The Library's Brief is remarkable not for what it contains, but for what it does not contain:

• It does not contain a single cite demonstrating that the right to receive speech is limited to their "provides standing only" hypothesis.

• It does not contain a single cite demonstrating that the government has a legitimate interest in protecting a person from himself, particularly when the risk and probability of harm is low and purely conjectural.

• It does not contain any reference to a single Library incident report showing a causal connection between bare feet and any so-called hazard in the Library.

• It does not contain any refutation that, as a time, place, and manner restriction, the burden is on the Library to demonstrate both the existence of a harm, and that their regulation addresses that harm in a direct and material way.

• It does not contain any refutation that the shoe policy exists as a dress code, and that the safety justification was produced specifically in response to this lawsuit.

• It does not contain any explanation of how using the Library barefoot is inconsistent in any way with the government's intent in designating the Library as a public forum.

• It does not contain any candidate communicable disease that might be transmitted by the barefooted use of the Library, but asks the Court to believe that somewhere out there, such a disease might exist and might be a danger to the public.

Starting around 40 years ago, a few businesses instituted a "No shoes, no service" policy (the timing suggests that they were motivated by the desire to keep out hippies, whom they perceived as anti-establishment and unclean). Despite the fact that Health Departments have no regulations requiring shoes in public buildings (R. 13; Pla. Motion and Memo. Contra, Exhibit 4; Jt. Apx. ref. 49) (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, Attachments A, B, and C; Jt. Apx. refs. 50, 51, and 52), many of these businesses perpetuate the myth that such Health Department regulations exist (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, ¶ 5; Jt. Apx. ref. 53) and that walking barefoot is unsafe.

The Library has taken the fact that some businesses are ignorant of the health codes as a grant of authority to be equally ignorant. Using these other businesses as a model, the Library just "knows" that bare feet should not be allowed, and has promulgated its own shoe policy without justification.

1. The Library's Shoe Policy Infringes Neinast's Right to Receive Speech in the Library

a. The Right to Receive Speech Is an Affirmative Right

The Library has cited many cases showing that the right to receive speech includes the power to confer standing (not surprisingly, since the right to receive speech is reciprocal to and on the same par as the right to produce speech). But they had to discard other library cases, Kreimer v. Bureau of Police, 958 F.2d 1242, 1251 (3d Cir. 1992) ("Our review of the relevant Supreme Court cases . . . leads us to conclude that a right to receive information founded under the First Amendment is implicated in this case" ^Q>), Armstrong v. District of Columbia Public Library, 154 F.Supp.2d 67, 75-77 (D.D.C. 2001) ("[I]n view of long-standing precedent supporting plaintiff's First Amendment right to receive information and ideas, and this right's nexus with access to public libraries, the Court must next determine the constitutional standard of review for defendants' appearance regulation. . . . ^Q> Accordingly, because plaintiff's access to the Library was restricted based upon his appearance, the appropriate standard to apply in this case is the stricter, 'narrowly tailored' standard of review" ^Q>), Sund v. City of Wichita Falls, 121 F.Supp.2d, 530, 547 (N.D. Tex. 2000) ("The right to receive information is vigorously enforced in the context of a public library, 'the quintessential locus of the receipt of information'" ^Q>), and American Library Ass'n, Inc. v. United States, 201 F.Supp.2d 401, 466 (E.D. Penn. 2002) ("[P]ublic libraries, like sidewalks and parks, are generally open to any member of the public who wishes to receive the speech that these fora facilitate" ^Q>), to advance their novel hypothesis that the Library's time, place, and manner restriction on accessing the Library's materials (their shoe policy) is not subject to First Amendment intermediate scrutiny. And they certainly cited no cases that support their claim that the right to receive speech is somehow restricted and of lesser value than its reciprocal counterpart.

The Library postulates that the right to receive speech exists solely to confer standing, or that a "willing speaker" is required to activate the right to receive speech; it also postulates (without so stating) that there is no willing speaker in this instance, and that somehow the over 12 million volumes in its collection were authored by unwilling speakers.¹ 

The issue of a willing speaker was irrelevant in Stanley v. Georgia, 394 U.S. 557, 559 (1969) (Mere possession of obscene material cannot constitutionally be made a crime.). The statute was declared unconstitutional largely on the basis of the right to receive speech, without reference to any willing speaker.

