VIRGINIA:

IN THE CRIMINAL DIVISION OF THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX

COMMONWEALTH OF VIRGINIA, █████████████████v. Record No. MI-2012-███████ (Pro. Se., IFP) and GT1202████-██ Unable to timely receive mail at:████████████████████, Bx ██████████ ███████ VA █████ Appellant. (No phone minutes) ██████████@yahoo.com

FROM THE TRAFFIC DIVISION OF THE GENERAL DISTRICT COURT FOR THE COUNTY OF FAIRFAX

AMENDED MOTION TO STIKE DOWN

Table of Citations

Cases

Berger v. City of Seattle, 512 F.3d 582; 569 F.3d

1029, U.S. 9th Cir., En banc different results

(2008)

Board of Supervisors of James City County v. Rowe,

216 Va. 128, 216 S.E.2d 199 (1975)

1

Cantwell et al. v. State of Connecticut, 296 U.S.

296 (1940)

Chicago v. Morales, 527 U.S. 41 (1999)

City of Des Moines v. Hall, 24 Iowa 234 (1868)

City of Clinton v. Cedar Rapids and Missouri River

Railroad Co., 24 Iowa 455 (1868)

City of Shreveport v. Teague, 200 La. 679, 8 So. 2d

640 (1942)

Cofield v. Nuckles, 239 Va. 186 (1990) (Nuckles was

the pedestrian)

Comite de Jornaleros v. Redondo Beach, 657 F.3d 936

(2011)

Commonwealth vs. Akmakjian, 316 Mass. 97, 55 N.E.

2d 6 (1944)

2

Commonwealth v. Anderson, 308 Mass. 370, 32 N.E. 2d

684 (1941)

County Bd. v. Brown, 229 Va. 341, 329 S.E.2d 468

(1985)

Di Domenico v. Village of Romeoville, 171 Ill. App.

3d 293, 525 N.E.2d 242 (1988)

Eberth v. County of Prince William, 49 Va.App. 105,

637 S.E.2d 338 (2006)

Hunter v. Pittsburgh, 207 U.S. 161 (1907)

Loper v. New York City Police Department, 999 F.2d

699, U.S. 2nd Cir. (1993)

Marini v. Wynn, 128 Conn. 53 (at 56); 20 A.2d 400

(1941)

3

Marshall v. Shaw, 196 Va. 678; 85 S.E.2d 223 (1955)

New York v. Kieran, 26 N.Y.S. 2d 291 (1940)

People v. Barber, 289 N.Y. 378, 46 N.E.2d 329

(1943)

People v. Rice, 50 N.E.2d 711, 713, 383 Ill. 584

Richardson v. Grezeszak, 358 Mich. 206; 99 N.W.2d

648 (1959)

Sanders v. Newsome, 179 Va. 582, 19 S.E.2d 883

(1942) (Newsome was the pedestrian)

State ex rel. Semansky v. Stark, 196 La. 307, 199

So. 129 (1940)

State v. Meredith, 197 S.C. 351, 15 S.E.2d 678

(1941)

4

Tabler v. Fairfax County, 221 Va. 200, 269 S.E.2d

358 (1980)

Tedla v. Ellman, 280 N.Y. 124, 19 N.E.2d 987 (1939)

Torres v. Chicago, 218 Ill. App. 3d 89; 578 N.E.2d

158 (1991)

U.S. v. Lecato et al., 29 F.2d 694 (1928)

Virginia Farm Bureau Mut. Ins. Co. v. Simpkins, 217

Va. 611, 231 S.E.2d 226 (1977)

Watchtower et al. v. Village of Stratton et al.,

536 U.S. 150 (2002)

Web v. Hind, 143 Neb. 479, 10 N.W. 2d 258 (1943)

Constitutions

U.S. Const. Amends. I, V, VI and XIV Passim

5

Va. Const. art. 1, §§ 8, 11 and 12 Passim

Statutes (Page numbers of attached papers omitted)

15.2-1102

15.2-1200

46.2-100

46.2-926

46.2-928

46.2-931

46.2-1300

82-9-5, Fairfax County Code

Regulations

9 VAC 5-120-10 to 340

Authorities

WestlawNext, Context & Analysis, Editor’s Note for

9 VAC 5-120-10 to 340

Definitions

6

For the purpose of the following questions and

henceforth in this entire matter the following

terms respectively mean:

“assembly” refers to assemble.

