Dr. King arrested in St. Augustine, June 11, 1964
City tried to claim it did not want artists painting or selling art near Foot Soldiers monument!
"Let justice be done, though the heavens fall." -- Ancient equitable maxim.
A decision is expected "just as quickly as I can" write it, said United States District Court Judge Brian J. Davis on a motion for preliminary injunction protecting visual artists from further arrests, persecution, intimidation, harassment and chilling effects by the City of St. Augustine.
The City of St. Augustine's anti-artist, anti-performer chauvinism has persisted for some 32 years, rivaling the Nuremberg laws and Apartheid Code and Jim Crow laws in their dogged damnable hatred. It is pathological and has resulted in hundreds of arrests of tourism workers, chasing many good artists and musicians out of town at the behest of commercial landlords and other controlling Philistines.
The case was filed by four visual artists under 42 U.S.C. 1983 (part of the Ku Klux Klan Act of 1871, which allows citizens to go to federal court to remedy civil rights violations under color of state, county or city laws and customs. The hearing today was oral argument on a motion for preliminary injunction under the Federal Rules of Civil Procedure, based upon affidavits and written legal arguments. Under Rule 65, the four plaintiffs must show irreparable harm and a high probability of prevailing upon the merits.
MARKS GRAY(slogan: "LAWYERS FOR ENTERPRISE") insurance defense lawyer Edward Louis Birk's attempted defense of the City of St. Augustine's "unified regulatory scheme" aimed at preventing art and art sales in our Nation's Oldest City came in for skeptical questions from United States District Judge Brian J. Davis in United States District Court Friday morning, August 21, 2015. City Attorney Isabelle Lopez was present; at first she wanted to sit in the audience, but Mr. Birk welcomed her to sit at counsel table in courtroom 12C in the Bryan Simpson U.S. Courthouse in Jacksonville. Ms. Lopez said nary a word, except to correct Mr. Birk's erroneous statement that Government House was a federal facility, with Mr. Birk correcting himself to say, "excuse me, state-owned."
Mr. Birk is yet the latest in a long line of outside counsel hired by the City of St. Augustine for 32 years, the latest designated javelin-catcher, defending the indefensible. We empathize with him: in the words of legendary East Tennessee defense lawyer Zane Daniel (1939-2006), our City "done brought him a worthless case."
Arguing that there were "alternative venues," Mr. Birk pointed to the Castillo de San Marco. When plaintiffs' attorney Brian DiMaggio of the Sheppard White Kachergus and DiMaggio law firm in Jacksonville pointed out it was federal property, Birk objected, saying it was not in the record. Mr. DiMaggio asked the court to take judicial notice of the fact that the Castillo is federal property not covered by the City ordinance.
There was lively questioning by Judge Davis, appointed by President Obama. A veteran state trial court judge, Judge Davis waited for 660 days for Senate confirmation based on a frivolous hold by Senator Charles Grassley (R-Iowa), who did not like the "lens" viewed the world (e.g., defense of Jocelyn Elders and criticism of Justice Clarence Thomas as an NAACP activist; Grassley is a racist homophobe who now chairs the Senate Judiciary Committee, a non-lawyer slightly to the right of Rush Limbaugh).
Judge Davis is the fourth federal judge in some fifteen years to hear First Amendment challenges to City of St. Augustine lawbreaking; his colleagues ruled against the City in every prior case (one was reversed by the Eleventh Circuit on the St. George Street ordinance).
In 2000, a judge and jury ruled for Warren Celli and his Saint Aug Dog newspaper.
In 2005, then-Chief Judge Henry Lee Adams, Jr. ruled for Gay and Lesbian St. Augustine residents in the rainbow flags case.
In 2009, Judge Marcia Morales Howard ruled for the artists against the City's anti-artist Nuremberg laws; emboldened, the City proceeded to adopt ordinance after ordinance during the ancien regime of JOSEPH LESTER BOLES, JR., at the behest of BOLES' business partner in a no-bid City lease at below market rates for 81 St. George Street (Florida Cracker Cafe).
Attempting to enlist her colleagues in reforms, responding to attorney Thomas Cushman, artists and supporters, our reform Mayor Nancy Shaver has said "our streets are not lively." But no Commissioner wanted to schedule a workshop to discuss reforms, resulting in four visual artists suing the City in federal court, again. Three of the four sued in 2009, and won a preliminary injunction and out-of-court settlement.
The August 21, 2015 argument was aimed at eleven features of City ordinances that combine to make it almost impossible for visual artists to create and sell art in the City, especially in the historic areas. Two maps assembled by plaintiffs Bruce Kevin Bates, et al. dramatically show areas where creating art and selling art are forbidden.
At one point, Mr. Birk tried to argue that the Plaza de la Constitucion was a "beautiful historical area" but argued that the public somehow needed "protection" from "dangerous" conditions and marring the "aesthetics," e.g., people painting historical monuments and structures, and from easels, paint brushes and crime. He justified the 6 PM curfew based on cash receipts, unadorned by any robberies or facts of any kind.
Judge Davis patiently, repeatedly chided counsel that his arguments were not in evidence. Mr. Birk offered a large blowup map more suited for a jury trial than an oral argument, pointing to an easel some 40 feet from Judge Davis who remarked he had one in the court file and could not see that far away. Thereupon, Mr. Birk handed Judge Davis the large blowup map, with the judge examining it at the bench.
Mr. Birk claimed that the four standards for a preliminary injunction were not met.
Mr.Birk objected that First Amendment violations are not necessarily an instance of irreparable harm, but Mr. DiMaggio rebutted that the Supreme Court said that was always the case. Elrod v. Burns.
Judge Davis was disappointed that neither side presented statistics on tourist numbers, but Mr. DiMaggio noted that the photos from the City showed there was enough room on the no-art streets and areas for an artist with an easel.
Mr. DiMaggio responded that the City is not halting nighttime ghost tours, and that the burden on artists of current ordinances is insuperable, including standardless delegations to determine permit applicants' "good moral character," street and Plaza art bans, criminal penalties and permit fees.
Rev. Dr. Martin Luther King, Jr. called St. Augustine "the most lawless city in America." In some ways, it still is -- the BOLES/WEEKS/ City of St. Augustine "unified regulatory scheme" aimed at preventing art and art sales in our Nation's Oldest City violates the First Amendment.
Ironically, artists could be arrested for painting the Foot Soldiers monument and Andrew Young monuments, which Mr. Birk, the City's lawyer called sacred; Mr. DiMaggio, the artists' lawyers said the First Amendment was even more sacred.
PREDICTION: Judge Davis is likely to issue an order soon, once again vindicating First Amendment rights in our City of St. Augustine. Three cheers for our Article III federal courts, the First Amendment, and civil rights laws.
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