Mot - DCT MSJ

Case 2:10-cv-01878-SJO-SS Document 37 Filed 10/25/10 Page 1 of 2 Page ID #:348
1 PETER J. ELIASBERG (SBN 189110)

Email: peliasberg@aclu-sc.org
2 HECTOR VILLAGRA (SBN 177586)
Email: hvillagra@aclu-sc.org
3 ACLU FOUNDATION
OF SOUTHERN CALIFORNIA
4 1313 West Eighth Street
Los Angeles, CA 90017
5 Telephone: (213) 977-9500
Facsimile: (213) 977-5297
6
7 Attorneys for Plaintiff
8
9
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12
13
14 ROBERT ROSEBROCK, ) Case No. CV10-01878-SJO (SSx)
)
15 Plaintiff, )
)
16 vs. ) PLAINTIFF’S NOTICE OF MOTION
) AND MOTION FOR SUMMARY
17 DONNA BEITER, DIRECTOR OF ) JUDGMENT
THE VETERANS )
18 ADMINISTRATION GREATER )
LOS ANGELES HEALTHCARE )
19 SYSTEM, in her official capacity; )
RONALD MATHIS, CHIEF OF )
20 POLICE OF THE VETERANS ) Motion for Summary Judgment
ADMINISTRATION GREATER ) Filed: October 25, 2010
21 LOS ANGELES HEALTHCARE )
SYSTEM, in his official capacity. ) Hearing Date: November 15, 2010
22 ) Time: 10:00 a.m.
Defendants. ) Courtroom: 1
23 ______________________________ )
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Case 2:10-cv-01878-SJO-SS Document 37 Filed 10/25/10 Page 2 of 2 Page ID #:349
1 TO ALL PARTIES AND THEIR COUNSEL:

2 PLEASE TAKE NOTICE THAT on November 15, 2010, at 10:00 A.M., or
3 as soon thereafter as the matter may be heard, in Courtroom 1 of the above-entitled
4 court located at 312 North Spring Street, Los Angeles, California 90012, Plaintiff
5 will and does hereby move for summary judgment. Plaintiff’s motion is based
6 upon this Notice of Motion, the Plaintiff’s Memorandum of Points and Authorities
7 in Support of the Motion for Permanent Injunction and Summary Judgment and the
8 concurrently filed declarations and exhibits that the Plaintiff filed and served on
9 October 25, 2010, the complaint, and such additional authorities and arguments as
10 may be presented in reply and at any hearing on Plaintiff’s motion.
11 This motion is made following the conference of counsel pursuant to Local
12 Rule 7-3, which took place on July 23, 2010. Counsel for parties agreed that there
13 was no way to resolve this matter other than through litigation and that they would
14 be filing cross-motions for summary judgment.
15
16 DATED: October 25, 2010 Respectfully submitted,
17 ACLU FOUNDATION OF
SOUTHERN CALIFORNIA
18
19 By: s/ Peter J. Eliasberg
Peter J. Eliasberg
20
Attorney for Plaintiff
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Case 2:10-cv-01878-SJO-SS Document 37-1 Filed 10/25/10 Page 1 of 27 Page ID #:350

3 SILVIA A. BABIKIAN (SBN 270190)
Email: sbabikian@aclu-sc.org
4 ACLU FOUNDATION
6 Telephone: (213) 977-9500
7 Facsimile: (213) 977-5297
9
10
13
14
)
16 Plaintiff, )
)
17 vs. ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF
18 DONNA BEITER, DIRECTOR OF ) PLAINTIFF’S MOTION FOR
THE VETERANS ) SUMMARY JUDGMENT
20 SYSTEM, in her official capacity; ) Complaint Filed: March 16, 2010
RONALD MATHIS, CHIEF OF ) The Honorable S. James Otero
21 POLICE OF THE VETERANS )
ADMINISTRATION GREATER )
22 LOS ANGELES HEALTHCARE ) Motion for Summary Judgment
SYSTEM, in his official capacity. ) Filed: October 25, 2010
23 )
Defendants. ) Hearing Date: November 15, 2010
24 ______________________________ ) Time: 10:00 a.m.
Courtroom: 1
25
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1
2 TABLE OF CONTENTS
3 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
4 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
6 A. The Proposed Public Park. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
7 B. Plaintiff Disagrees with VA’s Plan for a Proposed
8 Public Park. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
9 C. Plaintiff Hangs the United States Flag Union Up to Convey a

Particular Viewpoint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
10 D. Mr. Rosebrock Hangs the American Flag Union Down to Express
11 a Different Viewpoint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
12 E. Defendants Repeatedly Interfered as Soon as Mr. Rosebrock

Began to Display the Flag Union Down. . . . . . . . . . . . . . . . . . . . . . 4
13 F. VAGLAHS Cites Mr. Rosebrock for His Viewpoint. . . . . . . . . . . 5
14 G. VAGLAHS Continues to Discriminate on the Basis of Viewpoint
15 by Permitting Mr. Rosebrock to Hang the Flag Union, but
Ordering Him to Take It down Shortly After He Displayed It
16
Union Down. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
17
18 H. VAGLAHS’s Policies Punishing Mr. Rosebrock for Hanging the
United States Flag Union Down Have Chilled His Speech. . . . . . . 6
19
LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
20
I. SUMMARY JUDGMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
21 II. PERMANENT INJUNCTIVE RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . 6
22 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
23 I. DEFENDANTS HAVE VIOLATED AND WILL CONTINUE TO
24 VIOLATE MR. ROSEBROCK’S FIRST AMENDMENT RIGHTS
25 ABSENT AN INJUNCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
26 A. Defendants’ Barring of Mr. Rosebrock’s Display of the Flag Union

Down is Impermissible Viewpoint Discrimination. . . . . . . . . . . . . 7
27
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1 1. Mr. Rosebrock Communicated a Different Viewpoint by

Hanging the Flag Union Up Than He Did Displaying It Union
2
Down. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3
4 2. Defendants are Engaged in a Pattern of Restricting Plaintiff’s
Expression on the Basis of His Viewpoint. . . . . . . . . . . . . . . 11
5
6 3. Whether 38 CFR § 1.218(a)(9) is Facially Neutral Is
Irrelevant.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7
B. Defendants’ Pattern of Enforcing 38 C.F.R. § 1.218(a)(9) is
8 Unreasonable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
9 III. PLAINTIFF IS ENTITLED TO A PERMANENT INJUNCTION . . . 13
10
A. The Injuries Mr. Rosebrock Suffered Cannot Be Compensated by
11 Any Remedy at Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
12 B. The Balance of Equities Clearly Tips in the Plaintiff’s Favor. . . 17
13 C. Granting Mr. Rosebrock a Permanent Injunction Is in the Public’s
Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
14
IV. THE WALKWAY BETWEEN THE SIDEWALK AND FENCE IS A
15 PUBLIC FORUM, AS IS THE FENCE ALONG THAT WALKWAY. 18
16 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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1 TABLE OF AUTHORITIES
2 FEDERAL CASES
Page(s)
3 ACLU v. City of Las Vegas,
333 F.3d 1092 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 20
4
Amoco Prod. Co. v. Village of Gambell,
5 480 U.S. 531 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6 Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7
Ark. Education TV Commission v. Forbes,
8 523 U.S. 666 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9 Association of Christian Schs. International v. Stearns,

679 F. Supp. 2d 1083 (C.D. Cal. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
10 Bery v. City of New York,
11 97 F.3d 689 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
12 Brown v. Cal. DOT,

321 F.3d 1217 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
13 Burson v. Freeman,
504 U.S. 191 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
14
Campbell v. Miller,
15 373 F.3d 834 (7th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
16 Celotex Corp. v. Catrett,
477 U.S. 317 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
17
Christian Legal Society v. Walker,
18 453 F.3d 853 (7th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
19 Continental Airlines, Inc. v. Intra Brokers,
24 F.3d 1099 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
20
Cornelius v. NAACP Legal Defense and Education Fund,
21 473 U.S. 788 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12, 15
22 Correctional S'vces Corp. v. Malesko,
534 U.S. 61 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
23
Deerfield Medical Ctr. v. Deerfield Beach,
24 661 F.2d 328 (5th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
25 Elrod v. Burns,
427 U.S. 347 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
26
First Unitarian Church of Salt Lake City v. Salt Lake City Corporation,
27 308 F.3d 1114 (10th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
28
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1 Forsyth County v. Nationalist Movement,

505 U.S. 123 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2
Gentala v. City of Tucson,
3 213 F.3d 1055 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16
4 Gerritsen v. City of Los Angeles,
994 F.2d 570 (9th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5
International Society for Krishna Consciousness v. Kearnes,
6 454 F. Supp. 116 (E.D. Cal. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7 Klein v. City of San Clemente,

584 F.3d 1196 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17
8 Lamb's Chapel v. Center Moriches Union Free School District,
9 508 U.S. 384 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12
10 Maceira v. Pagan,
649 F.2d 8 (1st Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11 Mills v. District of Columbia,
12 571 F.3d 1304 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Missouri v. Jenkins,
13 515 U.S. 70 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
14 Monsanto Co. v. Geertson Seed Farms,
130 S. Ct. 2743 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
15
NAACP Legal Defense and Education Fund v. Horner,
16 636 F. Supp. 762 (D.D.C. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17 Newsom v. Albermarle County Sch. Board,
354 F.3d 249 (4th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
18
Nuxoll v. India Prairie Sch. District,
19 523 F.3d 668 (7th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
20 Pac. Frontier v. Pleasant Grove,
414 F.3d 1221 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
21
Planned Parenthood v. Citizens for Community Action,
22 558 F.2d 861 (8th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
23 Police Department of Chicago v. Mosley,
408 U.S. 92 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 15
24
R.A.V. v. City of St. Paul,
25 505 U.S. 377 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 18, 20
26 R.G. v. Koller,
415 F. Supp. 2d 1129 (D. Haw. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
27
28
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1 Red Lion Broadcasting Co. v. FCC,

395 U.S. 367 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2
Rivera v. Phillip Morris, Inc.,
3 395 F.3d 1142 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Rosenberger v. Rector and Visitors of the University of Virginia,
515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
5
Sammartano v. First Judicial District Court,
6 303 F.3d 959 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17, 18
7 Scott v. Roberts,
612 F.3d 1279 (11th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8 Starkey v. County of San Diego,
9 346 Fed. Appx. 146, 149 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10 Stilp v. Contino,
613 F.3d 405 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11 Texas v. Johnson,
12 491 U.S. 397 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Truth v. Kent School District,
13 551 F.3d 850 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
14 Tucker v. City of Fairfield,
398 F.3d 457 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15
Tucker v. Department of Education,
16 97 F.3d 1204 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
17 United States v. Grace,
461 U.S. 171 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
18
United States v. Playboy Entertainment Group,
19 529 U.S. 803 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
20 University of Texas v. Camenisch,
451 U.S. 390 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
21
Ward v. Rock Against Racism,
22 491 U.S. 781 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
23
STATUTES AND REGULATIONS
24
25 4 U.S.C. § 8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
26 38 C.F.R. § 1.218(a)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 12, 13, 20
27 Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
28
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1 OTHER AUTHORITIES
2 Paul Finkelman, Bondage, Freedom, & The Constitution,
17 Cardozo L. Rev. 1793, 1826 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3
Kenneth L. Karst, Equality as a Central Principle in the First Amendment,
4 43 U. Chi. L. Rev. 20, 29 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5 Douglas Laycock, The Death of the Irreparable Injury Rule,
103 Harv. L. Rev. 687, 708-709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6
William Manchester, The Glory and the Dream: A Narrative History of
7 America, 1932-1972, 561 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8 Geoff Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 55 (1987) . . . 8
9
10
11
12
13
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15
16
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1 INTRODUCTION
2 This case involves federal officials who have misused their authority by
3 engaging in viewpoint discrimination against Plaintiff Robert Rosebrock, a
4 68-year-old veteran. The undisputed evidence demonstrates that Defendants have
5 repeatedly barred Mr. Rosebrock from hanging a United States flag union down on
6 the fence of the VAGLAHS complex while permitting him - every week for 66
7 weeks - to display the United States flag union up in precisely the same location.
8 The undisputed evidence - and Ninth Circuit case law -- also demonstrate that Mr.
9 Rosebrock was expressing an entirely different viewpoint when he displayed the
10 flag union up from the one he was expressing when he displayed it union down.
11 This differential treatment of the different viewpoints communicated by the two
12 different United States flag displays constitutes action forbidden by the First
Amendment: the suppression of a political viewpoint the government disfavors.
13
In opposition to Plaintiff's Motion for a Preliminary Injunction Defendants
14
argued that there was no viewpoint discrimination because the regulation the VA
15
police were purporting to enforce was viewpoint neutral. This argument
16
miscronstrues the nature of Plaintiff's claim. Plaintiff is not challenging the VA
17
regulations. He is challenging the VA's 66 week pattern of ignoring its regulations
18
when Mr. Rosebrock was hanging the American flag in the traditional manner on
19
VA property, and the VA’s subsequent vigorous enforcement of its regulations
20
only when Mr. Rosebrock began to hang the flag union down.
21
In opposition to Plaintiff's Motion for a Preliminary Injunction Defendants
22
argued that there was no viewpoint discrimination because Mr. Rosebrock
23
displayed his flag in the traditional manner and union side down in the context of
24
protests against VA policies. This argument also misconstrues what this case is
25
about. Displaying the flag in the traditional manner no more communicates the
26
same viewpoint as displaying it union side down than a “F**CK THE DRAFT”
27
sign conveys the same message as a sign with a peace symbol on it, even if both
28
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1 signs were carried in a march against the Vietnam War. In other words, this case is
2 not about whether the VA allowed Mr. Rosebrock to protest its policies; it is about
3 whether the VA permitted him to express two different messages by hanging the
4 American flag in two different ways on the VA fence. The undisputed evidence
5 shows the VA allowed one and barred the other.
6 Finally, in opposition to Plaintiff's Motion for a Preliminary Injunction
7 Defendants argued that Plaintiff was suffering no irreparable injury because he
8 could display the American flag union down nearby, by carrying it on the sidewalk
9 near the fence. However, a violation of First Amendment rights constitutes
10 irreparable injury as a matter of law, regardless of whether Plaintiff may have an
11 alternative forum close by to express his viewpoint. The Supreme Court, the Ninth
12 Circuit, and every other federal circuit court of appeals that has addressed the
question - has held that a First Amendment violation is irreparable injury.
13
STATEMENT OF FACTS
14
A. The Proposed Public Park.
15
The Veterans Home/VAGLAHS contains a large grass lawn on its property.
16
One entrance to the grass lawn, which the VA wants to convert to a public park, is
17
located at the intersection of San Vicente and Wilshire Boulevards. Undisputed
18
Fact (“UF”) 1. There is a locked fence at the entrance that is set back 50 feet from
19
the intersection. The public walkway in front of the fence separates the grass lawn
20
from the sidewalk. UF 2. Many widely-spaced concrete posts separate the public
21
walkway from the public sidewalk. The concrete posts are posted so far apart from
22
each other that pedestrians or bicyclists crossing can freely cross from the sidewalk
23
to the public walkway. UF 3.
24
B. Plaintiff Disagrees with VA’s Plan for a Proposed Public Park.
25
Beginning March 9, 2008, Mr. Rosebrock and a number of elderly veterans,
26
have demonstrated outside the locked fence of the grass lawn to draw public
27
attention to their cause. UF 4. They demonstrate every Sunday for 3-4 hours. UF
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1 5. Mr. Rosebrock disagrees with VAGLAHS’s refusal to develop the grass lawn
2 into a shelter for homeless veterans or otherwise use the land for the shelter and
3 care of veterans because he believes the grass lawn was specifically deeded in 1888
4 to the United States as a home for disabled veterans. UF 6.
5 C. Plaintiff Hangs the United States Flag Union Up to Convey a
Particular Viewpoint.
6
As part of the weekly protests, Mr. Rosebrock hung the American flag with
7
the union up, along with a POW/MIA banner on the VA fence. Mr. Rosebrock
8 chose to hang the American flag union up to express a specific message: “I was
9 expressing the message that I believe[d] almost everyone perceives when they see
10 the flag displayed [union up] – a message of patriotism.” He hung the flag union
11 up to declare that despite his disagreement with VA, he was a “proud and patriotic”
12 American. Also, he wanted “to express a message of honor and support for
13 America’s military” by hanging the flag alongside the POW flag. UF 7.
14 He had hung the United States flag and the banners for several months
15 without any complaint from VAGLAHS until November 30, 2008, when Sergeant
16 Webb of the VA police approached Mr. Rosebrock and asked him to remove the
17 armed forces banner and Vietnam Unit flag, which were hanging alongside the
18 American and POW flags. UF 11. However, Sergeant Webb told Mr. Rosebrock
19 that he was permitted to hang the United States and POW flags on the fence. Id.
20 Mr. Rosebrock obeyed Sergeant Webb’s request. Id. Earlier in the year, Sergeant
21 Webb had also informed Mr. Rosebrock that he would not be permitted to hang any
22 flags on fence except the US and POW flag. UF 12.
23 After the November 30, 2008 encounter, Mr. Rosebrock did not have any
24 other interactions with the VA police for several months, during which he hung
25 only the United States flag – union up – and the POW/MIA banner on the fence
26 outside the great lawn. In fact, Mr. Rosebrock hung the United States flag union
27 up as a part of his protest for 66 weeks – more than fifteen months – without any
28 interference from VA employees. UF 13.
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1 D. Mr. Rosebrock Hangs the American Flag Union Down to Express

