/10 Page 2 of 2 Page ID #:349

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PETER J. ELIASBERG (SBN 189110)Email: [email protected] VILLAGRA (SBN 177586)Email: [email protected] A. BABIKIAN (SBN 270190)Email: [email protected] FOUNDATION

OF SOUTHERN CALIFORNIA1313 West Eighth StreetLos Angeles, CA 90017Telephone: (213) 977-9500Facsimile: (213) 977-5297


UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

ROBERT ROSEBROCK,

Plaintiff,

vs.DONNA BEITER, DIRECTOR OFTHE VETERANSADMINISTRATION GREATERLOS ANGELES HEALTHCARESYSTEM, in her official capacity;RONALD MATHIS, CHIEF OFPOLICE OF THE VETERANSADMINISTRATION GREATERLOS ANGELES HEALTHCARESYSTEM, in his official capacity.

Defendants.______________________________

))))

)))))))))))))

))


MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFPLAINTIFFS MOTION FORSUMMARY JUDGMENT

Complaint Filed: March 16, 2010The Honorable S. James Otero

Motion for Summary JudgmentFiled: October 25, 2010

Hearing Date: November 15, 2010Time: 10:00 a.m.Courtroom: 1

Case 2:10-cv-01878-SJO-SS Document 37-1 Filed 10/25/10 Page 1 of 27 Page ID #:350

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. The Proposed Public Park. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Plaintiff Disagrees with VAs Plan for a Proposed

Public Park. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

C. Plaintiff Hangs the United States Flag Union Up to Convey aParticular Viewpoint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

D. Mr. Rosebrock Hangs the American Flag Union Down to Express

a Different Viewpoint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4E. Defendants Repeatedly Interfered as Soon as Mr. Rosebrock

Began to Display the Flag Union Down. . . . . . . . . . . . . . . . . . . . . . 4

F. VAGLAHS Cites Mr. Rosebrock for His Viewpoint. . . . . . . . . . . 5

G. VAGLAHS Continues to Discriminate on the Basis of Viewpoint

by Permitting Mr. Rosebrock to Hang the Flag Union, but

Ordering Him to Take It down Shortly After He Displayed It

Union Down. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

H. VAGLAHSs Policies Punishing Mr. Rosebrock for Hanging theUnited States Flag Union Down Have Chilled His Speech. . . . . . . 6

LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. SUMMARY JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. PERMANENT INJUNCTIVE RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. DEFENDANTS HAVE VIOLATED AND WILL CONTINUE TO

VIOLATE MR. ROSEBROCKS FIRST AMENDMENT RIGHTS

ABSENT AN INJUNCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. Defendants Barring of Mr. Rosebrocks Display of the Flag UnionDown is Impermissible Viewpoint Discrimination. . . . . . . . . . . . . 7


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1. Mr. Rosebrock Communicated a Different Viewpoint by

Hanging the Flag Union Up Than He Did Displaying It Union

Down. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

2. Defendants are Engaged in a Pattern of Restricting Plaintiffs

Expression on the Basis of His Viewpoint. . . . . . . . . . . . . . . 11

3. Whether 38 CFR 1.218(a)(9) is Facially Neutral IsIrrelevant.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B. Defendants Pattern of Enforcing 38 C.F.R. 1.218(a)(9) isUnreasonable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III. PLAINTIFF IS ENTITLED TO A PERMANENT INJUNCTION . . . 13

A. The Injuries Mr. Rosebrock Suffered Cannot Be Compensated by

Any Remedy at Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. The Balance of Equities Clearly Tips in the Plaintiffs Favor. . . 17

C. Granting Mr. Rosebrock a Permanent Injunction Is in the PublicsInterest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

IV. THE WALKWAY BETWEEN THE SIDEWALK AND FENCE IS APUBLIC FORUM, AS IS THE FENCE ALONG THAT WALKWAY. 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


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-iii-

TABLE OF AUTHORITIES

FEDERAL CASESPage(s)

ACLU v. City of Las Vegas,333 F.3d 1092 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 20

Amoco Prod. Co. v. Village of Gambell,480 U.S. 531 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Anderson v. Liberty Lobby, Inc.,477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Ark. Education TV Commission v. Forbes,523 U.S. 666 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Association of Christian Schs. International v. Stearns,679 F. Supp. 2d 1083 (C.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Bery v. City of New York,97 F.3d 689 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Brown v. Cal. DOT,321 F.3d 1217 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Burson v. Freeman,504 U.S. 191 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Campbell v. Miller,373 F.3d 834 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Celotex Corp. v. Catrett,477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Christian Legal Society v. Walker,453 F.3d 853 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Continental Airlines, Inc. v. Intra Brokers,24 F.3d 1099 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Cornelius v. NAACP Legal Defense and Education Fund,473 U.S. 788 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12, 15

Correctional S'vces Corp. v. Malesko,534 U.S. 61 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Deerfield Medical Ctr. v. Deerfield Beach,661 F.2d 328 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Elrod v. Burns,427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

First Unitarian Church of Salt Lake City v. Salt Lake City Corporation,308 F.3d 1114 (10th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


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Forsyth County v. Nationalist Movement,505 U.S. 123 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Gentala v. City of Tucson,213 F.3d 1055 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

Gerritsen v. City of Los Angeles,994 F.2d 570 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

International Society for Krishna Consciousness v. Kearnes,454 F. Supp. 116 (E.D. Cal. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Klein v. City of San Clemente,584 F.3d 1196 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17

Lamb's Chapel v. Center Moriches Union Free School District,508 U.S. 384 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12

Maceira v. Pagan,649 F.2d 8 (1st Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Mills v. District of Columbia,571 F.3d 1304 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Missouri v. Jenkins,515 U.S. 70 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Monsanto Co. v. Geertson Seed Farms,130 S. Ct. 2743 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

NAACP Legal Defense and Education Fund v. Horner,636 F. Supp. 762 (D.D.C. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Newsom v. Albermarle County Sch. Board,354 F.3d 249 (4th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Nuxoll v. India Prairie Sch. District,523 F.3d 668 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Pac. Frontier v. Pleasant Grove,414 F.3d 1221 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Planned Parenthood v. Citizens for Community Action,558 F.2d 861 (8th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Police Department of Chicago v. Mosley,

408 U.S. 92 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 18, 20

R.G. v. Koller,415 F. Supp. 2d 1129 (D. Haw. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17


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Red Lion Broadcasting Co. v. FCC,395 U.S. 367 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Rivera v. Phillip Morris, Inc.,395 F.3d 1142 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Rosenberger v. Rector and Visitors of the University of Virginia,515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Sammartano v. First Judicial District Court,303 F.3d 959 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17, 18

Scott v. Roberts,612 F.3d 1279 (11th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Starkey v. County of San Diego,346 Fed. Appx. 146, 149 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Stilp v. Contino,613 F.3d 405 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Texas v. Johnson,491 U.S. 397 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Truth v. Kent School District,551 F.3d 850 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tucker v. City of Fairfield,398 F.3d 457 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Tucker v. Department of Education,97 F.3d 1204 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

United States v. Grace,461 U.S. 171 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Playboy Entertainment Group,529 U.S. 803 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

University of Texas v. Camenisch,451 U.S. 390 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Ward v. Rock Against Racism,491 U.S. 781 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

STATUTES AND REGULATIONS

4 U.S.C. 8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

38 C.F.R. 1.218(a)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 12, 13, 20

Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6


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OTHER AUTHORITIES

Paul Finkelman, Bondage, Freedom, & The Constitution,17 Cardozo L. Rev. 1793, 1826 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Kenneth L. Karst, Equality as a Central Principle in the First Amendment,43 U. Chi. L. Rev. 20, 29 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Douglas Laycock, The Death of the Irreparable Injury Rule,103 Harv. L. Rev. 687, 708-709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

William Manchester, The Glory and the Dream: A Narrative History ofAmerica, 1932-1972, 561 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Geoff Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 55 (1987) . . . 8


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INTRODUCTION

This case involves federal officials who have misused their authority by

engaging in viewpoint discrimination against Plaintiff Robert Rosebrock, a

68-year-old veteran. The undisputed evidence demonstrates that Defendants have

repeatedly barred Mr. Rosebrock from hanging a United States flag union down on

the fence of the VAGLAHS complex while permitting him - every week for 66

weeks - to display the United States flag union up in precisely the same location.

