CASE NO 3:15-ev-01666-SI 

Individuals For Justice 

Joseph Walsh, representative 

E-mail: lonevet2008(@comcast.net 

Phone: 503-946-8428 

UUESTION Of THI DAY 

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RESPONSE TO THE CITY'S BRIEF CONCERNING THEIR 

ABILITY/POWER TO EXCLUDE CITIZENS FROM PUBLIC 

BUILDINGS. CASE NO. 3:15-cv-01666-SI and Motion for 

Summary Judgment. 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

JOSEPH WALSH 

PLAINTIFF, 

BRYANT ENGE, CHARLIE HALES, 

CITY OF PORTLAND, 

Defendants. 

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1. Introduction 

"The strength and power of despotism consists wholly in the fear of 

resistence." Thomas Paine 

We believe that the Bill of Rights consisted of 12 articles, ten ratified by 

the States in 1791. If one looks at all ten you will notice there are no 

periods in each article, was this to tell us to look at each article as a 

whole? Can you separate freedom of speech from our right to "Petition 

the Government for a redress of grievances?' I was the representative 

of Individuals for Justice on the day that was the cause of my 60 day 

exclusion from not only the Council Chambers but the entire City Hall 

building. The City Hall building has in it what one would expect to 

find: http://www.portlandoregon.gov/ 

All Council offices, Auditor's office, a cafe, neighborhood associations, 

city attorney, etc. I was barred from all of these for 60 days. The 

exclusion letter does not mention the incident that acted as the catalyst 

for the mayor's throwing me out of the meeting and one week later, as I 

was going to enter the Council Chambers, giving me the exclusion letter. 

There is a concept called Consent Agenda and is part of most, if not all, 

agenda items to be voted on by the 5 member council. The unique 

characteristic of this section of the meeting is the Consent Agenda 

allows the council to vote on a group of items and not waste time on 

voting one at a time. There is a Charter provision that a citizen can 

"pull" any item off the Consent Agenda and force a discussion on that 

item. The item pulled is now taken up by the council directly after the 

consent agenda is voted on, see: 

http://www.portlandonline.com/auditor/?c=28201#cid 13380 

The mayor has a strange interpretation of this article in the Portland 

City Charter. If you pull an item you have to wait two or three hours to 

express your right to address the council members on your objections. 

The Charter dictates the mayor or presiding official must take up the 

pulled item following the vote on the rest of Consent Agenda. This is 

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important because most citizens cannot spend 2 hours or more waiting 

for the mayor to decide to bring up the pulled item. In the case of 

July 8, we had to wait over 2 hours and I had to use the restroom. All 

my belongings, including my portable oxygen set up, were in the 

council chambers so the mayor knew I was close by to offer my 

objections to item 743, just not inside the council chambers. The mayor 

called a police officer to testify for the $100,000 transfer of funds to 

police overtime, but only called Mr. Lightning's name and when there 

was no response decided just to call a vote. I walked into the chamber, 

was told what happened and yelled out. We are not arguing that the 

mayor cannot throw me out, and if I refuse to go, have me arrested, we 

are arguing that the mayor does not have the authority to later ban or 

exclude individuals who the mayor believes acted inappropriately 

and/or disrupted a council meeting in the past. This incident is 

troubling in that I was told that if I entered the building I would be 

arrested, and they were very serious. The following week the city 

handed me a notice of exclusion and the exclusion would start the date 

of receipt, this being July 15, 2015. 

Response to City's Brief : 

The City submission is lacking in answering this simple question: 

Where does the mayor or presiding official get the authority to override 

the Bill of Rights, in this case the First Amendment? If the city can 

successfully argue where their authority comes from, then we would 

also ask; with what restrictions? We believe that the legal bar should 

be very high when using exclusions to future public hearings and to be 

excluded from a public building that hold multiple services should be 

very rare. 

We also see my removal from the Council meeting on July 8, 2015 and 

being subject to possible arrest if I did not leave the Council chambers, 

then the exclusion letter a week later as double punishment. This begs 

the question: can the mayor use one punishment and later tag on 

another at his will? 