a Different Viewpoint.
2
Mr. Rosebrock grew more frustrated that VAGLAHS would not develop the
3
grass lawn for the care of homeless veterans after he witnessed a “celebrity
4
carnival” on the grass lawn inside the fence on June 7, 2009. He believed that
5
VAGLAHS’s use of the grass lawn for a carnival disrespected homeless veterans.
6
Thus, he concluded that the veterans’ property was in danger and that veterans
7
needed to unite against VAGLAHS. UF 14.
8 Therefore, Mr. Rosebrock began to hang the Untied States flag – now union
9 down – on June 14, 2009. UF 14. Mr. Rosebrock hung the flag union down as a
10 distress call because he wanted to express that VAGLAHS was not using the land
11 that had been deeded for veterans’ benefit for its intended purpose, thus resulting in
12 extreme hardship and distress to veterans. UF 15.
13 Mr. Rosebrock understood that hanging the United States flag union down
14 conveyed a viewpoint that was different from viewpoint he was communicating by
15 hanging the flag union up. UF 16. He “hung the flag union down not to express
16 [his] patriotism or support for military veterans but as a distress call.” As he stated,
17 “Hanging the flag union side down is integral to my expressing my point of view
18 that the land that was deeded for veterans is in danger due to the VA’s actions,
19 which also causes extreme distress to veterans – particularly homeless veterans.”
20 UF 17.
21
E. Defendants Repeatedly Interfered as Soon as Mr. Rosebrock
22 Began to Display the Flag Union Down.
23 On June 26, 2009 – after only the second Sunday that Mr. Rosebrock hung
24 the flag union down – Lynn Carrier, associate director or VAGLAHS, sent an email
25 message to Mr. Rosebrock to express disapproval of Mr. Rosebrock’s viewpoint.
26 She wrote that Mr. Rosebrock “may not attach the American flag, upside down, on
27 VA property including our perimeter gates.” She added, “This is considered
28 desecration of the flag and is not allowed on VA property.” UF 18.
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1 F. VAGLAHS Cites Mr. Rosebrock for His Viewpoint.

2 Although Ms. Carrier demanded that Mr. Rosebrock refrain from hanging
3 the American flag union down, he still did so every Sunday, believing that
4 VAGLAHS was impermissibly trying to restrict his viewpoint. Soon after, Mr.
5 Rosebrock received a citation in the mail, dated July 26, 2009, for “unauthorized
6 demonstration or service in a national cemetery or on other VA property.” UF 19.
7 Starting August 9, 2009, Mr. Rosebrock received five additional citations
8 under 38 C.F.R. § 1.218(a)(9), which criminalizes the distribution of materials or
9 displaying of placards or posting of materials on VA property. Three of these
10 citations mention that Mr. Rosebrock hung the American flag union down. During
11 the time he was cited, he only hung the American flag union side down. UF 20.
12 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
13 Union Down.
14 After Assistant United States Attorney Sharon K. McCaslin asked the court
15 to drop the charges against him, Mr. Rosebrock continued to protest VAGLAHS’s
16 failure to use the grass lawn for homeless and disabled veterans. UF 21. However,
17 Mr. Rosebrock decided not to hang the United States flag union down, alongside
18 the POW/MIA flag, on the fences of the grass lawn because he feared being cited
19 again – even though he believed he had a right to do so. UF 22.
20 On February 21, 2009, Mr. Rosebrock had his 100th demonstration, which
21 included a press conference. For about 90 minutes before the press conference,
22 Mr. Rosebrock hung the American flag, union up, on the VA fence alongside the
23 POW flag. The flags remained there during the entire press conference and 30
24 minutes after for a total of about three hours, until Mr. Rosebrock and his fellow
25 veterans left that day. Mr. Rosebrock observed VAGLAHS police in the area while
26 the US flag was hanging on the fence, but they did not cite him, ask him to remove
27 either flag, or otherwise interfere with the display of the flags. UF 23.
28 One week later, however, Mr. Rosebrock hung the US flag – this time union
-5-
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1 down – to express once again his belief that the land deeded to the veterans’ use
2 was in danger. VA police officers demanded that Mr. Rosebrock remove the flags.
3 After he refused to take the flags down, VA police removed them. UF 24.
4 H. VAGLAHS’s Policies Punishing Mr. Rosebrock for Hanging the
United States Flag Union Down Have Chilled His Speech.
5 Mr. Rosebrock wants to continue demonstrating against VAGLAHS by
6 hanging the American flag union down on the fence. He will not do so, however,
7 because of the VA’s pattern of citing him, or ordering him to remove his flags , if
8 he hangs the American flag union down. Because hanging the US flag union down
9 is “integral” to the viewpoint that Mr. Rosebrock wants to convey, Defendants’
10 continued interference with this display of the flag interferes with his message that
11 VA’s use of the land for purposes unrelated to the shelter and care of veterans
12 endangers both the veterans’ land and the veterans in need. UF 25.
LEGAL STANDARDS
13
I. SUMMARY JUDGMENT
14
If there is no genuine issue as to any material fact, the moving party is
15
entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Ass’n of
16
Christian Schs. Int’l v. Stearns, 679 F. Supp. 2d 1083, 1090-1091 (C.D. Cal. 2008)
17
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). A “material” fact is
18
one that could affect the outcome of the case, and an issue of material fact is
19
“genuine” if “the evidence is such that a reasonable jury could return a verdict for
20
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
21
The Court “construes the evidence in the light most favorable to the nonmoving
22
party.” Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005).
23
II. PERMANENT INJUNCTIVE RELIEF
24
For a plaintiff who has prevailed on the merits to obtain a permanent
25
injunction, he “must demonstrate: (1) that he suffered an irreparable injury; (2) that
26
remedies at law, such as monetary damages, are inadequate to compensate for that
27
injury; (3) that, considering the balance of hardships between the plaintiff and
28
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1 defendant, a remedy in equity is warranted; and (4) that the public interest would
2 not be disserved by a permanent injunction.” Monsanto Co. v. Geertson Seed
3 Farms, 130 S. Ct. 2743, 2756 (2010). “[I]njunctive relief has long been recognized
4 as the proper means for preventing entities from acting unconstitutionally.”
5 Correctional S’vces Corp. v. Malesko, 534 U.S. 61, 74 (2001).
6 ARGUMENT
7 I. DEFENDANTS HAVE VIOLATED AND WILL CONTINUE TO

VIOLATE MR. ROSEBROCK’S FIRST AMENDMENT RIGHTS
8 ABSENT AN INJUNCTION.
9 In a non-public forum, the Government may not exclude speech unless the
10 speech restriction is viewpoint neutral and reasonable in light of the purpose
11 served by the forum. Rosenberger v. Rector and Visitors of the Univ. of Virginia,
12 515 U.S. 819, 829 (1995). Defendants’ discrimination between Mr. Rosebrock’s
traditional display of the flag – which it permitted for well over a year – and his
13
display of the flag union down – which it repeatedly barred – is neither.
14
15 A. Defendants’ Barring of Mr. Rosebrock’s Display of the Flag
Union Down is Impermissible Viewpoint Discrimination.
16
Viewpoint-based restrictions on speech are a subset of content-based
17
restrictions. A law restricting sexually explicit adult programming is a content-
18
based restriction. See, e.g., United States v. Playboy Entertainment Group, 529
19
U.S. 803 (2000). Similarly, a law banning parades relating to the subject of
20
abortion, while permitting other types of parades would be content or subject
21
matter-based. See Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972).
22
Viewpoint-based restrictions are those that prohibit a point of view rather
23
than a whole subject matter. Rosenberger, 515 U.S. at 829. Thus, a law
24
prohibiting parades expressing a pro-life message, while permitting those
25
expressing a pro-choice message, would be viewpoint-based. See Lamb’s Chapel
26
v. Center Moriches Union Free School Dist., 508 U.S. 384, 393 (1993); R.A.V. v.
27
City of St. Paul, 505 U.S. 377, 391 (1992). Both content- and viewpoint-based
28
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1 restrictions present the danger that government will distort public debate by
2 restricting either topics or specific viewpoints from the public debate. See Geoff
3 Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46, 55 (1987).
4 However, viewpoint-based restrictions have the potential to create even
5 greater distorting effects than subject matter or content-based restrictions by
6 silencing only one side of the debate on an issue or subject. See R.A.V., 505 U.S. at
7 391. Accordingly, the Supreme Court has stated, “[v]iewpoint discrimination is . . .
8 an egregious form of content discrimination.” Rosenberger, 515 U.S. at 829.
9 Viewpoint discrimination is impermissible even under the relatively relaxed
10 scrutiny that applies to speech restrictions in non-public forums. Cornelius v.
11 NAACP Legal Def. and Educ. Fund, 473 U.S. 788, 806 (1985); see also Truth v.
12 Kent School District, 551 F.3d 850, 851 (9th Cir. 2008) (order on denial of
rehearing en banc).
13
1. Mr. Rosebrock Communicated a Different Viewpoint by
14 Hanging the Flag Union Up Than He Did Displaying It
Union Down.
15
Mr. Rosebrock hung the flag union up to communicate one viewpoint; and
16
he hung it union down to communicate an entirely different viewpoint. He hung
17
the flag union up alongside the POW/MIA banner because he “was expressing the
18
message that I believe[d] almost everyone perceives when they see the flag
19
displayed that way – a message of patriotism. That was certainly the message I was
20
expressing by displaying the flag that way because I wanted people who witnessed
21
our protests to know that whatever our disagreement with the VA, we were proud
22
and patriotic Americans.” UF 7. Additionally, Mr. Rosebrock sought to “honor
23
and support” the United States military by hanging the flag union up as a part of his
24
protests. Id.
25
Mr. Rosebrock intentionally hung the United States flag union down to
26
convey a very different viewpoint. “I hung the flag union down not to express my
27
patriotism or support for military veterans but as a distress call. I was sending a
28
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1 signal that the VA was endangering the land and the purposes for which it was
2 deeded to the United States. I also intended to express that in so doing, they were
3 endangering the veterans, especially homeless veterans, for whose care and shelter
4 the land was deeded.” UF 15-17.
5 Not only do the undisputed facts demonstrate that displaying a flag in the
6 traditional manner expresses an entirely different viewpoint from hanging it union
7 down, but Ninth Circuit precedent and history also recognize this distinction. The
8 United States flag is replete with communicative value, and the Ninth Circuit has
9 acknowledged that its display in the traditional fashion communicates a particular
10 viewpoint. See Brown v. Cal. DOT, 321 F.3d 1217, 1224 (9th Cir. 2003) (“We first
11 reject CalTrans’s argument that the flag encompasses so many different views that
12 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
13
years of nationhood.’”) (quoting Texas v. Johnson, 491 U.S. 397, 405 (1989)); see
14
also Johnson, 491 U.S. at 413 n.9 (“Thus, if Texas means to argue that its interest
15
does not prefer any viewpoint over another, it is mistaken; surely one’s attitude
16
toward the flag and its referents is a viewpoint.”)). The traditional display of the
17
flag does not convey a signal of distress or dissent; instead “a flag knits the loyalty
18
of its followers to their country.” Brown 321 F.3d at 1224.
19
By contrast, hanging the flag union down does not convey a message of
20
patriotism or loyalty to the country. It signifies a grave danger to life and property.
21
See 4 U.S.C. § 8(a). And that “distress signal” has been used throughout American
22
history to express a message of dissent or dissatisfaction with government, just as
23
Mr. Rosebrock was doing. See, e.g., William Manchester, The Glory and the
24
Dream: A Narrative History of America, 1932-1972, 561 (1980) (describing how
25
some Americans hung the Unites States flag union down as a protest against
26
President Harry Truman’s removal of General Douglas MacArthur from his
27
command during the Korean War); Paul Finkelman, Bondage, Freedom, & The
28
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1 Constitution, 17 Cardozo L. Rev. 1793, 1826 (1996) (explaining that abolitionists

2 hung the United States flag union down to protest the return of a fugitive slave to
3 his Southern master). Similarly, Mr. Rosebrock’s message was to signal dissent
4 with VAGLAHS’s policies through the invocation of the distress signal, a message
5 he was not communicating by displaying the United States flag in the traditional
6 way, i.e., union up. Brown 321 F.3d at 1224.
7 In their opposition to Plaintiff’s preliminary injunction motion, Defendants

8 argued that Mr. Rosebrock has expressed the same viewpoint through his two
9 different displays of the US flag since March 2008 because he has protested
10 VAGLHS policies both when he was hanging the flag union up as well as when he
11 hung it union down.1 The error in this argument can be illustrated by a
12 hypothetical. Consider two anti-war protest marches in the run-up to the Iraq War.
13 In one, some military veterans carry American flags union up to show that they are
14 patriots and former veterans, but nonetheless oppose the war. In another protest
15 sponsored by the Communist Party, some demonstrators burn American flags to
16 express their belief that the war is part of a pattern of immoral imperialist ventures
17 by the United States. If the police were to permit both protest marches to go
18 forward, but arrest those marchers who were burning the American flag, while
19 permitting marchers to carry the flag that was being displayed in its traditional
20 manner, the police would clearly be engaging in viewpoint discrimination even
21 though the purpose of both marches was to protest the Iraq War. Similarly here,
22
1
Plaintiff acknowledges that this Court accepted most of Defendants’ arguments
23
at the preliminary injunction stage. However, neither the law of the case or any
24 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
25
F.3d 1099, 1102 (9th Cir. 1994) (citing Univ. of Texas v. Camenisch, 451 U.S. 390,
26 395-396 (1981)). Nor should it, since the facts presented in this motion more
27 clearly demonstrate the viewpoint-based nature of Defendants’ restrictions on Mr.
Rosebrock’s display of the flag union down, and the arguments proffered by
28 Defendants are contrary to binding precedent.
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#:367
1 Mr. Rosebrock’s two different ways of displaying the United States flag
2 communicate different viewpoints. And Defendants impermissibly discriminated
3 between the two viewpoints, even if they never entirely prohibited Mr. Rosebrock
4 from displaying the flag union down.
5 2. Defendants are Engaged in a Pattern of Restricting Plaintiff’s
Expression on the Basis of His Viewpoint.
6 For 66 weeks, Mr. Rosebrock hung the United States flag, union up, without
7 any interference by the Defendants every Sunday from March 9, 2008, until June 7,
8 2009. UF 7, 10, 13. Defendants never directed Mr. Rosebrock to remove the
9 American flag, or punished him for displaying it in the traditional manner on the
10 fence. UF 7, 10-11. In fact, during this period, Sergeant Webb of VAGLAHS
11 police told Mr. Rosebrock that he would be permitted to hang the United States
12 flag union up next to the POW/MIA flag on the gates outside the grass lawn. UF
13 11, 12.
14 However, as soon as Mr. Rosebrock began to hang the United States flag
15 union down on June 14, 2009, Defendants began to discriminate against his
16 viewpoint. Shortly thereafter, Mr. Rosebrock received an email message from
17 Lynn Carrier, Associate Director of VAGLAHS, informing him that he “may not
18 attach the American flag, upside down, on VA property including our perimeter
19 gates.” She then stated: “This is considered a desecration of the flag and is not
20 allowed on VA property.” UF 18. On July 26, 2009, VAGLAHS police issued Mr.
21 Rosebrock the first citation hanging the United States flag union down on the gates
22 outside the grass lawn. UF 19. Five more citations followed. UF 20.
23
Moreover, on February 21, 2010, Mr. Rosebrock hung the United States flag
24
union up alongside the POW/MIA flag. UF 23. VA police observed him doing so,
25 and they took no action against him or the viewpoint he espoused by hanging the
26 flag union up. Id. However, when Mr. Rosebrock hung the flag – this time union
27 down – alongside the POW/MIA flag a week later, VA police ordered him to
28
-11-
#:368
1 remove the flag. UF 24.

