Thornton v. City of Kirkwood

Filing 30

ORIGINAL TRANSCRIPT (Pilot) proceedings of Motion for Temporary Restraining Order Hearing held on January 18, 2007 before Judge Catherine D. Perry. Court Reporter: T. Hopwood. The transcript filed with the court will not be remotely available until such time as the period for redaction has expired or a request for redaction has been received and the redacted transcript filed. For additional information see the Notice/Instructions to the Bar regarding Electronic Availability of Civil Transcripts on the Court's website at www.moed.uscourts.gov (KCM, )

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Thornton v. City of Kirkwood Doc. 30 1 1 2 3 4 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI CHARLES LEE THORNTON, 5 Plaintiff, 6 vs. 7 THE CITY OF KIRKWOOD, 8 Defendant. 9 ______________________________ 10 PRESENT: 11 ATTORNEY FOR PLAINTIFF: 12 ATTORNEY FOR DEFENDANT: 13 14 15 16 17 18 19 20 21 22 23 24 25 TERI HANOLD HOPWOOD Registered Merit Reporter Thomas F. Eagleton Courthouse 111 South Tenth Street St. Louis, Missouri 63102 Motion for Temporary Restraining Order January 18, 2007 John M. Hessel Plaintiff appears pro se The Honorable Catherine D. Perry, Presiding No. 4:07-CV-79 CDP Dockets.Justia.com 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: We're here in the case of Charles Lee This is case number Thornton versus City of Kirkwood. 4:07-CV-79. Mr. Thornton is here representing himself, and This case was just the City of Kirkwood is not represented. filed not long ago, and Mr. Thornton is seeking a Temporary Restraining Order without notice, and a preliminary and permanent injunction. So Mr. Thornton, tell me what it is you want this Court to do and why you think you're entitled to it. MR. THORNTON: Yes, Your Honor, I would like for this Court to allow me to speak at the City Council meetings. There is protocol of a three-minute time limit to speak, and it's an open mike, and you can say and address any issue that you would like during this three-minute time session. They have denied me this right to speak in the three minutes by stopping me from speaking after three seconds of speaking, and once after five seconds of speaking, not allowing me to get into the detail or any part of my speech which only lasts at the most three minutes. I was handcuffed and physically, forcefully removed from the City Council meetings, and in the paperwork that I did not bring, but they had an article in a public -- in their private meeting to try to have me banned from speaking at the City Council meetings, but they said that would be a little too harsh to ban me, ban me from coming to the meetings all together, but they said that would be a little too harsh, so 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 they attempted to just allow me to come to the meetings but not allow me to speak. THE COURT: What is it you want to say and why are Just background so they so upset about what you're saying? I'll understand. MR. THORNTON: They issued me over 150 tickets for construction equipment, and because of that, I have the evidence which because I'm doing it pro se, because it did cost the city over $500,000 for all of these issues, which I know about because -THE COURT: I just wondered what sort of general -- that tells me the general topic. MR. THORNTON: THE COURT: Yes. You're asking me to enter an injunction to tell the City Council that they have to allow you to speak for three minutes? MR. THORNTON: Correct, that's what they are already -- the protocol states that, but they are not letting me do it, and so I'm just asking this Court to allow me to do what the United States Constitution has granted me, which is allowing me to speak during the allotted time that they have allotted for everyone, not just me. I'm not even asking for minutes past the three minutes, I'm just asking for them to allow me to use my three minutes that they have given every other citizen of the United States in Kirkwood. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Okay. Well, I think you are raising a federal question, although not as well as you might if you had a lawyer, so I think there is a federal question issue here since you are alleging that your First Amendment free speech rights have been deprived, violated by the City. But, why -- explain to me why we should not require you to give notice to the City about this request, and also tell me what happened in St. Louis County. You went to St. Louis County Court already. The meeting is tonight, Your Honor, MR. THORNTON: and because I've been arrested and handcuffed, and it does a great damage to one's esteem and their status in the community when you are handcuffed and removed from a Council meeting. THE COURT: I'm asking you about notice, why we Many times -- have you called them Have you asked the city can't give them notice. and told them you're coming to court? attorney, you know -- do they have a city attorney? MR. THORNTON: Yes, they do. I've been discussing this issue with them, and asking them to stop denying my civil rights to come and speak at the meeting, and they constantly refuse by arresting me, and the meeting is tonight, Your Honor. With the time of trying to do anything as far as to get a notice and have them come to hear anything as far as not being able to speak tonight, the meeting is tonight. THE COURT: Well, we have got telephones. Don't Notice you know -- I mean, you can call them on the phone. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 doesn't -- notice for an emergency request like this can be whatever is practical under the circumstances, and your memo said you thought it would take 15 days, but I think it would take one phone call to say -- I mean, do you know who the city attorney is? MR. THORNTON: THE COURT: somewhere? MR. THORNTON: THE COURT: 500 North Broadway. Yes, John Hessel. He practices where, downtown or He's less than a mile from here. My 15 days is the part that I MR. THORNTON: believe was being heard, the decision. THE COURT: Why don't you want to just call Mr. Hessel and say, "Get down here to Federal Court, we're having a hearing, I'm asking for relief," so that both sides could be represented here today? MR. THORNTON: Your Honor, I did not have that understanding because the understanding that I believed was that it would have to take place several days, and the meeting was tonight, and that's why I filed it first in St. Louis County, and it was denied, but that was just yesterday, and so I went today to try to have it -- so I would not be blocked from speaking tonight. THE COURT: Well, yesterday did you go to a judge? Yes. MR. THORNTON: 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tell you. THE COURT: In St. Louis County? Yes, Division 38. MR. THORNTON: THE COURT: complaint an order. And the Judge, you attached to your I can't quite read it. It didn't scan very well, but I think it says we're denying it because we think you must give notice to the opposing party. what they said? MR. THORNTON: That's exactly what it says, Your Is that Honor, which in my opinion, I believe that that would cause -well, and the lady, the clerk's attorney stated that this would guarantee that it would not go through in the time needed for tomorrow, which is now today, and therefore, that would cancel my right to be able and have the freedom of speaking today because she said it would not be able to be done because of the notification and everything else, and so my intent was just to have the freedom and right to speak tonight, and they informed me that that would not happen in St. Louis County because of the notification. THE COURT: Okay. Well, here is what I'm going to Under Rule 65, it says that you have to have You specific facts shown by affidavit or verified complaint. could testify here today and we could put you under oath, but then the applicant's attorney certifies to the Court in writing the efforts, if any, which have been made to give the notice and reasons supporting the claim that that notice 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 should not be required. In other words, if a Temporary Restraining Order is going to be issued without notice, there has to be a good reason, and usually that reason is something along the lines of it's an emergency, and it's going to happen in the next ten minutes, or hour, and I don't have time to pick up the telephone and call them, or I think if I give them notice, they will destroy the evidence, or they will do something to -- I'm trying to get somebody to stop from cutting down a tree, and if I call them and give them notice and tell them to come to court in an hour, they will cut down the tree before they come to court, that kind of thing. You don't have any of those things here, so I am going to deny your request for Temporary Restraining Order without notice, but also without prejudice. You can get Mr. Hessel or somebody from the City on the phone, tell them that you have filed this, and that I've said I'm available for a hearing. I have several matters at 1:30, and the last thing I believe is at 2, so I could hear this issue at 2:30, and if you come back, what I'll do is I'll just set a hearing for 2:30 on the assumption that you wish at that time to come back and renew your request for a Temporary Restraining Order. You can call Mr. Hessel or the City and tell them that you filed this motion and these papers, and you're up here and 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I've said I will hear it at 2:30, and then they'll know, and if you want to have a lawyer come down here and respond, they have a right to do that, and I won't be doing it ex parte, but it would still happen before tonight's meeting because I think that this is the kind of thing where they ought to be heard, and you know who they are. There is no reason you can't try If they say, to notify them and tell them we have a hearing. "Well, I don't care, I'm not going to come," then we'll go forward without them here, but we have to give them some chance to appear and be represented. MR. THORNTON: Honor. THE COURT: I'm denying it right now, but it's I was misunderstanding of it, Your without prejudice, and I'm resetting a hearing at 2:30, and at that time you can ask me to undo the denial. Now if that doesn't work out and you change your mind and you don't show up at 2:30, the denial will just remain and this will be the end of the motion, okay? MR. THORNTON: THE COURT: you then. I'll be back, Your Honor. I'll see I had a feeling you might be. At that time you need to let me know what you've done to try to reach them, and so you need to -- you know, if