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Judicial Watch • Rosebrock v. Perez complaint 04354

Rosebrock v. Perez complaint 04354

Rosebrock v. Perez complaint 04354

Page 1: Rosebrock v. Perez complaint 04354

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Number of Pages:13

Date Created:June 12, 2017

Date Uploaded to the Library:June 26, 2017

Tags:04354, VAGLAHS, christian, rosebrock, great, Fourth, hayes, perez, police, Henderson, amendment, officer, defendants, complaint, defendant, filed, plaintiff, michael, document


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Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:1
ROBERT PATRICK STICHT (SBN 138586)
Law Offices Robert Patrick Sticht
P.O. Box 49457
Los Angeles, 90049
Telephone:
(310) 889-1950
Facsimile:
(310) 889-1864
Email:
LORPS@verizon.net
PAUL ORFANEDES*
JUDICIAL WATCH, INC.
425 Third Street SW, Suite 800
Washington, 20024
Telephone:
(202) 646-5172
Facsimile:
(202) 646-5199
Email:
porfanedes@judicialwatch.org
*Application for admission pro hac vice
forthcoming
Attorneys for Plaintiff,
Robert Rosebrock
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT CALIFORNIA
WESTERN DIVISION
ROBERT ROSEBROCK,
Case No. 2:17-CV-04354
Plaintiff,
COMPLAINT
FOR DAMAGES AND DECLARATORY
AND INJUNCTIVE RELIEF
MICHAEL PEREZ, individual, JOEL
HENDERSON, individual, CHRISTIAN
PEREZ, individual, DOES 1-5,
individuals, DAVID SHULKIN, his
official capacity, ANN BROWN, her
official capacity, and CHARLES LEAS,
his official capacity,
DEMAND FOR JURY TRIAL
Defendants.
JURISDICTION AND VENUE
This action seeks damages and declaratory and injunctive relief under the First, Fourth,
and Fifth Amendments the Constitution the United States against officers and officials the
Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:2
United States Department Veterans Affairs This Court has jurisdiction over Plaintiff
claims under U.S.C. 1331 and 1343(3) and the Declaratory Judgment Act, U.S.C. 2201 and
2202.
Venue proper the Central District California under U.S.C. 1391(b) because
substantial part the events omissions giving rise the claims herein occurred this district.
INTRODUCTION
Plaintiff has held regular protests the public walkway the Great Lawn Gate entrance the Los Angeles National Veterans Park every (or nearly every) Sunday since March 2008.
Plaintiff protests the failure make greater use its West Los Angeles facility, known the
Greater Los Angeles Healthcare System VAGLAHS care for and house veterans particularly
homeless veterans. The 388-acre parcel which the VAGLAHS located was donated the United
States 1888 provide home for needy veterans, but the has allowed the parcel used for
variety non-veteran related purposes, including baseball stadium for the University California,
Los Angeles baseball team, athletic fields for private preparatory school, and City Los Angeles
dog park. Plaintiff weekly protests also seek honor all veterans and members the United States
military and promote proper respect for the American Flag. The protests are peaceful, respectful, non-
intrusive, and limited duration and manner. Plaintiff often joined his protests other
individuals, but their number rarely exceeds three four.
Plaintiff records his protests with camera and uses the images email updates sends informal group like-minded individuals and supporters, which refers the Old Veterans
Guard. Plaintiff email updates are important part his advocacy for homeless veterans and
respect for the American Flag.
Plaintiff has written opinion pieces about the VA, homeless veterans, and respect for the
American Flag, and occasion these opinion pieces have been published others the internet.
Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:3
They are also important part Plaintiff advocacy.
Plaintiff has never been employed news media organization. not
independent contractor for any news media organization, has training journalist, and has
media credentials. has never been paid for working journalist. does not consider himself journalist member the news media. Plaintiff photography does not have news purpose; has advocacy purpose. June 12, 2016 and again June 19, 2016, Plaintiff was arrested the Great Lawn
Gate for allegedly taking unauthorized photographs police officers citing fellow protestor for
allegedly posting the American Flag fence. both occasions, Plaintiff was alleged have
violated C.F.R. 1.218(a)(10), which provides, Photographs for advertising commercial purposes
may taken only with the written consent the head the facility designee. Photographs for news
purposes may taken entrances, lobbies, foyers, other places designated the head the
facility designee. both occasions, Plaintiff was issued citation and his cameras were seized.
Violation C.F.R. 1.218(a)(10) Class misdemeanor and punishable fine and six
months imprisonment.
