Vietnam vet Robert Rosebrock is 72 years old, but he’s still got enough fight in him to stand up for what he believes in. The Veteran’s Administration of Greater Los Angeles (VAGLA) and the U.S. Court of Appeals for the Ninth Circuit would prefer his fight to be in vain.
Rosebrock’s fight here is a protest against VAGLA’s use of a parcel of land deeded to the U.S. government for the care of homeless veterans for purposes other than that purpose. For example, VAGLA leased parts of the land to a private school, an entertainment company, and a soccer club, and occasionally used it for hosting events. Every Sunday for 66 weeks, Rosebrock hung at least one and as many as 30 U.S. flags from a border fence on the VA property that he believed was being misused.
After seeing a celebrity gala event on the property one Sunday afternoon, Rosebrock started hanging flags with the stars down, signifying dire distress to life and property—the distress faced by LA’s homeless veterans. At this point, VAGLA started enforcing its policy against “displaying of placards or posting of materials on bulletin boards or elsewhere on [VA] property.” When Rosebrock continued, believing his First Amendment rights would protect him, he was issued six criminal citations. He then stopped hanging his flag upside down but was later allowed to hang it right-side-up—a clear if unusual example of viewpoint-based speech discrimination that violates the First Amendment.
That part of his case was a slam-dunk; the difficulty came in making the violation matter. Rosebrock turned to the courts asking two things: an order that would stop VAGLA from discriminating against him in the future and one that would allow him to display his flag stars-down for an amount of time equal to how long he had been denied the right to display it. The district court found that because the VAGLA associate director sent an email to the VA police that the “no signs” regulation should be enforced precisely, Rosebrock’s requested remedies were moot—meaning, basically, that because VAGLA said it would play by the rules, the Court wouldn’t order them to. This is known in legal circles as “voluntary cessation”.
Not long after the district court’s dismissal, the VA police disregarded the email and allowed Iraq War veterans to protest in violation of the regulation. Rosebrock raised this fact when he appealed to the Ninth Circuit, but the Ninth Circuit affirmed the ruling without even addressing the continued discriminatory enforcement. To paraphrase, the appellate panel held that although there is a great burden for parties seeking to prove mootness through voluntary cessation, we should trust that the government will do what it says.
Robert Rosebrook said, “no thanks,” and is petitioning the Supreme Court to hear his case. Cato agrees, and has joined the Pacific Legal Foundation and Institute for Justice on a brief supporting the petition. We point out that the federal appeals courts are split on this mootness/voluntary cessation issue, that it’s an issue that arises all the time, and that there’s no reason that government entities should be given a benefit of the doubt while everyone else has to prove “it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
The Supreme Court should take this case, Rosebrock v. Hoffman, and tell the lower courts what we know, what Robert Rosebrock knows, and what everyone else in the country should already know by now: it doesn’t always make sense to take the government at its word.
Cato legal associate Julio Colomba contributed to this blogpost.