2 Defendants’ decision whether or not to interfere with Mr. Rosebrock’s
3 expression turned on whether the same content – the United States flag – expressed
4 a viewpoint of protest or dissent as opposed to a message of patriotism ordinarily
5 associated with the traditional display of the flag. This is a classic case of
6 viewpoint discrimination, which is illegal regardless of the forum where it occurs.
7 See, e.g., Lamb’s Chapel, 508 U.S. at 394; Cornelius, 473 U.S. at 811.
8 3. Whether 38 CFR § 1.218(a)(9) is Facially Neutral Is Irrelevant.
9
The fact that the language of 38 CFR § 1.218(a)(9) may prevent individuals
10
from hanging anything on the perimeter fence surrounding VAGLAHS does not
11
bear on Mr. Rosebrock’s viewpoint discrimination claim. Mr. Rosebrock does not
12
contend that 38 CFR § 1.218(a)(9) is viewpoint discriminatory. Instead, he
13
contends that Defendants have engaged in a pattern of viewpoint discriminatory
14 enforcement of the regulation. And, the undisputed facts demonstrate that
15 Defendants’ enforcement of the regulation differed depending on whether Mr.
16 Rosebrock was hanging the flag union up or union down.2
17
B. Defendants’ Pattern of Enforcing 38 C.F.R. § 1.218(a)(9) is
18 Unreasonable.
19
Defendants’ pattern of enforcing 38 C.F.R. § 1.218(a)(9) also violates Mr.
20
21 2
At the June 14, 2010, Rule 26(f) scheduling conference, the Court recognized
22 (and Defendants’ counsel conceded) that Defendants had allowed Mr. Rosebrock to
hang the United States flag union up on the fence outside the park. See Eliasberg
23
Decl ¶ 4, Exhibit 2 p.4 (in response to the court’s question about whether the
24 Defendants have “allowed him to hang the flag right side up?” Defendants’ counsel
replied: “Yes, your Honor, it’s my understanding that with respect to the flying of
25
the flag on the fence . . . I believe that Mr. Rosebrock has in the past been allowed
26 to hang the flag on the fence.”); see also id. at p. 5 (The Court then responded to
27 Defendants’ couinsel’s concession by stating: “But once you allow someone to
hang the flag on the fence, and then you get into the issue of . . . viewpoint
28 discrimination . . . .”).
-12-
#:369
1 Rosebrock’s First Amendment rights because it is unreasonable. The “reasonable-

2 ness” requirement for restrictions on speech in a nonpublic forum “requires more of
3 a showing than does the traditional rational basis test; i.e., it is not the same as
4 establishing that the regulation is rationally related to a legitimate governmental
5 objective, as might be the case for the typical exercise of the government’s police
6 power.” Tucker v. Dept. of Educ., 97 F.3d 1204, 1215 (9th Cir. 1996). For a
7 restriction to be reasonable, there must be evidence that the restriction “reasonably
8 fulfills a legitimate need.” Sammartano v. First Judicial District Court, 303 F.3d
9 959, 967 (9th Cir. 2002).
10 Defendants did not apply 38 C.F.R. § 1.218(a)(9) to the traditional display of

11 the US flag on VA property because they permitted Mr. Rosebrock to hang the flag
12 union up for 66 weeks without interference. UF 7, 10, 13. They relied on 38
13 C.F.R. § 1.218(a)(9) to prevent him from displaying the United States flag only
14 when he hung it union down because they asserted that they had received
15 complaints from patients who were offended and upset by the union down display
16 of the flag. See Carrier Declaration in Support of Defs’ Opposition to Plaintiff’s
17 Motion for PI ¶ 6(“The nature of the complaints we received was that the display
18 was offensive and upsetting to the complainants. . . . ”). Protecting users of
19 government facilities from the discomfort they may feel from “offensive” speech is
20 not a reasonable basis to restrict such speech, even in a non-public forum. See
21 Sammartano, 303 F.3d at 969-70 (restriction on offensive speech in the floors of
22 government office building used for courtrooms is unreasonable).
23 III. PLAINTIFF IS ENTITLED TO A PERMANENT INJUNCTION

24
A. The Violation of Plaintiff’s First Amendment Rights Constitutes
25 Irreparable Injury.
26 An injury to a plaintiff’s First Amendment rights amounts to an irreparable

27 injury as a matter of law under both Supreme Court and Ninth Circuit precedent.
28
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1 See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment
2 freedoms, for even minimal periods of time, unquestionably constitutes irreparable
3 injury.”); Klein v. City of San Clemente, 584 F.3d 1196, 1207-09 (9th Cir. 2009) (it
4 remains “clear” [after Winter] that irreparable injury . . . requirement[] [is] satisfied
5 where First Amendment protections are at issue); Gentala v. City of Tucson, 213
6 F.3d 1055, 1071 (9th Cir. 2000).3 Indeed, every other circuit court that has
7 addressed the question has held that a First Amendment violation constitutes
8 irreparable injury for purposes of equitable relief. See, e.g., Scott v. Roberts, 612
9 F.3d 1279, 1295 (11th Cir. 2010); Stilp v. Contino, 613 F.3d 405, 409 (3d Cir.
10 2010).4
11 Defendants previously argued that because the discrimination between Mr.

12 Rosebrock’s two different flag displays has not succeeded in silencing him – he can
13 display the United States flag union down on the public walkway instead of
14 hanging it on the fence – he has not suffered an irreparable injury. This argument
15 is directly contradicted by binding precedent. See, e.g., Klein, 584 F.3d at 1207-09
16 (showing of First Amendment violation constitutes irreparable injury). Indeed, in
17 Klein, the Ninth Circuit held that the likelihood that a municipal ordinance barring
18 placing leaflets on parked cars violated the First Amendment satisfied the
19 irreparable injury requirement, id., even though the plaintiff was able his message
20
3
21 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.
22 531, 546 n.12 (1987)
23 4
Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009); Nuxoll v.
24 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,
25
398 F.3d 457, 464 (6th Cir. 2005); Newsom v. Albermarle County Sch. Bd., 354
26 F.3d 249, 261 (4th Cir. 2003); Bery v. City of New York, 97 F.3d 689, 693 (2d Cir.
27 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
28 for Community Action, 558 F.2d 861, 867 (8th Cir. 1977).
-14-
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1 in almost the same location by handing those leaflets to passers-by and drivers as
2 they approached their cars. Id. at 1199 (Prior to placing them on parked cars,
3 Klein had “passed leaflets to passing pedestrians.”).
4 Defendants’ argument is also fundamentally at odds with basic First
5 Amendment principles. The First Amendment not only safeguards individuals
6 from being completely silenced by the government, but it also prevents the
7 government from treating individuals differently because of the content or
8 viewpoint of their speech (depending on the forum). See Kenneth L. Karst,
9 Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20, 29
10 (1975); see also Cornelius, 473 U.S. at 806. Accordingly, the government need not
11 succeed in silencing an individual to have violated his First Amendment rights;
12 instead, the irreparable injury is that the government has discriminated between two
13 different messages or viewpoints. See, e.g., Forsyth County v. Nationalist
14 Movement, 505 U.S. 123, 126 (1992) (Issuing permits for different prices based on
15 the potential disturbance the parade would cause violated the First Amendment’s
16 requirement for content-neutrality, even though the plaintiff would still be able to
17 obtain a permit: “A tax based on the content of speech does not become more
18 constitutional because it is a small tax.”).
19 In their opposition to Plaintiff’s motion for a preliminary injunction,
20 Defendants did not cite one case holding that if the government permitted a
21 plaintiff to express a particular viewpoint in one location, it meant that its
22 discriminating against that viewpoint in a nearby location was permissible.
23 Plaintiffs do not believe that any such precedent exists. Indeed, the availability of
24 other means of, or locations for, communication is relevant only when, unlike here,
25 the restriction is content or viewpoint neutral. See, e.g., Ward v. Rock Against
26 Racism, 491 U.S. 781, 791 (1989).
27 A. The Injuries Mr. Rosebrock Suffered Cannot Be Compensated by
28 Any Remedy at Law.
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1 Injunctive relief is the appropriate form of relief for individuals who suffer
2 constitutional injuries, including violations of their First Amendment guarantee of
3 freedom of speech. See, e.g., Gentala, 213 F.3d at 1071. By their nature, First
4 Amendment violations constitute irreparable injury for which there is no adequate
5 legal remedy. See Christian Legal Society v. Walker, 453 F.3d 853, 859 (7th Cir.
6 2006) (“The loss of First Amendment freedoms is presumed to constitute an
7 irreparable injury for which money damages are not adequate”); Campbell v.
8 Miller, 373 F.3d 834, 840 (7th Cir. 2004); NAACP Legal Def. and Educ. Fund v.
9 Horner, 636 F. Supp. 762, 766 (D.D.C. 1986). See also Douglas Laycock, The
10 Death of the Irreparable Injury Rule, 103 HARV. L. REV. 687, 708-709 (“The
11 principle [that damages are an inadequate remedy for the loss of something
12 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
13
free speech] litigation.”).
14
15 Furthermore, Mr. Rosebrock is entitled to injunctive relief, as there is no
16 adequate remedy at law because the purpose of injunctive relief – particularly in
17 the context of cases of dealing with constitutional injury – is to restore the plaintiff
18 to his rightful position absent his constitutional injury. Missouri v. Jenkins, 515
19 U.S. 70, 88 (1995) (holding that victims of discriminatory conduct are entitled to
20 be restored to the position they would have occupied in the absence of the
21 discriminatory conduct); see also Laycock, Irreparable Injury, 103 HARV. L. REV.
22 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
23
constitutional injury, such as a violation of his right to free speech). No other
24
remedy at law can prevent Defendants from continuing their practice of viewpoint
25
discrimination except for equitable relief. Only a court order can ensure that
26
Defendants will not engage in viewpoint discrimination against Mr. Rosebrock, as
27
they did before he hung the United States flag union down on the gates of the grass
28
-16-
#:373
1 lawn for 66 consecutive weeks).

2 B. The Balance of Equities Clearly Tips in the Plaintiff’s Favor.
3 Because Defendants are interfering with the viewpoint Mr. Rosebrock
4 wishes to express by hanging the United States flag union down, while they
5 repeatedly allowed him to express a different viewpoint by permitting him to
6 display the flag in a manner with which they are comfortable, the balance of
7 equities tips in his favor. The protection of First Amendment rights “weighs
8 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
9
(D. Haw. 2006) (citing Int’l Society for Krishna Consciousness v. Kearnes, 454
10
F.Supp. 116, 125 (E.D. Cal. 1978)); see also Klein, 584 F.3d at 1207-09 (it remains
11
“clear” [after Winter] that the balance-of-hardship requirement[] is satisfied where
12
First Amendment protections are at issue).
13
14 C. Granting Mr. Rosebrock a Permanent Injunction Is in the Public’s
Interest.
15 Upholding the First Amendment and ensuring that the government respects
16 the fundamental principle of viewpoint neutrality is in the public interest because
17 otherwise the government would be free to distort the public discourse by
18 restricting any individual’s expression if the government disagrees with the
19 viewpoint that the individual espouses. Klein, 584 F.3d at 1208 (“We have also
20 consistently recognized the ‘significant public interest’ in upholding free speech
21 principles, as the ‘ongoing enforcement of the potentially unconstitutional
22 regulations . . . would infringe not only on the free expression interests of
23 [plaintiffs], but also the interests of other people’ subjected to the same
24 restrictions.”); Sammartano 303 F.3d at 974 (“Courts considering requests for
25 preliminary injunctions have consistently recognized the significant public interest
26 in upholding First Amendment principles) (citing cases); see also Starkey v. County
27 of San Diego, 346 Fed. Appx. 146, 149 (9th Cir. 2009).
28
-17-
#:374
1 Viewpoint-based restrictions can have great distorting effects by silencing

2 one side of the debate on an issue. See R.A.V., 505 U.S. at 391. This distortion is
3 harms the public interest because “[i]t is the purpose of the First Amendment to
4 preserve an uninhibited marketplace of ideas in which truth will ultimately
5 prevail.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).
6 Moreover, the interest Defendants assert in preventing Mr. Rosebrock from
7 hanging the flag union side down is protecting veterans from the offense some of
8 them may feel from seeing the flag displayed in a non-traditional manner. If
9 protecting patrons of government services from “offense” is an unreasonable basis
10 for a speech restriction, then the VA’s interest in protecting veterans, patients or
11 VA employees from being offended by Mr. Rosebrock’s expression does not
12 undermine the significant public interest in “upholding First Amendment
13 principles.” Sammartano, 303 F.3d at 974.
14 IV. THE WALKWAY BETWEEN THE SIDEWALK AND FENCE IS A
PUBLIC FORUM, AS IS THE FENCE ALONG THAT WALKWAY.
15 The public walkway surrounding the grass lawn, and thus also the fence
16 separating the public walkway from the grass lawn, is a public forum. To
17 determine the class of a forum, a court considers the compatibility of the uses of the
18 forum with expressive activity; the courts’ commitment to guarding speakers’
19 reasonable expectations that their speech will be protected; and the forum’s historic
20 and traditional use as a public forum. ACLU v. City of Las Vegas, 333 F.3d 1092,
21 1100-1103 (9th Cir. 2003).
22
First, locating Mr. Rosebrock’s demonstrations in the public walkway is an
23
appropriate use of the forum because it is compatible with the normal activity that
24
occurs in that location. Las Vegas, 333 F.3d at 1100. Mr. Rosebrock has seen
25 examples of expressive activity on the public walkway in the past. UF 26. Also,
26 allowing expressive activity in this forum is compatible with its “intended
27 purpose.” Las Vegas, 333 F.3d at 1100. The public walkway is functionally
28
-18-
#:375
1 equivalent to the sidewalk surrounding it. Pedestrians and bicyclists can pass from
2 the sidewalk onto the public walkway without any impediment. The concrete posts
3 placed approximately fifty feet apart from each other cannot keep passers by off of
4 the area, as they are set wide enough apart that an average car can even drive
5 through the spaces between the posts.
6 Second, Mr. Rosebrock had a reasonable expectation that his speech will be
7 protected in this forum. See, e.g., United States v. Grace, 461 U.S. 171, 180 (1983)
8 (holding that allegedly nonpublic forums that provide “no separation . . . and no
9 indication whatever to persons . . . that they have entered some special type of
10 enclave” are still public forums); Gerritsen v. City of Los Angeles, 994 F.2d 570,
11 576 (9th Cir. 1993) (same). These underlying concerns regarding a speaker’s
12 reasonable expectations must guide a court’s judgment away from a formulaic
13 approach when applying the forum analysis test. Las Vegas, 333 F.3d at 1101.
14 The open nature of the public walkway encourages pedestrians to enter the public
15 walkway from the sidewalk, further supporting the determination that it is a public
16 forum. See id. at 1103
17 Third, the public walkway’s historic use as a public forum, in addition to the
18 fact that it is part of the class of property which, by history and tradition, has been
19 treated as a public forum, requires this Court to find the public walkway a public
20 forum. Traditionally, sidewalks, which are forums like the public walkway, have
21 been held to be public forums. See, e.g., Grace, 461 U.S. 178-179. Furthermore,
22 the government’s interest in creating a nonpublic forum is not dispositive when
23 determining the true class of the forum. See e.g., Gerritsen v. City of Los Angeles,
24 994 F.2d 570, 576 (9th Cir. 1993) (holding that streets designated to have a
25 “special ambiance” and be a non-public forum may still qualify as public forums
26 because visitors expect that the street is a public forum). See also Ark. Educ. TV
27 Comm’n v. Forbes, 523 U.S. 666, 678 (1998) (“traditional public fora are open for
28 expressive activity regardless of the government’s intent”); Las Vegas, 333 F.3d at
-19-
#:376
1 1104 (holding the intent of a government to create a nonpublic forum has no direct
2 bearing upon traditional public forum status); First Unitarian Church of Salt Lake
3 City v. Salt Lake City Corporation, 308 F.3d 1114, 1124 (10th Cir. 2002). Because
4 the public walkway is part of the class of forum that traditionally is a public forum,
5 Defendants’ efforts to classify this public walkway and the fence alongside it as a
6 nonpublic forum does not bind this Court.
7 A content-based regulation of political speech in a public forum is valid only

8 if it can survive strict scrutiny.” See, e.g., Burson v. Freeman, 504 U.S. 191, 197
9 n.3 (1992) Defendants have provided neither any evidence that it has a compelling
10 interest in discriminating against Mr. Rosebrock’s speech, nor any evidence the
11 discrimination is narrowly tailored to any compelling interest.
12 Furthermore, viewpoint discrimination is always impermissible – even in a
13 non-public forum. Rosenberger, 505 U.S. at 829. Therefore, regardless of whether
14 the fence and gate around the grass lawn is a public or non-public forum,
15 Defendants’s pattern of unequal enforcement of 38 C.F.R. § 1.218(a)(9) is violating
16 Mr. Rosebrock’s First Amendment rights.
17 CONCLUSION
18 For the reasons stated above, Plaintiff respectfully requests that the Court
19 grant his Motion for Summary Judgment and enter a permanent injunction to
20 prevent Defendants from engaging in viewpoint discrimination against him and
21 permit him to hang the flag union down for 66 weeks – the same period of time
22 they permitted him to hang it union up without any interference.
23 DATED: October 25, 2010 ACLU FOUNDATION OF SOUTHERN
24 CALIFORNIA
25 s/ Peter J. Eliasberg
Peter J. Eliasberg
26
Silvia Babikian
28
-20-

