|
Robert A. Neinast
Plaintiff, PRO SE 8617 Ashford Lane Pickerington, OH 43147 Phone: (614) 759-1601 Email: neinast@worldnet.att.net |
PETITION FOR PANEL REHEARING AND REHEARING EN BANC
STATEMENT OF THE ISSUES AND THEIR IMPORTANCE This case requires an en banc rehearing for the following reasons:
1. It is a question of exceptional importance that the state law claims in this case have been left in limbo, being neither addressed nor remanded back to State Court. This lawsuit was filed in the Franklin County (Ohio) Court of Common Pleas and was removed to Federal District Court by the Defendants, the Columbus Metropolitan Library. State law claims were pled and argued, but neither the decision below nor the panel decision addressed them.
2. The panel decision conflicts with Grider v. Abramson, 180 F.3d 739 (6th Cir. 1997), and consideration by the full Court is therefore necessary to secure and maintain uniformity of the Court's decisions. The principal holding, without citing authority, of the panel decision in the instant case is that First Amendment intermediate scrutiny does not apply unless a time, place and manner regulation "directly impacts" speech.1 In Grider, magnetometer searches as a precondition to attending a Ku Klux Klan rally were subject to strict scrutiny. Magnetometer searches impact speech in the exact same way as in the instant case.
1. Opinion, p. 8.
3. The panel decision contains precedent-setting error of exceptional public importance by ignoring Supreme Court First Amendment precedent that "[w]hen the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms . . . [i]t must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way."2 The panel decision ignored that "[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions,"3 that "[t]his burden is not satisfied by mere speculation or conjecture,"4 and "a 'reasonable' burden on expression requires a justification far stronger than mere speculation about serious harms."5 Not only did the panel decision accept speculation, it indulged in its own speculation and then relied upon that speculation.6
INTRODUCTION This case involves what restrictions a library, as a limited public forum for
2. Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994).
3. United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 816 (2000).
4. Edenfield v. Fane, 507 U.S. 761, 770 (1993).
5. United States v. National Treasury Employees Union, 513 U.S. 454, 475 (1995).
6. Opinion, pp. 10-13. It even uses speculative language like "may be harmed", "could have suffered injuries, "potential claims," and "could have prevented."
receiving speech, may place upon its patrons while they are receiving the speech contained within the Library. The facts of this case are aptly presented in the panel decision7 and will not be repeated here.
Plaintiff-Appellant Robert A. Neinast faces a tremendous burden in this case. This is not a legal burden, but the burden of public expectations and misconceptions, for he goes barefoot practically everywhere. Many people mistakenly believe going barefoot is inherently dangerous, or that health departments require shoes in public buildings. Neither is true. However, the Columbus Metropolitan Library, a limited public forum dedicated to receiving the speech contained there, is requiring that all patrons wear shoes to access their materials. The Library has taken an everyday activity8 entailing minuscule risks and elevated it to being considered a major health and safety concern requiring governmental intervention.
Yet, 1 billion people on the earth go barefoot;9 barefoot peoples have stronger
7. Opinion, pp. 2-4.
8. While it is not an everyday activity to go to a library barefoot, it is an everyday activity for people to go barefoot in their houses, in their yards, at the parks, and at the beach. The library is probably one of the safest possible locations for going barefoot.
9. Edward Tenner, Our Own Devices: The Past and Future of Body Technology (Alfred A. Knopf, New York, 2003), p. 53.
feet;10 people who go barefoot have a lower incidence of lower extremity injury than those who are shod;11 most foot ailments like bunions, flat feet difficulties, corns, hammertoes, and hallux valgus are actually caused by wearing shoes;12 bare feet are remarkably resistant to perforation due to sensory feedback;13 and bare feet provide protective sensory feedback, helping prevent falls (particularly in older adults).14 Yet, the myth that feet always need external protection persists, and the Library has implemented its rules based on this myth. By not placing the burden of justifying its speculations squarely on the Library where it belongs, the courts have
10. Samuel B. Shulman, Pod.D., "Survey in China and India of Feet That Have Never Worn Shoes," The Journal of the National Association of Chiropodists, vol. 49, pp. 26-30 (1949); Phil. Hoffman, M.D., "Conclusions Drawn From a Comparative Study of the Feet of Barefooted and Shoe-Wearing Peoples," The American Journal of Orthopedic Surgery, vol. III, no. 2 (Oct. 1905)
11. Steven Robbins and Adel Hanna, "Running-related injury prevention through barefoot adaptations," Medicine and Science in Sports and Exercise, vol. 19, no. 2, pp. 148-156 (1989) (particularly the list on p. 149) (Att. 2 in Plaintiff's Reply in Support of Motion for Summary Judgment).
