Sample - Motion to quash

There are two samples on this page, the first is one I wrote and successfully argued in court for my 1st amendment right to free speech.


NOS: 1170014, 1170031 117028
JUDGE Desiree M. Charbonnet

City of New Orleans
my name
Now into court comes enter name who hereby [moves this court to quash] files this motion to quash the charges against him in the instant matter and to secure a protective order to safeguard Defendant’s Constitutional First Amendment right to engage in artistic expression speech, and as grounds therefor avers as follows:


[New orleans municipal code]Ordinance 150 is clearly referring to peddlers. The Defendant “” is clearly not a peddler but an artist selling and displaying art that’s only purpose is an
expression of the Defendants. It has been well settled in federal courts that art is protected by the 1st amendment. (white vs city of sparks, Bery vs New York. Perry vs L.A.P.D) and as such cannot be required to have a permit.


While not having spoken directly on the protections afforded visual art, the Supreme Court has been clear that the arts and entertainment constitute protected forms of expression under the
First Amendment. See Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed. 2d 661 (1989) (music without words); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65-66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) (dance); Se. Promotions, Ltd. v. Conrad, 239, 43 L.Ed.2d 448 (1975) (theatre); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-34, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) (topless dancing); Miller v. California, 413 U.S. 15, 34-35, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (serious artistic work, unless obscene in the legal sense); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02, 72 S.Ct. 777, 96 L.Ed. 1098 (1952) (movies).
More specifically to visual arts and First Amendment protection for the visual arts. See ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 924 (6th Cir.2003) (holding that [t]he protection of the First Amendment includes, music, pictures, films, photographs, paintings, drawings, engravings,.
prints, and sculptures); Bery v. City of New York, 97 F.3d 689, 696 (2d Cir.1996) ([P]aintings, photographs, prints and sculptures always communicate some idea or concept to those who view it, and as such are entitled to full First Amendment protection.); see also Piarowski v. Ill. Cmty.
Coll. Dist. 515, 759 F.2d 625, 628-32 (7th Cir.1985) (holding that stained glass windows, as art for art’s sake, were protected under the First Amendment).

2. The plaintiff states in open court that the sale of art or even specifying a donation amount removes the defendant from the exercise of his freedom of speech 1st amendment rights and regulates him to commercial free speech, basically a peddler, see (municipal code 110-121 under description and definitions,

Commercial transaction means the selling of any service or goods for any type of price, set fee, or required donation, or the display, wearing, posting or distribution of verbiage or signs that describe or refer to a price, set fee or required donation for any service or goods other than the selling of original paintings, sketches, and drawings)”

The Defendant finds this somewhat confusing as the above section clearly exempts art from commercial.activity and as such exempts the defendant from ordinance 150 which refers to
commercial sales.


Even should the plaintiff maintain that the sale of art regulates the defendant to commercial free speech it has been well settled in the U.S. supreme Court and other courts, see [T]he degree of First Amendment protection is not diminished merely because the [protected expression] is sold rather than given away.? City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n. 5, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988); see also Riley v. Nat’l Fed’n of the Blind of N. C., 487 U.S. 781, 801, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988) (It is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.); Village of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 633, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980).

Finally, even purely commercial speech is entitled to significant First Amendment protection. See Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 480-81, 117 S.Ct. 2130, 138
L.Ed.2d 585 (1997); City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 421-23, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993); Va. Bd. of Pharmacy v. Va. Citizens Consumer Council,
Inc., 425 U.S. 748, 762, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). “Purely commercial speech is speech which does no more than propose a commercial transaction.” Virginia Bd. of Pharmacy, 425 U.S. at 762, 96 S.Ct. 1817 (quoting Pittsburgh Press Co. v. Pittsburgh Comm’n .on Human Relations, 413 U.S. 376, 385, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973)). The Defendants art does more than propose a commercial transaction and therefore are not commercial speech.