In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Communications Decency Act was overturned. The analysis was based on the rights of adults to receive speech over the Internet (even when such speech might not be suitable for minors); the decision was not limited by some concept of a "willing speaker," and there was no question of standing. In the instant case, a library is strikingly similar to the Internet, as both provide access to the communications of an amorphous collection of willing speakers. See also American Library Ass'n, 201 F.Supp.2d at 468 ("[Willing] speakers wishing to avail themselves of the Internet may gain free access in schools, workplaces, or the public library" ^Q>).

Grider v. Abramson, 180 F.3d 739 (6th Cir. 1997) also illustrates how the right to receive speech provides access to public forums.²  Grider was an attendee (hence a receiver of speech) at a Ku Klux Klan rally who was subject to a magnetometer search that was looking for dangerous objects. What is germaine to the instant case is that this restriction on receiving speech was analyzed under First Amendment principles. So too should the instant case, which thereby requires intermediate scrutiny for the Library's time, place, and manner restriction on receiving speech.

b. The Burden Under Intermediate Scrutiny Is on the Library and the Library Has Not Met That Burden

For a time, place, and manner restriction on receiving speech, the burden is entirely upon the Library to 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." ^Q> Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994). This was recently reiterated in Watchtower Bible & Tract Society of New York, et al. v. City of Stratton, et al., 536 U.S. ___, (June 17, 2002):

In the intermediate scrutiny context, the Court ordinarily does not supply reasons the legislative body has not given. Cf. United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 816 (2000) ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions" (emphasis added)). . . . It does mean that we expect a government to give its real reasons for passing an ordinance. ^Q>

(Breyer, J., concurring, slip op. pg. 1-2) (Italic emphasis in the original; boldfaced emphasis added). In the instant case, the reasons for the shoe policy advanced by the Library are pretextual and should be given no weight; without doubt, the relevant statements in Mr. Black's affidavit are contradicted by the evidence in the record.³ 

In the Brief of Appellees, Statement of the Facts, pg. 4, the Library states that "Mr. Black requested that the Franklin County Prosecutor's Office confirm the legality of the rule requiring shoes" ^Q> and references his affidavit (R. 11; Def. Motion, Exhibit A, ¶ 10; Jt. Apx. ref. 54). However, the only contemporaneous evidence before the Court is the letter Mr. Black faxed to the County Prosecutor, in which the Prosecutor is asked for "the legal reasons that CML can give for requiring its customers to dress appropriately for a public place." (R. 14; Def. Reply and Memo. Contra, Appendix, Exhibit A, pg. 97; Jt. Apx. ref. 55). This is a far cry from a request for confirmation.

In his affidavit, Mr. Black also states that he promulgated the shoe policy "to protect the health and safety of Library patrons." (R. 11; Def. Motion, Exhibit A, ¶¶ 3-5; Jt. Apx. ref. 56.) Yet, he made no mention of this when he was asking the County Prosecutor how to make customers dress in a manner Mr. Black felt appropriate. Furthermore, the Eviction Procedure itself states its true purpose; it is a Type 01 Infraction: "Inappropriate Dress." (R. 14; Def. Reply and Memo. Contra, Appendix, Exhibit A, pg. 93; Jt. Apx. ref. 57.)

These statements in the affidavit were obviously invented in response to this lawsuit. Since "we expect a government to give its real reasons for passing an ordinance," the governmental interest this Court ought to examine is whether regulating so-called "inappropriate dress" that disturbs nobody (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, pg. 7, ¶¶ 19-20; Jt. Apx. ref. 58) (R. 13; Pla. Motion and Memo. Contra, Exhibit 6, pg. 2; Jt. Apx. ref. 59) is a significant governmental interest. It clearly is not; the Library has not met its burden.

Even if we grant the Library its stated interest in protecting the health and safety of Library patrons, they have not shown how prohibiting one patron from being barefoot protects any of the other patrons. Neither have they shown that this governmental interest encompasses protecting one from oneself; not one cite has been produced. The Library has not met this burden, either.