Plaintiff brings this action for damages, declaratory judgment, and injunctive relief
against Defendants Michael Perez, Joel Henderson, and Christian Perez because these police
officers lacked probable cause that Plaintiff had committed crime and therefore violated Plaintiff
Fourth Amendment rights. Plaintiff also seeks damages, declaratory judgment, and injunctive relief
from Defendants Jane and John Doe Nos. 1-5 because, information and belief, these currently
unknown supervisory Police Officers ordered Defendants Michael Perez, Joel Henderson, and
Christian Perez cite Plaintiff for allegedly unauthorized photography, detain Plaintiff, and seize
Plaintiff cameras. the alternative, Defendants Jane and John Doe Nos. 1-5 failed properly train
and supervise Defendants Michael Perez, Joel Henderson, and Christian Perez the requirements
Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:4
C.F.R. 1.218(a)(10), resulting the violation Plaintiff Fourth Amendment rights. Plaintiff also
brings action for declaratory and injunctive relief against Defendants David Shulkin, Ann Brown, and
Charles Leas, because the regulation its face and applied Plaintiff violates the First and Fifth
Amendments.
PARTIES
Plaintiff 75-year old Vietnam-era veteran who resides Los Angeles.
10.
Defendant Michael Perez officer with the Police and, all relevant times, was
assigned the VAGLAHS. Defendant Michael Perez sued his individual capacity, albeit for
acting under color federal law.
11.
Defendant Joel Henderson officer with the Police and, all relevant times, was
assigned the VAGLAHS. Defendant Henderson being sued his individual capacity, albeit for
acting under color federal law.
12.
Defendant Christian Perez officer with the Police and, all relevant times, was
assigned the VAGLAHS. Defendant Christian Perez sued his individual capacity, albeit for
acting under color federal law.
13.
Defendants Jane and John Doe Nos. 1-5 are, information and belief, supervisory
and/or training officers with the Police and, all relevant times, were assigned the VAGLAHS.
Defendants Jane and John Doe Nos. 1-5 are sued their individual capacities, albeit for acting under
color federal law.
14.
Defendant David Shulkin the Secretary the VA. this capacity, Defendant Shulkin
oversees the policies and programs the nationwide and responsible for promulgation and
enforcement regulations nationwide, including the VAGLAHS. sued his official
capacity only.
15.
Defendant Ann Brown the Director the VAGLAHS. this capacity, Defendant
Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:5
Brown oversees the policies and programs the VAGLAHS and the enforcement regulations
the VAGLAHS. She sued her official capacity only.
16.
Defendant Charles Leas the Chief the Police the VAGLAHS. this
capacity, Defendant Leas oversees police activity the VAGLAHS property. sued his official
capacity only.
STATEMENT FACTS
Fourth Amendment Violations
Defendants Michael Perez, Joel Henderson, and Christian Perez
17. approximately 2:00 p.m. Sunday, June 12, 2016, Plaintiff was protesting the
public walkway the Great Lawn Gate entrance the Los Angeles National Veterans Park. Joining
Plaintiff was fellow activist Ted Hayes Hayes who was wearing red, white, and blue Mr. Patriot
suit and top hat.
18. Police Officer Raul Davis approached Hayes and began interrogating him about
American Flag affixed the fence adjacent the Great Lawn Gate. Officer Davis ordered Hayes remove the flag, and Hayes refused. After Hayes refused remove the flag, Officer Davis
handcuffed Hayes and issued him citation for allegedly violating C.F.R. 1.218(a)(9)
(unauthorized display posting placards materials property). Officer Davis confiscated
the flag.
19.
Plaintiff, who all relevant times remained the public walkway the Great Lawn
Gate entrance, recorded Officer Davis interaction with Hayes using small, hand-held Sony video
camera.
20. Plaintiff recorded Officer Davis interaction with Hayes, Defendant Michael Perez
approached Plaintiff and detained and began interrogate him. all relevant times, Officer Davis and
Defendant Michael Perez were armed and uniform. point during his interaction with the
officers was Plaintiff free leave, nor did Plaintiff feel free leave.
Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:6
21.
Defendant Michael Perez confiscated Plaintiff camera, handcuffed Plaintiff, and
forcefully pushed Plaintiff towards patrol car. Defendant Michael Perez then pushed Plaintiff head
first into the back the patrol car, forcing Plaintiff lie his stomach. Defendant Michael Perez
demanded Plaintiff identification. Plaintiff responded that his driver license was his shirt pocket.
Defendant Michael Perez then forcibly pulled Plaintiff seated position the back the patrol car
and seized Plaintiff driver license out Plaintiff shirt pocket.
22.