12. William A. Rossi, D.P.M., "Footwear: The Primary Cause of Foot Disorders," Podiatry Management, Feb. 2001, pp. 129-138; William A. Rossi, D.P.M., "Fashion and Foot Deformation: The need for podiatrists to deal with human nature," Podiatry Management, Oct. 2001, pp. 103-108.
13. Steven Robbins, Gerard Gouw, and Adel Hanna, "Running-related injury prevention through innate impact-moderating behavior," Medicine and Science in Sports and Exercise, vol. 21, no. 2, pp. 130-139 (1987) (Att. 1 in Plaintiff's Reply in Support of Motion for Summary Judgment).
14. Steven Robbins, Edward Waked, and Jacqueline McClaran, "Proprioception and Stability as a Function of Age and Footwear," Age and Aging, vol. 24, pp. 67-72 (1995).
now made the myth unchallengeable.
ARGUMENT 1. State Law Claims Were Left in Limbo
The Complaint in this lawsuit was originally filed in the Franklin County (Ohio) Court of Common Pleas. It was removed by the defendant Library to Federal Court under 28 U.S.C. §1441(b), after which an Amended Complaint was filed. The Complaint/Amended Complaint contained State Law claims that the creation and enforcement of the Library's shoe policy was not supported by the Library Board's Patron Regulations, by the State Law conferring powers on the Library Board,15 and that the Library Board had not delegated to Executive Director Black the power to create new regulations.16 The Complaint/Amended Complaint asked for the remedy of Declaratory Judgment17 that the shoe policy was contrary to State Law.18
15. Amended Complaint, ¶¶33-35.
16. The panel decision, in footnote 3, p. 17, says that "Neinast mischaracterizes the extent of authority granted to Black by the Board." Q> Applying the principle of Ejusdem Generis, it is difficult to see how "creating new patron regulations" falls into the same class as determining internal policies and procedures; selection of books and other library materials; decisions affecting library personnel; public relations; or relations with the community and governmental agencies; none of which have to do with regulating patrons. Furthermore, if the Board truly was delegating the power to create patron regulations, then there would have been no need of their creating the Patron Regulations themselves (JA 86, Tab O).
17. Available under the Ohio Revised Code Chapter 2721.
18. Amended Complaint, ¶¶A, B.
Ohio is a notice pleading State.19 All that is required under Ohio Civ. R. 8(A) is "(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled." Had this lawsuit remained in State Court, the Court of Common Pleas would have addressed the State Law issues. However, neither the opinion below nor the panel decision have done so, nor have they remanded the State Law claims back to the Court of Common Pleas, leaving them unresolved.
Neinast concedes that the pleadings could have been clearer. However, all of the briefs have consistently argued that the shoe policy was contrary to State Law.20
Furthermore, pleadings of pro se litigants are to be "liberally construed," and "[a]ll pleadings shall be so construed as to do substantial justice."21 Furthermore, courts should "examin[e] the 'thrust,' not just text, of pro se litigant's arguments".22
19. Willoughby Hills v. Cincinnati Ins. Co., 9 Ohio St.3d 177, 180 (1984).
20. Plaintiff's Motion for Summary Judgment and Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment, pp. 28-34; Plaintiff's Reply in Support of Motion for Summary Judgment, pp. 22-23 (although at this point is was argued as a due process claim, the state law claims were still there); Brief of Appellant, pp. 41-45 (again, the state law claims are mixed into the due process claim); Reply Brief, pp. 22-23 (again, the claims are mixed together). Letter to the Court Providing Citation of Supplemental Authority, dated Nov. 12, 2002, regarding D.A.B.E., Inc., D.B.A. Arnie's Saloon, et al. v. Toledo-Lucas County Board of Health et al., 96 Ohio St.3d 250 (Ohio 2002).
21. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
22. Burton v. Jones, 321 F.3d 569, 573-4 (6th Cir. 2003).
The State Law claims should have been decided under supplemental jurisdiction, certified to the Ohio Supreme Court, or remanded to the Common Pleas Court.
Additionally, the panel decision has construed the Third Cause of Action extremely narrowly, construing it purely as a procedural due process claim. As a result, the substantive claim that the Library provided punishment far beyond that documented in its Eviction Procedure was not addressed.23
2. The Panel Decision is in Conflict with Grider v. Abramson
The panel decision holds that a time, place, and manner regulation on speech is not subject to intermediate scrutiny unless it "directly impacts" that speech. This has broad and unprecedented First Amendment implications far beyond the instant case. There is no authority cited to support this decision, 24 and, in particular, it is in conflict with Grider.25 In Grider, attendees of a Ku Klux Klan rally were subjected to magnetometer searches (to prevent the presence of weapons under those
23. The charge of "harassing the staff" Q> cannot be supported by the evidence presented, since Neinast had used the Library for over an hour and was only noticed while walking from one section of the Library to another. The Library's Eviction Procedure contained a clear definition of "harassment"Q>, and that definition clearly does not encompass Neinast's actions. Under summary judgment standards, this evidence was required to be interpreted in Neinast's favor, but was not. This issue was briefed at Reply Brief of Appellant, pp.23-26.
circumstances) before being allowed to attend the rally. A full First Amendment analysis was done, and strict scrutiny was applied.26
Allowing the panel decision to stand (in conflict with Grider27) has severe First Amendment implications. For example, without applying any sort of heightened scrutiny, all attendees at any First Amendment gathering could be required to wear white shirts and ties, on the safety speculation that well-dressed attendees would be less likely to get out of control. Considering that receiving speech is reciprocal28 to giving speech, even the speakers at the First Amendment gathering could be required to all wear shirts and ties, without any sort of heightened scrutiny. This would clearly be offensive to the First Amendment. Furthermore, both the magnetometer searches and the shoe policy do
24. A search turns up only Tool Box v. Ogden City Corporation, 316 F.3d 1167 (10th Cir. 2003), in which a protective covenant was used to prevent a nude bar from opening in an industrial park. O'Brien analysis was not used "because the protective covenants did not directly impact protected expression." Q> Indeed, enforcement of protective covenants is pretty far removed from First Amendment government action.
25. Grider was briefed in Reply Brief of Appellant, pp. 5-6.
26. While the restriction was considered a time, place, and manner restriction, it was analyzed under strict scrutiny instead of intermediate scrutiny because of anticipated listener reaction to the content of the speech.
27. It also creates a split with the 3rd Circuit: Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992).
28. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 757 (1976).
"directly impact" the receipt of speech. If the potential receiver is not allowed to be where the speech is being delivered, that is clearly a direct impact on the receipt of that speech. The Library's shoe policy furthermore constitutes a burden to Neinast, who does not even carry shoes in his car.29 Thus, he must make a special effort if he wishes to visit the Library to exercise his First Amendment right to receive their information, when he does not have to do so to use any other government building.30 Among all governmental buildings open to the public, it appears only the Library (and some other libraries) makes such a rule.31
3. The Panel Decision Was Based on Mere Speculation
In a summary judgment motion, any heightened burden of proof required by substantive law must be met by the Library.32 As a First Amendment case, the
29. Contrary to myth, it is legal to drive barefoot in every state.
30. As stated in his affidavit (JA 59, Tab I), Neinast has gone barefoot at the Smithsonian Institution and the U.S. Capitol Building. In addition, he has gone barefoot, without challenge, at the Ohio Statehouse and associated office buildings, numerous Post Offices, the Pickerington Library, Ohio Department of Motor Vehicles buildings, the Columbus Health Department building, the Franklin County Board of Health building, the Franklin County Courthouse Complex, and his children's school buildings. All of the briefs and appendix in the instant case were filed in person, barefoot, at the Potter Stewart Courthouse building.