Mr. Hessel isn't available, you need to ask can he be reached, and if he can't, then who else can speak on behalf of the City of Kirkwood, and you can call the City offices. I mean, there 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are a variety of things you can do, but we want to do that as soon as possible, and so we'll do this at 2:30, okay? MR. THORNTON: THE COURT: Thank you. Court is in recess. (A recess was taken.) THE COURT: We are again here in the case of Charles Lee Thornton, plaintiff, versus the City of Kirkwood. This is case number 4:07-CV-79. Mr. Thornton was here earlier today and he filed this suit and sought a Temporary Restraining Order without notice, and I denied it without notice, but also without prejudice, and told him he needed to attempt to contact the City of Kirkwood to see if they wished to be represented, and Mr. Hessel, you are here, so it's John Hessel for the City of Kirkwood? MR. HESSEL: THE COURT: MR. HESSEL: THE COURT: It is, Your Honor. Are you the City Attorney normally? Yes, Your Honor, since 1985. I'm glad to see you here. Mr. Thornton, go ahead and step back up here to the lectern, and although you told me earlier today, the defendant was not represented at that time, so I'll ask you again to state what you're asking for this Court to do, and why you think you're entitled to that relief. MR. THORNTON: Yes. Thank you, Your Honor. I'm asking the Court to allow me my constitutional rights of free 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 speech during the City Council meetings. a month. They are held twice During this time, the public hearing portion of the meetings, there is no time limit to speak in reference to the issue on the table. During the public comments section, there is a three-minute time limit, and there you must -THE COURT: What's the earlier section? Public hearing, and that is on a MR. THORNTON: particular issue, where you must address that issue, but there is no time limit to speak. The three-minute public comment section is totally open for any form of communication during the allotted three-minute time. The City has interrupted and arrested me during these occasions, and I'm asking the Court to grant this temporary injunction stopping the City from violating my civil rights during these times. I have issued to the City of Kirkwood, Can the City Attorney was present at the time, this document. I bring you this copy? THE COURT: If you'll hand it to the court security officer, he'll provide it to the clerk. MR. THORNTON: It's words because they did not have -- or I'm sorry, they may have had, but they did not enforce the three-minute time limit, so therefore other people ran on four minutes, 10 minutes, 15 minutes. When I started speaking and I wanted to run on, they decided to enforce the three-minute time limit, so this creates me to now be creative 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and put everything I need to say and write it down, and I can't afford to stutter or have any brain lapse because I only have three minutes. So in this presentation, I must prewrite So I ask that it, and then practice it so I can present it. if these words that I choose to use in my presentation, if they violate my civil rights in the free speech, please acknowledge them to me in writing or even say it from the Mayor or City Council or even Attorney Hessel, tell me and I will not use them in my presentation, but if you do not tell me not to use any words I have on this sheet of paper, then I will have to believe that my constitutional rights, because they are in the Bible and the dictionary, that I am allowed to use these words. I believe I'm not -- when I gave these documents and others to Attorney Hessel, who was present at City Council meetings, he immediately turned around and put them in the trash can in the City Council meeting. This did upset me, but as long as I was able to speak, I had no problems with their actions. THE COURT: Hold on. What you've given me is a one-page sheet, and it says at the top, "Webster's Dictionary definitions," and it has some words, "ass, fool, damned, idiot, jack ass, monkey, signified, hell," and there is a definition for each one of them, and then it says, "Please read over the words and their definitions. Cross a line 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 through the word or words from the Holy Bible and the Webster's Dictionary which you believe is not guaranteed by the Constitution, being the First Amendment right of free speech. Please sign your name and title so as no And then there is a note, "If misunderstanding will be had." you choose not to respond, this will be understood as my right to use freely these words in my presentations," and there is a signature, blank, where it says signature, colon, and a blank, and title, colon, and a blank, and it says Kirkwood, Missouri City Council meeting, date, blank. So you're saying you want the City to have to sign this, or I don't quite understand what you're telling me you want. MR. THORNTON: Yes, I read it and I passed it out to the Mayor, the City Council, and the City Administrator and Attorney Hessel, and I said, "If you have a problem with the words that I have used in the past, or choose to use, these are some of the words that I feel you may have an issue with, so please acknowledge