“assemble” is the state and federal constitutional

rights of freedom to assemble in Va. Const. art. 1,

§ 12 and U.S. Const. Amend. I.

“due process” is the state and federal

constitutional rights to due process in Va. Const.

art. 1, §§ 8 and 11 and U.S. Const. Amends. XIV and

V.

“FCC” refers to Fairfax County Code.

“gleaners” refers to both panhandlers and to the

persons whose activities are protected under common

7

law and described in Le 19:9,10; 23:22; De 24:19-

21, gleaning; Lu 16:20, King Lazarus; and Jas 2:13 .

“North line” refers to a clearly distinctive,

(thin) painted, yellow, boundary line that begins

at a point within (at least) a few feet of

Stringfellow Rd and extends to within (at least) a

few feet of Great Heron Dr and runs parallel with

and North of the North curb of the raised portion

of the land that is in the middle of Fair Lakes Bd.

The North line is implied by law to continue the

entire length of the curb, from the Stringfellow Rd

intersection to the Great Heron Dr intersection.

“notice” is the state and federal constitutional

rights to be informed of the (“cause and nature”)

nature and cause of […]accusation in Va. Const.

art. 1, § 8 and U.S. Const. Amend. VI.

8

“Officer █████████” is Fairfax County Police

Officer █.█. █████████ (#███) and is the false

summonser herein.

“safety zone” is defined in Va. Code §46.2-100.

“speech” is the state and federal constitutional

rights to freedom of speech in Va. Const. art. 1, §

12 and U.S. Const. Amend. I.

“speedy trial” is the state and federal

constitutional rights to speedy trial in Va. Const.

art. 1, § 8 and U.S. Const. Amend. VI.

“summonser” is Officer █████████.

Statement of Case

Summons# ███████████ was issued on ████████,

2012 falsely alleging the charge the only charge in

this matter, which is Fairfax County Code §82-9-5

9

(“Pedestrians not to use highways except when

necessary; keeping to left; soliciting rides”).1

Facts

FCC §82-9-5 is virtually identical to the law

that was struck down in Comite de Jornaleros.

1. Va. Code §46.2-100 defines the term

“Safety Zone”. In Marshall, the Supreme Court of

Virginia held that a pedestrian in a Code §46.2-100

“Safety Zone” is not in violation of a pedestrian

law. The General Assembly made the safety zone law

specifically for pedestrian safety. Safety Zones

are especially necessary for slow crossers. But on

Fair Lakes Bd that is between Stringfellow Rd and

Great Heron Dr does not have sidewalks on each side

1 A better name for this law would be

“Pedestrian soliciting on a highway” because it

would then fit in the “GENERAL DISTRICT COURT

ONLINE CASE INFORMATION SYSTEM”.

10

of the road. Instead, the builder paved a concrete

“sidewalk” in the middle of the road.

2. At the moment that the false summonser

arrived on the scene in a cruiser, the defendant

was on the diagonal cross hatch portion of the

safety zone, with both of his feet (and shoes)

entirely in between the North line and the South

line that delineate the safety zone on Fair Lakes

Bd. The false summonser directed the defendant to

walk to the sidewalk on Stringfellow Rd, to the

South of Fair Lakes Bd. The defendant objected and

said that he would walk on the safety zone the

short distance to the crosswalk. The U.S. Supreme

Court struck down a soliciting law in Watchtower v.

Village of Stratton in 2005. The defendant is a

member of the Watchtower religion (AKA Jehovah’s

Witnesses) and has been teaching passers-by about

the Bible on the Safety Zone on Fair Lakes Bd since

October of 2009.