Even if we further grant the Library its assumed but never-stated interest in protecting Neinast from himself, they have not shown how any of the supposed hazards in their incident reports have a causal connection to any danger to Neinast. They instead rely upon some unknown and unspecified communicable disease. See, infra, p. 15. The burden is on the Library to show that their recited harms are real, and that their regulation will in fact alleviate these harms in a direct and material way. The Library has not met this burden at all.

c. Kreimer Does Not Support the Library's Position

The Library claims that the Kreimer Court "concluded that a regulation requiring the wearing of shoes was constitutional." ^Q> (Brief of Appellees, pg. 14) Kreimer v. Bureau of Police, 958 F.2d 1242, 1265 (3d Cir. 1992). This is simply false. Kreimer was never barefoot, and therefore that issue was never before either the District or Circuit Court. When the Kreimer District Court invalidated Rule 9 based on the hygiene portion, it accidently invalidated the whole Rule, including Morristown's shoe policy, even though that portion had not been challenged. Kreimer v. Bureau of Police, 765 F.Supp 181 (D.N.J. 1991). When it realized its mistake, it modified its order. ⁴ 

The Kreimer Appeals Court never performed any First Amendment analysis on the Morristown Library's shoe policy. Their only mention of it was in footnote 25, in which the shoe policy was used to illustrate a totally separate point: that in addressing Rule 5 (preventing staring at library personnel or following them around) it was acceptable to have a policy that served a governmental interest beyond preventing disruptive behavior. However, any regulation restricting using Library materials must still be narrowly tailored to serve a significant governmental interest. The Library's shoe policy, as already argued in Brief of Appellant, pg. 32, and infra, is neither narrowly tailored, nor does it serve a governmental interest, either legitimate or significant. The Kreimer Court's comments are not only dicta, the Library and the Court below have misinterpreted what they say.

d. The Library Has Shown No Inconsistency Between the Library's Purpose and Using a Library While Barefoot

The Library likes to stress that "the Library is obligated to allow only the exercise of those `right[s] that are consistent with the nature of the Library and consistent with the government's intent in designating the Library as a public forum.' Other activities, however, `need not be tolerated.'" ^Q> (Brief of Appellees, pg. 14) (internal references removed). Yet, they have never explained exactly how reading a book while barefoot, or walking barefoot through its corridors⁵  to retrieve a book is somehow inconsistent⁶  with the government's intent in opening the Library, any more so than reading a book wearing a T-shirt, wearing an eyebrow stud, or wearing a hat is inconsistent with the government's intent.⁷ 

e. The Library Cannot Rely Solely on Its Wisdom and Common Sense, of Which It Has Demonstrated Neither

Quoting from Sammy's Ltd. v. City of Mobile, 140 F.3d 993, 997 (11th Cir. 1998), the Library claims that they can rely upon "their own wisdom and common sense" ^Q> in promulgating their shoe policy. Aside from the fact that it has not demonstrated that its policy is based on either wisdom or common sense, the Library has selectively quoted from Sammy's. The full quote is

The district court located this reasonable basis in the experience of other cities, studies done in other cities, case law reciting findings on the issue, as well as their own wisdom and common sense. This is sufficient. ^Q>

It was the plethora of other, already acknowledged evidence in the records of other similar court cases for cities across the country that made up the sufficiency of the evidence, not the court's "own wisdom and common sense" alone. In nude bar cases like Sammy's, the Supreme Court has long held that the already existing studies need not be redone for each and every city that wishes to pass a nude bar ordinance. Erie v. Pap's A. M., 529 U. S. 277, 296-97 (2000). The Library has no existing studies, or evidence of any kind, of cognizable danger. Their reliance on Suburban Lodges of America, Inc. v. City of Columbus Graphics Comm'n, 2000 Ohio App. LEXIS 4701, *18 (Franklin Cty. 2000) (an unpublished Ohio Court of Appeals decision looked upon with disfavor by 6 Cir. R. 28(g)), regarding the regulation of billboards, is similarly misplaced.

f. An Arbitrary Restriction That Serves No Governmental Interest Is Not a Minimal Intrusion on Personal Freedom

In the Library's view, forcing a person to wear an article of clothing they have no wish to wear, while providing little or no justification, is "a minimal intrusion on personal freedom" ^Q> (Brief of Appellees, pg. 19).