The undisputed evidence - and Ninth Circuit case law -- also demonstrate that Mr.

Rosebrock was expressing an entirely different viewpoint when he displayed the

flag union up from the one he was expressing when he displayed it union down.

This differential treatment of the different viewpoints communicated by the two

different United States flag displays constitutes action forbidden by the First

Amendment: the suppression of a political viewpoint the government disfavors.

In opposition to Plaintiff's Motion for a Preliminary Injunction Defendants

argued that there was no viewpoint discrimination because the regulation the VA

police were purporting to enforce was viewpoint neutral. This argument

miscronstrues the nature of Plaintiff's claim. Plaintiff is not challenging the VA

regulations. He is challenging the VA's 66 week pattern of ignoring its regulations

when Mr. Rosebrock was hanging the American flag in the traditional manner on

VA property, and the VAs subsequent vigorous enforcement of its regulations

only when Mr. Rosebrock began to hang the flag union down.

In opposition to Plaintiff's Motion for a Preliminary Injunction Defendants

argued that there was no viewpoint discrimination because Mr. Rosebrock

displayed his flag in the traditional manner and union side down in the context ofprotests against VA policies. This argument also misconstrues what this case is

about. Displaying the flag in the traditional manner no more communicates the

same viewpoint as displaying it union side down than a F**CK THE DRAFT

sign conveys the same message as a sign with a peace symbol on it, even if both


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signs were carried in a march against the Vietnam War. In other words, this case is

not about whether the VA allowed Mr. Rosebrock to protest its policies; it is about

whether the VA permitted him to express two different messages by hanging the

American flag in two different ways on the VA fence. The undisputed evidence

shows the VA allowed one and barred the other.

Finally, in opposition to Plaintiff's Motion for a Preliminary Injunction

Defendants argued that Plaintiff was suffering no irreparable injury because he

could display the American flag union down nearby, by carrying it on the sidewalk

near the fence. However, a violation of First Amendment rights constitutes

irreparable injury as a matter of law, regardless of whether Plaintiff may have an

alternative forum close by to express his viewpoint. The Supreme Court, the Ninth

Circuit, and every other federal circuit court of appeals that has addressed the

question - has held that a First Amendment violation is irreparable injury.

STATEMENT OF FACTS

A. The Proposed Public Park.

The Veterans Home/VAGLAHS contains a large grass lawn on its property.

One entrance to the grass lawn, which the VA wants to convert to a public park, is

located at the intersection of San Vicente and Wilshire Boulevards. Undisputed

Fact (UF) 1. There is a locked fence at the entrance that is set back 50 feet from

the intersection. The public walkway in front of the fence separates the grass lawn

from the sidewalk. UF 2. Many widely-spaced concrete posts separate the public

walkway from the public sidewalk. The concrete posts are posted so far apart from

each other that pedestrians or bicyclists crossing can freely cross from the sidewalk

to the public walkway. UF 3.B. Plaintiff Disagrees with VAs Plan for a Proposed Public Park.

Beginning March 9, 2008, Mr. Rosebrock and a number of elderly veterans,

have demonstrated outside the locked fence of the grass lawn to draw public

attention to their cause. UF 4. They demonstrate every Sunday for 3-4 hours. UF


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5. Mr. Rosebrock disagrees with VAGLAHSs refusal to develop the grass lawn

into a shelter for homeless veterans or otherwise use the land for the shelter and

care of veterans because he believes the grass lawn was specifically deeded in 1888

to the United States as a home for disabled veterans. UF 6.

C. Plaintiff Hangs the United States Flag Union Up to Convey aParticular Viewpoint.

As part of the weekly protests, Mr. Rosebrock hung the American flag with

the union up, along with a POW/MIA banner on the VA fence. Mr. Rosebrock

chose to hang the American flag union up to express a specific message: I was

expressing the message that I believe[d] almost everyone perceives when they see

the flag displayed [union up] a message of patriotism. He hung the flag union

up to declare that despite his disagreement with VA, he was a proud and patriotic

American. Also, he wanted to express a message of honor and support for

Americas military by hanging the flag alongside the POW flag. UF 7.

He had hung the United States flag and the banners for several months

without any complaint from VAGLAHS until November 30, 2008, when Sergeant

Webb of the VA police approached Mr. Rosebrock and asked him to remove the

armed forces banner and Vietnam Unit flag, which were hanging alongside the

American and POW flags. UF 11. However, Sergeant Webb told Mr. Rosebrock

that he was permittedto hang the United States and POW flags on the fence. Id.

Mr. Rosebrock obeyed Sergeant Webbs request. Id. Earlier in the year, Sergeant

Webb had also informed Mr. Rosebrock that he would not be permitted to hang any

flags on fence exceptthe US and POW flag. UF 12.

After the November 30, 2008 encounter, Mr. Rosebrock did not have any

other interactions with the VA police for several months, during which he hung

only the United States flag union up and the POW/MIA banner on the fence

outside the great lawn. In fact, Mr. Rosebrock hung the United States flag union

up as a part of his protest for 66 weeks more than fifteen months without any

interference from VA employees. UF 13.

Case 2:10-cv-01878-SJO-SS Document 37-1 Filed 10/25/10 Page 10 of 27 Page ID#:359

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D. Mr. Rosebrock Hangs the American Flag Union Down to Expressa Different Viewpoint.

Mr. Rosebrock grew more frustrated that VAGLAHS would not develop the

grass lawn for the care of homeless veterans after he witnessed a celebrity

carnival on the grass lawn inside the fence on June 7, 2009. He believed that

VAGLAHSs use of the grass lawn for a carnival disrespected homeless veterans.

Thus, he concluded that the veterans property was in danger and that veterans

needed to unite against VAGLAHS. UF 14.

Therefore, Mr. Rosebrock began to hang the Untied States flag now union

down on June 14, 2009. UF 14. Mr. Rosebrock hung the flag union down as a

distress call because he wanted to express that VAGLAHS was not using the land

that had been deeded for veterans benefit for its intended purpose, thus resulting in

extreme hardship and distress to veterans. UF 15.

Mr. Rosebrock understood that hanging the United States flag union down

conveyed a viewpoint that was different from viewpoint he was communicating by

hanging the flag union up. UF 16. He hung the flag union down not to express

[his] patriotism or support for military veterans but as a distress call. As he stated,

Hanging the flag union side down is integral to my expressing my point of view

that the land that was deeded for veterans is in danger due to the VAs actions,

which also causes extreme distress to veterans particularly homeless veterans.

UF 17.

