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Full-text: September 12 2003
Protest zones: “No War for Oil” (October 24 2002)

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

Filed, SEP 12 2003, Larry W. Propes, Clerk, Columbia S.C.


Criminal No.: 3:03-309

United States of America)
Brett A. Bursey)

Response to Defendant’s Memorandum in Support of Dismissal Because of Vagueness

The defendant has moved for dismissal of the Information in this case, and as grounds has asserted that the statute, on its face, is unconstitutionally vague. According to the defendant, 18 U.S.C. § 1752 is constitutionaly defective because it (1) fails to provide adequate notice as to the conduct proscribed and (2) permits arbitrary and discriminatory enforcement. As part of his argument the defendant claims the rule of lenity applies and that the {sic} this statute is subject to increased scrutiny because it implicates the First Amendment.

The defendant has once again attempted to turn this case into something it simply is not. While the government agrees the defendant has the right, at trial, to attempt to prove the enforcement of this statute was somehow unconstitutional as it was applied to him the day of his arrest, it is equally clear that he has no basis for this constitutional challenge to the statute. Virtually all of the law and authority cited by the defendant in his memorandum is simply and demonstrably inapplicable to this analysis, and the {p.2} quotations and propositions from treatises he cites, while perhaps dramatic, are so woefully incomplete and out of context as to border on being an effort to intentionally and improperly mislead the court.

Applicability of the First Amendment to 18 U.S.C. § 1752

The major flawed thread that runs throughout the defendant’s argument is his assumption that the facial constitutionality of the statute in the case is subject to scrutiny under the First Amendment. The defendant is simply wrong. It is clear from its unambiguous terms that 18 U.S.C. § 1752 is a general law, as its prohibitions do not restrict, inhibit or even reference speech in any form whatsoever. That is not to say that this statute, like any statute, cannot be enforced in an unconstitutional manner, but that is a separate and distinct issue which is to be decided based upon the facts established at trial. But for purposes of determining whether § 1752 is constitutional on its face, the proper analysis begins with a recognition that the crime proscribed by the statute is essentially trespassing 1 , not picketing, protesting, marching, speaking, displaying signs, banner or flags or in any other way specifically or inherently directed at expression. ¶

The Supreme Court has made it clear that the fact that the defendant may have chosen to engage in expressive conduct while violating such a general statute is irrelevant for purposes of determining the statute’s constitutionality: {p.3}

We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech.... We reaffirm the statement of the Court in Giboney v. Empire Storage & Ice Co., supra, 336 U.S., at 502, 69 S.Ct., at 691, that ‘it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.’

The Supreme Court has repeatedly reaffirmed this principle 2  in a wide variety of situations in which it was claimed First Amendment protections were infringed by a statute, including trespass:

Nothing in the Constitution of the United States prevents Florida from even-handed enforcement of its general trespass statute against those refusing to obey the sheriff’s order to remove themselves from what amounted to the curtilage of the jailhouse. The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason there is no merit to the petitioners’ argument that they had a constitutional right to stay on the property, over the jail custodian’s objections, because this ‘area chosen for the peaceful civil rights demonstration was not only “reasonable” but also particularly appropriate.’ Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or {p.4} views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioners rely on.... We reject it again.

Adderley v. State of Florida, 385 U.S. 39, 47-48 (1966). See also: Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (rule barring sleeping in parks upheld in application against persons engaging in such conduct to dramatize the plight of the homeless); Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991) (in a freedom of press First Amendment challenge to a statute, reaffirming the “well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news”); Employment Div., Dept of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990) (general laws not specifically targeted at religious practices do not require heightened First Amendment scrutiny even though they diminish some people’s ability to practice their religion).

The reason for such a limitation on First Amendment analysis has also been explained by the Supreme Court:

The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy.

Cox v. Louisiana, 379 U.S. 536, 558, n.7 (1965). {p.5}

“ The airport premises are ... public property ... trespass ... applies only to private property and has no application to public property.”