Plaintiff asked Defendant Michael Perez straighten his ball cap, which had been
knocked askew when Defendant Michael Perez pushed Plaintiff into the patrol car. Defendant Michael
Perez forcefully pulled Plaintiff cap down over Plaintiff forehead, sarcastically saying, How does
that fit?
23.
Plaintiff complained Defendant Michael Perez that the handcuffs were too tight and
were hurting and injuring his wrists. Defendant Michael Perez responded, When you break the law, going hurt. Plaintiff responded, No, you the one breaking the law.
24.
Defendant Michael Perez then advised Plaintiff that was being cited for allegedly
violating C.F.R. 1.218(a)(10). Because Plaintiff was plainly entrance the entrance the
park Plaintiff was not violating C.R.C. 1,218(a)(10). also plainly could not have violated the
regulation because did not have news purpose.
25.
Defendant Michael Perez wrote the citation while Plaintiff remained handcuffed the
back the patrol car. Defendant Michael Perez then directed Plaintiff exit the patrol car, but did not
provide any assistance. Plaintiff, still handcuffed, struggled exit the patrol car himself. After
Plaintiff exited the patrol car, Defendant Michael Perez unhandcuffed him and handed him the citation.
26.
Officer Davis, who was still interacting with Hayes, and Defendant Michael Perez then
told Plaintiff and Hayes leave. Officer Davis and Defendant Michael Perez then left the Great Lawn
Gate entrance.
Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:7
27. total, Plaintiff was detained against his will, handcuffed, the back Defendant
Michael Perez patrol car, for approximately fifteen minutes.
28.
After Plaintiff was released from the patrol car and unhandcuffed, Plaintiff and Hayes
called paramedics, who arrived the scene and treated Plaintiff for injuries his wrists.
29.
Because Defendant Michael Perez had not returned Plaintiff driver license him,
Plaintiff still was not free leave. Plaintiff had call Police headquarters ask that his license
returned. was not until approximately 3:00 p.m. that another Police Officer, Officer Ali Morales,
appeared the Great Lawn Gate entrance and returned Plaintiff driver license him.
30.
The following Sunday, June 19, 2016, Plaintiff and Hayes were again demonstrating
the public walkway the Great Lawn Gate entrance.
31.
Between approximately 1:30 and 2:00 p.m., Defendants Joel Henderson and Christian
Perez approached Plaintiff and Hayes, and Defendant Henderson began interrogating Hayes about
small American Flag affixed the fence adjacent the Great Lawn Gate. Both officers were
uniform and armed. Defendant Joel Henderson confiscated the flag and issued Hayes citation for
allegedly violating C.F.R. 1.218(a)(9).
32.
Plaintiff, who all relevant times remained the public walkway the Great Lawn
Gate entrance, recorded Defendant Joel Henderson interaction with Hayes using small, hand-held
Cannon PowerShot camera.
33. Plaintiff was recording, Defendant Joel Henderson and Defendant Christian Perez
turned their attention Plaintiff. Defendant Joel Henderson and Defendant Christian Perez detained
Plaintiff and began interrogate him. Defendant Christian Perez advised Plaintiff that was
confiscating Plaintiff camera. Defendant Joel Henderson forcibly held Plaintiff the arm and
Defendant Christian Perez forcibly grabbed the camera out Plaintiff hand. Defendant Christian
Perez then issued Plaintiff citation for allegedly violating C.F.R. 1.218(a)(10).
Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:8
34.
Plaintiff interaction with Defendant Joel Henderson and Defendant Christian Perez
lasted approximately ten fifteen minutes. point was Plaintiff free leave, nor did Plaintiff feel
free leave until Defendant Joel Henderson and Defendant Christian Perez left the Great Lawn Gate
entrance.
35.
Plaintiff video cameras were not returned him until October 2016.
36. December 2016, the U.S. Attorney for the Central District California dismissed
the June 19, 2016 unauthorized photography charge against Plaintiff.
37. April 18, 2017, the U.S. District Court for the Central District California dismissed
the June 12, 2016 unauthorized photography charge against Plaintiff.
Fourth Amendment Violations
Defendants Jane and John Doe Nos. 1-5
38.
Plaintiff well known the leadership the VAGLAHS and supervisory officers
the VAGLAHS Police. addition his protest over the improper use land VAGLAHS,
Plaintiff has been involved long-standing dispute with the VAGLAHS about displaying the
American Flag the fence the Great Lawn Gate entrance, and, 2010, Plaintiff filed suit against the
VA, VAGLAHS leadership, and the Chief Police the VAGLAHS for viewpoint discrimination
connection with displays the American Flag during his weekly protests.
39.