Currently The city reserves space at Jackson Square for Artist with Class A permits see New Orleans Municipal code article 110.121 (b):”

“Jackson Square artist setup area means: a) the area extending 20 feet from the Jackson Square fence on St. Peter Street; b) the area extending 20 feet from the Jackson Square fence on
Chartres Street; c) the area extending 20 feet from the Jackson Square fence on St. Ann Street; and d) the area extending five feet from the Jackson Square fence on Decatur Street. The hours
of operation of the Jackson Square setup area shall be from 5:00 a.m. to 6:00 p.m.””


It has been well documented in the media that anyone protected under the first amendment can setup outside the area listed above, again execpt artists. After 6:00pm the area is now available to beggars, palm readers and anyone else protected under 1st amendment rights except artist who still need a permit. The license requirement as it relates to the defendant, however, which effectively bars him from displaying or selling his art on the streets, is too sweeping to pass constitutional
muster. ? See, e.g., Cincinnati v.Discovery Network, Inc., 507 U.S. 410, 429-30, 113 S.Ct. 1505, 1516-17, 123 L.Ed.2d 99 (1993).

Not only is this a violation of an artists 14th amendment to equal protection the city has not met the burden for time, place and manner for Jackson Square.from 5:00 a.m. to 6:00 p,m. and as such cannot restrict freedom of speech from a traditional place of meeting. Under rules of procedure 32.1 cited below is the 5th circuit courts ruling in sarre vs City of New Orleans . published in
“Significant Governmental Intereste contests that the City has a significant interest in protecting the character of Jackson Square. Referring to the French Quarter by its common title, the Vieux Carre, the Supreme Court, in City of New Orleans v Dukes, held that the City has a interest in protecting that area’s distinct character, within which Jackson Square is prominently located.10 The Louisiana Supreme Court, in City of New Orleans v. Levy, recognized the City’s interest in preserving the character of the French Quarter, noting that, “[t]he preservation of the Vieux Carre as it was originally is a benefit to the inhabitants of New Orleans generally, not only for the sentimental value of this show place but for its commercial value as well, because it attracts tourists and conventions to the city, and is in fact a justification for the slogan, America’s most interesting city.”11 Although the analysis in neither case required this interest to be significant, both courts made clear that the City’s interest
in preserving the character of this historical neighborhood rises to the required level. The character of Jackson Square and the French Quarter helps to set New Orleans apart from other American cities a nd draws tourists, artists, buyers of art, and others to visit or make their homes in that unique section of this unique city. Preservation of this resource is rightfully of paramount importance to the City.

It is not sufficient, however, for the City to show that it has a significant interest in preserving the character of Jackson Square.12 As noted, the City has the burden of proving that prohibiting the sale of prints in Jackson Square is necessary to prevent harm to the tout ensemble of the square and is, therefore, necessary to maintaining the government’s interest. In support of its contention that the sale of prints will harm the character of Jackson Square, the City proffered affidavits from several artists, some newspaper articles, Appellants’ websites, and copies of the Ordinance. We nevertheless conclude that the evidence thus provided is insufficient to prove that the Ordinance is required to ensure the City’s significant interest in protecting the character of Jackson Square.

In Edenfeld v. Fane, the Supreme Court noted that the government’s burden in cases like this “is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.”13 There, the Supreme Court struck down a ban on solicitation by accountants, in part because the government produced no studies suggesting that such solicitation creates the dangers of fraud overreaching, or compromised intelligence.14 The Court later said that “we do not read our case law to require that empirical datacome to us accompanied by a surfeit of background information[,]”15 but the government must produce some empirical data to support content-neutral regulations of speech in raditional public fora. Evidence of the effect that artists’ sales of prints of their original work have on the tout
ensemble of Jackson Square would be most useful in any judicial effort to determine whether a ban on the sale of prints of the Jackson Square artists’ artworks is necessary to preserve the character of the area. “The First Amendment does not require a city, before enacting such an ordinance, to conduct ew studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the
city addresses.”16