these as being words that I cannot use legally in this proceeding as far as the City Council meeting, and I will not use them," but they did not respond at all to my asking this, and no one signed and got back to me. Once again, some of the documents I gave Attorney Hessel, he did turn around and put it in the trash can without even looking at them in the City Council meeting, and then the Mayor himself turned the document over, upside down, and 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pushed it away from him and refused to even read it, and these are just what they do. But I didn't have a problem with that because I was speaking at the time, but now they have to get more creative, and they did have in the newspaper article, which I didn't bring, it states that they wanted to ban me from coming to all -- well, they suggested banning me from coming to all City Council meetings, but they talked about it and decided that that was considered -- that was a little bit too harsh, so they decided to allow me to -- well, another action was allow me to come to the meetings, but allow me not to speak, and they also said that that would be inappropriate at the time and they would not lower themselves to my level. However, allowing me to come to the meetings and stand up and say any words on this paper that I asked them if there was a problem I would not use, and then stop me and arrest me for using any of the words, which I clearly asked because I wanted to follow their protocol which has changed so many times that you have to kind of read it before trying to -- I dare say, try to keep up with trying to stop me from trying to speak because each time it's a protocol change on their own paperwork after I did something already, so I can't do it again, and now the latest change that they made was that no one can speak for more than ten times on any issue that's been heard already before the City Council. Now, it just so happens that only discriminates against 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 me. I'm the only one in the State of Missouri or in the United States, for that point, that has presented myself to the City of Kirkwood with an issue that they have refused to respond to, and so I just want this body to acknowledge my constitutional rights to speak. I don't want extra time, I want three minutes that everyone else is allowed to speak. THE COURT: Okay, so you're asking that I order them to allow you to speak tonight at the meeting, is that what you're doing? MR. THORNTON: THE COURT: Yes. Well, you know, I'm still having trouble understanding what it is you want to speak about, because the City Council, it seems to me I shouldn't just enter an order saying anybody can get up and talk about anything. I mean, doesn't it have to have something to do with the business of the City? MR. THORNTON: the public hearing does. No, ma'am. Well, yes, ma'am. One, It has to directly address what is being spoke of at the public hearing section, which has no time limit of speaking, but the other one is the public comment. It has no control over what is said during the public comment time, but it does have the regulation of three minutes. The other one, like I said, that's trying to stop me from speaking all together, would be that I've spoke on it ten 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 times, so they can't say we're not going to let him speak, they are saying, "Well, he can't speak on that any more because he spoke on it ten times," which is still in effect saying I can't speak any more on the issue. The public comment section has no limitation on what you can speak of. It's totally open. THE COURT: Okay. And you believe they are not going to let you speak if you get up and try to speak, is that what you're saying? MR. THORNTON: been destroyed. My reputation of being arrested has It is very embarrassing being handcuffed and drug out of a public meeting when relatives and friends and family members are there, and also, the damage it does to the mental state of an individual is very -- is very wrong. So the fear of going in knowing that they can, because they have twice, three times before, the third one was an issue with me coughing, literally choking on a piece of candy, and I was arrested, but that's -- they chose not to -- they said they lost the ticket and chose not to proceed with it, so that was dropped, but the fear of going into a room that is under the United States Constitution, and they call you up to speak, to have a fear of you might say something that might offend them, well, some people are offended because I'm African American. I need not say a word and it can offend some people, but the United States Constitution should guarantee my right to at 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 least speak and not be interrupted and stopped and then handcuffed and removed just because they didn't like what I might have to say. Granted, three seconds or five seconds, that doesn't get into the total basis of my discussion. Now once again, some of words that I use, "jack ass," and I don't just say, "Mayor, you are a jack ass." What I said is, "The mayor is displaying jack ass-like qualities," which means that the quality that he is displaying is very stubborn and not listening what I have to say. When I'm speaking to