31. See, e.g., Post Office building regulations, 36 CFR 232.1; E12> Smithsonian regulations, 36 CFR 504; GSA regulations on Conduct in Federal Buildings, 41 CFR 101-20.3.
burden is on the Library to demonstrate that its recited harms are real and that their regulation will remedy those harms in a direct and material way. Furthermore, such harms and remedies may not be demonstrated by speculation or conjecture. The panel decision is an endorsement of pure speculation in upholding a First Amendment regulation; in fact, the panel decision itself engaged in such speculation. This has extraordinary implications for First Amendment jurisprudence in the Sixth Circuit.
The panel decision puts forth a number of purported hazards,33 with the implication (and conclusion) that these are real hazards to a barefooted patron. However, to so conclude is nothing but speculation. For instance, the panel decision recites vomit (JA 170, 224) as a significant health and safety risk to a barefooted patron, but it does not even speculate as to how stepping on vomit (while disgusting) is a health issue. Does vomit contain some pathogen that travels through the intact skin on the bottom of the foot? We are left to speculate.34 But speculation and conjecture cannot be used to satisfy a First Amendment burden. Furthermore, the burden is on the Library to demonstrate, not Neinast to refute, that the recited
32. Item 7 in Street v. Bradford, 886 F.2d 1472, 1479 (6th Cir. 1989).
33. Opinion, pp. 11-12.
34. Despite extensive research, Plaintiff Neinast has been unable to find any reference to a barefoot person catching a disease through stepping on vomit.
harm is real. The exact same issue applies to the reports of urine and feces35 on the floor (mostly in the bathrooms) (JA 133, 153, 161, 163, 165, 168, 176, 197, 212, 250, 252, 254, 256, 257, 266, 276, 291), and to a few drops of blood (JA 184).36
The panel decision lists the friable, sound-absorbing ceiling tiles of the Library's bathrooms (JA 134) as a hazard. Again, we are left to speculate just how this crumbly, spongy material might be any sort of hazard to bare feet, let alone a significant health and safety risk. The panel decision also lists broken glass (JA 185), but has to assume without knowing that it is not safety glass; safety glass presents no hazard at all—regular glass very little.37
The panel decision also assumed a significant health and safety risk in the incident in which a staple scraped a boy's arm (JA 185E13>). However, from the incident report itself, the only action required was that the Library "[g]ave Matthew a band-
35. If the Library (and the panel decision) had gone beyond speculation and provided specifics of how they think feces are a hazard, Neinast would have been able to provide affidavits of expert opinion regarding that hazard. For instance, if the Library claimed a hookworm problem, it could be pointed out that the hookworm eggs that used to occur in feces require 5-7 days to mature into larvae before they can be transmitted into a new host. Asa C. Chandler, Hookworm Disease: Its Distribution, Biology, Epidemiology, Pathology, Treatment and Control (New York, Macmillan, 1929). Undoubtedly, the Library cleans the feces off its floors more often than every 5 days.
36. In oral argument in the trial court, Judge Marbley speculated that such blood would be an AIDS hazard; this was shown to be incorrect in Brief of Appellant, p. 18, and the issue was dropped.
aid." This surely cannot count as a significant health and safety incident. In the one foot injury incident in which the toenail of a barefoot 2-year-old girl got scraped by a door (and ripped) (JA 301), and to which paramedics responded, the paramedics stated "that [the] injury was not serious." The other foot injury incident with the patron's foot in the gap under a door (JA 297), in which the patron said "her foot went underneath & was cut & broken possibly" occurred to a patron wearing shoes. Are we to speculate that bare feet are somehow more hazardous here?
The supposed hazards in the Library are potentially present in every single public building. Yet, neither Columbus Health Department, the Franklin County District Board of Health, nor the State of Ohio Health Department38 have regulations requiring shoes in public buildings. These governmental entities are the
37. One of Neinast's favorite tricks is to find some glass on the ground outdoors, and to deliberately step on it without injury, causing surprise to onlookers. Skin does not puncture easily, but most people are unaware of this. This is the basis of a circus trick, Indian swami tricks, and a Fear Factor episode. However, the burden is on the Library to demonstrate that the recited harm is real, not Neinast. Furthermore, even if a small puncture or cut were to occur, this cannot truly be called a "significant health and safety risk," since all that is required to remedy it is a small bandage.