The City has not adduced any such evidence. Instead, it has merely offered affidavits of rival artists, who are likely to be biased against their competitors. The rival artists referred to the negative effect of the sale of prints on the artist colonies of Michigan, Paris, and Montreal, but no studies were provided to corroborate these impressions. The City also referenced a 1968 study analyzing the tout ensemble of the Vieux Carre, which argued for the importance of a healthy artistic community to
the character of the French Quarter. The City also submitted news articles about the problems raised by the sale of postcards in the early 1950’s, but those articles are irrelevant, given that prints of original artwork and post cards are obviously very different. Finally, the City provided materials on
general economic theory to argue that if the Ordinance were changed, an increase in the supply of lower-cost art, in combination with a relatively static demand, would produce a drop in prices which in turn would harm the local artists. The City argued that “[n]o studies particular to Jackson Square
exist because they would simply reiterate basic assumptions of economic theory.”

As these materials fail to prove a nexus between the sale of prints at Jackson Square and harm to the character of that area, the City has failed to meet its summary judgment burden in respect to this element. Indeed, it could well be that an increased inventory of quality art in the form of artist-produced prints would expand the consumer base of the Jackson Square artists by encouraging less affluent individuals to consider purchasing artwork there. Morever, Appellants have proffered evidence that for at least five years, a significant number of prints have been sold in Jackson Square with minimal effect on its artist colony. As summary judgment is appropriate only when there is no genuine issue of material fact in dispute, we reverse and remand to the district court for
further consideration of this issue.
D. Alternative Fora

The City must also show that its content-neutral Ordinance leaves open ample alternative fora for Appellants’ expression of free speech.17 An alternative forum does not have to be the speaker’s first choice.18 Nevertheless, an alternative forum is not sufficient if it “foreclose[s] a speaker’s ability to reach one audience even if it allows the speaker to reach other groups.”19 The fact that an artistcan sell his product in other locations to other audiences does not mean those locations are adequate alternatives.20

As alternative venues, the City has proposed the French Market in the Quarter, including both the Dutch Market Co-Op and the Flea Market, as well as local galleries and the internet. The district court accepted these venues as appropriate alternatives that are reasonably available to Appellants for the sale of their prints.

We conclude, however, that this is not indisputably the case. The Dutch Market Co-Op in the French Market is restricted to members who are “juried in” after a subjective selection process, whereas the Jackson Square market is open to any artist who pays the required yearly fee. When Appellants applied to sell prints in the French Market Flea Market, they were told that no new print vendors were allowed at the time, regardless whether the prints were of the artist’s original artwork. Additionally, the fees at the Flea Market are significantly higher than those charged by the City to sell art at Jackson Square ($7 to $23 per day to sell at the Flea Market as opposed to $175 per year to sell at Jackson Square). Neither do galleries and Internet websites appear to be appropriate alternative venues because they reach very different audiences of prospective art purchasers than those at Jackson Square.21
Tourists are likely to wander by historic Jackson Square and perhaps find a piece of art that strikes their fancy,
whereas only dedicated art-seeking visitors intent on purchasing art are likely to explore the galleries of the French
Quarter. Likewise, websites are ineffective at reaching the myriad tourists who wander by Jackson Square because such
sites attract an entirely different clientele comprising Internet-savvy art consumers.

In summary, the City has failed to demonstrate that ample alterative venues exist. On remand, therefore, the district
court must determine whether there exist alternative fora at which Appellants can reasonably expect to sell prints of
their original artwork to the tourists who visit New Orleans.


When the government seeks to regulate speech in traditional public fora through content-neutral regulation, it has the
burden of demonstrating that its regulation (1) serves to achieve a significant governmental interest, (2) is narrowly
tailored to achieve that interest, and (3) leaves open ample alternative channels of communication. The City has failed
to bear its burden of showing that the Ordinance is narrowly tailored to serve a significant governmental interest and
that it leaves open ample alternative channels of expression. Summary judgment was inappropriate in light of the many
unanswered and disputed questions of fact. We therefore reverse the grant of summary judgment and remand to the district
court for further production of evidence as to the relationship between the Ordinance and the government’s interest in
protecting the character of Jackson Square and the availability of alternative fora. REVERSED
and REMANDED with instructions.”