4 ACLU FOUNDATION
6 Telephone: (213) 977-9500
7 Facsimile: (213) 977-5297
9
10
13
14
)
16 Plaintiff, )
)
17 vs. ) DECLARATION OF PETER J.
) ELIASBERG IN SUPPORT OF
21 POLICE OF THE VETERANS ) Complaint Filed: March 16, 2010
22 LOS ANGELES HEALTHCARE ) The Honorable S. James Otero
SYSTEM, in his official capacity. )
23 )
Defendants. )
24 ______________________________ )
25
26
27
28
1 Declaration of Peter Eliasberg in Support of Plaintiff’s Motion for Summary

Judgment
2
I, Peter Eliasberg, hereby declare:
3
1. I make this declaration based on my own personal knowledge and if
4
called to testify I could and would do so competently as follows:
5
2. I am the Managing Attorney at the ACLU Foundation of Southern
6
California and am admitted to practice in this Court and the State of California.
7
3. Attached hereto as Exhibit 1 is a true and correct copy of a Uniform
8
Offense Report reported by Sergeant Nathaniel Webb of the VA police. This
9
report was part of Defendants’ FRCP Rule 26 Initial Disclosures that were served
10
by the office of the United States Attorney on Plaintiff’s counsel on July 6, 2010.
11
Defendants did not produce the original signed version. However, at the
12
deposition of Sergeant Webb on Wednesday October 20, 2010, Sergeant Webb
13
confirmed that he had written the material in the attached Uniform Offense Report,
14
and that it was the same as the version that is attached to Mr. Rosebrock’s
15
declaration as Exhibit 2, except that the version attached to Mr. Rosebrock’s
16
declaration has the date written on it in Sergeant Webb’s handwriting, that it
17
appears to have been signed by him – though the actual signature is redacted – and
18
there are other redactions that Sergeant Webb did not make.
19
4. Attached hereto as Exhibit 2 is a true and correct copy of the
20
transcript of the Rule 26 conference held by this Court on June 14, 2010.
21
I declare under penalty of perjury of the laws of the State of California and
22
the United States that the foregoing is true and correct. Executed this 24th day of
23
October, 2010 in Los Angeles, California.
24
s/ Peter Eliasberg
25
Peter Eliasberg
26
27
28 1
EXHIBIT
1
Case 2:10-cv-01878-SJO-SS Documentof37-2
Department Filed 10/25/10
Veterans Affairs Page 4 of 17 Page ID #:380
VA Police
Greater Los Angeles HCS
Uniform Offense RePort
fl c0Py
UOR#: 2008-l l -30-141 5-3102
Lea /DOB:
Synopole:
unauthorized banners posted 9l VA fence line. During
wái conÈcted regarding-Rosebrock
Utjconta6 øth üAPO, took unauthorized pictures on tA conbolled qroperty.
Rosebrock had no wanb^ranants for his anest. Rosebrock was issued a verbal
br 38 CFR 1.21 and 38 CFR 1
15 PM, Iwas assigned to uniformect

tåiroi"aülã FiekiSerseant'dtthe Department o[v9!9ra¡t {ttaio t1l.91!lg:.Angeles
Medical Center. I was-conOuA¡ng a mobile patrol of the VeteransJt/lemorial Park.
sawtwo banners
on
nôleuro* (sS¡l sg6lDOB o4o+42). Rosebrock coordlnates weekly demonsbations

at the Veteràn,s Memorial Park protesting the use of VA co¡tolled. propeily by non{oveml
õræñ¡zagoni. tcontaaed Officär Bowmán and requested his assistance' Officer
Bowman anived at approximately 2:17 PM.
IrlSDoclÞfÍEroBE}u|n.ÞìlccmlrcEffHnCFftvlÊ'YÆf
q'f¡¡¡ir¡r t¡¡ I ffi dürühür
cort¡¡¡
---F5'r fl ¡¡dr ¡.¡lãõ¡.ä.q ¡CiC* ¡¡t-¡ltrt
;4or*¡n li¡alr-nü- tnsbú¡rætgñrt¡Füþpdn Exhibit 1 - page 2
usAo0002
advised ltm thotdudng hþ demonsùation hþ grct¡pror.dd
any sþnr, pbcards, orfrago torn üte VA Þnce oron VA
wa¡ br llagp of the Units Stæs of Amefta or Pdsoner of War. I hlm that
pooüng dpbcards, banneo, ordr€r r&rlals ¡s proh¡biþd by Þderal larr arÉ was
a vi¡lati¡n of 38 cFR 1.218(bl(2). Æ ürat tirp he stabd tre undecbod and wor¡ld
comply.
on sunday tlovernuer 16, 2()6, wh¡þ cond¡rcüon a ptol of ttre vebmnls l¡lerpdd
ParK I srw that hlo demo¡r¡ffic we sfriding on VA property Cn beùrpen thc
Þnce line and Wþhire s¡derdl$ wiü a bermer apprordnrddy gi( e. I conffid
Ræebrcdc a¡¡d advi!êd him üra ure plæsbß nótu hæ 6 sbp 016 ttre siderrdk
in oder b be h compl¡ânæ wÍtr 38 CFR 1.215(bN2). RæeUo& d¡r€éd üre denronsffi
onb üo ¡idar¡dkwiüror¡t inddent
on bdat'r daþ, Î{orernbêr 30, 2008, I contaed Ræebrod< and advbed h¡m ürat
the "suppofiourTmpo'^banner_srd vr€üran uniilbg lnnging on tfie vA pmperty
Ënæ neio h violation of 3s cFR 1.219{bKt2). I dr€úed ñGobrod( b rdnda'
tt¡e banner¡. RæeHoctoùioûd dffitg tr* ne h*t a riglrtb hûE ütæe peuor
ba¡rner¡ on VAæntolled propsty.
Putlr€ -n!y contact wlth Ræebrodq e r,*ran approdr€d rre b €xpr€s3 ]d¡ mg¡rßg
br-paruopaung h!Þg demoñsffiirr. wñ¡þ gprxrarg u,ür lürn, Roinxrodr bcgüt
b takÊ picû¡r¡s d Oñcer gowrmG the uniterüified ;iüôr,
rrd rp llonr VA-coúo¡cd
property.
I añþcrl Ræeöroct that lre wa¡ tddng una¡ttroriæd phügrâph¡ ln vlolatþn of

38 cFR f 218(bX23). Ræbrod¡ bok appcimæf ihrËc pac¡ürgs wiür a ospcaue
ctnìcrìÈ
lrequeemo a rvantE/i¡ar¡ar¡b cñed( m Ræeùrodt via üe Cail¡frnta l¡w Enbæonrsnt

Tcdecormunicdon¡ stËfimt. Roe¡ùræft hd no uflil¡ orwrrail¡ br lil¡ an¡t -
I þsued a verbalwarnlrrg b Ræeùroctbr'dbplay(¡ng) pbødsrpocüng

on popertf in vlobüon d3S CFR 1215þN?3l) ¿rr¡¿ {ñfunolæO ¡itrüsrætry
drÊ64
on pombæ'¡n vkrtil¡on d38 cFR r¿rsox2s). I drd¡od Roce¡i¡*ÉitlfuÊ
violatiorc reæ suQþf b crim¡rd præecútion.
Rqcbtodc nmovcd t.rc tûþ bennca fr'orn thc ftncc r¡iürorn in<jdcnt
Acütg Ch¡ef llaüftt and R blic AF¿irs Chief Janreo Dundl were ndifed of üe h*lent
A pfiúgr4h of thc bann¡c wæ takrr (lcc æc*reC).
nü! DOCUf,llrr 13 To BE HAt.D|rD h¡ ACCOiDAI¡CE Wrn{

Acr üE pRrv^cy
coobnt .h.Inotbdtcl6a4d.cut.d,or¡hrrrdwñlndvllr¡l¡r¡.ila.t$thjwrdñctn ül.aqlolorhtù.
Exhibit 1 - page 3
Page2-USA00003-
EXHIBIT
2
Case
Case2:10-cv-01878-SJO-SS
2:10-cv-01878-SJO-SS Document
Document37-2
27 Filed
Filed07/23/10
10/25/10 Page
Page17ofof11
17 Page
PageID
ID#:203
#:383
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.
EXCEPTIONAL REPORTING SERVICES, INC
Exhibit 2 - page 4
Case
Document37-2
27 Filed
Filed07/23/10
10/25/10 Page
Page28ofof11
17 Page
PageID
ID#:204
#:384
2
APPEARANCES FOR:
Plaintiff: PETER J. ELIASBERG, ESQ.

ACLU Foundation of Southern California
1313 West 8th St.
Defendants: INDIRA J. CAMERON-BANKS, ESQ.

Office of the United States Attorney
Civil Division
300 North Los Angeles St.
Room 7516

Exhibit 2 - page 5
Case
Document37-2
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Filed07/23/10
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Page39ofof11
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ID#:205
#:385
3
1 Los Angeles, California; Monday, June 14, 2010; 8:52 a.m.
2 (Call to Order)
3 THE CLERK: Calling Item Number 2, Civil Matter
4 10-1878, Robert Rosebrock versus Donna Beiter, et al. Counsel,
5 please state your appearances for the record.
6 MS. CAMERON-BANKS: Assistant United States Attorney
7 Indira Cameron-Banks for the defendant.
8 MR. ELIASBERG: Good morning, your Honor, Peter
9 Eliasberg, for the plaintiff.
10 THE COURT: Good morning. It is a motion for
11 preliminary injunction that remains pending. What are the
12 issues that impede the resolution or settlement of the case?
13 MR. ELIASBERG: Well, as your Honor is aware, there’s
14 no claim for damages here, so the only question really is
15 whether the government will allow Mr. Rosebrock to continue to
16 fly the flag in the way he wants, rather than the way that the
17 government feels is permissible. And at this point, based on
18 conversations, I didn’t think that the government was open to
19 that idea. But I don’t --
20 THE COURT: Where is he flying the flag?
21 MR. ELIASBERG: Well, I guess I should say hanging
22 it, your Honor. Excuse me.
23 THE COURT: Is it placed on government property
24 itself?
25 MR. ELIASBERG: It’s on the fence that borders the

Exhibit 2 - page 6
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4
1 VA’s property, yes.
2 THE COURT: So, it’s government property.
3 MR. ELIASBERG: That’s correct.
4 THE COURT: And he has -- the government has provided
5 him -- well, I guess, though conduct in the past, has allowed
6 him to fly the flag right side up?
7 MS. CAMERON-BANKS: Yes, your Honor, it’s my
8 understanding that with respect to the flying of the flag on
9 the fence --
10 THE COURT: Yes.
11 MS. CAMERON-BANKS: -- I believe that Mr. Rosebrock
12 has in the past been allowed to hang the flag on the fence.
13 It’s also my understanding that Mr. Rosebrock has also been
14 allowed to fly the flag right side up or upside down standing
15 on the public -- sorry, on the walkway -- on the sidewalk. And
16 he’s never been cited for hanging the flag either way when he’s
17 been on the sidewalk.
18 THE COURT: So, the issue is primarily flying or
19 hanging the flag upside down on the fence?
20 MS. CAMERON-BANKS: It’s my understanding that that’s
21 sort of the heart of the issue.
22 THE COURT: That’s the heart of the issue, isn’t it?
23 MS. CAMERON-BANKS: I believe so.
24 THE COURT: But the government allows him to place
25 the flag right side up on the fence?

Exhibit 2 - page 7
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1 MS. CAMERON-BANKS: The difference was that hanging
2 the flag upside down, given the type of property it is, given
3 the people that come to that property, hanging the flag upside
4 down generated a series of complaints and --
5 THE COURT: Well, I understand that.
6 MS. CAMERON-BANKS: Yeah.
7 THE COURT: But once you allow someone to hang the
8 flag on the fence, and then you get into the issue of a
9 viewpoint discrimination or a speech prohibition.
10 MS. CAMERON-BANKS: And as we briefed, the
11 government’s position is that -- first off, that the VA
12 property is a non-public forum, but with respect to viewpoint
13 discrimination, the restriction has been absolutely viewpoint
14 neutral.
15 The viewpoint of Mr. Rosebrock has not changed
16 whether the flag be right side up or upside down. Both ways,
17 Mr. Rosebrock, by his own declaration, is protesting the VA’s
18 use of the property. And there’s no additional or no different
19 viewpoint that’s expressed by the flag upside down; however,
20 the flag upside down does generate a series of complaints,
21 including, I believe at one point Mr. Rosebrock himself had
22 asked for VA police to help him when he himself was threatened
23 by visitors to the property for hanging the flag upside down.
24 THE COURT: Well, when he hangs the flag upside down,
25 he’s sending a message that he’s upset with what the Veterans
Exhibit 2 - page 8
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1 Administration is doing or not doing in reference to veterans.
2 Yes?
3 MS. CAMERON-BANKS: I believe that that’s the same
4 viewpoint he’s expressing, your Honor, when he hangs the flag
5 right side up along with the manners of signs and everything
6 else that is part of the overall protest. That’s been ongoing
7 for almost -- or over two years, now.
8 THE COURT: Okay. The parties have requested a trial
9 date.
10 MR. ELIASBERG: January, your Honor.
11 THE COURT: January 11, 2011. Let’s see if we have
12 that date available.
13 (Pause)
14 THE CLERK: How about January 18, 2011?
15 THE COURT: Will that work for your respective --?
16 MS. CAMERON-BANKS: Yes, your Honor.
17 MR. ELIASBERG: Yes, your Honor. And the time?
18 THE COURT: Nine o’clock.
19 THE CLERK: Tuesday at 9:00 a.m.
20 MR. ELIASBERG: Thank you.
21 THE COURT: Pretrial?
22 THE CLERK: Pretrial conference is January the 10th,
23 2011; Monday at 9:00 a.m.
24 THE COURT: Motion hearing cut-off?
25 THE CLERK: November 15, 2010; Monday at 10:00 a.m.

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1 MR. ELIASBERG: Your Honor, is that the last day the
2 motions will be heard or the motions will be filed?
3 THE COURT: Heard.
4 MR. ELIASBERG: Okay.
5 THE COURT: And discovery cut-off?
6 THE CLERK: October 18th, 2010.
7 THE COURT: What’s the -- is there a national policy
8 on this? What could be placed on a fence involving Veterans
9 Administration property?
10 MS. CAMERON-BANKS: There are regulations and those
11 are the regulations for which Mr. Rosebrock was cited.
12 THE COURT: So, the regulations state what? You can
13 place a flag on the fence?
14 MS. CAMERON-BANKS: The regulations state that
15 nothing should be posted on the fence --
16 THE COURT: Okay.
17 MS. CAMERON-BANKS: -- without prior permission. And
18 I believe that those regulations --
19 THE COURT: So, he had prior permission to post the
20 flag?
21 MS. CAMERON-BANKS: I don’t believe he did, your
22 Honor. But I do believe he was requested to remove it several
23 times before he was cited.
24 THE COURT: Well, he’s been post -- he’s been hanging
25 the flag for two years -- approximately two years.