you, if you choose to turn your back to me, and the Mayor and Attorney Hessel literally turn and looked, and the Mayor was reading, me I have to still continue my speech, realizing that you're not caring one word what I'm saying, yet I still only have three minutes to say it. But when they stop me from even the three minutes from speaking because they don't want to even hear what I have to say, that is the content-based discrimination because they won't even know what I'm going to say. One time, like I said, I was arrested after saying, "Jack ass, jack ass, jack ass." Now they don't know -THE COURT: You think it's your position that I should order them to let you speak for three minutes even if what you're going to stand up and say for three minutes is, "Jack ass, jack ass, jack ass," three minutes worth of that, it would be a violation of your constitutional rights if you 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 didn't -- I mean, I'm trying to understand what you want to say. MR. THORNTON: I do not have the speech ready for tonight, but my question is if it's only three minutes, sometimes no one is there, I'm the only speaker, so that's only three minutes, and sometimes, depending on the issue, like the smoking ban, there was a lot of people there for that, but sometimes it's not that many people there, so only three minutes. If I choose to say words that are legally protected by the United States Constitution, I think I should be able to say them, but I'm not going to waste my time in three minutes to just say, "Jack ass, jack ass, jack ass," without some explanation, and why I am saying that they are displaying these characteristics, and that's the problem. I'm saying that they are displaying these characteristics, and they don't want to hear it any more, so they are trying to create a way to stop me, knowing I'm the only individual that has spoken more than ten times on a situation, and they can say a blanket "no one can speak ten times any more," but no one even wants to speak ten times. I'm the only individual that's before the City Council that has an issue that I want to bring up. That's why without this order, they can still at any time stop me and violate what I believe is my constitutional rights of free speech, even if I choose to say, "Jack ass, 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 jack ass, jack ass," for three minutes. If it's a word that is in the dictionary and in the Bible that is legally acceptable to use, I think I should be able to use it, but I guarantee you I'm not going to waste my time to say, "Jack ass" for three minutes and then go sit down and think that I got my point across. THE COURT: Okay, have a seat now and let me hear from Mr. Hessel and see if he wishes to make any response to the request for Temporary Restraining Order. MR. HESSEL: me clarify. Thank you, Your Honor. First off, let The City of Kirkwood has never refused to allow He has always been afforded the Mr. Thornton to speak. opportunity to speak. Now, I will tell you that Mr. Thornton has appeared at almost every Council meeting, I'm estimating by this, for the last ten years, probably longer. In many instances, he has been threatening, he has been rude, he has been using abusive language. He has been wasting the Council's time. For example, Your Honor, you used the question as to whether or not you could stand up there for three minutes and say, "Jack ass, jack ass." He stood up there for three minutes and said, "Because no one listens to me and you're all a bunch of jack asses, I'm going to speak in donkey-ese," and went, "hee-haw, hee-haw, hee-haw," for three minutes, as an example. That's the kinds of comments that Mr. Thornton has 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been making at the public meetings. We have had citizens who have complained because they have real business to attend to at that Council meeting, and so the Council decided to adopt guidelines after putting up with Mr. Thornton for well over ten years. Those guidelines are such that if we have a public hearing, anyone can speak on a matter related to the public hearing. Now Mr. Thornton has identified two instances where he was stopped from speaking. The first one involved a public hearing because he got up and he made comments not related to the public hearing, which was someone asking, I can't remember if it was Bethesda Home or one of the other nursing homes in town, was asking for a rather significant expansion to their building, a five to ten-million-dollar project, and Mr. Thornton thought it was appropriate for him to stand up to question them whether or not they realized that if they were African American and if they were engaging in certain construction activities, that they might be arrested. Just as a matter of background, Your Honor, this has gone on because Mr. Thornton decided that he was going to ignore the rules with respect to his demolition company, and he was cited and convicted for well over 100 violations in the Municipal Court and in the Circuit Court of St. Louis County. Since that point -- and he was fined over $30,000, and the City has made no attempt to collect that money from him. We 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have said, "You just go on and go about your business and do it in a meaningful manner, and