In Sarre vs The City Of New Orleans the 5th circuit courty viwed the appeal in the light of commercialfree speech (which does not enjoy the full protection of full constitional free speech). stillfound that the City does not meet the burden for times place and manner. As such the city cannot limitfree speech nor require feee speech to be permited, in fact they cannot require commercial free speech to be permitited.


WHEREFORE, the Defendant prays this Honorable Court, quash the charges brought against him and issue a protective order safeguarding Defendant,s right to First Amendment right to artistic expression



This is a good example of a motion to quash for constitutional reasons.






v. ) Case No. 1137418 ) Sec C


Defendant )

__________________________________ )

FILED: __________________ DEPUTY CLERK: __________________


Cardell Haynes, through undersigned counsel, respectfully moves this Court to quash the bill of information and find Article 14:95(A)(1) of the Louisiana Code of Criminal Procedure unconstitutional on its face, or, at least, as specifically applied to Mr. Haynes. Mr. Haynes is lawfully allowed to carry a handgun. Mr. Haynes crime in this case involves the use of an inner belt holster which by design partially conceals the handgun. La. R.S. § 14:95(A)(1) as applied in this case denies Mr. Haynes the right to keep and bear arms because it prohibits Mr. Haynes from using an inner belt holster to carry a handgun. La. R.S. §14:95(A)(1) is unconstitutional in that it impermissibly infringes upon the fundamental right to keep and bear arms as guaranteed by Article I § 11 of the Louisiana Constitution.


On November 6, 2012 Louisianans voted, by overwhelming majority, to approve Article 874, a measure to amend Article I § 11 of the Louisiana Constitution. Article 874 was written and promoted as a bulwark against the continued erosion of gun rights in Louisiana. Governor Bobby Jindal also came out in support of the amendment, penning a strongly worded op-ed titled “A Fundamental Right” in which he stated, in part:

[Amendment 2 is] our own Second Amendment, if you will, a new constitutional provision to repair the damage done by past judicial interpretations. You see, over the years, Louisiana courts have applied a “rational basis” legal standard to interpreting our right to bear arms. In reality, that means that the state has almost unlimited authority to confiscate, prohibit, or infringe on this fundamental right…By applying the “strict scrutiny” test, we elevate the protections in our constitution to the same level we provide our right to free speech.1

Article 874 passed the Louisiana House handily, by 77 to 222, and the Louisiana Senate by 31-63, before making it onto the statewide ballot where it was approved by 74% of Louisiana voters. Today Article I § 11 reads:

The right of individuals to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty, and for all other legitimate purposes is fundamental and shall not be denied or infringed, and any restriction on this right must be subjected to strict scrutiny.

By virtue of this amendment, Louisianans now enjoy the strongest gun rights in the United States. Indeed, by declaring these rights as “fundamental,” and requiring the application of strict scrutiny, Article I § 11 goes a step further than even the Supreme Court in their recent decisions in Heller and McDonald. In Heller, the Supreme Court recognized, for the first time, the individual right to bear arms, stating that “[t]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.Dist. of Columbia v. Heller, 554 U.S. 570, 595 (2008). And in McDonald, the Supreme Court stated that “it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty,” before holding that the Second Amendment applied equally to state governments. McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3042 (2010). Despite the Supreme Court’s strong language in these two groundbreaking opinions, many state courts have declined to declare the right to bear arms as fundamental, or apply strict scrutiny to their review of gun control regulations. See, e.g., United States v. Yanez-Vasquez, 2010 WL 411112 (D. Kan. Jan. 28) (“The court declines to apply strict scrutiny, since … Heller did not expressly find firearm possession to be a fundamental right.”).