Since the resolution Plaintiff earlier lawsuit mootness grounds 2014, Police
have repeatedly cited Plaintiff for allegedly violating C.F.R. 1.218(a)(9). Except for May 30,
2016 citation, all such citations were later dismissed. April 18, 2017, Plaintiff was acquitted the
May 30, 2016 citation the U.S. District Court for the Central District California.
40. information and belief, all relevant times Defendants Jane and John Doe Nos. 1-5
were aware that Plaintiff was recording his weekly Sunday protests the Great Lawn Gate entrance. Police officers VAGLAHS regularly send heads notices their supervisors about Plaintiff
Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:9
protests, including May 30, 2016 heads notice about Plaintiff allegedly engaging unauthorized
photography that date the Great Lawn Gate entrance.
41. information and belief, Defendants Michael Perez, Joel Henderson, and Christian
Perez were following the directions and orders Defendants Jane and John Doe Nos. 1-5 when,
June 12, 2016 and June 19, 2016, they detained, handcuffed, and cited Plaintiff for allegedly
unauthorized photography and confiscated Plaintiff cameras. multiple occasions, Police
officers have told Plaintiff that they were following their supervisors orders their interactions with
Plaintiff.
42. information and belief, Defendants Jane and John Doe Nos. 1-5 have determined that
Plaintiff and his fellow protesters not allowed photograph video record anywhere
property. August 2016, two Police officers tackled the ground one Plaintiff fellow
protestors after the individual photographed the officers removing American Flag displayed the
fence the Great Lawn Gate entrance. October 2016 email, Police supervisory official
wrote, regarding Plaintiff, don want Mr. taking pictures like desires.
43. information and belief, Defendants Jane and John Doe Nos. 1-5 failed properly
train and supervise Defendants Michael Perez, Joel Henderson, and Christian Perez the requirements C.F.R. 1.218(a)(10), which caused Defendant Michael Perez and Defendants Joel Henderson and
Christian Perez detain and cite Plaintiff and confiscate Plaintiff cameras June 12, 2016 and June
19, 2016, respectively, despite Plaintiff being all relevant times the public walkway the Great
Lawn Gate entrance the Los Angeles National Veterans Park and the regulation express
authorization photography entrances.
44. information and belief, Defendants Jane and John Doe Nos. 1-5 knew, should have
known, were deliberately indifferent the fact that failing properly train and supervise Defendants
Michael Perez, Joel Henderson, and Christian Perez the proper application C.F.R.
Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:10
1.218(a)(10) would cause these officers inflict Fourth Amendment injuries others, including
Plaintiff.
First and Fifth Amendment Violations
Defendants Shulkin, Brown, and Leas
45. the heads the VA, VAGLAHS, and Police the VAGLAHS respectively,
Defendants Shulkin, Brown, and Charles Leas bear overall responsibility for the promulgation and
enforcement regulations the VAGLAHS.
FIRST CAUSE ACTION
VIOLATION THE FOURTH AMENDMENT BIVENS
(Against Defendants Michael Perez, Joel Henderson, and Christian Perez)
46.
Plaintiff realleges paragraphs through fully stated herein.
47.
Plaintiff enjoys the right secure his person and effects against unreasonable
searches and seizures, protected the Fourth Amendment the U.S. Constitution.
48.
Defendants Michael Perez, Joel Henderson, and Christian Perez, acting within the course
and scope their authority federal law enforcement officials and under color federal law, deprived
Plaintiff his rights under the Fourth Amendment the United States Constitution June 12, 2016
and June 19, 2016 arresting Plaintiff and seizing his cameras without arrest warrant probable
cause that Plaintiff had committed crime. Specifically, Defendants Michael Perez, Joel Henderson,
and Christian Perez lacked probable cause that Plaintiff violated C.F.R. 1.218(a)(10) because,
among other reasons, all relevant times Plaintiff was entrance the Great Lawn Gate entrance the Los Angeles Veterans National Park and Plaintiff lacked news purpose.
49.
The actions Defendants Michael Perez, Joel Henderson, and Christian Perez also
threaten deprive Plaintiff his Fourth Amendment rights the future, Plaintiff intends
continue engage his weekly protests and record his protest the Great Lawn Gate entrance.
Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:11
50.
Plaintiff suffered damages direct and proximate result the violation his
constitutional rights Defendants Michael Perez, Joel Henderson, and Christopher Perez.
51.
The actions Defendants Michael Perez, Joel Henderson, and Christian Perez also have
caused and will continue cause Plaintiff suffer irreparable harm.
52. remedy available law will adequately redress the violation Plaintiff Fourth
Amendment rights Defendants Michael Perez, Joel Henderson, and Christopher Perez.