we'll let it go." Unfortunately, however, Mr. Thornton has never let it go, and he comes back at every Council meeting, and he accuses the Director of Public Works of being a liar, and accuses him of perjury, accuses others of complicity in that whole conspiracy, including myself, and people that work for me as the prosecuting attorney. He has picketed my office, picketed other offices of Council members, accusing them of racial bigotry, and he comes up at these meetings, and that's his theme, is that their is racial bigotry, and the Council has allowed him to carry on with those accusations. If they are in the public hearing context, then he has been asked to stop and address the issue before the City Council relating to the public hearing. On the one occasion, he refused to do that, He refused to sit down, he sat so he was asked to sit down. down, and then laid down in the middle of the Council chamber. On the second occasion, he got up to speak, and I don't remember the precise words that he was using, I believe that he was calling members of the Council an ass, but my memory isn't that good, Judge, as to precisely what it was, and some members of the City Council said, "Mr. Thornton, I wouldn't let you use that language in my home, don't use it here," and he proceeded to use it again and again, and the Mayor stopped him and said, "Mr. Thornton, if you have something to address 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to the Council that's particularly relevant, address it. Otherwise, take a seat," and he proceeded with the same litany of them being asses, at which time he was stopped, asked to take a seat, and he did precisely the same thing, sat down, and then laid down in the middle of the Council chamber, for which he was arrested and convicted for peace disturbance. That's what has taken place. I suggest to you, Judge, from the legal standpoint, he is asking you to issue a Temporary Restraining Order based upon events that occurred on May 18th and June 15th of 2006. all know, of 2007. We're now into January, as we Within that six That's six months. months, although Mr. Thornton hasn't appeared at every Council meeting, he has appeared at Council meetings, and he has spoken, and he has been entitled to speak his three minutes. He has not been stopped. I suggest to you that there is no immediate irreparable harm. There is no evidence whatsoever, even by his allegations today, that the City of Kirkwood intends to stop him as long as he complies with the guidelines and the decorum that everyone else has to comply with, and that's in his fears, he might run afoul of that, as he has in the past, but Your Honor, that's the risk that he runs, and that doesn't give rise to a Temporary Restraining Order. We are prepared, as we have been for well over ten years, to deal with Mr. Thornton on an individual 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case-by-case, or I should say council-meeting-by-council -meeting basis, and if he wants to come up and speak under citizen's comments, as everyone there is, he is limited to three minutes, and he is limited to addressing something that has some relevance within the City, and Mr. Thornton is correct. We did adopt, as part of a guideline, that if you have spoken on the same matter for ten times, unless that matter is still pending before the City Council, then you're being repetitious, and there is no reason for us to just allow people to carry on even if it's for three minutes over and over and over, so we established that rule. Candidly, he has tried to -- he has pushed the envelope on that issue. I don't know whether or not he intends to speak on the same matter, but he to the best of my recollection, he has not been stopped for violating that guideline. In any event, Your Honor, so that you understand also, we have been asked to identify the words that he can and cannot say and sign off on that piece of paper. The problem If with that, of course, is that it's all about the context. you're using particular words in the proper context, they are not necessarily vulgar, what he is saying, but it's the context in which he's saying them. As you may recall, Judge, in your prior life, Bob Hoemeke hired me, and I was with Bob Hoemeke for years. As 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you know, I am an advocate of the First Amendment on behalf of the St. Louis Post Dispatch, Belleville News Democrat, and most other media clients in town, so I understand and appreciate someone's right to speak, and as Bob Hoemeke would say if he was here, you know, "It's the harsh words that need First Amendment protection." I'm all for that. Yet, you still have to speak in the proper time, place, and manner context. So, we're here because Mr. Thornton has decided to ignore proper time, place, and manner context of his speech on at least two occasions. But again, more significantly to the issue, there is no evidence whatsoever to suggest that if Mr. Thornton wants to speak this evening that he will be precluded from speaking. I suggest to you quite to the contrary, he will be permitted to speak. Now, again, if he interrupts a public hearing as he has done in the past, he may be stopped, and if he respects the wishes of being stopped and sits down, that will be the end of it. Similarly, if he decides to address