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Full-text: July 25 2003
Protest zones: “No War for Oil” (October 24 2002)

United States District Court for the District of South Carolina Columbia Division

 

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United States of America	)
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-v-	)
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Brett Bursey	)
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Defendant’s Memorandum of Authorities Concerning the Elements of the Offense

Brett A. Bursey, after reviewing the Memorandum and attachments submitted by the government, agrees that the colon in question should have been a semi-colon, But this agreement does not end the inquiry of the court. For the reasons set forth herein, Brett A. Bursey contends that the government still has not properly stated the elements of the crime. Further, the statute in question, because of the typographical error, is vague and therefore unconstitutional.

Elements of the crime

The government contends that Mr. Bursey has violated 18 U.S.C. § 1752 which provides:

The government has conceded in its memorandum that the only section Mr. Bursey is accused of violating is (ii). ¶

Stripped of all the excess language, the government has accused Mr. Bursey of the following violation: ¶

To prove Mr. Bursey to be in violation of this statute, the government is required to prove the following elements:

1.  Mr. Bursey entered or remained in any posted, cordoned off, or otherwise restricted area as defined by the regulations.

2.  The area was one where the President would be visiting.

3.  The entering or remaining was in violation of the regulations concerning the restricted area.

4.  The above acts were committed wilfully and knowingly. {p.3}

The elements listed by the government seem to read that Mr. Bursey has violated the statute if he knowingly and wilfully remained in an area even if be did not know the area were restricted. This is not a correct reading of the statute. The government must prove that Mr. Bursey wilfully and knowingly violated each element of the crime.

The statute in question applies only to a restricted area. The statute itself does not provide any rules for determining what is a restricted area. The statute states the promulgation of the rules relating to a restricted area are to be found in the regulations. The regulations as they relate to this case only regulate who may enter a restricted area.

The Regulation that applies to this case is found in 31 C.F.R. 408.3 {2002: 3kb.txt, 24kb.pdf; current rule: 3kb.txt, 24kb.pdf} which provides: ¶

Thus, the government is required to prove that Mr. Bursey was in an area to which only such invitees were permitted to be. If people other than such invitees were in the same area as Mr. Bursey, he has not violated the statute. The reason is that if non-invitees are permitted in the area, the area would not be a restricted area as defined by the regulation. If the regulation has not been violated, there is no violation of the statute. {p.4}

Neither the statute nor the regulation gives a Secret Service agent the right to determine where the restricted area is. If the statute gave the unfettered discretion to the Secret Service to determine where the restricted area is and who is entitled to enter, the statute would be unconstitutional. As the United States Supreme Court said concerning a law giving unfettered discretion to law enforcement, ¶

Shuttlesworth v. Birmingham, 382 U.S. 87, 90 (1965). The “move on” statues and ordinances have long since been declared unconstitutional. See, Shuttlesworth v. Birmingham, 382 U.S. 87 (1965) (footnote 5)

The purpose of the statute is to protect the President of the United States. Mr. Bursey has no quarrel with that purpose. To protect the President, obviously the Secret Service would need to cordoned {sic: cordon} off or restrict people from certain areas. Equally obvious, the restricted area would be known and laid out well in advance of the appearance of the President. The public would have to be made aware of the exact parameters of the restricted area. The area would also have to he known to the agents seeking to enforce the restricted area and they would have to know who is permitted to enter the restricted area. ¶

But once those areas are declared by proper authority and regulations, a single Secret Service {p.5} agent would not have the right to change the boundaries or the invitees. For if the agent did, no notice would have been given to the public. Such a position would mean a single agent would by himself determine what the law is and who was violating it.

A person may not be kept out of a restricted area because of the content of their speech or the content of their sign. No regulation gives the Secret Service the right to exclude individuals from a restricted area because of their political views. Obviously, the invitations may be sent to only to person of a {sic} certain political views. But once that person has the invitation, the Secret Service is not authorized to exclude that person because of the content of their sign. The regulation is very specific as to who may be admitted to the restricted area and political disagreement is not an exception.

As noted in the attachments to the memorandum of the government, Congress was especially aware of the possible infringement upon the right of free speech with this legislation. As was noted in the Report of the Senate Judiciary Committee, ¶

Protection of the President, Report of Senate Judiciary Committee, September 29, 1970 at 7 {p.6} (emphasis added) {U.S. Congress 91-2, S. Rep. No. 91-1252, SuDoc: 91-2:S.Rp.1252, Serial Set: 12881-5, CIS: 70 S523-38, LCCN: 79609560, OCLC: 106568, DL, WorldCat}. ¶

The use of the words “posted” and “cordoned off” show that congress intended for the public to be on clear notice that a certain area is in fact a restricted area. By the use of those terms congress did not intend to permit one Secret Service officer to determine what is a restricted area. To preserve the constitutionality of the statute, the designated area and the regulations must be clearly defined and not left to the unfettered discretion of the enforcing agency. ¶

To convict Mr. Bursey, the government must, therefore prove that there was in fact a restricted area as defined by the statute and the regulations. They must prove that only invitees were permitted to enter this restricted area. They must prove this restricted area was in fact known to Mr. Bursey. They must prove that Mr. Bursey wilfully and knowingly either entered this restricted area or remained in this restricted area. Until the government has proven all these elements beyond a reasonable doubt, they have failed to prove its case against Mr. Bursey.

Statute is unconstitutional
as it fails to provide notice

The concession by Mr. Bursey that the colon is a typographical error does not end the inquiry concerning the statute. Because the statute was published with the error, it should not be enforced against Mr. Bursey. The extensive research conducted by the government goes only to show that Mr. Bursey would {p.7} not have notice that the statute contained a typographical error. Due process at the least should not require a citizen to extensively research the history of a statute to determine if a typographical error has occurred and find the true meaning. Prior to this court addressing the issue, no court has ever held that the statute contains a typographical error. ¶

Thus, under the principles established in Bouie v. City of Columbia, 378 U.S. 347 (1963). The {sic: , the} application of the statute to Mr. Bursey would violate the ex post facto clause of the United States Constitution as well as the due process clause. Mr. Bursey, as a matter of due process, had the right to rely upon the statute as written, not as gleamed {gleaned} from the legislative history. To require a citizen to learn the meaning of a statute otherwise clear by researching legislative history is simply asking too much. The information against Brett A. Bursey should, therefore, be dismissed.

July 24, 2003

{p.8}

______________________

Affidavit of Service

{Case caption omitted}

Personally appeared before me Sherri McKelley, who, after being duly sworn, deposes and says that she is the receptionist for C. Rauch Wise, Attorney for the Defendant in the above entitled case. That on July 24. 2003, she did deposit in the United States Mail with proper postage affixed thereto, a copy of the Defendant’s Memorandum of Authorities Concerning the Elements of the Offense in the above case addressed to John M. Barton, U.S. Attorney’s Office, 1441 Main Street, Suite 500, Columbia, SC 29201.

Sworn to and Subscribed
before me this 24 day
of July, 2003.

{Signature}

{Mary Jane Riggins}

Notary Public for South Carolina
My Commission Expires: 01/24/13

 

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

Posted Dec. 13 2003. Updated June 2 2008.

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