When the Founding Fathers were debating the Bill of Rights, their discussion on the right to wear a hat or not was addressing no mere hypothetical. 1 Annals of Congress 759-760 (Gales & Seaton ed. 1834) (R. 13; Pla. Motion and Memo. Contra, Exhibit 10; Jt. Apx. ref. 61). Instead, they were referring to an incident that was part of their common lore of resistance to injustices by the Crown. Just as "the crossing of the Delaware" is known today to refer to George Washington and requires no further explanation, so too was the incident containing the hat well known to the Founding Fathers. The hat in the incident was the hat of William Penn, who, while being tried on a charge of preaching on the street, was further charged with contempt of court after refusing to remove his hat before the Court of Old Bailey. (See, The People's Ancient and Just Liberties Asserted,⁸  attached as the Addendum.) For the incident and the details to still resonate over 100 years later as an example of intolerable injustice, these Founding Fathers certainly did not consider such an arbitrary assault on a person's dignity and liberty "a minimal intrusion on personal freedom."

2. The Library's Shoe Policy Is Neither a Legitimate Nor Significant Governmental Interest

As per Lawton v. Steele, 152 U.S. 133, 137 (1894) ("To justify the state in thus interposing its authority in behalf of the public, it must appear-First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose . . ." ^Q>), the pre-condition for checking reasonableness is to first identify the legitimate governmental interest. Then, and only then, is the regulation examined for rationality.

All along, the Library has contended that the shoe policy protects barefooted patrons from injuring themselves. But protecting a competent person from an activity that might result in some less-than-catastrophic injury is not a legitimate governmental interest and is outside the police power of the state, unless it truly endangers another. Otherwise, the state could ban walking in the sun (skin cancer), walking in the dark (stumbles and falls), bicycle riding (falls), inline skating (same), tennis (tennis elbow), baseball (getting hit by the ball), sewing (needle punctures), woodworking (cuts, gouges), etc. The Library has cited not one single case showing the use of the police power in such a manner. Such a claim is clearly illegitimate.

As the Library has now finally responded to this critical point, they attempt to argue, following the District Court's erroneous lead, that "if you contract [a] communicable disease as a result of going barefoot and pass it on to someone else . . . then the public has been affected, however remote it would be." (TX; Oral Arg. Transcript, pg. 9; Jt. Apx. ref. 63.) This strains credulity. A similar argument regarding AIDS was disposed of in the Brief of Appellant, pg. 18. The Library is now reduced to speculating on the existence of some vague, unspecified communicable disease that is caught and transmitted by barefooted people on library floors (but not particularly outdoors). Yet they have not even suggested a candidate disease⁹  (and cannot) with these magical properties.

The Library was granted summary judgment on the presumption that there were no material facts at issue. However, the Library is now reduced to arguing for the existence of some vague, unspecified diseases. The existence or non-existence of such a disease is clearly a material fact that makes summary judgment for the Library inappropriate, and the Library should present an expert witness who can testify as to its existence, properties, and occurrence on library floors. The judgment of the District Court should be reversed on this point alone. However, this does not preclude ordering summary judgment in Neinast's favor, since the burden for a time, place, and manner regulation is on the Library, and in opposing Neinast's motion for summary judgment, the Library, "having had sufficient opportunity for discovery, has no evidence to support an essential element of [the Library's] case." ^Q> Street v. Bradford, 886 F.2d 1472, 1479 (6th Cir. 1989).

3. The Right of Personal Appearance Is a Fundamental Right, or at Least a Liberty Interest Strong Enough to Defeat the Library's Shoe Policy

The debate by the Founding Fathers over the Bill of Rights makes it abundantly clear that the right of personal appearance is a fundamental right protected by the Ninth and Fourteenth Amendments. See Brief of Appellant, pg. 22-27. The discussion there made it abundantly clear that the Founding Fathers considered this right one of those rights covered by the Ninth Amendment (and now protected against the states by the Fourteenth Amendment).