Exhibit 2 - page 10
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1 MS. CAMERON-BANKS: Agreed, your Honor, yes.
2 THE COURT: Which may be not consistent with the
3 regulations of the Veterans Administration.
4 MS. CAMERON-BANKS: It could be that they are
5 inconsistent.
6 THE COURT: So, they’ve consented to his hanging the
7 flag for two years?
8 MS. CAMERON-BANKS: I believe that -- yes, they have;
9 however, your Honor, I think the distinction is that the flag
10 is -- he was cited when the flag was posted upside down.
11 THE COURT: I understand that.
12 MS. CAMERON-BANKS: Okay. And the difference being,
13 the reaction that the upside down flag incites and, adjacent to
14 that, the requirements of VA personnel to respond to those
15 complaints and those threats. It’s a medical center.
16 THE COURT: And I recognize that, but once you start
17 allowing individuals to hang flags on fences, these problems
18 occur. It’s expected.
19 Is there anything else he places on the fence?
20 MR. ELIASBERG: He’s placed an MIA flag, your Honor -
21 - the POW/MIA flag.
22 THE COURT: Okay. Is there any likelihood that the
23 case can resolve itself?
24 MS. CAMERON-BANKS: Your Honor, as part of our
25 conference we did discuss any possibility for settlement. It’s

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1 my understanding that it’s plaintiff’s position that anything
2 other than the ultimate relief requested by this action would
3 not resolve this case.
4 THE COURT: Then, let’s see. It’s in our ADR
5 program. Shall we remove it from ADR?
6 MR. ELIASBERG: Well, I mean, I think -- I’m
7 confused, your Honor. And then since we have a mandatory
8 conference (indiscernible) for trial, are you suggesting that
9 that would be waived or --?
10 THE COURT: Well, if there’s not a likelihood that
11 the case is going to resolve itself and this is an issue that’s
12 going to have to be addressed by the Court and its order issued
13 and then through the circuit, it may make sense not to utilize
14 scarce resources of the ADR program or the Federal Magistrate
15 Judge.
16 MR. ELIASBERG: Your Honor, may I make the following
17 suggestion, perhaps, depending on, for example, ruling on the
18 preliminary injunction? May we take it off and then be able to
19 make a request if we think that there is a possibility of
20 settlement? Would that make more sense in terms of preserving
21 resources?
22 THE COURT: Yes.
23 MR. ELIASBERG: All right.
24 THE COURT: It’s removed from any the settlement
25 programs.
Exhibit 2 - page 12
Case
2:10-cv-01878-SJO-SSDocument
Document2737-2
FiledFiled
07/23/10
10/25/10
Page
Page
10 of1611of 17
Page
Page
ID #:212
ID
#:392
10
1 Is there anything else that we need?
2 THE CLERK: Would you like to issue the last day to
3 amend pleadings?
4 THE COURT: Last day to amend pleadings.
5 THE CLERK: July 14, 2010.
6 THE COURT: Okay. Thank you very much.
7 MS. CAMERON-BANKS: Thank you, your Honor.
8 MR. ELIASBERG: Thank you, your Honor.
9 (Proceeding was adjourned at 9:03 a.m.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Exhibit 2 - page 13
Case
2:10-cv-01878-SJO-SSDocument
Document2737-2
FiledFiled
07/23/10
10/25/10
Page
Page
11 of1711of 17
Page
Page
ID #:213
ID
#:393
CERTIFICATION
I certify that the foregoing is a correct transcript from the
electronic sound recording of the proceedings in the above-
entitled matter.
July 23, 2010
Signed Dated
TONI HUDSON, TRANSCRIBER

Exhibit 2 - page 14

4 ACLU FOUNDATION
6 Telephone: (213) 977-9500
7 Facsimile: (213) 977-5297
9
10
13
14
)
16 Plaintiff, )
)
17 vs. ) DECLARATION OF ROBERT
) ROSEBROCK IN SUPPORT OF
21 POLICE OF THE VETERANS ) Complaint Filed: March 16, 2010
22 LOS ANGELES HEALTHCARE ) The Honorable S. James Otero
23 )
Defendants. )
24 ______________________________ )
25
26
27
28
1 Declaration of Robert Rosebrock

2 I, Robert Rosebrock, hereby declare:
3 I make this declaration based on my own personal knowledge and if called
4 to testify I could and would do so competently as follows:
5 1. I am the Plaintiff in the above-captioned action. I make this declaration
6 based on my own personal knowledge and if called to testify I could and would do
7 so competently as follows:
8 2. I am a 68-year-old Vietnam War-era veteran. I have been demonstrating
9 on the public walkway outside the grass lawn that is part of the Los Angeles
10 National Veterans Home (hereinafter “Veterans Home” or “VA Greater Los
11 Angeles Healthcare System”) in the Brentwood area of Los Angeles, California,
12 every Sunday since March 9, 2008. Along with several of my fellow veterans, I
13 have been protesting what I perceive to be the VA’s failure to use
14 portions of its land for the benefit and care of veterans – particularly homeless
15 veterans.
16 3. The Veterans Home/ VAGLAHS United States contains a large grass
17 lawn on its property. One entrance to the grass lawn, which the VA wants to
18 convert to a public park, is located at the intersection of San Vicente and Wilshire
19 Boulevards. That entrance consists of a locked fence that is set back about 50 feet
20 from the intersection itself. There is a public walkway that is contiguous to the
21 fence that separates the grass lawn from the street. Numerous widely-spaced
22 concrete posts separate the public walkway in front of the locked fence from the
23 public sidewalk to prevent cars from driving onto the public walkway. The
24 concrete posts are posted far apart from each other such that they do not provide
25 any impediment to pedestrians or bicyclists from crossing over the public
26 walkway. Attached hereto is Exhibit 1, a true and correct copy of a photograph
27 that accurately depicts the public walkway and the concrete posts on October 5,
28 2008.
1 4. Over the past few years, I have seen individuals use this public walkway
2 for a variety of instances in which individuals exercised their right to free speech.
3 Specifically, I remember Los Angeles Controller Zev Yaroslavsky have an open
4 forum dialogue in this location to discuss legislation that Representative Henry
5 Waxman and Senator Dianne Feinstein authored. I also remember signs being
6 posted on the fence surrounding the Veterans Home advertising local drama
7 productions.
8 5. Beginning March 9, 2008, I too have exercised my right to free speech
9 on this public walkway. I have demonstrated, along with other veterans, outside
10 the locked fences of the grass lawn, at the northeast comer of Wilshire and San
11 Vicente Boulevards in the Brentwood area to draw public attention to our cause. I
12 strongly disagree with the VA’s refusal to develop the grass lawn into a shelter for
13 homeless veterans or otherwise use the land for the shelter and care of veterans.
14 Although all the VAGLAHS land, including the grass lawn, was specifically
15 deeded in 1888 to the United States as a home for disabled veterans, I believe the
16 VA has failed to satisfy the deed’s conditions.
17 6. In or about the summer of 2007, the VA agreed to lease part of the land
18 to be used as a public park. This lease is part of VAGLAHS’s pattern of
19 transferring portions of the land deeded in 1888 to other entities for uses unrelated
20 to the care and shelter of veterans. For example, Brentwood School, a neighboring
21 private school, leases another parcel that it uses for an athletic field including
22 tennis courts, which veterans are not allowed to access. A number of buildings on
23 the land are leased to Richmark Entertainment for use as theaters.
24 7. Although I have no general opposition to use of land for public parks or
25 theaters, I do object to this land’s being used for these purposes while there are
26 thousands of homeless veterans in Los Angeles, including some who sleep on the
27 sidewalks outside the grass lawn.
28 8. As part of our weekly protests against the VA’s failure to use the grass
2
1 lawn for the shelter and care of disabled and homeless veterans, my fellow
2 veterans and I initially hung a United States flag with the union up, and the
3 POW/MIA banner for 3-4 hours every Sunday. Some months later, someone
4 brought a Vietnam unit flag and Support Our Troops banner, which we also hung
5 on the fence, on occasion.
6 9. When I first began my protests and hung the American flag union up
7 alongside the POW/MIA banner, I was expressing the message that I believe
8 almost everyone perceives when they see the American flag displayed that way –
9 a message of patriotism. That was certainly the message I was expressing by
10 displaying the flag that way because I wanted people who witnessed our protests
11 to know that whatever our disagreement with the VA, we were proud and patriotic
12 Americans. In addition, through its placement next to the POW/MIA banner – I
13 hung the flag to express a message of honor and support for America’s military.
14 10. I had hung the United States flag union up, the POW/MIA flag, and
15 occasionally other banners for several months without any complaint from the VA
16 police or any other VA staff until November 30, 2008. On that date, Sergeant
17 Webb of the VA police approached me and asked that I remove the Vietnam unit
18 flag and Support Our Troops banner. The United States flag and POW/MIA
19 banner were hanging right next to the armed forces banner and the Vietnam Unit
20 flag, but Sergeant Webb told me that I was permitted to keep the US flag and
21 POW/MIA flag hanging on the fence. I obeyed Sergeant Webb’s request and
22 removed the armed forces banner, while leaving the United States and POW/MIA
23 flags in place. Attached as Exhibit 2 is a true and correct copy of Sergeant Webb’s
24 November 30, 2008, Uniform Offense Report, Uniform Offense Report from a
25 Freedom of Information Act request. The redactions were not made by me.
26 11. Attached hereto as Exhibit 3 is a true and correct copy of a photograph
27 that I took on November 30, 2008. The VA police officer in the middle is
28 Sergeant Webb, and the one on the left is Officer Bowman. The man in the
3
1 wheelchair on the right is Steve Palmer, an 87-year-old World War II veteran. The
2 photograph accurately depicts the scene on November 30, 2008 shortly before we
3 removed the Support Our Troops banner and Vietnam Unit flag (which was on the
4 fence just to right of where the photograph ends).
5 12. Earlier in 2008, Sergeant Webb had witnessed my demonstration and
6 approached me. On that occasion, I had been hanging the POW/MIA flag and the
7 United States flag, which was hanging union up, on the fence. Sergeant Webb
8 told me that I would not be permitted to hang any flags, banners, or signs on the
9 fence, with the exception of the United States flag and the POW/MIA flag.
10 Sergeant Webb’s November 30, 2008, Uniform Offense Report, attached as
11 Exhibit 2, affirms that this is what he told me on earlier in 2008.
12 13. After November 30, 2008, I did not have any other interactions with
13 the VA police for the next seven months. During that time, I or one of my fellow
14 demonstrators demonstrated every Sunday for 3 to 4 hours, and every Sunday we
15 hung one or more United States flags – union up – and the POW/MIA banner on
16 the fence outside the grass lawn. During our demonstrations, we did not hang any
17 flags, banners, or signs other than the United States flag – union up – and the
18 POW/MIA flags outside the grass lawn. During those approximately 28 weeks of
19 weekly demonstrations, no VA police officer or other VA employee ever
20 approached and asked me to remove the American flag, or attempted to remove
21 the flag himself/herself.
22 14. I grew increasingly frustrated that the VA would not begin developing
23 the grass lawn for the shelter and care of homeless veterans after I witnessed a
24 “celebrity carnival” inside the grass lawn on June 7, 2009. I was disturbed by the
25 VA’s use of the grass lawn for a carnival because I perceived it as a lack of respect
26 for the plight of homeless veterans. Therefore, I concluded that the veterans’
27 property was in danger and that veterans needed to unite to stand up
28 against the VA. As a result, I began hanging the United States flag – this time
4
1 union down – beginning on June 14, 2009.

2 15. The message I intended to express with the flag hung union down was
3 entirely different from the one I had been expressing by displaying the flag in the
4 traditional manner. I hung the flag union down not to express my patriotism or
5 support for military veterans, but as a distress call. I was sending a signal that the
6 VA was endangering the land and the purposes for which it was deeded to the
7 United States. I also intended to express that in so doing, VA officials were
8 endangering the veterans, especially homeless veterans, for whose care and shelter
9 the land was deeded. Furthermore, the United States Code (4 U.S.C. § 8(a))
10 permits the display of the United States flag union down to communicate a
11 message of grave distress to life or property. Hanging the flag union side down is
12 integral to my expressing my point of view that the land that was deeded for
13 veterans is in danger due to the VA’s actions, which also cause extreme distress to
14 veterans – particularly homeless veterans. That is why when I decided to hang the
15 flag union down, I also reversed the orientation of the union of the flag from the
16 traditional left side to the right side of the flag. I wanted the union portion of the
17 flag to point toward the padlock on the locked fence to draw people’s attention to
18 the fact that the lives of thousands of homeless veterans are in danger whenever
19 this fence is locked to keep these veterans off of this land.
20 16. One week after I first hung the United States flag union down,
21 Lieutenant Carson of the VA police drove up to me from inside the fenced grass
22 lawn. Lieutenant Carson ordered me either to hang the United States flag union
23 up or remove it. Although I believed this request violated our right to free
24 expression, my fellow veterans and I removed the flag because we were planning
25 to leave the area shortly.
26 17. Just a few days later, on June 26, 2009, Lynn Carrier, associate director
27 of VAGLAHS, sent me an email message to further express the VA’s disapproval
28 of my viewpoint. She wrote that I “may not attach the American flag, upside
5
1 down, on VA property including our perimeter gates.” Ms. Carrier then added,
2 “This is considered a desecration of the flag and is not allowed on VA property.”
3 A true and correct copy of this email from Ms. Carrier is attached as Exhibit 4.
4 18. When the VA police first notified me on June 21, 2009, that I may not
5 fly the flag union down, I had been hanging the United States flag on the fence of
6 the grass lawn every Sunday for more than fifteen months without anyone from the
7 VA complaining to me, asking me to remove it, or citing me for the display. But
8 on only the second Sunday I hung the flag union down, I was admonished by
9 Lieutenant Carson in the VA police and – a few days later – by a senior VA
10 administrator for the viewpoint I had communicated.
11 19. Over the course of this fifteen month period, I had hung approximately
12 30 United States flags on the fence of the grass lawn on May 4, 2008. Attached
13 hereto as Exhibit 5 is a true and correct copy of a photo taken on May 4, 2008, that
14 accurately depicts the numerous United States flags we hung on the fence outside
15 the Great Lawn for 3-4 hours. Also, on October 5, 2008, I had hung a total of
16 about 20 flags on the fence, including more than a dozen United States flags –
17 union up – and the POW/MIA flag. Attached hereto as Exhibit 6 is a true and
18 correct copy of a photo taken on October 5, 2008, that accurately depicts the
19 numerous United States flags we hung on the fence outside the great lawn for 3-4
20 hours. The point of our demonstrations was to be visible to people who were
21 either walking or driving past the intersection of Wilshire and San Vicente
22 Boulevards and to ensure that the VA witnessed our protest. It was impossible to
23 miss our display of flags every Sunday if an individual drove or walked anywhere
24 near this intersection or was walking inside the fence of the great lawn.
25 20. Although Ms. Carrier and the VA police had demanded that I refrain
26 from hanging the United States flag union down, my fellow veterans and I
27 continued to do so every Sunday, because I believed that the VA was
28 impermissibly trying to restrict our viewpoint.
6
1 21. On or about July 27 or July 28, 2009, I received a citation in the mail,
2 dated July 26, 2009, for “unauthorized demonstration or service in a national
3 cemetery or on other VA property.” A true and correct copy of this citation is
4 attached as Exhibit 7. No VA police officer had approached me to notify me that I
5 would be cited or asking for my personal identification. Upon the request of
6 Assistant United States Attorney Sharon K. McCaslin, a court dismissed this
7 citation on October 21, 2009.
8 22. Nevertheless, beginning August 9, 2009, I received a total of five
9 additional citations under 38 C.F.R. § 1.218 (a)(9). True and correct copies of
10 these five citations are attached as Exhibit 8. However, again, no VA police
11 officer had approached me to notify me that I would be cited or asking me for my
12 personal identification. Three of these citations under this regulation mention that
13 I hung the United States flag union down. During the period of time during which
14 I was cited, I only hung the flag union side down along side the POW/MIA flag.
15 23. On December 7, 2009, Assistant United States Attorney Sharon K.
16 McCaslin requested that the Court dismiss the five additional citations against me,
17 and the Court complied with this request.
18 24. After the government dropped the charges against me, my fellow
19 veterans and I continued to protest the VA’s failure to use the grass lawn for
20 homeless and disabled veterans. However, I decided not to hang the flag United
21 State flag union down, alongside the POW/MIA flag, on the fences of grass lawn
22 because I was concerned about being cited again even though I believed I had a
23 right to do so.
24 25. February 21, 2009, marked our l00th demonstration at the grass lawn.
25 As part of the demonstration, my fellow veterans and I held a press conference to
26 unveil our “Grand Plan” for the veteran land, which calls for using federal funds
27 allocated to the VA to transform the grass lawn into a state-of-the-art medical
28 facility for veterans and also a housing complex for the thousands of homeless
7
1 veterans living in Los Angeles. In addition, we called for the upper-management

2 of VAGLAHS to resign their positions because we believe their actions have not
3 been motivated by the best interests of the veterans. I hung the United States flag,
4 union up, along side the POW/MIA flag about 90 minutes before the press
5 conference. Attached hereto as Exhibit 9 is a true and correct copy of a photo
6 taken on February 21, 2010, that accurately depicts the United States flags we
7 hung union up on the fence outside the grass lawn for 3-4 hours. The flags
8 remained there during the entire press conference and 30 minutes thereafter for a
9 total of about 3 hours, until my fellow veterans and I left for the day. I observed
10 VA police in close proximity to our flag display at various times during the day,
11 but they did not cite me, ask me to remove either flag, or otherwise interfere with
12 the display of the flags.
13 26. One week later, however, I hung the United States flag – union down –
14 to express once again my belief that the land deeded for veterans use was in
15 danger, thereby creating distress for or endangering veterans. Attached as Exhibit
16 10 is a true and correct copy of a photo of the United States flag hung union down
17 on the fence on February 28, 2010. Within two and one-half-hours, four VA
18 police patrol cars emerged from inside the grass lawn, and VA police officers
19 demanded that I remove the United States flag and the POW/MIA flag because
20 there was an injunction against me.
21 27. I asked the officers to show me the injunction, but they refused to
22 produce it. I have never received a copy of any injunction against me by mail,
23 personal service, or any other form of delivery.
24 28. After I refused to take the flags down myself, the VA police removed
25 them. In so doing, they removed the United States flag first. Attached as Exhibit
26 11 is a true and correct copy of a photo of the VA police removing the United
27 States flag hung union down on the fence on February 28, 2010. Only after they
28 had removed the United States flag, did the VA police take the POW/MIA flag off
8
#:403
EXHIBIT
1
Exhibit 1 - Page 10
EXHIBIT
2
J[.
Case 2:10-cv-01878-SJO-SS
Fscilihr: Grester l-osAngeles HCS Document 37-4 Filed 10/25/10 Page 4 of 31U0R#:
Page ID #:407
?00€1'l 301 415-31G;
Depaftment of Veterans Affairs ffiEtffi ffi#p'\e

VA Folice
Uniform Ofrense Repoft
W trY-.Revieured Bv
- ! ! anlrr
VA Faciliilt: Gre.atet Los Angeles HCS BEte/Ti me Pri
Dateill rne of Offense 11t30I2008 1415 PM

Los#ion: WLA. Wilshire@Srn Vicente
Vv'eanon drawn: HONE
!nr.egti 0fficer:
Incideni Synopsis: Wilshire @ $an Vicente Blvd: Rnbert Les Rosebrock (SSH: SE57/DO8; 0+0+42)
uvas contasted regtrding unauihorized banners posted on VAfence line. During
the contast rntith VAPD, Rosebrock took unauthorized pictures on VA controlled
piopertg. Rosebrod.t had no u'r.rnt*|.'+aliEnbfcl his Erest. HrEebl+ckwes iss!.ied
a verbsl [rua for38 CFR 1.2 and 3S CFR 1.21
Classification Code:
'-;SH 0ispositian: Warned
0C weapon used: Ho
tsatsn ulsed: Ho
Frrearrn 0rawn. Ho
Firearm Used: Ho
f*ame: Robert Rasebrsrk

SSH: RBS57 DOB:4J4I2042
sex:M Race; caucasian HeigH: E,Z
Weigffi:225 Hair Color: Grey Eye Colar: Green - Light
Skin Tone: Fair Scars 4 Marks: NEHE
Staius: flubider
Sriver's License Humber: N5025417 State; CA
Fiorne.Address: 575 S B:rrington Auenue
Las Angeles, CA 9004S

liorne Phsne: (310) 472-??17
\,,.L-- i,: J- ---.--.
Ytui i.( ruut EJ5.
Vdork Phone: Ext.