3. On Monday, ██████████, 201█, Officer █████

11

told the defendant that if he saw the defendant

panhandling again he would cite him for soliciting

without a license because that was a “service” and

that if he saw him panhandling after having been

cited he would arrest the defendant for soliciting

without a license. Deputy █████ said, “The County

pays me to get rid of people like you.” The

defendant filed a “COMPLAINT OF FINANCIAL

DISCRIMINATION ████ ████████████████████ FAIRFAX

COUNTY”. Fairfax County Police Officers

subsequently, falsely cited the defendant for FCC

§82-9-1 (“Pedestrians crossing highways or

streets”) and FCC §82-9-5, █ separate times for

soliciting. During the entire alleged time span,

the defendant was ████████████████████████████

███████████████████████████████████████████████

█████████████████████████████████████████████████

███████████████████

Allegations

12

The defendant alleges as follows:

4. The defendant did not violate Fairfax

County Code §82-9-5.

No Enabling Statute

5. This civil rights action challenges a

Fairfax County municipal code provision as a

violation of the Eighth and Eleventh sections of

Article One of the Virginia Constitution and the

First and Fourteenth Amendments of the United

States Constitution. This Court has jurisdiction

over this action and venue is proper in this

District because the events giving rise to the

claims occurred in this District. FCC §82-9-5 was

enacted in 1961.

6. The word “extreme” in FCC §82-9-5 is

vague. It means that a pedestrian has to drag his

foot on the curb as he walks. The word “left” in

FCC §82-9-5 is vague. There’s insufficient point of

13

reference from which direction. In “Virginia

Practice Series, Volume 4, Jury Instructions, 2011-

2012 Edition, Issued in October 2011”, Professors

Bacigal and Tate in §32:13 on page 280 speak of the

left as though it was the right, the opposite

conclusion of Tedla. An average person cannot

comprehend Fairfax County Code §82-9-5.

7. The Dillon Rule is named after Chief

Justice John Forest Dillon of the Iowa Supreme

Court. (The Dillon Rule appears in City of Des

Moines and City of Clinton.) The U.S. Supreme Court

adopted The Dillon Rule in Hunter and, in Eberth,

the Court of Appeals of Virginia held that in

determining the legislative powers of the local

governing bodies, Virginia follows the “Dillon

Rule” of strict construction, which provides that

municipal corporations possess and can exercise

only those powers expressly granted by the General

Assembly, those necessarily or fairly implied

therefrom, and those that are essential and

14

indispensable. Neither Va. Code §15.2-1200 nor Va.

Code §46.2-1300 enable the Board to enact Fairfax

County Code §82-9-5. There is no enabling statue

for the Board to regulate pedestrians. Soliciting

means strictly sales. Va. Code §46.2-931(2) fails

to enable. Board of Supervisors of James City

County is a strike down because of no enabling

statute. WestlawNext, Context & Analysis, Editor’s

Note for 9 VAC 5-120-10 to 340 says, “The Circuit

Court for the City of Richmond determined that this

chapter was not in compliance with the enabling

statute and set it aside, and ordered the State Air

Pollution Control Board to readopt the regulation

in a version that complied with the Code of

Virginia. The readopted regulation is set forth at

9 VAC 5-121-10 et seq.”

Unlawfully Misnamed Ordinance

8. 14A W&P p. 615 has the headnote for People

15

v. Rice as: “Solicit” is defined as to make

petition to; to entreat; importune; to endeavor to

obtain by asking or pleading; to insist upon; to

plead for to tempt a person; to lure on, especially

into evil.

9. People v. Rice also holds that soliciting

means prostitution. Words and Phrases lists many

cases that give similar definitions.

10. Lecato says, “The government argues that

the defect is like misnaming the statute under

which the crime is laid (U.S. v. Nixon, 235 U.S.

231, 235, 35 S.Ct. 49, 59 L.Ed. 207), but the

trouble goes deeper, because the indictment lays no

crime at all, unless it would have been good

without any allegation whatever as to

registration.” In the case at bar, “the trouble

[also] goes deeper”.

11. Pursuant to Va. Code §16.1-69.27

(“Additional powers of judges”), as a check and

16

balance against Boards of Supervisors, the General

Assembly has specifically granted authority that

District Courts “A judge of a district court [...]

may issue all appropriate orders[.]” The defendant

asserts under every conceivable law, that this

Court has the authority to strike down any Fairfax

County ordinance.