All of the cases cited by the Library regarding a right of personal appearance used a reasonableness test instead of a strict scrutiny, not because the right of personal appearance is not fundamental, but because the cases involved areas of greatly increased governmental concern. As stressed in Kelley v. Johnson, 425 U.S. 238, 245 (1976), regulations regarding government employees are always evaluated for reasonableness, regardless of the fundamental right (freedom of religion, freedom of speech) being exercised.¹⁰  See also United States v. Kokinda, et al., 497 U.S. 720, 725 (1990). Again, for schoolchildren, regulations are examined for reasonableness because of the greatly heightened government interest in guiding and protecting our children. There has also been a long tradition in this county of giving wide latitude to school administrators.

The Library notes that "this Circuit's authority is clear that choosing a hairstyle is not a fundamental right." Brief of Appellees, pg. 21, fn. 5. Not quite. The two cases cited, Jackson v. Dorrier, 424 F.2d 213 (6th Cir. 1970) and Gfell v. Rickelman, 441 F.2d 444 (6th Cir. 1971) both predate and are superseded by Kelley, which assumed (but did not need to decide) the existence of the right of personal appearance. Even more importantly, Jackson and Gfell were not really about whether boys could wear long hair. One need only look around at the schools today to see that, when it comes to hair length on boys, while Messrs. Dorrier and Rickelman won their court battles they lost the war. The right of personal appearance was vindicated by the people. Jackson and Gfell were instead about the authority of school officials to run their schools. That authority is great,¹¹  that authority permeates the language of the decisions, and that authority is what these two cases confirmed. As the Supreme Court ended by saying in Kelley:

Certainly its language cannot be taken to suggest that the claim of a member of a uniformed civilian service based on the "liberty" interest protected by the Fourteenth Amendment must necessarily be treated for constitutional purposes the same as a similar claim by a member of the general public. ^Q>

425 U.S., at 249. Certainly the instant claim must not be treated for constitutional purposes the same as a similar claim by a schoolboy under the authority of school administrators.

Even if the right of personal appearance is not a fundamental right, but a protected liberty interest, the Library still comes up short. As their cited cases show, for such a strongly protected liberty interest, the courts used a reasonableness test balancing¹²  the stated liberty against the governmental interest. See Gfell, 441 F.2d at 446, quoting with approval Griffin v. Tatum, 425 F.2d 201, 203 (5th Cir. 1970) ("[R]egulations which deal generally with dress and the like are a part of the disciplinary process which is necessary in maintaining a balance as between the rights of individual students and the rights of the whole in the functioning of schools" ^Q>). The Library has nothing on their side of the balance: they vaguely refer to blood and semen, but produce no incident report that shows a causal connection to a barefoot injury; they instead speculate about magical communicable diseases.

The Library, in Brief of Appellant, pg.22, quotes from the Oral Argument Transcript:

The library's regulation doesn't prohibit anyone from going barefoot. Indeed, when you leave the library and go onto the sidewalk from the library, you can take your shoes off and walk around the city barefoot as much as you want.

(TX; Oral Arg. Transcript, pg. 11; Jt. Apx. ref. 64.) If rank speculation by a government entity untrained in health issues provides sufficient justification for requiring shoes on its citizens, then there is nothing to prevent the Columbus Department of Public Services from instituting a similar shoe policy on the streets and sidewalks of Columbus, or the Department of Recreation and Parks from instituting a similar shoe policy in its parks. Then people really would be prohibited from walking barefoot. The Library is positing that the interior of their building is a more hazardous place for walking barefooted than the streets of the city; this is sheer lunacy.