Oifense{sl: Committed Disposition Molation #
Origin: On Hovember3O.2008 at approximately2:15 PM, luuas assigned to unifsrmed

petrol rsthe Field Sergeant atthe Department of Veteran AffairsWest LosAngeles
hdedical Center. lwas conducting e mobile patrol of the Veterrns Memorial
Paft. Iuues in full poline uniform and driving e mafted hlack&rrrrhite police
Lea Rosebrock (SSH 5SE1/DOB 0+n+4?), Rosebrodt coordinetes rrueekly dernonEtraticr
Exhibit 2 - Page 11
*'b
| 4uilrry. vrE6l,Et t_-u5 -H,ilHEtH5 nrri} UUHF: IUUU'I'I ifu'I{+ I J-J'IU J
by nan-government organizaticns. I contected Officep and requested

hisassistanc*.o+ti"*@ivedatappraximate|v2:17FM.
Atthe start of Rosebrod{s demonskations eEllier in the year. I contasted him
and advised him that during his demonstration his graup rruould be prohibited
fram hanging anysigns, placards, otflagsfrom the VAfence ot on VA ptoperty.
The only exception rruas for flags of the Unites Ststes of Ametica or Prisoner
of War. I aduised him that posting of placrrds. banners, or other materials is
prohibited byfederal lernr:ndrrursavioletion of 38 CFR {.?18(bf22). Atihrt
time he stated he understood and would comply.
On Sundey Hovember {8, ?O0S, vrthile condustion a patrol of the Vetetan's

Memorial Psrk, I sarru that tflo demonstratsrs urrere standing on VA prsperty (in
betneen the fence line and tlUilshire sideuualkluttith a banner approximateiy
8'x2'. I contasted Hosebrock tnd advised him thatthe protestotstruauld have
io step onto the sideuvalk in orderto be in compliance with 3S CFR 1.?1S(bX22).
Rosebrock dirested the demonstrators onto the sidetruelk mithout incident.
On tadat's date, Nouemher3O,2OO8. I contasted Hosebrsck snd advised him

that the "Support our Troopd' banner and Vietnam unit flag hanging on the
VA prape*yfence rruere in violation of 38 CFR 1.218(bI32). I dirested Rosebrock
to remove the banners. Fosebrock objected stating that he had a rightto hang
those particular brnners on VA controlled property.
During my contactuuith Eosebtock, a ueteran approached me to express his

motiuesfor participating in the demonstrstion. llUhile speaking rruiih him, Rosebrock
began to take pictures of OfficeQ the unidentified protester, and me
from VA controlled praperty" A+<
D@
I advised Rosebrock that he truas taking unauthorized phctographs in violation
of 3S CFE 1.218(bI23). Rcsebrocktook appraximrtelythree picturesrr,rith a
disposable camerr.
I requested a uuentdlruarrants check on FlcEebrackvir the California Lsw Enforcernent

Telecommunications $ystem. Rosebrock had no uuants or uuarrank for his arrest.
I issued a verbal rruarning to Hosebrod< for "display(ing) placards or posting of

material nn properir/' in violation of 38 CFR 1.218(bI22) and "unauthorized
photograohrr on premised'in violation of 38 CFR 1.218(bF3). ladvised Fosebrock
th at futu re vio I rti o ns rrue re su bje ct to crim ina I p rosecutio n.
Rosebrock removed the firuo banners from the fence rirrithout incident,
hU 01k
Acli^sJttfh:nd publicAfi"iffiere notified of the
incident. A photograph of the bannes uurs taken (see attached).
.tAJ gk{*
Page 2
Exhibit 2 - Page 12
EXHIBIT
3
Exhibit 3 - Page 13
EXHIBIT
4
aolnch:l1342831028/
jsubj: Flag Display

jDate: Friday, June 26, 2009 12:38:26 PM
iFrom: Lynn.Carrier@va.gov
,"I"oi"- .
RRosebrockl@aol.com
Dear Mr. Rosebrock:
This message is in follow up to your communications this week regarding the display of the American
flag on Sunday, Jwe 21,20A9. Please be reminded that you may not attach the Ãmerican flag, upside
down, anywhere on VA property including our perimeter gates. This is considered a desecratiôn õf tne
flag and is not allo¡ved on VA property. We have received complaints from veterans and other concerned
citizens who are offended by this improper display. Your cooperation in this matter is appreciated.
Sincerely,
Lynn S. Çarrier
Associate Director, Administration and Support Services
VA Greater Los Angeles Healthcare System
1of1 8lI2lO9 6:33 AM

Exhibit 4 - Page 14
#:413
EXHIBIT
5
#:414
Exhibit 5 - Page 15
#:415
EXHIBIT
6
#:416
Exhibit 6 - Page 16
#:417
EXHIBIT
7
Case 2:10-cv-01878-SJO-SSl..kiiad
Document
Etatffi37-4 Filed
Dlstrlfi 10/25/10 Page 15 of 31 Page ID
court
#:418
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#:419
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Exhibit 7 - 18
#:420
EXHIBIT
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fUnftpd Slates tristnict
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Exhibit 8 - Page 24
#:427
Exhibit 8 - Page 25
United States District Court ,--qve1e--
#:428
20855s4
YOU ARE CHARGED WITH THE FOLLOWING VIOLATION
N)
(3
A,r1 I ¿¿u{r
og
u,l (,ìlrÊt.lr,"irt
Offense Charged p CFF Ë USC ¡ Slate Codo
CIo
LN oN AUGUST T, 2009, AT APPROXIMATELY
f"ii.\:I l]\'litrrl (Jr 10:58A.M., I (OFFICER DAVIS, R) V/AS ON V.A.
co CONTROLLED PROPERTY IN FULL POLICE
,Þ I-INIFORM, DRIVING A MARKED VEHICLE, AND
ASSIGNED TO PATROL ONE DUTIES. I OBSERVEI
- -\,
f) '. ¡ , ", ,- t 1' ;.'- t.r¡;)
'\
(.' r.. \
È ,n,- ,i ÀA:tì6,¿-rì9 A GROUP OF INDIVIDUALS HOLDING LARGE
V/OODEN POLES V/ITH UPSIDE DOV/N AMERICA
i, r'., \
\ i i'-T rr Ì'/ FL4.G-,.THESE INDIVIDIJALS ATTACHED THE
DEFENDANT INFOHMATION FLAGS TO THE ENTRANCE TO THE VETERANS
PARK. PER ORDERS FROM HEADQUARTERS A C'
V/AS ISSUED TO ROBERT ROSEBROCK FOR 33 CI
1.218 (a)(9) DISPLAY OF PLACARDS OR pOSTING ,
MATERIALS ON VA PROPERTY.
Social Security No.

"l
?,(j i. r.t r.i r ¡ f..;
Sex Fl\¡ale 0Fernale
VEHICLE DESCRIPTION
A N IF BoX A IS CHECKED, YoU IF BOX B IS CHECKED, YOU MUST

MUST APPEAH lN COURT. see PAY AMOUNT INDICATED BËLOW
ll!STRUCTIOñS (on bâck of yeltow coÞy). OR APPEAR IN COURT.
SEE INSTRUCTIONS (on llack of yellov copy).
iiii,:i ¡ il:,i-li
PAY THIS AMOUNT -I { f,, rotat Collateral Due
YOUR COURT DATE

(lf no court appearance date is shown, you w¡ll be nolifiêd ol vôur appearance dâte
of 'rll-Lap\ ;4-æ-
, ì ,iir ii.ì..1. t'i ì. i,.r, : l
;i;;:iìi.i: ,;Í ¡r r:::;r¡ -¡ i
My sìgnature signilies that I havo received a copy of this violalion notice. lt is not an admission of guilt.
I prom¡se to appear for the hear¡ng at lhe lime and place inslrucled or pay the total collateral due.
X Defendant S¡gnature
(Re,.,.03/2C06) Orig¡nal - CVB Copy
Exhibit 8 - Page 26
#:429
EXHIBIT
9
#:430
Exhibit 9 - Page 27
#:431
EXHIBIT
10
#:432
Exhibit 10 - Page 28
#:433
EXHIBIT
11
#:434
EXHIBIT
1
Exhibit 1 - Page 10
EXHIBIT
2
J[.
Case 2:10-cv-01878-SJO-SS
Fscilihr: Grester l-osAngeles HCS Document 37-4 Filed 10/25/10 Page 4 of 31U0R#:
Page ID #:407
?00€1'l 301 415-31G;
Depaftment of Veterans Affairs ffiEtffi ffi#p'\e

VA Folice
Uniform Ofrense Repoft
W trY-.Revieured Bv
- ! ! anlrr
VA Faciliilt: Gre.atet Los Angeles HCS BEte/Ti me Pri
Dateill rne of Offense 11t30I2008 1415 PM

Los#ion: WLA. Wilshire@Srn Vicente
Vv'eanon drawn: HONE
!nr.egti 0fficer:
Incideni Synopsis: Wilshire @ $an Vicente Blvd: Rnbert Les Rosebrock (SSH: SE57/DO8; 0+0+42)
uvas contasted regtrding unauihorized banners posted on VAfence line. During
the contast rntith VAPD, Rosebrock took unauthorized pictures on VA controlled
piopertg. Rosebrod.t had no u'r.rnt*|.'+aliEnbfcl his Erest. HrEebl+ckwes iss!.ied
a verbsl [rua for38 CFR 1.2 and 3S CFR 1.21
Classification Code:
'-;SH 0ispositian: Warned
0C weapon used: Ho
tsatsn ulsed: Ho
Frrearrn 0rawn. Ho
Firearm Used: Ho
f*ame: Robert Rasebrsrk

SSH: RBS57 DOB:4J4I2042
sex:M Race; caucasian HeigH: E,Z
Weigffi:225 Hair Color: Grey Eye Colar: Green - Light
Skin Tone: Fair Scars 4 Marks: NEHE
Staius: flubider
Sriver's License Humber: N5025417 State; CA
Fiorne.Address: 575 S B:rrington Auenue
Las Angeles, CA 9004S

liorne Phsne: (310) 472-??17
\,,.L-- i,: J- ---.--.
Ytui i.( ruut EJ5.
Vdork Phone: Ext.

Oifense{sl: Committed Disposition Molation #
Origin: On Hovember3O.2008 at approximately2:15 PM, luuas assigned to unifsrmed

petrol rsthe Field Sergeant atthe Department of Veteran AffairsWest LosAngeles
hdedical Center. lwas conducting e mobile patrol of the Veterrns Memorial
Paft. Iuues in full poline uniform and driving e mafted hlack&rrrrhite police
Lea Rosebrock (SSH 5SE1/DOB 0+n+4?), Rosebrodt coordinetes rrueekly dernonEtraticr
Exhibit 2 - Page 11
*'b
| 4uilrry. vrE6l,Et t_-u5 -H,ilHEtH5 nrri} UUHF: IUUU'I'I ifu'I{+ I J-J'IU J
by nan-government organizaticns. I contected Officep and requested

hisassistanc*.o+ti"*@ivedatappraximate|v2:17FM.
Atthe start of Rosebrod{s demonskations eEllier in the year. I contasted him
and advised him that during his demonstration his graup rruould be prohibited
fram hanging anysigns, placards, otflagsfrom the VAfence ot on VA ptoperty.
The only exception rruas for flags of the Unites Ststes of Ametica or Prisoner
of War. I aduised him that posting of placrrds. banners, or other materials is
prohibited byfederal lernr:ndrrursavioletion of 38 CFR {.?18(bf22). Atihrt
time he stated he understood and would comply.
On Sundey Hovember {8, ?O0S, vrthile condustion a patrol of the Vetetan's

Memorial Psrk, I sarru that tflo demonstratsrs urrere standing on VA prsperty (in
betneen the fence line and tlUilshire sideuualkluttith a banner approximateiy
8'x2'. I contasted Hosebrock tnd advised him thatthe protestotstruauld have
io step onto the sideuvalk in orderto be in compliance with 3S CFR 1.?1S(bX22).
Rosebrock dirested the demonstrators onto the sidetruelk mithout incident.
On tadat's date, Nouemher3O,2OO8. I contasted Hosebrsck snd advised him

that the "Support our Troopd' banner and Vietnam unit flag hanging on the
VA prape*yfence rruere in violation of 38 CFR 1.218(bI32). I dirested Rosebrock
to remove the banners. Fosebrock objected stating that he had a rightto hang
those particular brnners on VA controlled property.
During my contactuuith Eosebtock, a ueteran approached me to express his

motiuesfor participating in the demonstrstion. llUhile speaking rruiih him, Rosebrock
began to take pictures of OfficeQ the unidentified protester, and me
from VA controlled praperty" A+<
D@
I advised Rosebrock that he truas taking unauthorized phctographs in violation
of 3S CFE 1.218(bI23). Rcsebrocktook appraximrtelythree picturesrr,rith a
disposable camerr.
I requested a uuentdlruarrants check on FlcEebrackvir the California Lsw Enforcernent

Telecommunications $ystem. Rosebrock had no uuants or uuarrank for his arrest.
I issued a verbal rruarning to Hosebrod< for "display(ing) placards or posting of

material nn properir/' in violation of 38 CFR 1.218(bI22) and "unauthorized
photograohrr on premised'in violation of 38 CFR 1.218(bF3). ladvised Fosebrock
th at futu re vio I rti o ns rrue re su bje ct to crim ina I p rosecutio n.
Rosebrock removed the firuo banners from the fence rirrithout incident,
hU 01k
Acli^sJttfh:nd publicAfi"iffiere notified of the
incident. A photograph of the bannes uurs taken (see attached).
.tAJ gk{*
Page 2
Exhibit 2 - Page 12
EXHIBIT
3
Exhibit 3 - Page 13
EXHIBIT
4
aolnch:l1342831028/
jsubj: Flag Display

jDate: Friday, June 26, 2009 12:38:26 PM
iFrom: Lynn.Carrier@va.gov
,"I"oi"- .
RRosebrockl@aol.com
Dear Mr. Rosebrock:
This message is in follow up to your communications this week regarding the display of the American
flag on Sunday, Jwe 21,20A9. Please be reminded that you may not attach the Ãmerican flag, upside
down, anywhere on VA property including our perimeter gates. This is considered a desecratiôn õf tne
flag and is not allo¡ved on VA property. We have received complaints from veterans and other concerned
citizens who are offended by this improper display. Your cooperation in this matter is appreciated.
Sincerely,
Lynn S. Çarrier
Associate Director, Administration and Support Services
VA Greater Los Angeles Healthcare System
1of1 8lI2lO9 6:33 AM

Exhibit 4 - Page 14
#:413
EXHIBIT
5
#:414
Exhibit 5 - Page 15
#:415
EXHIBIT
6
#:416
Exhibit 6 - Page 16
#:417
EXHIBIT
7
Case 2:10-cv-01878-SJO-SSl..kiiad
Document
Etatffi37-4 Filed
Dlstrlfi 10/25/10 Page 15 of 31 Page ID
court
#:418
ViolatiOn Hofoe
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#:420
EXHIBIT
8
#:421
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#:423
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#:424
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Exhibit 8 - Page 22
#:425
fUnftpd Slates tristnict
Viola$on Hotice
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0981"71-4
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Exhibit 8 - Page 23
#:426.E
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Exhibit 8 - Page 24
#:427
Exhibit 8 - Page 25
United States District Court ,--qve1e--
#:428
20855s4
YOU ARE CHARGED WITH THE FOLLOWING VIOLATION
N)
(3
A,r1 I ¿¿u{r
og
u,l (,ìlrÊt.lr,"irt
Offense Charged p CFF Ë USC ¡ Slate Codo
CIo
LN oN AUGUST T, 2009, AT APPROXIMATELY
f"ii.\:I l]\'litrrl (Jr 10:58A.M., I (OFFICER DAVIS, R) V/AS ON V.A.
co CONTROLLED PROPERTY IN FULL POLICE
,Þ I-INIFORM, DRIVING A MARKED VEHICLE, AND
ASSIGNED TO PATROL ONE DUTIES. I OBSERVEI
- -\,
f) '. ¡ , ", ,- t 1' ;.'- t.r¡;)
'\
(.' r.. \
È ,n,- ,i ÀA:tì6,¿-rì9 A GROUP OF INDIVIDUALS HOLDING LARGE
V/OODEN POLES V/ITH UPSIDE DOV/N AMERICA
i, r'., \
\ i i'-T rr Ì'/ FL4.G-,.THESE INDIVIDIJALS ATTACHED THE
DEFENDANT INFOHMATION FLAGS TO THE ENTRANCE TO THE VETERANS
PARK. PER ORDERS FROM HEADQUARTERS A C'
V/AS ISSUED TO ROBERT ROSEBROCK FOR 33 CI
1.218 (a)(9) DISPLAY OF PLACARDS OR pOSTING ,
MATERIALS ON VA PROPERTY.
Social Security No.

"l
?,(j i. r.t r.i r ¡ f..;
Sex Fl\¡ale 0Fernale
VEHICLE DESCRIPTION
A N IF BoX A IS CHECKED, YoU IF BOX B IS CHECKED, YOU MUST

MUST APPEAH lN COURT. see PAY AMOUNT INDICATED BËLOW
ll!STRUCTIOñS (on bâck of yeltow coÞy). OR APPEAR IN COURT.
SEE INSTRUCTIONS (on llack of yellov copy).
iiii,:i ¡ il:,i-li
PAY THIS AMOUNT -I { f,, rotat Collateral Due
YOUR COURT DATE

(lf no court appearance date is shown, you w¡ll be nolifiêd ol vôur appearance dâte
of 'rll-Lap\ ;4-æ-
, ì ,iir ii.ì..1. t'i ì. i,.r, : l
;i;;:iìi.i: ,;Í ¡r r:::;r¡ -¡ i
My sìgnature signilies that I havo received a copy of this violalion notice. lt is not an admission of guilt.
I prom¡se to appear for the hear¡ng at lhe lime and place inslrucled or pay the total collateral due.
X Defendant S¡gnature
(Re,.,.03/2C06) Orig¡nal - CVB Copy
Exhibit 8 - Page 26
#:429
EXHIBIT
9
#:430
Exhibit 9 - Page 27
#:431
EXHIBIT
10
#:432
#:433
EXHIBIT
11
#:434

4 ACLU FOUNDATION
6 Telephone: (213) 977-9500
7 Facsimile: (213) 977-5297
9
10
13
14
)
16 Plaintiff, )
)
17 vs. ) PLAINTIFF’S STATEMENT OF
) UNDISPUTED MATERIAL FACTS
18 DONNA BEITER, DIRECTOR OF ) AND CONCLUSIONS OF LAW IN
THE VETERANS ) SUPPORT OF HIS MOTION FOR
19 ADMINISTRATION GREATER ) SUMMARY JUDGMENT
ADMINISTRATION GREATER ) Complaint Filed: March 16, 2010
SYSTEM, in his official capacity. ) The Honorable S. James Otero
23 )
Defendants. )
24 ______________________________ )
25
26
27
28
1 PLAINTIFF’S STATEMENT OF UNDISPUTED MATERIAL FACTS AND

CONCLUSIONS OF LAW IN SUPPORT OF HIS MOTION FOR
2 SUMMARY JUDGMENT
3 A. Statement of Undisputed Facts
4 FACT SOURCE
5 UF1. VAGLAHS contains a large Declaration of Robert Rosebrock, ¶ 3.
6 grass lawn, called the “Great Lawn,”
7 on its property. The entrance of this
8 lawn is located at the intersection of
9 San Vicente and Wilshire Boulevards
10 in Los Angeles.
11 UF2. The entrance to the Great Lawn Declaration of Robert Rosebrock, ¶ 3
12 consists of a locked fence and gate that and Exhibit 1.

is set back about 50 feet from the
13
intersection itself. There is a public
14
walkway that is contiguous to the fence
15
that separates the Great Lawn from the
16
street.
17
UF3. Numerous widely-spaced Declaration of Robert Rosebrock, ¶ 3
18
concrete posts separate the public and Exhibit 1.
19
walkway in front of the locked fence
20
from the public sidewalk. The concrete
21
posts are posted far apart from each
22
other such that they do not provide any
23
impediment to pedestrians or bicyclists
24
from crossing over onto the public
25
walkway.
26
27
28
-1-
1 UF4. Robert Rosebrock began Declaration of Robert Rosebrock, ¶ 5.

2 protesting every Sunday, beginning
3 March 9, 2008, in the public walkway
4 outside the fence and gate that
5 separates the south and west sides of
6 the Great Lawn from the sidewalk
7 abutting San Vicente and Wilshire
8 Boulevards.
9 UF5. On average, the Sunday Declaration of Robert Rosebrock, ¶ 8.
10 demonstrations lasted approximately 3-
11 4 hours.
12 UF6. Mr. Rosebrock and his fellow Declaration of Robert Rosebrock, ¶¶ 6-
protesters have demonstrated in this 7.
13
location because they strongly disagree
14
with the VA’s refusal to develop the
15
Great Lawn into a shelter for homeless
16
veterans or otherwise use the land for
17
the shelter and care of veterans, as well
18
as the VA’s leasing other portions of
19
its land to private parties instead of
20
using it for the shelter and care of
21
veterans.
22
23
24
25
26
27
28
-2-
1 UF7. Starting on March 9, 2008, as Declaration of Robert Rosebrock, ¶ 9.

2 part of his weekly demonstrations, Mr.
3 Rosebrock began hanging one or more
4 United States flags union up on the
5 fences surrounding the Great Lawn.
6 He hung the United States flag union
7 up to express his patriotism. He also
8 hung the United States flag next to the
9 POW/MIA flag to express a message of
10 honor and support for America’s
11 military.
12 UF8. On some Sundays, Mr. Declaration of Robert Rosebrock, ¶ 19
13 Rosebrock and fellow demonstrators and Exhibits 5-6.
14 hung as many as 30 United States
15 flags, union up, on the fences
16 surrounding the Great Lawn.

UF9. Mr. Rosebrock also hung a Declaration of Robert Rosebrock, ¶¶
17
“Support Our Troops” banner, and, on 11-12.
18
occasion, a Vietnam Unit flag, near the
19
United States flag and POW/MIA
20
banner, on the fences surrounding the
21
Great Lawn up to and including
22
November 30, 2008, or thereabouts.
23
UF10. Mr. Rosebrock had hung the Declaration of Robert Rosebrock, ¶ 10.
24
United States flag, the POW/MIA flag,
25
on the fences outside the Great Lawn
26
without any complaint from the VA
27 until November 30, 2008, or
28 thereabouts.
-3-
1 UF11. On or about November 30, Declaration of Robert Rosebrock, ¶ 12,

2 2008, Sergeant Nathaniel Webb of the and Exhibits 2-3; Declaration of Peter
3 VA police approached Mr. Rosebrock Eliasberg, ¶ 3, and Exhibit 1.
4 and told him to remove the “Support
5 our Troops” banner and Vietnam unit
6 flag hanging on the VA fence. At that
7 time, Mr. Rosebrock was hanging a
8 United States flag union up on the
9 fence, alongside the POW/MIA flag.
10 Sergeant Webb told Mr. Rosebrock to
11 he was permitted to hang the United
12 States flag and the POW/MIA flag on
13 the VA fence.
14 UF12. Earlier in the year in 2008, Declaration of Robert Rosebrock, ¶ 12,
15 Sergeant Webb approached Mr. and Exhibit 2; Declaration of Peter
16 Rosebrock when he was demonstrating Eliasberg, ¶ 3, and Exhibit 1.
17 outside the great lawn and informed he
18 that he would not be permitted to hang

any flags or banners on the fence or
19
VA property except that he was
20
permitted to hang the US flag and the
21
POW/MIA banner. When Sergeant
22
Webb spoke with Mr. Rosebrock, he
23
was hanging the United States flag –
24
union up – on the fence alongside the
25
POW/MIA flag, and Sergeant Webb
26
permitted him to keep those two flags
27
hanging on the fence.
28
-4-
1 UF13. After Mr. Rosebrock’s Declaration of Robert Rosebrock, ¶ 13.

2 interaction with Sergeant Webb on or
3 about November 30, 2008, Mr.
4 Rosebrock continued to hang the
5 United States flag, union up, and the
6 POW/MIA flag on the fences of the
7 Great Lawn without any interference
8 by anyone from the VA until June 21,
9 2009.
10 UF14. Mr. Rosebrock witnessed a Declaration of Robert Rosebrock, ¶ 14.
11 “celebrity carnival” inside the fences of
12 the Great Lawn on June 7, 2009. Mr.
13 Rosebrock concluded that the veterans’
14 property was in danger and that
15 veterans needed to unite to stand up
16 against the VA. As a result, Mr.
17 Rosebrock began hanging the United
18 States flag, union down, on June 14,

2009.
19
20
21
22
23
24
25
26
27
28
-5-
1 UF15. Mr. Rosebrock began hanging Declaration of Robert Rosebrock, ¶ 15.

2 the United States flag union down as a
3 distress call. He was expressing that
4 the land that had been designated for
5 the benefit of the veterans was not
6 being used for its intended purpose,
7 thereby endangering the land and
8 resulting in extreme hardship and
9 distress to the veterans in need.
10 UF16. Mr. Rosebrock also knew that 4 Declaration of Robert Rosebrock, ¶ 15.
11 U.S.C. § 8(a) permits the display of the
12 United States flag union down as a
13 signal of grave distress to life or
14 property.
UF17. Mr. Rosebrock was expressing Declaration of Robert Rosebrock, ¶ 15.
15
an entirely different viewpoint by
16
hanging the United States flag union
17
down on the fence and gate
18
surrounding the Great Lawn from the
19
one he was expressing by hanging it
20
union up. He hung the United States
21
flag union up to express his patriotism
22
and support for military veterans, but
23
he hung the flag union down as a
24
distress call.
25
26
27
28
-6-
1 UF18. On June 26, 2009, Lynn Declaration of Robert Rosebrock, ¶ 17

2 Carrier, associate director of and Exhibit 4.
3 VAGLAHS, emailed Mr. Rosebrock to
4 tell him that he “may not attach the
5 American flag, upside down, on VA
6 property, including our perimeter
7 gates.” She then added, “This is
8 considered a desecration of the flag and
9 is not allowed on VA property.”
10 UF19. Shortly after July 26, 2009, Mr. Declaration of Robert Rosebrock, ¶ 21
11 Rosebrock received a citation dated and Exhibit 7.
12 July 26, 2009, in the mail for
13 “unauthorized demonstration or service
14 in a national cemetery or on other VA
15 property.” Mr. Rosebrock was hanging
16 the United States flag union down on
17 the fence outside the Great Lawn on
18 July, 26, 2009.

UF20. Mr. Rosebrock received five Declaration of Robert Rosebrock, ¶ 22
19
more citations under 38 C.F.R. § and Exhibit 8.
20
1.218(a)(9) on August 9, 2009; August
21
23, 2009; September 9, 2009;
22
September 16, 2009; and September
23
23, 2009. During the time that Mr.
24
Rosebrock received these citations, he
25
only hung the United States flag union
26
side down.
27
28
-7-
1 UF21. On December 7, 2009, Declaration of Robert Rosebrock, ¶ 23.

2 Assistant United States Attorney
3 Sharon K. McCaslin requested the
4 Court dismiss all citations against Mr.
5 Rosebrock.
6 UF22. After receiving the citations, Declaration of Robert Rosebrock, ¶ 24.
7 Mr. Rosebrock continued to protest by
8 displaying the United States flag union
9 down, but he chose to hold the flag in
10 the public walkway instead of on the
11 fences because he was concerned about
12 being cited again even though he
13 believed he had the right to do so under
14 the First Amendment.

UF23. On February 21, 2010, Mr. Declaration of Robert Rosebrock, ¶ 25
15
Rosebrock and his fellow and Exhibit 9.
16
demonstrators held their 100th
17
demonstration on the sidewalk outside
18
the Great Lawn. On that day, Mr.
19
Rosebrock unveiled his “Great Plan”
20
for the veteran land. Mr. Rosebrock
21
hung the United States flag, union up,
22
on the fence for about three hours in
23
the presence of VA police. The VA
24
police did not cite him, ask him to
25
remove the flag, or otherwise interfere
26
with the display of the flag.
27
28
-8-
#:444
1 UF24. On February 28, 2010, Mr. Declaration of Robert Rosebrock, ¶¶

2 Rosebrock hung the United States flag, 26-28 and Exhibits 10-11.
3 union down, on the fences to again
4 express his belief that the veterans’
5 land was in danger. Within two and
6 one-half hours, VA police officers
7 demanded that Mr. Rosebrock remove
8 the flag. The VA police removed the
9 flag themselves when Mr. Rosebrock
10 refused to do so.
11 UF25. Mr. Rosebrock wants to Declaration of Robert Rosebrock, ¶ 28.
12 continue demonstrating against the VA
13 by hanging the United States flag union
14 down on the fence and gate outside the
15 Great Lawn because to express his
16 viewpoint that the veterans’ land was
17 in danger. But he will not do so
18 because of the VA’s pattern of citing

him, ordering him to remove the flag
19
display, or removing the United States
20
flag if he hangs it union down.
21
22
23
24
25
26
27
28
-9-
#:445
1 UF26. Mr. Rosebrock has seen Declaration of Robert Rosebrock, ¶ 4.

2 individuals use this public walkway
3 and the fence alongside that walkway
4 to exercise their right to free speech.
5 Specifically, Los Angeles Controller
6 Zev Yaroslavsky had an open forum
7 dialogue in this location to discuss
8 legislation that Representative Henry
9 Waxman and Senator Dianne Feinstein
10 authored. Signs have also been posted
11 on the fence surrounding the Veterans
12 Home advertising local drama
13 productions.
14
15 B. Conclusions of Law
16
17 1. Mr. Rosebrock was expressing a different message when he hung the United
18 States flag union up from when he hung the United States flag union down.
19 Declaration of Robert Rosebrock, ¶¶ 9, 15-17; Texas v. Johnson, 491 U.S.
20 397, 405, 413 n.9 (1989); Brown v. Cal DOT, 321 F.3d 1217, 1224 (9th Cir.
21 2003).
22
23 2. Defendants’ practice of citing Mr. Rosebrock and interfering with his protests
24 only when he hung the United states flag union down although they permitted
25 him to hang the flag union up constitutes viewpoint-based restriction on
26 speech. Rosenberger v. Rector and Visitors of the University of Virginia, 515
27 U.S. 819, 829 (1995); Lamb’s Chapel v. Center Moriches Union Free School
28 Dist., 508 U.S. 384, 393 (1993); R.A.V. v. City of St. Paul, 505 U.S. 377, 391
(1992).
-10-
#:446
1 3. Viewpoint discrimination is unconstitutional regardless of the forum in which

2 it occurs. Cornelius v. NAACP Legal Def. and Educ. Fund, 473 U.S. 788,
3 806 (1985); Truth v. Kent School Dist., 551 F.3d 850, 851 (9th Cir. 2008).
4
5 4. Viewpoint discrimination is unconstitutional, even if the speaker has other
6 nearby locations where he can express his viewpoint. See Fernandes v.
7 Limmer, 465 F. Supp. 493, 498 (N.D. Tex. 1979) (“The courts have
8 consistently held that the denial of First Amendment rights inflicts irreparable
9 injury, notwithstanding the availability of alternative forums.”), aff’d in part
10 and rev’d in part on other grounds, 663 F.2d 619 (5th Cir. 1981); see also
11 Brown, 321 F.3d at 1224 (rejecting argument that there is no irreparable
12 injury because the plaintiffs could display their political messages in other
ways); cf. Southeastern Promotion, Ltd. v. Conrad, 420 U.S. 546, 556 (1975)
13
(stating that whether there was an alternative forum “is of no consequence”);
14
Cinevision Corp. v. City of Burbank, 745 F.2d 560, 567 n.19 (9th Cir. 1984)
15
(asserting that entertainers should not be excluded from a public forum
16
“simply because there may be alternative forums where they could perform”)
17
(citing United States v. Grace, 461 U.S. 171 (1983)).
18
19
5. The availability of alternative means of communication is relevant to
20
determining whether a restriction on speech violates the First Amendment
21
only where – unlike here – the restriction is content or viewpoint neutral.
22
See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
23
24
. By engaging in viewpoint discrimination, Defendants have violated Mr.
25
Rosebrock’s First Amendment rights. Cornelius, 473 U.S. at 806; see also
26
Brown, 321 F.3d at 1224 (9th Cir. 2003) (finding that the defendant’s policy
27
of prohibiting the hanging of United States flags but allowing the hanging of
28
other signs and banners on freeway overpasses was a viewpoint-based
-11-
#:447
1 restriction).
2
3 7. Violation of First Amendment rights – even temporarily – constitutes
4 irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of
5 First Amendment freedoms, for even minimal periods of time,
6 unquestionably constitutes irreparable injury.”); see also Klein v. City of San
7 Clemente, 584 F.3d 1196, 1207-09 (9th Cir. 2009) (it remains “clear” [after
8 Winter v. Natural Resources Defense Counsel, Inc., __ U.S. __, 129 S.Ct. 365
9 (2008)] that the irreparable injury and balance-of-hardship requirements are
10 satisfied where First Amendment protections are at issue); Sammartano v.
11 First Judicial Dist. Court, 303 F.3d 959, 973 (9th Cir. 2002) (“The Supreme
12 Court has made clear that ‘the loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury’ for
13
purposes of issuance of a preliminary injunction.”) (quoting Elrod, 427 U.S.
14
at 373).
15
16
8. Every Circuit Court of Appeal that has addressed the question has held that a
17
violation of First Amendment rights constitutes irreparable injury. See, e.g.,
18
Scott v. Roberts, 612 F.3d 1279, 1295 (11th Cir. 2010) (holding that a
19
violation of the First Amendment constitutes irreparable injury for purposes
20
of a preliminary injunction) (citing Elrod, 427 U.S. at 373); Stilp v. Contino,
21
613 F.3d 405, 409 (3d Cir. 2010) (same); Mills v. District of Columbia, 571
22
F.3d 1304, 1312 (D.C. Cir. 2009) (holding that a violation of the First
23
Amendment constitutes irreparable injury for purposes of a preliminary
24
injunction) (citing Elrod, 427 U.S. at 373); Nuxoll v. India Prairie Sch. Dist.
25
#204, 523 F.3d 668 669-670 (7th Cir. 2008) (same); Pac. Frontier v.
26
Pleasant Grove City, 414 F.3d 1221, 1235 (10th Cir. 2005) (same); Tucker v.
27
City of Fairfield, 398 F.3d 457, 464 (6th Cir. 2005) (same); Newsom v.
28
Albermarle County Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (same); Bery
-12-
#:448
1 v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996) (“Violations of First
2 Amendment rights are commonly considered irreparable injuries for the
3 purposes of a preliminary injunction.”); Deerfield Med. Ctr. v. City of
4 Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981); Maceira v. Pagan, 649
5 F.2d 8, 18 (1st Cir. 1981); Planned Parenthood of Minnesota, Inc. v. Citizens
6 for Community Action, 558 F.2d 861, 867 (8th Cir. 1977).
7
8 9. The Ninth Circuit has also held that the loss of First Amendment freedoms
9 constitutes irreparable injury in the context of the permanent injunction
10 analysis. See, e.g., American-Arab Anti-Discrimination League v. Reno, 70
11 F.3d 1045, 1057 (9th Cir. 1995) (the loss of First Amendment freedoms
12 constitutes irreparable injury in the permanent injunction context); see also

Gentala v. City of Tucson, 213 F.3d 1055, 1071 (9th Cir. 2000) (holding that
13
plaintiff was entitled to a permanent injunction because defendant’s policy of
14
allocating funding from the city for observance of the National Day of Prayer
15
based on an applicant’s religious views was viewpoint discriminatory).
16
17
10. Mr. Rosebrock is entitled to permanent injunctive relief. Mr. Rosebrock has
18
suffered an irreparable injury to his First Amendment freedoms;
19
demonstrated that remedies at law, such as monetary damages, are inadequate
20
to compensate for that injury; that, considering the balance of hardships
21
between the Plaintiff and Defendants, a remedy in equity is warranted; and
22
that granting him a permanent injunction is in the public’s best interest.
23
Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2756 (2010)
24
(establishing the four-part test for a permanent injunction).
25
26
11. Injunctive relief is the appropriate form of relief for individuals who suffer
27
constitutional injuries, including violations of their First Amendment
28
guarantee of freedom of speech. See, e.g., 213 F.3d at 1071 (remanding
-13-
#:449
1 denial of plaintiff’s motion for a permanent injunction because defendants

2 engaged in unconstitutional viewpoint discrimination); see also Douglas
3 Laycock, The Death of the Irreparable Injury Rule, 103 HARV. L. REV. 687,
4 708-709 (“The principle that damages are an inadequate remedy for the loss
5 of something irreplaceable is not limited to unique or scarce tangible
6 property. The principle also applies to intangible rights that cannot be
7 bought or sold in any market. This is why injunctions are the standard
8 remedy in civil rights [including cases of violated free speech rights] and
9 environmental litigation.”)
10
11 12. Because Mr. Rosebrock wants to continue hanging the United States flag
12 union down and has ceased doing so due to Defendants’ interference, and
because a threatened loss of First Amendment rights constitutes irreparable
13
injury, Mr. Rosebrock is entitled to permanent injunctive relief. American-
14
Arab Anti-Discrimination League, 70 F.3d at 1057 (“We therefore agree . . .
15
that their claim is ripe for review, because the chill to their First Amendment
16
rights is an irreparable injury that cannot be vindicated by post-deprivation
17
review . . .”).
18
19
13. The purpose of injunctive relief, particularly in the context of cases of
20
dealing with constitutional injury, is to restore the plaintiff to his/her rightful
21
position. Missouri v. Jenkins, 515 U.S. 70, 88 (1995) (holding that victims of
22
discriminatory conduct are entitled to be restored to the position they would
23
have occupied in the absence of the discriminatory conduct); see also
24
Laycock, supra note 8, at 708-709 n.106 (stating that injunctions are
25
supposed to place a plaintiff in the position in which he/she would have
26
occupied had the plaintiff not suffered a constitutional injury, such as a
27
violation of his/her right to free speech).
28
-14-
#:450
1 14. Mr. Rosebrock is entitled to a permanent injunction permitting him to hang

2 the United States flag on the fences outside the Great Lawn union down for
3 66 weeks and permanently barringDefendants from engaging in viewpoint
4 discrimination because doing so would restore him to the rightful position he
5 would have occupied had Defendants not violated his First Amendment
6 rights. See Jenkins, 515 U.S. at 88.
7
8 15. The public walkway surrounding the Great Lawn, and thus also the fence
9 separating the public walkway from the Great Lawn, is a public forum.
10 Grace, 461 U.S. at 180 (“Sidewalks, of course, are among those areas of
11 public property that traditionally have been held open to the public for
12 expressive activities and are clearly within those areas of public property that
may be considered, generally without further inquiry, to be public forum
13
property.”); see also ACLU v. City of Las Vegas, 333 F.3d 1092, 1103 (9th
14
Cir. 2003) (finding that one of the three factors a court must assess in
15
determining the character of a forum is the forum’s historic use as a public
16
forum and whether it is part of the class of property which, by history and
17
tradition, has been treated as a public forum); see also Gerritsen v. City of
18
Los Angeles, 994 F.2d 570, 576 (9th Cir. 1993) (stating that streets
19
designated to have a ‘special ambience’ and be a non-public forum may still
20
qualify as public forums because visitors expect that the street is a public
21
forum).
22
23
16. Because the fences on the public walkways is a public forum, the government
24
is violating Mr. Rosebrock’s First Amendment rights by discriminating on
25
the basis of content in its pattern of unequal enforcement of 38 C.F.R. §
26
1.218(a)(9). See, e.g., Burson v. Freeman, 504 U.S. 191, 197 n.3 (1992)
27
(citing Carey v. Brown, 447 U.S. 455, 461-62 (1980)) (“Under either a free
28
speech or equal protection theory, a content-based regulation of political
-15-
#:451
1 speech in a public forum is valid only if it can survive strict scrutiny.”); see
2 also Rosenberger, 505 U.S. at 829 (stating that viewpoint discrimination is a
3 pernicious form of content discrimination and is impermissible, even in a
4 non-public forum).
5
6 17. Regardless of whether the fence and gate around the Great Lawn is a public
7 or non-public forum, Defendants’s pattern of unequal enforcement of 38
8 C.F.R. § 1.218(a)(9) is violating Mr. Rosebrock’s First Amendment rights
9 because it constitutes both content and viewpoint discrimination.
10
11 Dated: October 25, 2010 Respectfully submitted,
12 ACLU FOUNDATION OF
SOUTHERN CALIFORNIA
13
By: s/ Peter J. Eliasberg
14 Peter J. Eliasberg
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-16-

4 ACLU FOUNDATION
6 Telephone: (213) 977-9500
7 Facsimile: (213) 977-5297
9
10
13
14
)
16 Plaintiff, )
)
17 vs. ) [PROPOSED] ORDER GRANTING
) PLAINTIFF’S MOTION FOR
18 DONNA BEITER, DIRECTOR OF ) SUMMARY JUDGMENT
THE VETERANS )
23 )
Defendants. )
24 ______________________________ )
25
26
27
28
1 This Court heard Plaintiff Robert Rosebrock’s Motion for Summary

2 Judgment and a Permanent Injunction in the above-referenced action on November
3 15, 2010, at 10:00 A.M..
4 Having considered the papers filed in support of and opposition to Plaintiff’s
5 motion, the arguments of counsel, and the complaint, the Court finds and orders as
6 follows:
7 1. Plaintiff has demonstrated that there is no genuine issue as to material
8 fact on his claim that Defendants Donna Beiter and Ronald Mathis have violated,
9 and absent permanent injunctive relief, are likely to continue to violate, Plaintiff’s
10 right to freedom of expression under the First Amendment of the United States
11 Constitution by citing Plaintiff and refusing to allow Plaintiff to hang the United
12 States flag, union down, outside the fence of the “National Veterans Park” while
13 permitting him to hang the United States flag, union down, for 66 weeks.
14 2. Plaintiff has demonstrated that he will suffer irreparable harm in the
15 absence of permanent injunctive relief.
16 3. Plaintiff has demonstrated that remedies at law are inadequate to
17 compensate him for his injuries.
18 4. Plaintiff has demonstrated that a remedy in equity is warranted given
19 the balance of equities, which tips clearly in his favor.
20
21 //
22 //
23 //
24
25
26
27
28
1
1 5. Plaintiff has demonstrated that a permanent injunction is in the public

2 interest.
3 IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary Judgment is
4 GRANTED.
5
6 Dated: ________________ __________________________________
7 The Honorable S. James Otero
U.S. District Court Judge
8
9
10 Submitted By:
11
s/ Peter J. Eliasberg
12
Peter J. Eliasberg
13 Attorney for Plaintiff
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2

4 ACLU FOUNDATION
6 Telephone: (213) 977-9500
7 Facsimile: (213) 977-5297
9
10
13
14
)
16 Plaintiff, )
)
17 vs. ) [PROPOSED] JUDGMENT
)
18 DONNA BEITER, DIRECTOR OF )
THE VETERANS )
23 )
Defendants. )
24 ______________________________ )
25
26
27
28
1 This action came on for hearing before the Court on November 15, 2010,
2 Honorable S. James Otero, District Judge Presiding, on Plaintiff’s Motion for
3 Summary Judgment. The Motion, Memoranda of Points and Authorities, and the
4 evidence presented having been fully considered, the issues having been duly heard
5 and a decision having been fully rendered,
6 IT IS HEREBY ORDERED AND ADJUDGED that judgment be entered in
7 favor of Plaintiff on his claim for declaratory and injunctive relief.
8 IT IS FURTHER ADJUDGED AND DECLARED that Defendants engaged
9 in viewpoint discrimination that violates the First Amendment by citing Plaintiff
10 and refusing to allow Plaintiff to hang the United States flag, union down, outside
11 the fence of the “National Veterans Park” while permitting him to hang the United
12 States flag, union down, for 66 weeks, and absent an injunction Plaintiff faces the
13 threat that Defendants will continue to violate his rights to freedom of expression
14 under the First Amendment
15 IT IS FURTHER ORDERED AND ADJUDGED that Defendants, their
16 employees, agents, and those in active concert with them, are permanently
17 restrained and enjoined from discriminating against the Plaintiff on the basis of the
18 viewpoint he expresses on VA property.
19 IT IS FURTHER ORDERED AND ADJUDGED that Defendants, their
20 employees, agents, and those in active concert with them, are permanently
21 restrained and enjoined from interfering with Mr. Rosebrock’s hanging of the
22 United States flag, union down, on the fence for 66 weeks.
23 \\\
24 \\\
25 \\\
26 \\\
27 \\\
28
1
1 IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff recover his

2 costs.
3 IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff has sixty days
4 from the entry of this judgment to file any motion for attorney’s fees.
5
6 Dated: ________________ __________________________________
7 The Honorable S. James Otero
U.S. District Court Judge
8
9
10
11
12 Submitted By:
13
14 s/ Peter J. Eliasberg
15 Peter J. Eliasberg
16
17
18
19
20
21
22
23
24
25
26
27
28
2

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

1 PETER J. ELIASBERG (SBN 189110)

1 TO ALL PARTIES AND THEIR COUNSEL:

1 PETER J. ELIASBERG (SBN 189110)

8 Attorneys for Plaintiff

9 C. Plaintiff Hangs the United States Flag Union Up to Convey a

12 E. Defendants Repeatedly Interfered as Soon as Mr. Rosebrock

26 A. Defendants’ Barring of Mr. Rosebrock’s Display of the Flag Union

1 1. Mr. Rosebrock Communicated a Different Viewpoint by

9 Association of Christian Schs. International v. Stearns,

12 Brown v. Cal. DOT,

1 Forsyth County v. Nationalist Movement,

7 Klein v. City of San Clemente,

1 Red Lion Broadcasting Co. v. FCC,

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

9 Rosebrock was expressing an entirely different viewpoint when he displayed the

11 This differential treatment of the different viewpoints communicated by the two

7 Defendants argued that Plaintiff was suffering no irreparable injury because he

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

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

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

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

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

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

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

12 G. VAGLAHS Continues to Discriminate on the Basis of Viewpoint

9 is “integral” to the viewpoint that Mr. Rosebrock wants to convey, Defendants’

7 I. DEFENDANTS HAVE VIOLATED AND WILL CONTINUE TO

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

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

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

9 Viewpoint discrimination is impermissible even under the relatively relaxed

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

9 acknowledged that its display in the traditional fashion communicates a particular

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

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

7 In their opposition to Plaintiff’s preliminary injunction motion, Defendants

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

1 remove the flag. UF 24.

1 Rosebrock’s First Amendment rights because it is unreasonable. The “reasonable-

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

9 959, 967 (9th Cir. 2002).

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

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

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

22 government office building used for courtrooms is unreasonable).

23 III. PLAINTIFF IS ENTITLED TO A PERMANENT INJUNCTION

26 An injury to a plaintiff’s First Amendment rights amounts to an irreparable

11 Defendants previously argued that because the discrimination between Mr.

1 lawn for 66 consecutive weeks).

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

1 Viewpoint-based restrictions can have great distorting effects by silencing

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

1 PETER J. ELIASBERG (SBN 189110)

8 Attorneys for Plaintiff

1 Declaration of Peter Eliasberg in Support of Plaintiff’s Motion for Summary

15 PM, Iwas assigned to uniformect

nôleuro* (sS¡l sg6lDOB o4o+42). Rosebrock coordlnates weekly demonsbations

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