the Council under citizen's comments, he's entitled to do that, as long as it's relevant to a matter relating to the City, or something that even that the City Council can address, and I tried to point out to Mr. Thornton in the past ten years that if he thinks that the judicial system failed him and that he was wrongfully convicted, the City Council can't help him. Although he wants 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to continue to address it before the City Council, they cannot help him. He has brought lawsuits in the Circuit Court, the Court of Appeals, Missouri Supreme Court on different occasions, and each one of those, the Eastern District of Missouri, the Western District of Missouri, and I think he also tried in the Eighth Circuit Court of Appeals. We have tried to address all of his complaints through the judicial system rather than through legislative Council process, but if he still wants to come up and speak, we'll listen to him again, as long as he complies with the guidelines that have been established. THE COURT: you wish to make? MR. THORNTON: Yes, Your Honor. Attorney Hessel is Mr. Thornton, may I hear any response very generous with the time that I appeared before the City of Kirkwood. The issue of the tickets that I received that I thought I was wrongly given started in 2000 to 2001, so during that time, it was the court proceedings. I didn't start going to the City Council meetings until about 2002, when I started addressing the City, asking them to stop the one individual, the Public Works Director, from submitting these fraud documents and harassing me. So from 2002 to 2000 -- just turned 2007, it stretches it even as five years, so he's kind of doubled that. The documents I'm showing the City of Kirkwood, it 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 clearly states in their, I guess their laws, the City laws, I may not be using the right terms, but there are guidelines that if an employee is found guilty of fraud, perjury, or committing any illegal act, they will be removed from office. The documents I'm showing Attorney Hessel and everyone clearly shows that he did commit fraud. They are refusing to acknowledge it, and therefore, not having to take action because they are silent. When I even ask them a question, no one says a word, a simple question in reference to based on the protocol, because there was a section in the protocol that said that of course public comment was three minutes, and it said for public hearing, follow the said protocol as public comment. To me, that means the public hearing will be three minutes also, and I asked them about the clarification, and the Mayor, Attorney Hessel, and the City Administrator and all the City Council members refused to respond to a simple question for my understanding so I can stay within that time limit. So Attorney Hessel was also incorrect as far as me calling them, "You all jack ass, jack ass, jack ass." I don't have the time to stand up there and just call them jack asses without my presentation. a three-minute comment. I only stated that's what I said in I was stopped at three seconds. I said, "Jack ass, jack ass, jack ass," and what I wanted to say was now this is what the City Council, the Mayor, Attorney 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Hessel and everyone else want the City to believe, that's all I'm talking about, but I'm talking about, and then I went into my presentation. I did not get in to say any of that. I said, "Jack ass, jack ass, jack ass." The Mayor stopped me and said, "You're going to have to sit down," and I said, "Well, I didn't get to finish. police over, and I was arrested. They said no, called the No, Your Honor, I did not stand up and say, "Jack ass, jack ass, jack ass." Now the first time when I did give my "jack ass" presentation, when I realized that they were not listening to the evidence that I was presenting them, and I informed them that it appears that they are having a stubborn type stand, and then maybe I should talk in jack ass-ese, and so for the rest of that time, that was only maybe a minute left, because I still gave my presentation first, I did speak in jack ass, which they, I guess, understood, I don't know, but my point is if I can't speak on the words and then because there is a three-minute time limit, if I have to prepare a speech and they consider just to stop me based on the word, then that destroys the speech, time limit to even make the presentation. Now Attorney Hessel was wrong based on me not being affected in the last City Council meeting because the Mayor did stop me from the presentation that I had because he said that I had presented it before, and that they just didn't want to hear it, so he was wrong because I have been interrupted on 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 several occasions at the City Council meetings, but the reason I'm here, I should not be denied a right to speak, and I understand the contents in which Attorney Hessel is referring to, and therefore, I stay within, but for me simply to say, "Jack ass, jack ass, jack ass," and then not allow me to go any further, and then fabricate that I just started yelling, "Jack ass, jack ass," like I have nothing else to do is wrong. Now, I even went as far as before my speech, I took my time to pre-empt