State v. Hanapole, 255 S.C. 258, 267-268 (1970)

The defendant argues that the mere fact that he was holding a sign at the time he was arrested for trespassing mandates First Amendment scrutiny of this statute, despite the fact that there is simply no expressive conduct involved in the criminal act of trespassing with which he is charged. However, the Fourth Circuit has specifically rejected the defendant’s argument:

While it has long been held that the protection afforded by the free speech provision of the First Amendment extends, to some extent, beyond the written or spoken word to the communication of ideas through conduct, the courts have not applied the same First Amendment protections to physical conduct as is afforded to purer modes of communicative speech.... The Constitution does not require that otherwise unacceptable conduct become immunized from regulation when it is wrapped in a claim that the conduct was intended to convey a message.

D.G. Restaurant Corp. v. City of Myrtle Beach, 953 F.2d 140, 143 (4th Cir. 1991) (internal citations omitted) (emphasis added).

The absurdity of the defendant’s argument becomes readily apparent when one envisions the variety of circumstances in which such an argument might apply: presumably an individual entering a bank with a weapon and demanding money who also happens to be wearing a shirt displaying the slogan “Down with Imperialism” would be entitled to have the bank robbery statute subjected to First Amendment scrutiny. By the same token, an individual caught harvesting marijuana plants while chanting “All we want is peace” would be entitled to have the narcotics laws subjected to similar scrutiny. This clearly is not the law. A trespass statute, just like the bank robbery and narcotics statutes, proscribes conduct, not expression, which is what distinguishes this case from {p.6} those cited by the defendant: Thornhill v. Alabama, 310 U.S. 88 (1940) (picketing statute); Grayned v. City of Rockford, 408 U.S. 104 (1972) (statute prohibiting picketing within 150 feet of a school); NAACP v. Button, 371 U.S. 415 (1963) (statute prohibiting solicitation of legal advice).

Even should this court conclude that the defendant’s act of trespassing with a sign contains an element of expression, his Memorandum still fails to cite the correct authority or standard under which this statute must be reviewed. Fortunately, the Fourth Circuit has provided the guidance the defendant omitted:

Although conduct may contain inherent expressive elements or may be undertaken for a particular communicative purpose, an important governmental interest in regulating the activity itself, without regard to the expressive element, can justify a necessary incidental restriction on the expressive aspects of the conduct. See United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968).

D.G. Restaurant Corp., id. Under what has been described as the “less demanding rule 3 ” of O'Brien, a statute can nonetheless be found to be constitutional, despite an incidental impact on First Amendment interests:

“[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on ... First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

O'Brien, 391 U.S. at 376, 377. Clearly a law designed to allow trained Secret Service {p.7} Agents to provide for the security of the areas where President of the United States visits in the many diverse locales in this country meets these criteria. There simply can be no argument that the statute is not within the constitutional power of the Government or that it does not further a substantial Government interest. This protection and security interest is unrelated to the suppression of free expression, and since free expression is permitted in any and all other places that are not otherwise lawfully restricted 4  at any and all other times, the restrictions imposed by this statute are minimal.

It is also important to recognize that when reviewing the methods the Government has chosen to promote its substantial interest, the role of a court is very limited. This was explained in United States v. Albertini, 472 U.S. 675 (1985), a case with some remarkable similarities to the present one. Albertini had been barred from admission onto Hickam Air Force Base in Hawaii. After determining that excluding the defendant from the base was proper because of the need to provide security, the large number of people present, and the inability to monitor everyone present at the base at all time {sic: times}, the Supreme Court rejected the defendant’s claim that his exclusion was not “essential” to promoting the Government interest of providing security:

Respondent’s arguments in this regard misapprehend [this] element of the O'Brien standard. We acknowledge that barring respondent from Hickam was not “essential” in any absolute sense to security at the military base. The military presumably could have provided him with a military police {p.8} chaperone during the open house. This observation, however, provides an answer to the wrong question by focusing on whether there were conceivable alternatives to enforcing the bar letter in this case.