The shoe policy truly is irrational. It does not apply where broken glass (albeit safety glass) was found (its parking lots), but does apply where no hazard was found at all: their corridors. It prevents a barefooted patron from feeling a wet floor and preventing injury, but allows high heels and slippery-soled shoes on those same wet floors (for which there are injury reports) (R. 14; Def. Reply and Memo. Contra, Appendix, pg. 202; Jt. Apx. ref. 65). It applies to a person sitting in a chair reading a book, for which even the Library has claimed no hazard. The very floor that they claim is too hazardous to walk barefooted upon is regularly played upon by children, without a corresponding policy to protect them. (R. 14; Def. Reply and Memo. Contra, Appendix, Exhibit 1, pg. 93-95; Jt. Apx. ref. 66.) (See also the discussion of this point in R. 13; Pla. Motion and Memo. Contra, pg. 13, fn. 8.) This irrationality is not surprising considering that the shoe policy merely reflection of those few businesses' shoe policies that used trumped-up Health Department excuses to exclude those individuals that the businesses considered undesirables. Businesses are free to discriminate as they wish (rationally or not) as long as they do not violate public accommodations laws. The Library, as an arm of the Government, cannot be so cavalier.

Finally, the Library quoted Barket, Levy & Fine v. St. Louis Thermal Energy Corp., 21 F.3d 237, 240 (8th Cir. 1994) ("Under rational basis review, [a court] accepts at face value contemporaneous declarations of the [governmental] purposes, or in the absence thereof, rationales constructed after the fact, . . ." ^Q>). In the instant case, we do have contemporaneous declarations of the purpose that contradict the rationales constructed after the fact: to prohibit inappropriate dress (from the Eviction Procedure itself, and from Mr. Black's letter to the County Prosecutor). The Court should accept this at face value as the governmental interest at issue. However, there is no governmental interest in "appropriate dress", absent indecency, and certainly not in the casual dress environment of a library when no disturbance results. The Library's shoe policy is invalid even under the rational basis test.

4. Neinast's Due Process Claim Is Valid

The Library continues to misstate Neinast's due process claim. Neinast has no quarrel with the generalized rulemaking process of the Board of Trustees. Neinast does not claim that the delegation of authority to Mr. Black regarding internal policies and procedure was improper. Neinast does not disagree with the Board's interpretation of Ohio Revised Code § 3375.40.

The Board of Trustees properly promulgated their Patron Regulations (R. 14; Def. Reply and Memo. Contra, Appendix, Exhibit 1, pg. 82; Jt. Apx. ref. 67); however, these contain no prohibition on barefooted patrons. The Board of Trustees properly delegated to Mr. Black the authority to "determin[e] internal policies and procedures . . .". However, when Mr. Black created the shoe policy he was not creating an internal policy or procedure. An internal policy, by definition, does not apply to patrons. Furthermore, a policy or procedure directs employees how to act. A restriction on patrons is a rule or regulation. Mr. Black was not granted the authority to create and enforce an external regulation. All of his actions in that regard were ultra vires. The shoe policy is without foundation.

This is how Spruytte v. Walters, 753 F.2d 498 (6th Cir. 1985) applies; through the enforcement of an invalid rule. The State of Ohio and the Library have created an entitlement to use the Columbus Metropolitan Library, and this has been withdrawn by enforcing an invalid rule that was created ultra vires.

a. The Claim of "Staff Harassment" Is Not Supported by the Evidence in the Record and Was an Attempt to Intimidate Neinast

The Library, in Brief of Appellees, pg. 30, raises for the first time the issue that the Eviction Notice contains an entry of "Staff Harassment," and that this justified the one-day eviction. This raises an issue of material fact that precludes summary judgment in the Library's favor, since Neinast claims that the eviction was unjustified based on the shoe policy but the Library now claims that it was justified based on "staff harassment."

However, this controversy is easily settled in Neinast's favor, which continues to preclude summary judgment in the Library's favor, and supports summary judgment in Neinast's favor. No reasonable factfinder could decide otherwise.

Under the Eviction Procedure, "Harassment of Staff" is an Infraction Type 17:

"Harassment of staff or customers to include but not be limited to: using threatening language, stalking behavior, such as following persons on the premises without their permission; staring or watching persons to the point that is unreasonable or the party claims such behavior makes them uncomfortable; and those behaviors described in the Harassment Policy #17.31329. ¹³ 