SECOND CAUSE ACTION
VIOLATION THE FOURTH AMENDMENT BIVENS
(Against Defendants Jane and John Doe Nos. 1-5)
53.
Plaintiff realleges paragraphs through fully stated herein.
54. ordering officers Defendants Michael Perez, Joel Henderson, and Christian Perez
cite Plaintiff for allegedly unauthorized photography the Great Lawn Gate entrance and detain and
handcuff Plaintiff and confiscate Plaintiff cameras June 12, 2016 and June 19, 2016, Defendants
Jane and John Doe Nos. 1-5 participated directly and were personally involved the deprivation
Plaintiff Fourth Amendment rights.
55. the alternative, Defendants Jane and John Doe Nos. 1-5 failed properly train and
supervise Defendants Michael Perez, Joel Henderson, and Christian Perez the requirements
C.F.R. 1.218(a)(10), resulting the deprivation Plaintiff Fourth Amendment rights.
56.
The actions Defendants Jane and John Doe Nos. 1-5 also threaten deprive Plaintiff his Fourth Amendment rights the future, Plaintiff intends continue engage his weekly
protests and record his protest the Great Lawn Gate entrance.
57.
Plaintiff suffered damages direct and proximate result the violation his
constitutional rights Defendants Jane and John Doe Nos. 1-5.
58.
The actions Defendants Jane and John Doe Nos. 1-5 also have caused and will
Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:12
continue cause Plaintiff suffer irreparable harm.
59. remedy available law will adequately redress the violation Plaintiff Fourth
Amendment rights Defendants Jane and John Doe Nos. 1-5.
THIRD CAUSE ACTION
VIOLATION THE FIRST AND FIFTH AMENDMENT
(Against Defendants David Shulkin, Ann Brown, and Charles Leas)
60.
Plaintiff realleges paragraphs through fully stated herein.
61.
Plaintiff enjoys the right engage expressive activity, guaranteed the First
Amendment the U.S. Constitution. This includes the right photograph and record police and other
activity carried out public property. Plaintiff also enjoys the right due process,
guaranteed the Fifth Amendment the U.S. Constitution.
62.
The regulation issue, C.F.R. 1.218(a)(10), unconstitutional its face and
applied Plaintiff. Among other constitutional infirmities, the regulation overly broad, vague, and
neither content-neutral and narrowly tailored further compelling government interest nor even
reasonable light its purpose.
63.
The actions Defendants Shulkin, Brown, and Leas have chilled and deprived Plaintiff his right engage constitutionally protected, expressive activity and threaten deprive Plaintiff
his right engage such activity the future.
64.
The actions Defendants Shulkin, Brown, and Leas have caused and will continue
cause Plaintiff suffer irreparable harm.
65.
The regulation, C.F.R. 1.218(a)(10), violates the First Amendment and the Due
Process Clause the Fifth Amendment.
66. remedy available law will adequately redress the violation Plaintiff First and
Fifth Amendment rights Defendants Shulkin, Brown, and Leas.
Case 2:17-cv-04354 Document Filed 06/12/17 Page Page #:13
PRAYER FOR RELIEF
Plaintiff respectfully requests that the Court enter judgment against Defendants:
Declaring the conduct Defendants Michael Perez, Joel Henderson, Christian Perez, and
Jane and John Does Nos. 1-5 violation Plaintiff rights under the Fourth Amendment the
U.S. Constitution, permanently enjoining them from violating Plaintiff Fourth Amendment rights
the future, and awarding Plaintiff compensatory damages against Defendants Michael Perez, Joel
Henderson, Christian Perez, and Jane and John Does Nos. 1-5;
Declaring the challenged provision, C.F.R. 1.218(a)(10), unconstitutional
its face and applied Plaintiff under the First and Fifth Amendments the U.S. Constitution;
Permanently enjoining Defendants David Shulkin, Ann Brown, and Charles Leas, well their officers, agents, employees, attorneys, all other persons active concert participation with
them, and their successors, from violating Plaintiff First and Fifth Amendment rights otherwise
enforcing C.F.R. 1.218(a)(10);
Awarding Plaintiff reasonable attorneys fees and costs this action; and
Granting such other and further relief this Court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff Robert Rosebrock requests trial jury all issues for which entitled
jury.
Dated: June 12, 2017
Respectfully submitted,
JUDICIAL WATCH, INC.
LAW OFFICES ROBERT PATRICK STICHT
By:
/s/ Robert Patrick Sticht.
ROBERT PATRICK STICHT
Attorneys for Plaintiff
Robert Rosebrock