Louisiana’s amendment to Article I § 11 is so significant because it deliberately and explicitly removed all ambiguity from the Heller and McDonald holdings. In doing so, it left Louisiana courts with no discretion with respect to the standard of review to apply. Indeed, Article I § 11’s mandate is direct and unassailable: the right to bear arms is fundamental, and any and all laws that serve to restrict the gun rights of any citizen must be subjected to strict scrutiny. Until now, Louisiana gun laws have been subject to rational basis review by the courts. See State v. Amos, 343 So.2d 166, 168 (La. 1977) (holding that “the right to keep and bear arms…may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one.”) Because gun regulation statutes have never been subject to strict scrutiny review by Louisiana courts, their constitutionality is now an open question.

The gun regulating statute at issue in the present matter, La. R.S. § 14:95(A)(1), infringes upon Article I § 11 rights by broadly criminalizing the “intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person.” Louisiana courts have previously upheld La. R.S. § 14:95(A)(1) under rational basis review. See State v. Jumel, 13 La. Ann. 399 (1858). Prior to amendment, this holding was supported by Article I § 11, which previously contained an explicit exception that the provision would not “prevent the passage of laws to prohibit the carrying of weapons concealed on the person.” Article I § 11 was revised, in part, to remove this exception from the constitution. Because concealed carry statutes are no longer excepted from La. R.S. § 14:95(A)(1), and because La. R.S. § 14:95(A)(1) has never been subject to strict scrutiny review, it is now incumbent upon Louisiana courts to reexamine the statute’s constitutionality.



Under scrutiny review the state must not only show that La. R.S. § 14:95(A)(1) is necessitated by a compelling government interest, they must also establish that this statute is narrowly tailored to achieve that interest, and that no less restrictive means of achieving this interest exists.

It is not self-evident, or even logical, that sweeping concealed carry bans such as La. R.S. § 14:95(A)(1) are effective promoters of public safety. Indeed, the Second Amendment of the United States Constitution and Article I § 11 of the Louisiana Constitution are themselves public safety measures. These provisions protect, among other things, “the right to keep and bear arms for the purpose of self-defense.” McDonald v. City of Chicago, Ill., 130 S. Ct. 3020, 3026 (2010). These provisions protect the rights of Louisianans to arm themselves for protection, both inside and outside of the home.

Underscoring the lack of connection between public safety and La. R.S. § 14:95(A)(1) is the ease by which Louisianans can, and do, circumvent the concealed weapons ban. Under La. R.S. Ann. § 40:1379.3, Louisianans who wish to carry concealed weapons on their person may apply for permits to carry concealed firearms and must be issued permits if they meet the criteria.4 Notably, the permit application does not require Louisianans to articulate a specific need for carrying a concealed weapon.5


Even if R.S. § 14:95(A)(1) was not unconstitutional in its entirety, it certainly is as applied to Mr. Haynes. Mr. Haynes was arrested for carrying a lawfully purchased handgun in an inner belt holster as he walked home from work late one evening. Inner belt holsters are designed to conceal a portion of the gun on the inside of a person’s belt, below the pants. Although public safety may be a compelling state interest, any law that criminalizes the manner in which a gun is carried on one’s person is clearly not narrowly enough tailored. Mr. Haynes is not prohibited from carrying a weapon. In fact, Mr. Haynes purchased his gun legally and has no other bar on his ability to arm himself. Any law seeking to bar Mr. Haynes from carrying a gun using an inner belt holster is unconstitutional, even if the entire statute is not.


WHEREFORE, for all the reasons given above, and for any other reasons that may occur to this Honorable Court, petitioner respectfully asks this Court to quash the bill of information.

Respectfully Submitted,


Maximilian J. Gumina

Bar No. 32485

Orleans Public Defenders

2601 Tulane Avenue, Seventh Floor

New Orleans, LA 70119

(504) 827-8168 (office)

(504) 220-1671 (cell)

(504) 821-5285 (fax)

Certificate of Service

I hereby certify that I have caused to be served by mail or hand delivery in open court a copy of the foregoing document upon the prosecution on the day of filing.





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