(R. 14; Def. Reply and Memo. Contra, Appendix, Exhibit 1, pg. 95; Jt. Apx. ref. 68). According to the Eviction Procedure, if Neinast had truly harassed the staff, his punishment for a first offense should have been a six-month eviction. That no six-month eviction occurred strongly suggests that no harassment happened. However, Neinast's contemporaneous letter of March 5, 2001 to Mr. Black after the incident also makes clear that Neinast did not harass the staff. ("I, at all times, was cool, never raised my voice, and I followed all instructions of the guards, even while they argued with each other over what to do with me. I also note that my bare feet disturbed the library not one bit, as evidenced by the fact that I used the library facilities for over an hour before being noticed." . . . "[Ms. Taylor] did an excellent job of defusing a situation with rude and out-of-control guards." . . . "Ms. Taylor can vouch that at no time did I harass any of the staff, by any reasonable definition of the word `harass.'") (R. 13; Pla. Motion and Memo. Contra, Exhibit 1, Attachment J; Jt. Apx. ref. 69.) While this raises an issue of material fact as to whether harassment occurred (whether to believe Neinast's letter or the Eviction Notice), the March 2, 2001 memo from Chris Taylor to Larry Black makes clear what the "harassment" consisted of: "Mr Johnson told Mr Neinast that he was harassing the staff by continuing to come in without his shoes on." (R. 13; Pla. Motion and Memo. Contra, Exhibit 6, Attachment A, pg. 1; Jt. Apx. ref. 70.) In other words, even though the Eviction Procedure clearly had a prescribed action for a third violation of a Type 01 Infraction (patron warned, and asked to fix the problem), the Library decided to intimidate Neinast by claiming "Staff Harassment", a Type 17 Infraction with major penalties. The unwarranted claim of harassment is just another example of the Library's tactics of intimidation (along with escalating penalties contrary to the Eviction Procedure) of those who do not dress according to the Library's sense of propriety, and provides one of the bases for the damages requested in the Complaint. It also shows how the Library's actions chill the reception of speech by Neinast, since he has no way of knowing just what arbitrary action the Library might take next time he visits. The actions of the Library would certainly deter a person of ordinary firmness from exercising his First Amendment rights.

b. The Eviction Which Deprived Neinast of His Right to Receive Speech in the Library Was Not De Minimis

The Library also claims that their deprivation, without following the prescribed Eviction Procedure, of Neinast's access to the Library's First Amendment materials for a whole day was de minimis, likening it to a temporary suspension of government employment. However, this action deprived Neinast, not of a property interest, but of his right to receive the speech provided by the Library. "A violation of constitutional rights is never de minimis." ^Q> Lewis v. Woods, 848 F.2d 649, 651 (5th Cir. 1988). "The de minimis doctrine is not intended for definite losses, however small, inflicted by definite wrongs." ^Q> Hessel v. O'Hearn, 977 F.2d 299, 304 (7th Cir. 1992).

c. The District Court Had Supplemental Jurisdiction and Failed to Consider (or Remand) the State Law Claims

Even if the Library is correct that Neinast's claim is a state law claim, the District Court, under 28 U.S.C. § 1441(b) and 28 U.S.C. § 1367, had supplemental jurisdiction to consider the state law claim that Mr. Black had no authority to create the shoe policy. Ohio is a notice pleading state, and sufficient notice was provided in the pleadings. The Library was the party that removed this case to Federal Court. They are now trying to avoid the state law claim by having done so. Regardless of whether the validity of the shoe policy is part of Neinast's due process claim, the District Court still had supplemental jurisdiction to declare the shoe policy contrary to state law. See, e.g., City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997).

The District Court erred by neither deciding the state law claim nor remanding it back to state court under 28 U.S.C. § 1367.

The Library has satisfied none of its burden to show the validity of its shoe policy. In addition, Neinast has shown that the policy is related to no governmental interest. Therefore, Plaintiff-Appellant Neinast again urges this Court to reverse the District Court's grant of Summary Judgment to the Library, to order Summary Judgment of Declaratory Judgment and Injunctive Relief for Neinast on all three of his Causes of Action, and to remand the case to the District Court for determination of damages. If this Court does not order Summary Judgment for Neinast, he instead prays that the case be remanded to the District Court so it may proceed to trial.

I certify that this brief uses New Times Roman proportionately spaced type in Font Size 14, and contains 6,407 words. The words were counted using the UNIX wc program.

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 19th day of June, 2002.

Footnotes: