You are on page 1of 28

VIRGINIA: IN THE CRIMINAL DIVISION OF THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX COMMONWEALTH OF VIRGINIA, v. Record No.

. MI-2012- (Pro. Se., IFP) and GT1202- Unable to timely receive mail at: , Bx VA Appellant. (No phone minutes) @yahoo.com FROM THE TRAFFIC DIVISION OF THE GENERAL DISTRICT COURT FOR THE COUNTY OF FAIRFAX AMENDED MOTION TO STIKE DOWN

Table of Citations Cases Berger v. City of Seattle, 512 F.3d 582; 569 F.3d 1029, U.S. 9th Cir., En banc different results (2008)

Board of Supervisors of James City County v. Rowe, 216 Va. 128, 216 S.E.2d 199 (1975)

Cantwell et al. v. State of Connecticut, 296 U.S. 296 (1940)

Chicago v. Morales, 527 U.S. 41 (1999)

City of Des Moines v. Hall, 24 Iowa 234 (1868)

City of Clinton v. Cedar Rapids and Missouri River Railroad Co., 24 Iowa 455 (1868)

City of Shreveport v. Teague, 200 La. 679, 8 So. 2d 640 (1942)

Cofield v. Nuckles, 239 Va. 186 (1990) (Nuckles was the pedestrian)

Comite de Jornaleros v. Redondo Beach, 657 F.3d 936 (2011)

Commonwealth vs. Akmakjian, 316 Mass. 97, 55 N.E. 2d 6 (1944)

Commonwealth v. Anderson, 308 Mass. 370, 32 N.E. 2d 684 (1941)

County Bd. v. Brown, 229 Va. 341, 329 S.E.2d 468 (1985)

Di Domenico v. Village of Romeoville, 171 Ill. App. 3d 293, 525 N.E.2d 242 (1988)

Eberth v. County of Prince William, 49 Va.App. 105, 637 S.E.2d 338 (2006)

Hunter v. Pittsburgh, 207 U.S. 161 (1907)

Loper v. New York City Police Department, 999 F.2d 699, U.S. 2nd Cir. (1993)

Marini v. Wynn, 128 Conn. 53 (at 56); 20 A.2d 400 (1941)

Marshall v. Shaw, 196 Va. 678; 85 S.E.2d 223 (1955)

New York v. Kieran, 26 N.Y.S. 2d 291 (1940)

People v. Barber, 289 N.Y. 378, 46 N.E.2d 329 (1943)

People v. Rice, 50 N.E.2d 711, 713, 383 Ill. 584

Richardson v. Grezeszak, 358 Mich. 206; 99 N.W.2d 648 (1959)

Sanders v. Newsome, 179 Va. 582, 19 S.E.2d 883 (1942) (Newsome was the pedestrian)

State ex rel. Semansky v. Stark, 196 La. 307, 199 So. 129 (1940)

State v. Meredith, 197 S.C. 351, 15 S.E.2d 678 (1941)

Tabler v. Fairfax County, 221 Va. 200, 269 S.E.2d 358 (1980)

Tedla v. Ellman, 280 N.Y. 124, 19 N.E.2d 987 (1939)

Torres v. Chicago, 218 Ill. App. 3d 89; 578 N.E.2d 158 (1991)

U.S. v. Lecato et al., 29 F.2d 694 (1928)

Virginia Farm Bureau Mut. Ins. Co. v. Simpkins, 217 Va. 611, 231 S.E.2d 226 (1977)

Watchtower et al. v. Village of Stratton et al., 536 U.S. 150 (2002)

Web v. Hind, 143 Neb. 479, 10 N.W. 2d 258 (1943)

Constitutions U.S. Const. Amends. I, V, VI and XIV Va. Const. art. 1, 8, 11 and 12 Passim Passim

Statutes (Page numbers of attached papers omitted) 15.2-1102 15.2-1200 46.2-100 46.2-926 46.2-928 46.2-931 46.2-1300 82-9-5, Fairfax County Code Regulations 9 VAC 5-120-10 to 340 Authorities

WestlawNext, Context & Analysis, Editors Note for 9 VAC 5-120-10 to 340

Definitions

For the purpose of the following questions and henceforth in this entire matter the following terms respectively mean:

assembly refers to assemble.

assemble is the state and federal constitutional rights of freedom to assemble in Va. Const. art. 1, 12 and U.S. Const. Amend. I.

due process is the state and federal constitutional rights to due process in Va. Const. art. 1, 8 and 11 and U.S. Const. Amends. XIV and V.

FCC refers to Fairfax County Code.

gleaners refers to both panhandlers and to the persons whose activities are protected under common 7

law and described in Le 19:9,10; 23:22; De 24:1921, gleaning; Lu 16:20, King Lazarus; and Jas 2:13.

North line refers to a clearly distinctive, (thin) painted, yellow, boundary line that begins at a point within (at least) a few feet of Stringfellow Rd and extends to within (at least) a few feet of Great Heron Dr and runs parallel with and North of the North curb of the raised portion of the land that is in the middle of Fair Lakes Bd. The North line is implied by law to continue the entire length of the curb, from the Stringfellow Rd intersection to the Great Heron Dr intersection.

notice is the state and federal constitutional rights to be informed of the (cause and nature) nature and cause of []accusation in Va. Const. art. 1, 8 and U.S. Const. Amend. VI.

Officer is Fairfax County Police Officer .. (#) and is the false summonser herein.

safety zone is defined in Va. Code 46.2-100.

speech is the state and federal constitutional rights to freedom of speech in Va. Const. art. 1, 12 and U.S. Const. Amend. I.

speedy trial is the state and federal constitutional rights to speedy trial in Va. Const. art. 1, 8 and U.S. Const. Amend. VI.

summonser is Officer .

Statement of Case Summons# was issued on , 2012 falsely alleging the charge the only charge in this matter, which is Fairfax County Code 82-9-5

(Pedestrians not to use highways except when necessary; keeping to left; soliciting rides).1

Facts

FCC 82-9-5 is virtually identical to the law that was struck down in Comite de Jornaleros. 1. Va. Code 46.2-100 defines the term

Safety Zone. In Marshall, the Supreme Court of Virginia held that a pedestrian in a Code 46.2-100 Safety Zone is not in violation of a pedestrian law. The General Assembly made the safety zone law specifically for pedestrian safety. Safety Zones are especially necessary for slow crossers. But on Fair Lakes Bd that is between Stringfellow Rd and Great Heron Dr does not have sidewalks on each side
1

A better name for this law would be

Pedestrian soliciting on a highway because it would then fit in the GENERAL DISTRICT COURT ONLINE CASE INFORMATION SYSTEM.

10

of the road. Instead, the builder paved a concrete sidewalk in the middle of the road. 2. At the moment that the false summonser

arrived on the scene in a cruiser, the defendant was on the diagonal cross hatch portion of the safety zone, with both of his feet (and shoes) entirely in between the North line and the South line that delineate the safety zone on Fair Lakes Bd. The false summonser directed the defendant to walk to the sidewalk on Stringfellow Rd, to the South of Fair Lakes Bd. The defendant objected and said that he would walk on the safety zone the short distance to the crosswalk. The U.S. Supreme Court struck down a soliciting law in Watchtower v. Village of Stratton in 2005. The defendant is a member of the Watchtower religion (AKA Jehovahs Witnesses) and has been teaching passers-by about the Bible on the Safety Zone on Fair Lakes Bd since October of 2009. 3. On Monday, , 201, Officer

11

told the defendant that if he saw the defendant panhandling again he would cite him for soliciting without a license because that was a service and that if he saw him panhandling after having been cited he would arrest the defendant for soliciting without a license. Deputy said, The County pays me to get rid of people like you. The defendant filed a COMPLAINT OF FINANCIAL DISCRIMINATION FAIRFAX COUNTY. Fairfax County Police Officers subsequently, falsely cited the defendant for FCC 82-9-1 (Pedestrians crossing highways or streets) and FCC 82-9-5, separate times for soliciting. During the entire alleged time span, the defendant was

Allegations

12

The defendant alleges as follows: 4. The defendant did not violate Fairfax

County Code 82-9-5.

No Enabling Statute

5.

This civil rights action challenges a

Fairfax County municipal code provision as a violation of the Eighth and Eleventh sections of Article One of the Virginia Constitution and the First and Fourteenth Amendments of the United States Constitution. This Court has jurisdiction over this action and venue is proper in this District because the events giving rise to the claims occurred in this District. FCC 82-9-5 was enacted in 1961. 6. The word extreme in FCC 82-9-5 is

vague. It means that a pedestrian has to drag his foot on the curb as he walks. The word left in FCC 82-9-5 is vague. Theres insufficient point of 13

reference from which direction. In Virginia Practice Series, Volume 4, Jury Instructions, 20112012 Edition, Issued in October 2011, Professors Bacigal and Tate in 32:13 on page 280 speak of the left as though it was the right, the opposite conclusion of Tedla. An average person cannot comprehend Fairfax County Code 82-9-5. 7. The Dillon Rule is named after Chief

Justice John Forest Dillon of the Iowa Supreme Court. (The Dillon Rule appears in City of Des Moines and City of Clinton.) The U.S. Supreme Court adopted The Dillon Rule in Hunter and, in Eberth, the Court of Appeals of Virginia held that in determining the legislative powers of the local governing bodies, Virginia follows the Dillon Rule of strict construction, which provides that municipal corporations possess and can exercise only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and

14

indispensable. Neither Va. Code 15.2-1200 nor Va. Code 46.2-1300 enable the Board to enact Fairfax County Code 82-9-5. There is no enabling statue for the Board to regulate pedestrians. Soliciting means strictly sales. Va. Code 46.2-931(2) fails to enable. Board of Supervisors of James City County is a strike down because of no enabling statute. WestlawNext, Context & Analysis, Editors Note for 9 VAC 5-120-10 to 340 says, The Circuit Court for the City of Richmond determined that this chapter was not in compliance with the enabling statute and set it aside, and ordered the State Air Pollution Control Board to readopt the regulation in a version that complied with the Code of Virginia. The readopted regulation is set forth at 9 VAC 5-121-10 et seq.

Unlawfully Misnamed Ordinance

8.

14A W&P p. 615 has the headnote for People

15

v. Rice as: Solicit is defined as to make petition to; to entreat; importune; to endeavor to obtain by asking or pleading; to insist upon; to plead for to tempt a person; to lure on, especially into evil. 9. People v. Rice also holds that soliciting

means prostitution. Words and Phrases lists many cases that give similar definitions. 10. Lecato says, The government argues that the defect is like misnaming the statute under which the crime is laid (U.S. v. Nixon, 235 U.S. 231, 235, 35 S.Ct. 49, 59 L.Ed. 207), but the trouble goes deeper, because the indictment lays no crime at all, unless it would have been good without any allegation whatever as to registration. In the case at bar, the trouble [also] goes deeper.

11. Pursuant to Va. Code 16.1-69.27 (Additional powers of judges), as a check and balance against Boards of Supervisors, the General 16

Assembly has specifically granted authority that District Courts A judge of a district court [...] may issue all appropriate orders[.] The defendant asserts under every conceivable law, that this Court has the authority to strike down any Fairfax County ordinance.

Standard

12. The statutes from case laws (supra) are generally available in the opinions for comparison with FCC 82-9-5. Watchtower v. Villiage of Stratton is the present jurisdiction. The next 3 most important cases are Comite de Jornaleros, Berger, and Loper. The Memorandum of Law in the matter at bar is included herein by reference. Semansky, Teague, Meredith, Barber and Akmakjian are Watchtwer soliciting wins. The defendant was gleaning and witnessing to the doctrines of Watchtower. The U.S. Supreme Courts opinions in both Cantwell and in Watchtower v. Village of 17

Stratton, therefore, apply. In Web, Kieran and Anderson, the Courts held that Jehovah's Witnesses have the right to advertise public meetings with placards on automobiles or by carrying placards on the sidewalks. 13. The defendant seeks to defend his rights and to address the difficulties that he faces in seeking lawful employment. The defendant regularly gleans in Fairfax County and desires to make his availability for work known through means prohibited by the municipal code provision challenged in this action. But for the code provisions, the defendant would engage in expressive activity indicating that he is gleaning on a safety zone and when lawful to otherwise do so under Cofield and Sanders (at stopped traffic or at a red light) on a highway and on sidewalks and on other public areas of Fairfax County. The defendant works for repeal or invalidation of laws that restrict the right of laborers to solicit lawful

18

employment. The defendant is stuck in a ghetto. 14. Plaintiff, Fairfax County is an incorporated municipality located in the State of Virginia. Fairfax County adopts municipal ordinances through a ten-member county council (one of which is the Chairman) and enforces these ordinances through the Fairfax County Police Department. The County of Fairfax has instructed the Fairfax County Police Department to enforce the unrepealed Fairfax municipal code provision challenged here. 15. Fairfax County Code 82-9-5 makes it unlawful for any person, while standing in any portion of a street or highway, including a roadway, parkway, median, alley, sidewalk or public way, to solicit employment, business, or contributions from the occupants of a vehicle. Fairfax County Code 82-9-5 also makes it unlawful to ask an occupant of a motor vehicle, even if

19

parked or standing, to hire or attempt to hire for employment any person or persons. 16. Many persons, including the defendant have previously obtained and desire to continue to obtain lawful employment performing service such as gardening, moving, and light construction, by expressing their availability for employment, while standing on a public sidewalk or other public way to persons in vehicles on the street. 17. Day laborers, including the defendant, fear expressing their availability for employment in the manner they have used in the past because FCC 82-9-5 subjects them to the danger of arrest, fines, and other penalties should they engage in such expression. Theses day laborers are also harmed by the provision in FCC 82-9-5 that prohibits their prospective employers from receiving their communication and communicating to them in response.