them to let them know I was going to say the word "nigger," and I said, "I'm going to say the word 'nigger' in my presentation," and so what I said was the word "nigger" has been used to diminish and degrade the African American while they were slaves a long time ago, and I choose not to use the word, and any time anyone treats anyone in that manner I believe is wrong. So, but even with me saying, "Jack ass, jack ass, jack ass," and then stopping me violates clearly my rights of speaking because they have no idea what I'm going to say, and Your Honor, I just -- it's the time it takes to present and have the City Council constantly create ways to stop an individual from speaking clearly on this civil rights allotment of time that they have already set aside, I just think is wrong, Your Honor, and I'm just asking the Court to give me the opportunity to speak tonight. Yes, I have a strong possibility they allow me to speak 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 tonight, even if I say "jack ass" because I've been here now, but they meet twice a month, Your Honor, so that does not guarantee until another time is done that they are going to, you know, stop arresting me for just saying words because they don't allow me the time to even speak to even explain the words. I just believe that the Constitution is supposed to uphold my right to speak, and yes, no, I've never cursed them out. They might not like what I have to say. Well, that's understandable. I don't like what they have to say sometimes, but I still want to have my opportunity to speak and be heard based on the United States Constitution. THE COURT: All right. Well, in order to receive a Temporary Restraining Order from me, you would have to show that you're likely to succeed on the merits of your case, that you are threatened with immediate and irreparable harm, that the harm to you outweighs any harm to the other side, and that the public interest favors entering the injunction. I conclude based on everything you've provided, and although this was not sworn testimony, I'm considering it as if it were evidence, that you have not shown either that you're likely to succeed on the merits or that you are threatened with irreparable harm, and I'm going to deny the request for a Temporary Restraining Order. I don't know -- I don't see any threat that you will not be allowed to speak tonight, and I don't believe that 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 there is any necessity to protect any constitutional rights for me to enter this extraordinary remedy, and that's what a Temporary Restraining Order is, it's an extraordinary remedy, and you have not made the showing necessary to get that. I'm going to deny your request for a Temporary Restraining Order. Now, I do -- you have filed your lawsuit, and you've asked for a preliminary and permanent injunction, and that lawsuit can go forward, and the case was just opened earlier today, so let me just ask you, did you pay the filing fee of $350? MR. THORNTON: THE COURT: process on the City. Yes, I did, Your Honor. So, Now what you have to do is serve Even though Mr. Hessel showed up for this emergency hearing, that's not the same thing as saying they have been served, so you have to follow the Federal Rules of Civil Procedure, if you want your case to proceed, and you're required to do that as soon as possible, so you need to proceed in the way -- there are various ways of achieving service, but you'll need to serve them. Once a lawyer has entered an appearance, and if an answer is filed, I would set the case for a scheduling order and we can schedule the rest of the case, but I will wait to do that until the case has been served on the defendant. am, though, at this time denying the motion for Temporary I 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Restraining Order, and then the case will proceed as a normal case. I will enter an order to that effect shortly. will be mailed to you. So it Please, if you're going to represent yourself in this case, and there are lawyers who take First Amendment cases, Mr. Hessel being one of them, but I'm not going recommend you try to hire him, but there are lawyers who take First Amendment cases. There are organizations that work to protect First Amendment rights, including people like the American Civil Liberties Union. I don't know if you have approached any of those advocacy type organizations or lawyers who handle this kind of case to see if someone would take your case, but you are free to do that if you want to. Obviously, you are allowed to represent yourself, and you have a right to do that, so it's fine with me if you represent yourself. want you to know that there might be lawyers who will take your case. I don't know. So that is my ruling in this case, I and court is in temporary recess. (A recess was taken.) 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 REPORTER'S CERTIFICATE I, TERI HANOLD HOPWOOD, RMR, Official Court Reporter for the United States District Court for the Eastern District of Missouri do hereby certify that the foregoing is a true and correct transcript of the proceedings had in this cause as same appears from my stenotype notes made personally during the progress of said proceedings. /S/ Teri Hanold Hopwood, RMR TERI HANOLD HOPWOOD, RMR Official Court Reporter