Standard

12. The statutes from case laws (supra) are

generally available in the opinions for comparison

with FCC §82-9-5. Watchtower v. Villiage of

Stratton is the present jurisdiction. The next 3

most important cases are Comite de Jornaleros,

Berger, and Loper. The “Memorandum of Law” in the

matter at bar is included herein by reference.

Semansky, Teague, Meredith, Barber and Akmakjian

are Watchtwer soliciting wins. The defendant was

gleaning and “witnessing” to the doctrines of

Watchtower. The U.S. Supreme Court’s opinions in

17

both Cantwell and in Watchtower v. Village of

Stratton, therefore, apply. In Web, Kieran and

Anderson, the Courts held that Jehovah's Witnesses

have the right to advertise public meetings with

placards on automobiles or by carrying placards on

the sidewalks.

13. The defendant seeks to defend his rights

and to address the difficulties that he faces in

seeking lawful employment. The defendant regularly

gleans in Fairfax County and desires to make his

availability for work known through means

prohibited by the municipal code provision

challenged in this action. But for the code

provisions, the defendant would engage in

expressive activity indicating that he is gleaning

on a safety zone and when lawful to otherwise do so

under Cofield and Sanders (at stopped traffic or at

a red light) on a highway and on sidewalks and on

other public areas of Fairfax County. The defendant

works for repeal or invalidation of laws that

18

restrict the right of laborers to solicit lawful

employment. The defendant is stuck in a ghetto.

14. Plaintiff, Fairfax County is an

incorporated municipality located in the State of

Virginia. Fairfax County adopts municipal

ordinances through a ten-member county council (one

of which is the Chairman) and enforces these

ordinances through the Fairfax County Police

Department. The County of Fairfax has instructed

the Fairfax County Police Department to enforce the

unrepealed Fairfax municipal code provision

challenged here.

15. Fairfax County Code §82-9-5 makes it

unlawful for any person, while standing in any

portion of a street or highway, including a

roadway, parkway, median, alley, sidewalk or public

way, to solicit employment, business, or

contributions from the occupants of a vehicle.

Fairfax County Code §82-9-5 also makes it unlawful

to ask an occupant of a motor vehicle, even if

19

parked or standing, to hire or attempt to hire for

employment any person or persons.

16. Many persons, including the defendant have

previously obtained and desire to continue to

obtain lawful employment performing service such as

gardening, moving, and light construction, by

expressing their availability for employment, while

standing on a public sidewalk or other public way

to persons in vehicles on the street.

17. Day laborers, including the defendant,

fear expressing their availability for employment

in the manner they have used in the past because

FCC §82-9-5 subjects them to the danger of arrest,

fines, and other penalties should they engage in

such expression. Theses day laborers are also

harmed by the provision in FCC §82-9-5 that

prohibits their prospective employers from

receiving their communication and communicating to

them in response.

20

18. FCC §82-9-5 prohibits and regulates speech

and other expressive activity in areas, such as

public sidewalks and other public areas, that are

traditional public for a.

19. FCC §82-9-5 discriminates among speech and

other expressive activity on the basis of content,

prohibiting, and prescribing criminal penalties

for, speech of particular content while speech of

different content, even if expressed in the same

time, place and manner is not proscribed or

regulated.

20. FCC §82-9-5 also regulates lawful, non-

misleading commercial speech.

21. The County of Fairfax lacks either

compelling or substantial legitimate government

interest in regulating speech and expression in the

manner accomplished by FCC §82-9-5.

22. FCC §82-9-5 is not sufficiently narrowly

tailored to serve any governmental interest that

the County designed them to have.

21

23. FCC §82-9-5 also fails to leave ample

alternative avenues of communication open for

proscribed speech of the specified content –

solicitation of employment, business, or

contributions.

FIRST CLAIM

24. By leaving in place, enforcing, and/or

threatening to enforce FCC §82-9-5, plaintiff

County of Fairfax deprives defendants and others of

rights guaranteed by the Eighth, Eleventh and

Twelfth sections of Article One of the Virginia

Constitution and the First, Fifth, Sixth and

Fourteenth Amendments of the United States

Constitution. Plaintiff commits these

unconstitutional acts under color or authority of

law.