20

18. FCC 82-9-5 prohibits and regulates speech and other expressive activity in areas, such as public sidewalks and other public areas, that are traditional public for a. 19. FCC 82-9-5 discriminates among speech and other expressive activity on the basis of content, prohibiting, and prescribing criminal penalties for, speech of particular content while speech of different content, even if expressed in the same time, place and manner is not proscribed or regulated. 20. FCC 82-9-5 also regulates lawful, nonmisleading commercial speech. 21. The County of Fairfax lacks either compelling or substantial legitimate government interest in regulating speech and expression in the manner accomplished by FCC 82-9-5. 22. FCC 82-9-5 is not sufficiently narrowly tailored to serve any governmental interest that the County designed them to have.

21

23. FCC 82-9-5 also fails to leave ample alternative avenues of communication open for proscribed speech of the specified content solicitation of employment, business, or contributions. FIRST CLAIM 24. By leaving in place, enforcing, and/or threatening to enforce FCC 82-9-5, plaintiff County of Fairfax deprives defendants and others of rights guaranteed by the Eighth, Eleventh and Twelfth sections of Article One of the Virginia Constitution and the First, Fifth, Sixth and Fourteenth Amendments of the United States Constitution. Plaintiff commits these unconstitutional acts under color or authority of law. 25. Continued enforcement or threats of enforcement of FCC 82-9-5 violate defendants rights and the rights of others that are protected by the Eighth and Eleventh sections of Article One

22

of the Virginia Constitution and the First and Fourteenth Amendments of the United States Constitution. This provision therefore should be enjoined and its previous enforcement nullified.

SECOND CLAIM (Declaratory Relief) 26. Defendant re-alleges paragraphs 1-16 of this Complaint as though fully set forth here. 27. An actual controversy exists between plaintiffs and defendant regarding the constitutionality and legal enforceability of FCC 82-9-5. 28. Plaintiffs are entitled to a declaration of their rights with regard to FCC 82-9-5. 29. The Board of Supervisors and the police are violating people's constitutional rights on a daily basis. It is the intended design of government that the Court is able to use its power as a check and balance against the Board to protect

23

so many innocent people who are being forced to live in tents in the woods for having done nothing wrong. (The injury is to name, the loss of the defendants normal earning capacity, loss of quality of life and loss of health.) For half of a century under FCC 82-9-5, the people of the County of Fairfax have been denied their Constitutional rights.

The false summonser violated:

(Count One) Ro 14:4(,10) Who are you to judge the house servant of another? [...]

(Count Two) 2Ki 1:11 So he sent again to him another chief of fifty with his fifty. In turn he answered and spoke to him: Man of the [true] God, this is what the king has said, Do come down quickly.

24

(Count Three) Re 12:10 And I heard a loud voice in heaven say:

Now have come to pass the salvation and the power and the kingdom of our God and the authority of his Christ, because the accuser of our brothers has been hurled down, who accuses them day and night before our God!

(Count Four) Mt 7:1(-4) Stop judging that YOU may not be judged

The theme of the Bible is the vindication of Gods sovereignty by means of his heavenly kingdom. So, please, also see:

Jer 10:23 I well know, O Jehovah, that to earthling man his way does not belong. It does not belong to man who is walking even to direct his step.

25

Pr 14:12 There exists a way that is upright before a man, but the ways of death are the end of it afterward. (Repeated verbatim at Pr 16:25)

Da 2:44 And in the days of those kings the God of heaven will set up a kingdom that will never be brought to ruin. And the kingdom itself will not be passed on to any other people. It will crush and put an end to all these kingdoms, and it itself will stand to times indefinite;

2Pe 3:12 awaiting and keeping close in mind the presence of the day of Jehovah, through which [the] heavens being on fire will be dissolved and [the] elements being intensely hot will melt!

Eph 6:12 because we have a wrestling, not against blood and flesh, but against the governments, against the authorities, against the world rulers

26

of this darkness, against the wicked spirit forces in the heavenly places.

Relief Sought

Because of the actions of alleged above, defendant seeks judgment against plaintiff as follows:

a.

That the plaintiff be enjoined in

perpetuity from enforcing Fairfax County Code 829-5;


b.

That FCC 82-9-5 be declared null and

void as unconstitutional in violation of Eighth and Eleventh sections of Article One of the Virginia Constitution and the First and Fourteenth Amendments of the United States Constitution;
c.

That any and all fines, penalties, or

records of infractions of FCC 82-9-5 be rescinded or removed, (especially the General District Court Online Case Information System which, even after de

27

novo appeal, says, publicly, on the internet Final Disposition: Guilty) and restitution provided; d. That defendant recovers from

plaintiffs recover from defendant all of defendants reasonable attorney fees, costs and expenses of this litigation; and e. That defendant recovers such other

relief as the Court deems just and proper.

The defendant affirms that he believes that the foregoing is true. __________________________________ Date: //12

28

You might also like