38. Affidavit of Morgan Condo (JA 73), Letter from Columbus Health Department (JA 68), Letter from Franklin County District Board of Health (JA 67), Letter from Ohio Department of Health (JA 66).
experts, not the Library. These governmental entities do not need to engage in speculation—they are trained in public health and safety. They see no hazard worthy of regulation.
The panel decision then speculates on whether these supposed hazards present a significant cost to the general public. First, the "cost" of the incidents above appear to be the price of a band-aid and one unnecessary paramedics run ("the injury was not serious"). This is not at all comparable to the cost from not wearing a motorcycle helmet, in which massive head trauma results in death or brain damage resulting in long-term institutionalization. Second, the panel decision speculates about tort law costs. Under Ohio law, the Library is a licensee, and need only "refrain from wanton and willful conduct" that might injure the licensee.39 There is no evidence that the Library is so lax. Third, the panel decision speculates that the shoe policy avoids the expense of litigation from injured barefoot patrons (presumably these are unjustified lawsuits that are impossible to protect against, since the Library is not wantonly or willfully lax). There is no evidence that there has ever been any lawsuit filed by a barefoot person for injury in a public accommodation.40 In the trial court briefs, the Library gave a few instances41 of
39. Siglow v. Smart, 43 Ohio App.3d 55, 539 N.E.2d 636 (Ohio App.1987). E14>
40. And certainly no lawsuits for stepping in blood, feces, or vomit.
41. Defendants' Motion for Summary Judgment, pp. 8, 15.
barefoot injuries on the slippery tiles of a locker room or pool, which were countered by numerous instances42 of injuries in which the style of shoe was blamed for the injury. Again, it is pure speculation that allowing barefoot patrons would increase the risk of litigation one iota, since no such case has been found.43 For the case cited in the panel decision, Listle v. Milwaukee County, 138 F.3d 1155, 1160 (7th Cir. 1998), one can easily find cases in which governmental entities have been sued for pension benefit eligibility.44 The proposition that people sue over barefoot injuries in stores or public buildings is not only speculative, it is unsupported by the available evidence. Discounting the speculation, it is unshown that any of this amounts to a significant cost to society.
The reason the Supreme Court demands more than mere speculation is that,
42. Plaintiff's Motion for Summary Judgment, and Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment, p.12, fn. 7.
43. Plaintiff Neinast has also searched Versuslaw and Lexis-Nexis for any instance in which a public building or store was sued due to an injury caused by the patron being barefooted, and not found any. However, the burden is not on Neinast to find such a case if it exists, but on the Library. And they have not. What would remove any risk of litigation though, is the narrowly tailored solution of a simple sign saying "Barefoot at your own risk."
44. E.g., State ex rel Mallory v. Public Employees Retirement Board, 82 Ohio St.3d 235, 694 N.E.2d 1356 (Ohio 1998); North Olmsted v. Police & Firemen's Disability Pension Fund Bd. of Trustees, 19 Ohio App.3d 165, (Ohio App. 1984); Police and Firemen's Disability and Pension Fund v. City of Akron, 149 Ohio App.3d 497, 778 N.E.2d 68, (Ohio App. 2002); State ex rel Van Dyke v. Public Employees Retirement Board, 99 Ohio St.3d 430, 793 N.E.2d 438 (Ohio 2003).
all too often, and as demonstrated in this case, the speculation is simply wrong, and First Amendment freedoms are unjustifiably infringed.
CONCLUSION Petitioner respectfully requests that this Petition for Panel Rehearing and Rehearing En Banc be granted.45
Respectfully submitted,
_______________________
Robert A. Neinast
Plaintiff-Appellant, PRO SE
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
Email: neinast@worldnet.att.net
45. Representations of all of the filings in this case are available at http://www.ahcuah.com/lawsuit.
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served, by regular U.S. mail, upon Philomena M. Dane and Johnathan E. Sullivan, Attorneys for Defendants, Squire, Sanders & Dempsey, L.L.P., 1300 Huntington Center, 41 South High Street, Columbus, OH, 43215, this 23rd day of October, 2003.
___________________________