25. Continued enforcement or threats of

enforcement of FCC §82-9-5 violate defendant’s

rights and the rights of others that are protected

by the Eighth and Eleventh sections of Article One

22

of the Virginia Constitution and the First and

Fourteenth Amendments of the United States

Constitution. This provision therefore should be

enjoined and its previous enforcement nullified.

SECOND CLAIM

(Declaratory Relief)

26. Defendant re-alleges paragraphs 1-16 of

this Complaint as though fully set forth here.

27. An actual controversy exists between

plaintiffs and defendant regarding the

constitutionality and legal enforceability of FCC

§82-9-5.

28. Plaintiffs are entitled to a declaration

of their rights with regard to FCC §82-9-5.

29. The Board of Supervisors and the police

are violating people's constitutional rights on a

daily basis. It is the intended design of

government that the Court is able to use its power

as a check and balance against the Board to protect

23

so many innocent people who are being forced to

live in tents in the woods for having done nothing

wrong. (The injury is to name, the loss of the

defendant’s normal earning capacity, loss of

quality of life and loss of health.) For half of a

century under FCC §82-9-5, the people of the County

of Fairfax have been denied their Constitutional

rights.

The false summonser violated:

(Count One) Ro 14:4(,10) “Who are you to judge the

house servant of another? [...]”

(Count Two) 2Ki 1:11 “So he sent again to him

another chief of fifty with his fifty. In turn he

answered and spoke to him: ‘Man of the [true] God,

this is what the king has said, “Do come down

quickly.”’”

24

(Count Three) Re 12:10 “And I heard a loud voice in

heaven say:

‘Now have come to pass the salvation and the power

and the kingdom of our God and the authority of his

Christ, because the accuser of our brothers has

been hurled down, who accuses them day and night

before our God!”

(Count Four) Mt 7:1(-4) “’Stop judging that YOU may

not be judged”

The theme of the Bible is the vindication of God’s

sovereignty by means of his heavenly kingdom. So,

please, also see:

Jer 10:23 “I well know, O Jehovah, that to

earthling man his way does not belong. It does not

belong to man who is walking even to direct his

step.”

25

Pr 14:12 “There exists a way that is upright before

a man, but the ways of death are the end of it

afterward.” (Repeated verbatim at Pr 16:25)

Da 2:44 “’And in the days of those kings the God of

heaven will set up a kingdom that will never be

brought to ruin. And the kingdom itself will not be

passed on to any other people. It will crush and

put an end to all these kingdoms, and it itself

will stand to times indefinite;”

2Pe 3:12 “awaiting and keeping close in mind the

presence of the day of Jehovah, through which [the]

heavens being on fire will be dissolved and [the]

elements being intensely hot will melt!”

Eph 6:12 “because we have a wrestling, not against

blood and flesh, but against the governments,

against the authorities, against the world rulers

26

of this darkness, against the wicked spirit forces

in the heavenly places.”

Relief Sought

Because of the actions of alleged above, defendant

seeks judgment against plaintiff as follows:

a. That the plaintiff be enjoined in

perpetuity from enforcing Fairfax County Code §82-

9-5;

b. That FCC §82-9-5 be declared null and

void as unconstitutional in violation of Eighth and

Eleventh sections of Article One of the Virginia

Constitution and the First and Fourteenth

Amendments of the United States Constitution;

c. That any and all fines, penalties, or

records of infractions of FCC §82-9-5 be rescinded

or removed, (especially the General District Court

Online Case Information System which, even after de

27

novo appeal, says, publicly, on the internet “Final

Disposition: Guilty”) and restitution provided;

d. That defendant recovers from

plaintiffs recover from defendant all of

defendant’s reasonable attorney fees, costs and

expenses of this litigation; and

e. That defendant recovers such other

relief as the Court deems just and proper.

The defendant affirms that he believes that the

foregoing is true.

__________________________________ Date: █/█/12████████████████████

28