E. Defendants Repeatedly Interfered as Soon as Mr. RosebrockBegan to Display the Flag Union Down.

On June 26, 2009 after only the second Sunday that Mr. Rosebrock hung

the flag union down Lynn Carrier, associate director or VAGLAHS, sent an email

message to Mr. Rosebrock to express disapproval of Mr. Rosebrocks viewpoint.

She wrote that Mr. Rosebrock may not attach the American flag, upside down, on

VA property including our perimeter gates. She added, This is considered

desecration of the flag and is not allowed on VA property. UF 18.


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F. VAGLAHS Cites Mr. Rosebrock for His Viewpoint.

Although Ms. Carrier demanded that Mr. Rosebrock refrain from hanging

the American flag union down, he still did so every Sunday, believing that

VAGLAHS was impermissibly trying to restrict his viewpoint. Soon after, Mr.

Rosebrock received a citation in the mail, dated July 26, 2009, for unauthorized

demonstration or service in a national cemetery or on other VA property. UF 19.

Starting August 9, 2009, Mr. Rosebrock received five additional citations

under 38 C.F.R. 1.218(a)(9), which criminalizes the distribution of materials or

displaying of placards or posting of materials on VA property. Three of these

citations mention that Mr. Rosebrock hung the American flag union down. During

the time he was cited, he only hung the American flag union side down. UF 20.

G. VAGLAHS Continues to Discriminate on the Basis of Viewpointby Permitting Mr. Rosebrock to Hang the Flag Union, butOrdering Him to Take It down Shortly After He Displayed ItUnion Down.

After Assistant United States Attorney Sharon K. McCaslin asked the court

to drop the charges against him, Mr. Rosebrock continued to protest VAGLAHSs

failure to use the grass lawn for homeless and disabled veterans. UF 21. However,

Mr. Rosebrock decided not to hang the United States flag union down, alongside

the POW/MIA flag, on the fences of the grass lawn because he feared being cited

again even though he believed he had a right to do so. UF 22.

On February 21, 2009, Mr. Rosebrock had his 100th demonstration, which

included a press conference. For about 90 minutes before the press conference,

Mr. Rosebrock hung the American flag, union up, on the VA fence alongside the

POW flag. The flags remained there during the entire press conference and 30

minutes after for a total of about three hours, until Mr. Rosebrock and his fellow

veterans left that day. Mr. Rosebrock observed VAGLAHS police in the area while

the US flag was hanging on the fence, but they did not cite him, ask him to remove

either flag, or otherwise interfere with the display of the flags. UF 23.

One week later, however, Mr. Rosebrock hung the US flag this time union


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down to express once again his belief that the land deeded to the veterans use

was in danger. VA police officers demanded that Mr. Rosebrock remove the flags.

After he refused to take the flags down, VA police removed them. UF 24.

H. VAGLAHSs Policies Punishing Mr. Rosebrock for Hanging theUnited States Flag Union Down Have Chilled His Speech.

Mr. Rosebrock wants to continue demonstrating against VAGLAHS by

hanging the American flag union down on the fence. He will not do so, however,

because of the VAs pattern of citing him, or ordering him to remove his flags , if

he hangs the American flag union down. Because hanging the US flag union down

is integral to the viewpoint that Mr. Rosebrock wants to convey, Defendants

continued interference with this display of the flag interferes with his message that

VAs use of the land for purposes unrelated to the shelter and care of veterans

endangers both the veterans land and the veterans in need. UF 25.

LEGAL STANDARDS

I. SUMMARY JUDGMENT

If there is no genuine issue as to any material fact, the moving party is

entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Assn of

Christian Schs. Intl v. Stearns, 679 F. Supp. 2d 1083, 1090-1091 (C.D. Cal. 2008)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). A material fact is

one that could affect the outcome of the case, and an issue of material fact is

genuine if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The Court construes the evidence in the light most favorable to the nonmoving

party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005).

II. PERMANENT INJUNCTIVE RELIEF

For a plaintiff who has prevailed on the merits to obtain a permanent

injunction, he must demonstrate: (1) that he suffered an irreparable injury; (2) that

remedies at law, such as monetary damages, are inadequate to compensate for that

injury; (3) that, considering the balance of hardships between the plaintiff and


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defendant, a remedy in equity is warranted; and (4) that the public interest would

not be disserved by a permanent injunction. Monsanto Co. v. Geertson Seed

Farms, 130 S. Ct. 2743, 2756 (2010). [I]njunctive relief has long been recognized

as the proper means for preventing entities from acting unconstitutionally.

Correctional Svces Corp. v. Malesko, 534 U.S. 61, 74 (2001).

ARGUMENT

I. DEFENDANTS HAVE VIOLATED AND WILL CONTINUE TOVIOLATE MR. ROSEBROCKS FIRST AMENDMENT RIGHTSABSENT AN INJUNCTION.

In a non-public forum, the Government may not exclude speech unless the

speech restriction is viewpoint neutral and reasonable in light of the purpose

served by the forum. Rosenberger v. Rector and Visitors of the Univ. of Virginia,

515 U.S. 819, 829 (1995). Defendants discrimination between Mr. Rosebrocks

traditional display of the flag which it permitted for well over a year and his

display of the flag union down which it repeatedly barred is neither.

A. Defendants Barring of Mr. Rosebrocks Display of the FlagUnion Down is Impermissible Viewpoint Discrimination.

Viewpoint-based restrictions on speech are a subset of content-based

restrictions. A law restricting sexually explicit adult programming is a content-

based restriction. See, e.g., United States v. Playboy Entertainment Group, 529

U.S. 803 (2000). Similarly, a law banning parades relating to the subject of

abortion, while permitting other types of parades would be content or subject

matter-based. See Police Dept of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

Viewpoint-based restrictions are those that prohibit a point of view rather

than a whole subject matter.Rosenberger

, 515 U.S. at 829. Thus, a lawprohibiting parades expressing a pro-life message, while permitting those

expressing a pro-choice message, would be viewpoint-based. See Lambs Chapel

v. Center Moriches Union Free School Dist., 508 U.S. 384, 393 (1993); R.A.V. v.

City of St. Paul, 505 U.S. 377, 391 (1992). Both content- and viewpoint-based


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restrictions present the danger that government will distort public debate by

restricting either topics or specific viewpoints from the public debate. See Geoff

Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 55 (1987).

However, viewpoint-based restrictions have the potential to create even

greater distorting effects than subject matter or content-based restrictions by

silencing only one side of the debate on an issue or subject. See R.A.V., 505 U.S. at

391. Accordingly, the Supreme Court has stated, [v]iewpoint discrimination is . . .

an egregious form of content discrimination. Rosenberger, 515 U.S. at 829.

Viewpoint discrimination is impermissible even under the relatively relaxed

scrutiny that applies to speech restrictions in non-public forums. Cornelius v.

NAACP Legal Def. and Educ. Fund, 473 U.S. 788, 806 (1985); see also Truth v.

Kent School District, 551 F.3d 850, 851 (9th Cir. 2008) (order on denial of

rehearing en banc).

1. Mr. Rosebrock Communicated a Different Viewpoint byHanging the Flag Union Up Than He Did Displaying ItUnion Down.

Mr. Rosebrock hung the flag union up to communicate one viewpoint; and

he hung it union down to communicate an entirely different viewpoint. He hung

the flag union up alongside the POW/MIA banner because he was expressing the

message that I believe[d] almost everyone perceives when they see the flag

displayed that way a message of patriotism. That was certainly the message I was

expressing by displaying the flag that way because I wanted people who witnessed

our protests to know that whatever our disagreement with the VA, we were proud

and patriotic Americans. UF 7. Additionally, Mr. Rosebrock sought to honor

and support the United States military by hanging the flag union up as a part of hisprotests. Id.

Mr. Rosebrock intentionally hung the United States flag union down to

convey a very different viewpoint. I hung the flag union down not to express my

patriotism or support for military veterans but as a distress call. I was sending a


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signal that the VA was endangering the land and the purposes for which it was

deeded to the United States. I also intended to express that in so doing, they were

endangering the veterans, especially homeless veterans, for whose care and shelter

the land was deeded. UF 15-17.

Not only do the undisputed facts demonstrate that displaying a flag in the

traditional manner expresses an entirely different viewpoint from hanging it union

down, but Ninth Circuit precedent and history also recognize this distinction. The

United States flag is replete with communicative value, and the Ninth Circuit has

acknowledged that its display in the traditional fashion communicates a particular

viewpoint. See Brown v. Cal. DOT, 321 F.3d 1217, 1224 (9th Cir. 2003) (We first

reject CalTranss argument that the flag encompasses so many different views that

it represents no viewpoint at all. The very purpose of a national flag is to serve as

a symbol of our country; it is . . . the one visible manifestation of two hundred

years of nationhood.) (quoting Texas v. Johnson, 491 U.S. 397, 405 (1989)); see

also Johnson, 491 U.S. at 413 n.9 (Thus, if Texas means to argue that its interest

does not prefer any viewpoint over another, it is mistaken; surely ones attitude

toward the flag and its referents is a viewpoint.)). The traditional display of the

flag does not convey a signal of distress or dissent; instead a flag knits the loyalty

of its followers to their country. Brown 321 F.3d at 1224.

By contrast, hanging the flag union down does not convey a message of

patriotism or loyalty to the country. It signifies a grave danger to life and property.

See 4 U.S.C. 8(a). And that distress signal has been used throughout American

history to express a message of dissent or dissatisfaction with government, just as

Mr. Rosebrock was doing.See

,e.g.

, William Manchester,The Glory and the

Dream: A Narrative History of America, 1932-1972, 561 (1980) (describing how

some Americans hung the Unites States flag union down as a protest against

President Harry Trumans removal of General Douglas MacArthur from his

command during the Korean War); Paul Finkelman, Bondage, Freedom, & The


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1 Plaintiff acknowledges that this Court accepted most of Defendants arguments

at the preliminary injunction stage. However, neither the law of the case or any

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

F.3d 1099, 1102 (9th Cir. 1994) (citing Univ. of Texas v. Camenisch, 451 U.S. 390,

395-396 (1981)). Nor should it, since the facts presented in this motion more

clearly demonstrate the viewpoint-based nature of Defendants restrictions on Mr.

Rosebrocks display of the flag union down, and the arguments proffered by

Defendants are contrary to binding precedent.

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Constitution, 17 Cardozo L. Rev. 1793, 1826 (1996) (explaining that abolitionists

hung the United States flag union down to protest the return of a fugitive slave to

his Southern master). Similarly, Mr. Rosebrocks message was to signal dissent

with VAGLAHSs policies through the invocation of the distress signal, a message

he was not communicating by displaying the United States flag in the traditional

way, i.e., union up. Brown 321 F.3d at 1224.

In their opposition to Plaintiffs preliminary injunction motion, Defendants

argued that Mr. Rosebrock has expressed the same viewpoint through his two

different displays of the US flag since March 2008 because he has protested

VAGLHS policies both when he was hanging the flag union up as well as when he

hung it union down.1

The error in this argument can be illustrated by ahypothetical. Consider two anti-war protest marches in the run-up to the Iraq War.

In one, some military veterans carry American flags union up to show that they are

patriots and former veterans, but nonetheless oppose the war. In another protest

sponsored by the Communist Party, some demonstrators burn American flags to

express their belief that the war is part of a pattern of immoral imperialist ventures

by the United States. If the police were to permit both protest marches to go

forward, but arrest those marchers who were burning the American flag, while

permitting marchers to carry the flag that was being displayed in its traditional

manner, the police would clearly be engaging in viewpoint discrimination even

though the purpose of both marches was to protest the Iraq War. Similarly here,


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Mr. Rosebrocks two different ways of displaying the United States flag

communicate different viewpoints. And Defendants impermissibly discriminated

between the two viewpoints, even if they never entirely prohibited Mr. Rosebrock

from displaying the flag union down.

2. Defendants are Engaged in a Pattern of Restricting PlaintiffsExpression on the Basis of His Viewpoint.

For 66 weeks, Mr. Rosebrock hung the United States flag, union up, without

any interference by the Defendants every Sunday from March 9, 2008, until June 7,

2009. UF 7, 10, 13. Defendants neverdirected Mr. Rosebrock to remove the

American flag, or punished him for displaying it in the traditional manner on the

fence. UF 7, 10-11. In fact, during this period, Sergeant Webb of VAGLAHS

police told Mr. Rosebrock that he would be permitted to hang the United States

flag union up next to the POW/MIA flag on the gates outside the grass lawn. UF

11, 12.

However, as soon as Mr. Rosebrock began to hang the United States flag

union down on June 14, 2009, Defendants began to discriminate against his

viewpoint. Shortly thereafter, Mr. Rosebrock received an email message from

Lynn Carrier, Associate Director of VAGLAHS, informing him that he may notattach the American flag, upside down, on VA property including our perimeter

gates. She then stated: This is considered a desecration of the flag and is not

allowed on VA property. UF 18. On July 26, 2009, VAGLAHS police issued Mr.

Rosebrock the first citation hanging the United States flag union down on the gates

outside the grass lawn. UF 19. Five more citations followed. UF 20.

Moreover, on February 21, 2010, Mr. Rosebrock hung the United States flag

union up alongside the POW/MIA flag. UF 23. VA police observed him doing so,

and they took no action against him or the viewpoint he espoused by hanging the

flag union up. Id. However, when Mr. Rosebrock hung the flag this time union

down alongside the POW/MIA flag a week later, VA police ordered him to


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Rosebrocks First Amendment rights because it is unreasonable. The reasonable-

ness requirement for restrictions on speech in a nonpublic forum requires more of

a showing than does the traditional rational basis test; i.e., it is not the same as

establishing that the regulation is rationally related to a legitimate governmental

objective, as might be the case for the typical exercise of the governments police

power. Tucker v. Dept. of Educ., 97 F.3d 1204, 1215 (9th Cir. 1996). For a

restriction to be reasonable, there must be evidence that the restriction reasonably

fulfills a legitimate need. Sammartano v. First Judicial District Court, 303 F.3d

959, 967 (9th Cir. 2002).

Defendants did not apply 38 C.F.R. 1.218(a)(9) to the traditional display of

the US flag on VA property because they permitted Mr. Rosebrock to hang the flagunion up for 66 weeks without interference. UF 7, 10, 13. They relied on 38

C.F.R. 1.218(a)(9) to prevent him from displaying the United States flag only

when he hung it union down because they asserted that they had received

complaints from patients who were offended and upset by the union down display

of the flag. See Carrier Declaration in Support of Defs Opposition to Plaintiffs

Motion for PI 6(The nature of the complaints we received was that the display

was offensive and upsetting to the complainants. . . . ). Protecting users of

government facilities from the discomfort they may feel from offensive speech is

not a reasonable basis to restrict such speech, even in a non-public forum. See

Sammartano, 303 F.3d at 969-70 (restriction on offensive speech in the floors of

government office building used for courtrooms is unreasonable).

III. PLAINTIFF IS ENTITLED TO A PERMANENT INJUNCTION

A. The Violation of Plaintiffs First Amendment Rights ConstitutesIrreparable Injury.

An injury to a plaintiffs First Amendment rights amounts to an irreparable

injury as a matter of law under both Supreme Court and Ninth Circuit precedent.


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3 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.

531, 546 n.12 (1987)

4 Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009); Nuxoll v.

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,

398 F.3d 457, 464 (6th Cir. 2005); Newsom v. Albermarle County Sch. Bd., 354

F.3d 249, 261 (4th Cir. 2003); Bery v. City of New York, 97 F.3d 689, 693 (2d Cir.

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

for Community Action, 558 F.2d 861, 867 (8th Cir. 1977).

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See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (The loss of First Amendment

freedoms, for even minimal periods of time, unquestionably constitutes irreparable

injury.); Klein v. City of San Clemente, 584 F.3d 1196, 1207-09 (9th Cir. 2009) (it

remains clear [after Winter] that irreparable injury . . . requirement[] [is] satisfied

where First Amendment protections are at issue); Gentala v. City of Tucson, 213

F.3d 1055, 1071 (9th Cir. 2000).3 Indeed, every other circuit court that has

addressed the question has held that a First Amendment violation constitutes

irreparable injury for purposes of equitable relief. See, e.g., Scott v. Roberts, 612

F.3d 1279, 1295 (11th Cir. 2010); Stilp v. Contino, 613 F.3d 405, 409 (3d Cir.

2010).4

Defendants previously argued that because the discrimination between Mr.Rosebrocks two different flag displays has not succeeded in silencing him he can

display the United States flag union down on the public walkway instead of

hanging it on the fence he has not suffered an irreparable injury. This argument

is directly contradicted by binding precedent. See, e.g., Klein, 584 F.3d at 1207-09

(showing of First Amendment violation constitutes irreparable injury). Indeed, in

Klein, the Ninth Circuit held that the likelihood that a municipal ordinance barring

placing leaflets on parked cars violated the First Amendment satisfied the

irreparable injury requirement, id., even though the plaintiff was able his message


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in almost the same location by handing those leaflets to passers-by and drivers as

they approached their cars. Id. at 1199 (Prior to placing them on parked cars,

Klein had passed leaflets to passing pedestrians.).

Defendants argument is also fundamentally at odds with basic First

Amendment principles. The First Amendment not only safeguards individuals

from being completely silenced by the government, but it also prevents the

government from treating individuals differently because of the content or

viewpoint of their speech (depending on the forum). See Kenneth L. Karst,

Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20, 29

(1975); see also Cornelius, 473 U.S. at 806. Accordingly, the government need not

succeed in silencing an individual to have violated his First Amendment rights;

instead, the irreparable injury is that the government has discriminated between two

different messages or viewpoints. See, e.g., Forsyth County v. Nationalist

Movement, 505 U.S. 123, 126 (1992) (Issuing permits for different prices based on

the potential disturbance the parade would cause violated the First Amendments

requirement for content-neutrality, even though the plaintiff would still be able to

obtain a permit: A tax based on the content of speech does not become more

constitutional because it is a small tax.).

In their opposition to Plaintiffs motion for a preliminary injunction,

Defendants did not cite one case holding that if the government permitted a

plaintiff to express a particular viewpoint in one location, it meant that its

discriminating against that viewpoint in a nearby location was permissible.

Plaintiffs do not believe that any such precedent exists. Indeed, the availability of

other means of, or locations for, communication is relevant only when, unlike here,

the restriction is content or viewpoint neutral. See, e.g., Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989).

A. The Injuries Mr. Rosebrock Suffered Cannot Be Compensated byAny Remedy at Law.


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Injunctive relief is the appropriate form of relief for individuals who suffer

constitutional injuries, including violations of their First Amendment guarantee of

freedom of speech. See, e.g., Gentala, 213 F.3d at 1071. By their nature, First

Amendment violations constitute irreparable injury for which there is no adequate

legal remedy. See Christian Legal Society v. Walker, 453 F.3d 853, 859 (7th Cir.

2006) (The loss of First Amendment freedoms is presumed to constitute an

irreparable injury for which money damages are not adequate); Campbell v.

Miller, 373 F.3d 834, 840 (7th Cir. 2004); NAACP Legal Def. and Educ. Fund v.

Horner, 636 F. Supp. 762, 766 (D.D.C. 1986). See also Douglas Laycock, The

Death of the Irreparable Injury Rule, 103 HARV. L. REV. 687, 708-709 (The

principle [that damages are an inadequate remedy for the loss of something

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

free speech] litigation.).

Furthermore, Mr. Rosebrock is entitled to injunctive relief, as there is no

adequate remedy at law because the purpose of injunctive relief particularly in

the context of cases of dealing with constitutional injury is to restore the plaintiff

to his rightful position absent his constitutional injury. Missouri v. Jenkins, 515

U.S. 70, 88 (1995) (holding that victims of discriminatory conduct are entitled to

be restored to the position they would have occupied in the absence of the

discriminatory conduct); see also Laycock, Irreparable Injury, 103 HARV. L. REV.

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

constitutional injury, such as a violation of his right to free speech). No otherremedy at law can prevent Defendants from continuing their practice of viewpoint

discrimination except for equitable relief. Only a court order can ensure that

Defendants will not engage in viewpoint discrimination against Mr. Rosebrock, as

they did before he hung the United States flag union down on the gates of the grass


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lawn for 66 consecutive weeks).

B. The Balance of Equities Clearly Tips in the Plaintiffs Favor.

Because Defendants are interfering with the viewpoint Mr. Rosebrock

wishes to express by hanging the United States flag union down, while they

repeatedly allowed him to express a different viewpoint by permitting him to

display the flag in a manner with which they are comfortable, the balance of

equities tips in his favor. The protection of First Amendment rights weighs

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

(D. Haw. 2006) (citing Intl Society for Krishna Consciousness v. Kearnes, 454

F.Supp. 116, 125 (E.D. Cal. 1978)); see also Klein, 584 F.3d at 1207-09 (it remains

clear [after Winter] that the balance-of-hardship requirement[] is satisfied where

First Amendment protections are at issue).

C. Granting Mr. Rosebrock a Permanent Injunction Is in the PublicsInterest.

Upholding the First Amendment and ensuring that the government respects

the fundamental principle of viewpoint neutrality is in the public interest because

otherwise the government would be free to distort the public discourse by

restricting any individuals expression if the government disagrees with the

viewpoint that the individual espouses. Klein, 584 F.3d at 1208 (We have also

consistently recognized the significant public interest in upholding free speech

principles, as the ongoing enforcement of the potentially unconstitutional

regulations . . . would infringe not only on the free expression interests of

[plaintiffs], but also the interests of other people subjected to the same

restrictions.); Sammartano 303 F.3d at 974 (Courts considering requests for

preliminary injunctions have consistently recognized the significant public interest

in upholding First Amendment principles) (citing cases); see also Starkey v. County

of San Diego, 346 Fed. Appx. 146, 149 (9th Cir. 2009).


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Viewpoint-based restrictions can have great distorting effects by silencing

one side of the debate on an issue. See R.A.V., 505 U.S. at 391. This distortion is

harms the public interest because [i]t is the purpose of the First Amendment to

preserve an uninhibited marketplace of ideas in which truth will ultimately

prevail. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).

Moreover, the interest Defendants assert in preventing Mr. Rosebrock from

hanging the flag union side down is protecting veterans from the offense some of

them may feel from seeing the flag displayed in a non-traditional manner. If

protecting patrons of government services from offense is an unreasonable basis

for a speech restriction, then the VAs interest in protecting veterans, patients or

VA employees from being offended by Mr. Rosebrocks expression does notundermine the significant public interest in upholding First Amendment

principles. Sammartano, 303 F.3d at 974.

IV. THE WALKWAY BETWEEN THE SIDEWALK AND FENCE IS APUBLIC FORUM, AS IS THE FENCE ALONG THAT WALKWAY.

The public walkway surrounding the grass lawn, and thus also the fence

separating the public walkway from the grass lawn, is a public forum. To

determine the class of a forum, a court considers the compatibility of the uses of theforum with expressive activity; the courts commitment to guarding speakers

reasonable expectations that their speech will be protected; and the forums historic

and traditional use as a public forum. ACLU v. City of Las Vegas, 333 F.3d 1092,

1100-1103 (9th Cir. 2003).

First, locating Mr. Rosebrocks demonstrations in the public walkway is an

appropriate use of the forum because it is compatible with the normal activity that

occurs in that location. Las Vegas, 333 F.3d at 1100. Mr. Rosebrock has seen

examples of expressive activity on the public walkway in the past. UF 26. Also,

allowing expressive activity in this forum is compatible with its intended

purpose. Las Vegas, 333 F.3d at 1100. The public walkway is functionally


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equivalent to the sidewalk surrounding it. Pedestrians and bicyclists can pass from

the sidewalk onto the public walkway without any impediment. The concrete posts

placed approximately fifty feet apart from each other cannot keep passers by off of

the area, as they are set wide enough apart that an average car can even drive

through the spaces between the posts.

Second, Mr. Rosebrock had a reasonable expectation that his speech will be

protected in this forum. See, e.g., United States v. Grace, 461 U.S. 171, 180 (1983)

(holding that allegedly nonpublic forums that provide no separation . . . and no

indication whatever to persons . . . that they have entered some special type of

enclave are still public forums); Gerritsen v. City of Los Angeles, 994 F.2d 570,

576 (9th Cir. 1993) (same). These underlying concerns regarding a speakersreasonable expectations must guide a courts judgment away from a formulaic

approach when applying the forum analysis test. Las Vegas, 333 F.3d at 1101.

The open nature of the public walkway encourages pedestrians to enter the public

walkway from the sidewalk, further supporting the determination that it is a public

forum. See id. at 1103

Third, the public walkways historic use as a public forum, in addition to the

fact that it is part of the class of property which, by history and tradition, has been

treated as a public forum, requires this Court to find the public walkway a public

forum. Traditionally, sidewalks, which are forums like the public walkway, have

been held to be public forums. See, e.g., Grace, 461 U.S. 178-179. Furthermore,

the governments interest in creating a nonpublic forum is not dispositive when

determining the true class of the forum. See e.g., Gerritsen v. City of Los Angeles,

994 F.2d 570, 576 (9th Cir. 1993) (holding that streets designated to have a

special ambiance and be a non-public forum may still qualify as public forums

because visitors expect that the street is a public forum). See also Ark. Educ. TV

Commn v. Forbes, 523 U.S. 666, 678 (1998) (traditional public fora are open for

expressive activity regardless of the governments intent); Las Vegas, 333 F.3d at


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1104 (holding the intent of a government to create a nonpublic forum has no direct

bearing upon traditional public forum status); First Unitarian Church of Salt Lake

City v. Salt Lake City Corporation, 308 F.3d 1114, 1124 (10th Cir. 2002). Because

the public walkway is part of the class of forum that traditionally is a public forum,

Defendants efforts to classify this public walkway and the fence alongside it as a

nonpublic forum does not bind this Court.

A content-based regulation of political speech in a public forum is valid only

if it can survive strict scrutiny. See, e.g., Burson v. Freeman, 504 U.S. 191, 197

n.3 (1992) Defendants have provided neither any evidence that it has a compelling

interest in discriminating against Mr. Rosebrocks speech, nor any evidence the

discrimination is narrowly tailored to any compelling interest.

Furthermore, viewpoint discrimination is always impermissible even in a

non-public forum. Rosenberger, 505 U.S. at 829. Therefore, regardless of whether

the fence and gate around the grass lawn is a public or non-public forum,

Defendantss pattern of unequal enforcement of 38 C.F.R. 1.218(a)(9) is violating

Mr. Rosebrocks First Amendment rights.

CONCLUSION

For the reasons stated above, Plaintiff respectfully requests that the Court

grant his Motion for Summary Judgment and enter a permanent injunction to

prevent Defendants from engaging in viewpoint discrimination against him and

permit him to hang the flag union down for 66 weeks the same period of time

they permitted him to hang it union up without any interference.

DATED: October 25, 2010 ACLU FOUNDATION OF SOUTHERN

CALIFORNIA

s/ Peter J. EliasbergPeter J. Eliasberg

Silvia Babikian



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PETER J. ELIASBERG (SBN 189110)Email: [email protected] VILLAGRA (SBN 177586)Email: [email protected] A. BABIKIAN (SBN 270190)Email: [email protected] FOUNDATION

OF SOUTHERN CALIFORNIA1313 West Eighth StreetLos Angeles, CA 90017Telephone: (213) 977-9500Facsimile: (213) 977-5297


UNITED STATES DISTRICTCOURT

CENTRAL DISTRICTOFCALIFORNIA

ROBERT ROSEBROCK,

Plaintiff,

vs.DONNA BEITER, DIRECTOR OFTHE VETERANSADMINISTRATION GREATERLOS ANGELES HEALTHCARESYSTEM, in her official capacity;RONALD MATHIS, CHIEF OFPOLICE OF THE VETERANSADMINISTRATION GREATERLOS ANGELES HEALTHCARESYSTEM, in his official capacity.

Defendants.______________________________

))))

)))))))))))))

))


DECLARATION OF PETER J.ELIASBERG IN SUPPORT OFPLAINTIFFS MOTION FORSUMMARY JUDGMENT

Complaint Filed: March 16, 2010

The Honorable S. James Otero


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Declaration of Peter Eliasberg in Support of Plaintiffs Motion for SummaryJudgment

I, Peter Eliasberg, hereby declare:

1. I make this declaration based on my own personal knowledge and if

called to testify I could and would do so competently as follows:

2. I am the Managing Attorney at the ACLU Foundation of Southern

California and am admitted to practice in this Court and the State of California.

3. Attached hereto as Exhibit 1 is a true and correct copy of a Uniform

Offense Report reported by Sergeant Nathaniel Webb of the VA police. This

report was part of Defendants FRCP Rule 26 Initial Disclosures that were served

by the office of the United States Attorney on Plaintiffs counsel on July 6, 2010.

Defendants did not produce the original signed version. However, at the

deposition of Sergeant Webb on Wednesday October 20, 2010, Sergeant Webb

confirmed that he had written the material in the attached Uniform Offense Report,

and that it was the same as the version that is attached to Mr. Rosebrocks

declaration as Exhibit 2, except that the version attached to Mr. Rosebrocks

declaration has the date written on it in Sergeant Webbs handwriting, that it

appears to have been signed by him though the actual signature is redacted and

there are other redactions that Sergeant Webb did not make.

4. Attached hereto as Exhibit 2 is a true and correct copy of the

transcript of the Rule 26 conference held by this Court on June 14, 2010.

I declare under penalty of perjury of the laws of the State of California and

the United States that the foregoing is true and correct. Executed this 24th day of

October, 2010 in Los Angeles, California.

s/ Peter Eliasberg

Peter Eliasberg


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EXHIBIT

1


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Department of Veterans AffairsVA PoliceGreater Los Angeles HCSUniform Offense RePort fl c0PyUOR#: 2008-l l -30-141 5-3102Lea /DOB:Synopole: wi concted regarding unauthorized banners posted 9l VA fence line. DuringUtjconta6 th APO, -Rosebrock took unauthorized pictures on tA conbolled qroperty.Rosebrock had no wanb^ranants for his anest. Rosebrock was issued a verbalbr 38 CFR 1.21 and 38 CFR 1

15 PM, Iwas assigned to uniformecttiroi"al FiekiSerseant'dtthe Department o[v9!9rat {ttaio t1l.91!lg:.AngelesMedical Center. I was-conOuAng a mobile patrol of the VeteransJt/lemorial Park.sawtwo bannersnleuro* (sSl sg6lDOB o4o+42). Rosebrock coordlnates weekly demonsbationsat the Vetern,s Memorial Park protesting the use of VA cotolled. propeily by non{ovemlon

rzagoni. tcontaaed Officr Bowmn and requested his assistance' OfficerBowman anived at approximately 2:17 PM.

IrlSDoclfEroBE}u|n.lccmlrcEffHnCFftvl'Yfcort fl dr .l..q q'firr CiC* t-ltrt t I ffi drhr---F5'r ;4or*n lialr-n- tnsbrtgrtFpdnusAo0002


Exhibit 1 - page 2

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advised ltm thotdudng h demonsation h grctpror.ddany snr, pbcards, orfrago torn te VA nce oron VAwa br llagp of the Units Sts of Amefta or Pdsoner of War. I hlm thatpoong dpbcards, banneo, ordrr r&rlals s prohbid by deral larr ar wasa vilatin of 38 cFR 1.218(bl(2). rat tirp he stabd tre undecbod and worldcomply.on sunday tlovernuer 16, 2()6, wh condrcon a ptol of ttre vebmnls llerpddParK I srw that hlo demorffic we sfriding on VA property Cn berpen thcnce line and Whire sderdl$ wi a bermer apprordnrddy gi( e. I conffidRebrcdc ad advi!d him ra ure plsb ntu h 6 sbp 016 ttre siderrdkin oder b be h compln wtr 38 CFR 1.215(bN2). ReUo& drd re denronsffionb o idardkwirort inddenton bdat'r da, {orernbr 30, 2008, I contaed Rebrod< and advbed hm ratthe "suppofiourTmpo'^banner_srd vrran uniilbg lnnging on tfie vA pmpertyn neio h violation of 3s cFR 1.219{bKt2). I dred Gobrod( b rdnda'tte banner. ReHoctoiod dffitg tr* ne h*t a riglrtb hE te peuorbarner on VAntolled propsty.Putlr -n!y contact wlth Rebrodq e r,*ran approdrd rre b xprs3 ]d mgrgbr-paruopaung h!g demosffiirr. w gprxrarg u,r lrn, Roinxrodr bcgtb tak picrs d Ocer gowrmG the uniterified ;ir, rrd rp llonr VA-coocdproperty.I acrl Reroct that lre wa tddng unattrorid phgrph ln vlolatn of38 cFR f 218(bX23). Rbrod bok appcimf ihrc pacrgs wir a ospcauectncrlrequeemo a rvantE/iararb ced( m Rerodt via e Cailfrnta lw EnbonrsntTcdecormunicdon stfimt. Roerft hd no uflil orwrrail br lil ant -I sued a verbalwarnlrrg b Reroctbr'dbplay(ng) pbdsrpocng dr64on popertf in vlobon d3S CFR 1215N?3l) rr {funolO itrsrtryon pomb'n vkrtilon d38 cFR rrsox2s). I drdod Rocei*itlfuviolatiorc re suQf b crimrd prection.Rqcbtodc nmovcd t.rc t bennca fr'orn thc ftncc rirorn in

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EXHIBIT

2


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EXCEPTIONAL REPORTING SERVICES, INC

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

ROBERT ROSEBROCK, ) CASE NO: CV 10-1878-SJO-SSx

)

Plaintiff, ) CIVIL

)

vs. ) Los Angeles, California

)

DONNA BEITER, ET AL, ) Monday, June 14, 2010

)

Defendants. ) (8:52 a.m. to 9:03 a.m.)

SCHEDULING CONFERENCE - Fed. R. Civ. P. 26(f)

BEFORE THE HONORABLE S. JAMES OTERO,

UNITED STATES DISTRICT JUDGE

Appearances: See Next Page

Court Recorder: Margarita Lopez

Deputy Clerk: Steve Chung

Transcriber: Exceptional Reporting Services, Inc.

14493 S. Padre Island Drive

Suite A-400

Corpus Christi, TX 78418

361 949-2988

Proceedings recorded by electronic sound recording;

transcript produced by transcription service.

Case 2:10-cv-01878-SJO-SS Document 27 Filed 07/23/10 Page 1 of 11 Page ID #:203Case 2:10-cv-01878-SJO-SS Document 37-2 Filed 10/25/10 Page 7 of 17 Page ID #:383

Exhibit 2 - pag

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APPEARANCES FOR:

Plaintiff: PETER J. ELIASBERG, ESQ.

ACLU Foundation of Southern California

1313 West 8th St.

Los Angeles, CA 90017

Defendants: INDIRA J. CAMERON-BANKS, ESQ.

Office of the United States Attorney

Civil Division

300 North Los Angeles St.

Room 7516

Los Angeles, CA 90012


Exhibit 2 - pag

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Los Angeles, California; Monday, June 14, 2010; 8:52 a.m.1

(Call to Order)2

THE CLERK: Calling Item Number 2, Civil Matter3

10-1878, Robert Rosebrock versus Donna Beiter, et al. Counsel4

please state your appearances for the record.5

MS. CAMERON-BANKS: Assistant United States Attorney6

Indira Cameron-Banks for the defendant.7

MR. ELIASBERG: Good morning, your Honor, Peter8

Eliasberg, for the plaintiff.9

THE COURT: Good morning. It is a motion for10

preliminary injunction that remains pending. What are the11

issues that impede the resolution or settlement of the case?12

MR. ELIASBERG: Well, as your Honor is aware, there13

no claim for damages here, so the only question really is14

whether the government will allow Mr. Rosebrock to continue to15

fly the flag in the way he wants, rather than the way that the16

government feels is permissible. And at this point, based on17

conversations, I didnt think that the government was open to18

that idea. But I dont --19

THE COURT: Where is he flying the flag?20

MR. ELIASBERG: Well, I guess I should say hanging21

it, your Honor. Excuse me.22

THE COURT: Is it placed on government property23

itself?24

MR. ELIASBERG: Its on the fence that borders the25


Exhibit 2 - pag

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VAs property, yes.1

THE COURT: So, its government property.2

MR. ELIASBERG: Thats correct.3

THE COURT: And he has -- the government has provide4

him -- well, I guess, though conduct in the past, has allowed5

him to fly the flag right side up?6

MS. CAMERON-BANKS: Yes, your Honor, its my7

understanding that with respect to the flying of the flag on8

the fence --9

THE COURT: Yes.10

MS. CAMERON-BANKS: -- I believe that Mr. Rosebrock11

has in the past been allowed to hang the flag on the fence.12

Its also my understanding that Mr. Rosebrock has also been13

allowed to fly the flag right side up or upside down standing14

on the public -- sorry, on the walkway -- on the sidewalk. An15

hes never been cited for hanging the flag either way when he16

been on the sidewalk.17

THE COURT: So, the issue is primarily flying or18

hanging the flag upside down on the fence?19

MS. CAMERON-BANKS: Its my understanding that that20

sort of the heart of the issue.21

THE COURT: Thats the heart of the issue, isnt it?22

MS. CAMERON-BANKS: I believe so.23

THE COURT: But the government allows him to place24

the flag right side up on the fence?25

Case 2:10-cv-01878-SJO-SS Document 27 Filed 07/23/10 Page 4 of 11 Page ID #:206Case 2:10-cv-01878-SJO-SS Document 37-2 Filed 10/25/10 Page 10 of 17 Page ID#:386

Exhibit 2 - pag

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MS. CAMERON-BANKS: The difference was that hanging1

the flag upside down, given the type of property it is, given2

the people that come to that property, hanging the flag upside3

down generated a series of complaints and --4

THE COURT: Well, I understand that.5

MS. CAMERON-BANKS: Yeah.6

THE COURT: But once you allow someone to hang the7

flag on the fence, and then you get into the issue of a8

viewpoint discrimination or a speech prohibition.9

MS. CAMERON-BANKS: And as we briefed, the10

governments position is that -- first off, that the VA11

property is a non-public forum, but with respect to viewpoint12

discrimination, the restriction has been absolutely viewpoint13

neutral.14

The viewpoint of Mr. Rosebrock has not changed15

whether the flag be right side up or upside down. Both ways,16

Mr. Rosebrock, by his own declaration, is protesting the VAs17

use of the property. And theres no additional or no different18

viewpoint thats expressed by the flag upside down; however,19

the flag upside down does generate a series of complaints,20

including, I believe at one point Mr. Rosebrock himself had21

asked for VA police to help him when he himself was threatened22

by visitors to the property for hanging the flag upside down.23

THE COURT: Well, when he hangs the flag upside down24

hes sending a message that hes upset with what the Veterans25


Exhibit 2 - page 8

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Administration is doing or not doing in reference to veterans.1

Yes?2

MS. CAMERON-BANKS: I believe that thats the same3

viewpoint hes expressing, your Honor, when he hangs the flag4

right side up along with the manners of signs and everything5

else that is part of the overall protest. Thats been ongoing6

for almost -- or over two years, now.7

THE COURT: Okay. The parties have requested a tria8

date.9

MR. ELIASBERG: January, your Honor.10

THE COURT: January 11, 2011. Lets see if we have11

that date available.12

(Pause)13

THE CLERK: How about January 18, 2011?14

THE COURT: Will that work for your respective --?15

MS. CAMERON-BANKS: Yes, your Honor.16

MR. ELIASBERG: Yes, your Honor. And the time?17

THE COURT: Nine oclock.18

THE CLERK: Tuesday at 9:00 a.m.19

MR. ELIASBERG: Thank you.20

THE COURT: Pretrial?21

THE CLERK: Pretrial conference is January the 10th,22

2011; Monday at 9:00 a.m.23

THE COURT: Motion hearing cut-off?24

THE CLERK: November 15, 2010; Monday at 10:00 a.m.25


Exhibit 2 - pag

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MR. ELIASBERG: Your Honor, is that the last day the1

motions will be heard or the motions will be filed?2

THE COURT: Heard.3

MR. ELIASBERG: Okay.4

THE COURT: And discovery cut-off?5

THE CLERK: October 18th, 2010.6

THE COURT: Whats the -- is there a national policy7

on this? What could be placed on a fence involving Veterans8

Administration property?9

MS. CAMERON-BANKS: There are regulations and those10

are the regulations for which Mr. Rosebrock was cited.11

THE COURT: So, the regulations state what? You can12

place a flag on the fence?13

MS. CAMERON-BANKS: The regulations state that14

nothing should be posted on the fence --15

THE COURT: Okay.16

MS. CAMERON-BANKS: -- without prior permission. An17

I believe that those regulations --18

THE COURT: So, he had prior permission to post the19

flag?20

MS. CAMERON-BANKS: I dont believe he did, your21

Honor. But I do believe he was requested to remove it several22

times before he was cited.23

THE COURT: Well, hes been post -- hes been hangin24

the flag for two years -- approximately two years.25


Exhibit 2 - pag

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MS. CAMERON-BANKS: Agreed, your Honor, yes.1

THE COURT: Which may be not consistent with the2

regulations of the Veterans Administration.3

MS. CAMERON-BANKS: It could be that they are4

inconsistent.5

THE COURT: So, theyve consented to his hanging the6

flag for two years?7

MS. CAMERON-BANKS: I believe that -- yes, they have8

however, your Honor, I think the distinction is that the flag9

is -- he was cited when the flag was posted upside down.10

THE COURT: I understand that.11

MS. CAMERON-BANKS: Okay. And the difference being,12

the reaction that the upside down flag incites and, adjacent to13

that, the requirements of VA personnel to respond to those14

complaints and those threats. Its a medical center.15

THE COURT: And I recognize that, but once you start16

allowing individuals to hang flags on fences, these problems17

occur. Its expected.18

Is there anything else he places on the fence?19

MR. ELIASBERG: Hes placed an MIA flag, your Honor 20

- the POW/MIA flag.21

THE COURT: Okay. Is there any likelihood that the22

case can resolve itself?23

MS. CAMERON-BANKS: Your Honor, as part of our24

conference we did discuss any possibility for settlement. It25


Exhibit 2 - pag

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my understanding that its plaintiffs position that anything1

other than the ultimate relief requested by this action would2

not resolve this case.3

THE COURT: Then, lets see. Its in our ADR4

program. Shall we remove it from ADR?5

MR. ELIASBERG: Well, I mean, I think -- Im6

confused, your Honor. And then since we have a mandatory7

conference (indiscernible) for trial, are you suggesting that8

that would be waived or --?9

THE COURT: Well, if theres not a likelihood that10

the case is going to resolve itself and this is an issue that11

going to have to be addressed by the Court and its order issued12

and then through the circuit, it may make sense not to utilize13

scarce resources of the ADR program or the Federal Magistrate14

Judge.15

MR. ELIASBERG: Your Honor, may I make the following16

suggestion, perhaps, depending on, for example, ruling on the17

preliminary injunction? May we take it off and then be able t18

make a request if we think that there is a possibility of19

settlement? Would that make more sense in terms of preserving20

resources?21

THE COURT: Yes.22

MR. ELIASBERG: All right.23

THE COURT: Its removed from any the settlement24

programs.25


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1

Is there anything else that we need?1

THE CLERK: Would you like to issue the last day to2

amend pleadings?3

THE COURT: Last day to amend pleadings.4

THE CLERK: July 14, 2010.5

THE COURT: Okay. Thank you very much.6

MS. CAMERON-BANKS: Thank you, your Honor.7

MR. ELIASBERG: Thank you, your Honor.8

(Proceeding was adjourned at 9:03 a.m.)9

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CERTIFICATION

I certify that the foregoing is a correct transcript from the

electronic sound recording of the proceedings in the above-

MOT.DCT_MSJ[1]

Documents

Transcript of MOT.DCT_MSJ[1]