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The response from the city does not answer our complaint and only 

responds to the mayor's ability to throw me out and have me arrested 

for trespass. We are not arguing that point, we are arguing that the 

mayor or any presiding official at City Council meetings cannot bar a 

citizen or representative of a watch dog organization from attending 

even "Limited Public Forums." The case the city cites, Norwalk, 900 

F.2d at 1425 (In the Ninth Circuit) I think makes it clear there must be 

some disruptive behavior during a meeting to even have the authority 

to throw me out of the meeting. One cannot have a disruptive behavior 

if one is not there. That is the problem with these exclusions, they are 

based on actions that one man's decisions are so outrageous that the 

mayor would stop a citizen from exercising a very fundamental right 

under the Federal Constitution. There seems to be no limit to what 

Mayor Hales thinks he can do, that is not democracy; it is dictatorship. 

The city is again using the concept that the appeal is moot, under 

federal jurisdiction the question of mootness does have exceptions. This 

action by the city, as they inserted in their letter of exclusion dated July 

15, 2015 shows their intent to continue and piggy back on prior acts. I 

am caught in a situation that would allow the mayor or any presiding 

official using prior acts to extend my exclusion for whatever time they 

decide with no guidelines. Will the actions by the mayor have a strong 

probability of repeating? Yes, it has in three different occasions. The 

same letter lists all three. The fact that I have been removed and 

suffered exclusions on three occasions would sound like I am disruptive 

all the time; not so! I have been monitoring the city council for 

Individuals For Justice through three (3) mayors. I estimate attending 

over 500 city council meetings and many sub-committee meetings where 

I have not been thrown out. Will there be future confrontations with 

the city council, not sure--I am not a person who can tell the future. 

The mootness question now offered by the city is also complicated due 

to a recent announcement by a hearing officer for the city that mootness 

will no longer be offered by the city and any case brought to the city's 

hearing officer will continue until a decision is rendered, Hearing 

Officer is a Mr. Franks and the case is under Appeal of Mr. Davis for a 

60 day exclusion. 

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Arguments for Summary Judgment: 

I/We believe that our beloved Federal Constitution, Bill of Rights is the 

controlling document here and any interference with my ability to 

attend and monitor a meeting must show a direct connection between 

being removed from a meeting and perceived bad behavior. The cited 

case Norse, 629 F.3d at 979 talks to being removed and the city does not 

offer any arguments for extended exclusions. The city is offering the 

concept that they can do extended exclusions because they have and 

continue to act on their perceived authority to ban citizens from future 

meetings for actions that have already been dealt with on the day of the 

incident. "Mr. Walsh, you are out of order sir, if you continue I will 

have you removed." That is a very powerful tool the presiding official 

has, but to allow him/her later to add on a 60 day exclusion for the same 

behavior is oppressive and sends a chilling message to the rest of the 

activists who may attend a City Council meeting. The notion that I was 

not removed " .•. because of any point of view or opinion expressed by 

the content of his speech." is without merit, the very argument between 

the mayor and I had to do with him voting on an item that I had pulled 

and in so doing had a future right to offer my/our postion on that item. 

We acknowledge that speech and the right to petition our government is 

not without limitations but we would argue that the decision to shut 

down a person or organization must be fully authorized by some law or 

decision by a court to what extent officials can go and what limiting 

guidelines are available, it cannot be subjective, it must be clear. There 

are things that happen in life that I do not like, the First Amendment is 

not required for things that we like or approve of, the reason we have it 

is for the things or actions that we don't like. Government officals 

cannot ban or exclude citizens from meetings because they might be 

disruptive or may act out in ways that annoy the officals. The chilling 

effect on other activists is immense. 

Conclusion: 

The Portland City's action should be permanently enjoined and 

exclusions issued by the mayor or any he may designate be declared on 

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its face, unconstitutional. In the case of Rodolfo v City of Austin, Case 

Number 13-50916 (for the 5th Ciruit) 2014, the City's actions were 

declared unconstitutional because the city went too far when interfering 

with a protective right under the First Amendment. The court even sent 

the case back to the district court to assess attorney fees. The First 

Amendment should not be violated unless the city can show that there is 

a greater need. The city bas never offered any relevant law that would 

protect them from scrutiny; they just do things and hope nobody will 

take them and their 40 lawyers on. 

Therefore, we ask the court to grant us a permanent injunction and 

order the city to rescind all exclusions. Because we do this pro se, there 

should be no attorney fees to consider. We do ask the court to assess the 

city for damages suffered by me for the 60 days that I could not use 

normal services offered by the city via our building called City Hall. 

Joseph Walsh, 

Individuals For Justice 

When Ben Franklin was coming out of Independence Hall, a citizen yelled at him, 

"What have you given us, a democracy or a monarchy?" Mr. Franklin replied, "A 

Democracy if you can hold on to it." 

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