The First Amendment does not bar application of a neutral regulation that incidentally burdens speech merely because a party contends that allowing an exception in the particular case will not threaten important government interests.

Albertini, 472 U.S. at 688. The Court went on to further explain a lower court’s role in judging the Government’s method of promoting its interest:

The validity of such regulations does not turn on a judge’s agreement with the responsible decision maker concerning the most appropriate method for promoting significant government interests. We are persuaded that exclusion of holders of bar letters during military open houses will promote an important Government interest in assuring the security of military installations. Nothing in the First Amendment requires military commanders to wait until persons subject to a valid bar order have entered a military base to see if they will conduct themselves properly during an open house.... In Community for Creative Non-Violence, we observed that O'Brien does not “assign to the judiciary the authority to replace the Park Service as the manager of the Nation’s parks or endow the judiciary with the competence to judge how much protection of park lands is wise and how that level of conservation is to be attained,” 468 U.S., at 299. We are even less disposed to conclude that O'Brien assigns to the judiciary the authority to manage military facilities throughout the Nation.

Id., at 689 (citations and internal punctuation omitted)

However, the Government does not concede that even O'Brien’s “less demanding standard” is applicable here because of the nature of the conduct proscribed by 18 U.S.C. § 1752, which simply does not involve expressive conduct. As explained by the Foruth {sic: Fourth} Circuit:

In the end, the core analysis must resolve whether the governmental regulation of conduct is in fad the unconstitutional regulation of an {p.9} intended message of the actor rather than a legitimate attempt to regulate physical conduct for some other important governmental purpose.

A variation on the O'Brien inquiry into whether a governmental regulation targets the expressive element of a particular type of conduct is the degree to which the First Amendment protects normally regulated conduct which has been turned from its ordinary course to be performed for a communicative purpose. When this is the case, the courts will not invalidate an otherwise constitutional restriction on conduct. For example, a statutory prohibition against the destruction of draft cards, which was adopted to serve an important governmental interest, is not rendered violative of the First Amendment when applied to defendants who burned their draft cards for the expressed purpose of protesting a war. See O'Brien, 391 U.S. at 376-78, 88 S.Ct. at 1678-80. The mere existence of a potential for expression through conduct simply does not result in a wholesale immunization of what would otherwise be a legitimately regulated activity. As Justice Scalia summarized in his concurring opinion in Barnes:

But virtually every law restricts conduct, and virtually any prohibitive conduct can be performed for an expressive purpose — if only expressive of a fact that the actor disagrees with the prohibition.... [W]e have never invalidated the application of a general law simply because the conduct that it reached was being engaged in for expressive purposes and the government could not demonstrate a sufficiently important state interest. ¶

Barnes, {501 U.S. 560, 576,} 111 S.Ct. at 2466 (Scalia, J., concurring)

D.G. Restaurant Corp., 953 F.2d at 145. (Emphasis added).

Thus, it is the Government’s position that the defendant’s attempt to have this court analyze the constitutionality {of the} statute in this case through a First Amendment lens is completely without legal basis. While many of the cases and propositions the defendant cites are fundamental building blocks of our free society, their use should be reserved for those situations where they appropriately apply. Despite the defendant’s rhetoric, this case does not present this court with such a situation. {p.10}

Void for Vagueness —
Lack of Notice

The answer to the defendant’s argument that 18 U.S.C. § 1752 fails to provide adequate notice “to those it seeks to bind” (Defendant’s Memorandum, p.3) is found in the omitted portion of the treatise the defendant relies on so heavily as his authority for this argument. In his Memorandum the defendant liberally and selectively cites to Addressing Vagueness, Ambiguity, and Other Uncertainty in American Criminal Laws by John F. Decker, which appears at 80 Denv. U.L. Rev. 241 (2002) {coming up}. Specifically, on pages 4-5 of his Memorandum, the defendant provides this court with what purports to be Decker’s recitation of the three criteria courts are to use in evaluating the adequacy of the notice a statute provides, concluding with: “Third [and last], and most important for our purposes, in cases where the statute may affect constitutionally protected conduct, particularly that protected by the First Amendment, the court is less likely to find that constructive notice exists than in cases where the statute could not possibly infringe upon such constitutional freedoms.” While the Government strongly disagrees that this statute in any way implicates the First Amendment, the defendant is obviously entitled to focus the court’s attention on his theory and the authority supporting it.

However, what the defendant is not entitled to do is selectively cite to authority in such a blatantly improper manner. While it is true that the above quote is from a list of criteria appearing in Decker’s article, in the article that criteria is enumerated as “fourth,” not third. That the defendant failed to indicate this omission is less disturbing that what {p.11} was so obviously omitted. In actuality, Decker states: “Third, statutes which involve a scienter requirement are more likely to withstand a claim of vagueness where they ensure that the law punishes only those who are aware that their conduct is unlawful.” Decker, at 249. The defendant’s selective editing is particularly significant in this case because he deleted the provision that is both directly applicable to this case and which totally eviscerates his lack of notice argument. Clearly 18 U.S.C. § 1752 has a scienter requirement (“knowingly”), and what makes this omission even more glaring is that the defendant has repeatedly stated in his arguments and pleading concerning the elements that he is well aware of the scienter requirement of § 1752.

Decker is correct in his assessment that a scienter provision in a statute satisfies the notice requirement. “[A] scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982). Similarly, in rejecting a protester’s argument that a statute requiring that he keep a certain number of feet away from patrons of an abortion clinic was vague for providing lack of notice, the Court stated: “Finally, here there is a ‘knowing’ requirement that protects speakers “who thought they were keeping pace with the targeted individual’ at the proscribed distance from inadvertently violating the statute,” Hill v. Colorado, 530 U.S. 703, 727 (2000).

The defendant’s Memorandum also contains this poignant quote from United {p.12} States v. Harriss, 347 U.S. 612, 617 (1954): “[t]he underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” While this is unquestionably true, the defendant left out the holding in Harriss which defines the proposition of law clearly applicable to this case. That holding, found in the sentence immediately following the defendant’s quote, provides:

On the other hand, if the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague even though marginal eases could be put where doubts might arise. And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.

Harriss, 347 U.S. at 618. (Citations omitted).

In another case remarkably similar to the present one, the Supreme Court rejected a defendant’s statutory “void for vagueness” argument following his conviction for refusing to follow a police officer’s order to disperse. The Court said:

The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited. We agree with the Kentucky court when it said: ‘We believe that citizens who desire to obey the statute will have no difficulty in understanding it ...’

Colten v. Kentucky, 407 U.S. 104, 110 (1958). In this case, when the defendant was repeatedly told he was in violation of the statute, he had no difficulty understanding the parameters of the statute, he simply chose to knowingly violate it. {p.13}

Void for Vagueness —
Arbitrary and Discriminatory Enforcement

The defendant’s only argument concerning the possible over breadth of 18 U.S.C. § 1752 is a reference to a portion of the statute not charged in this case. The portion of the statute actually charged allows the Secret Service to determine in its trained discretion what ureas should be restricted for the President’s safety, requires the Secret Service to provide notice to the public of the restriction, and is violated only when done so knowingly. To speculate about discriminatory enforcement is neither helpful to this analysis or permitted: “Every criminal law, of course, reposes some discretion in those who must enforce it. The mere possibility that such discretion might be abused hardly entitles courts to strike a law down” Schleifer by Schleifer v. City of Charlottesville {147kb.html, 216kb.pdf}, 159 F.3d 843, 854 (4th Cir. 1998), cert. denied, 526 U.S. 1018 (1999). Rather than use the defendant’s broad brush approach, courts are to be more circumspect:

Striking down ordinances (or exceptions to the same) as facially void for vagueness is a disfavored judicial exercise. Nullification of a Jaw in the abstract involves a far more aggressive use of judicial power than striking down a discrete and particularized application of it. Of course there will be hard cases under any law. And of course all the particular applications of any general standard will not be immediately apparent. That is no reason, however, for courts to scrap altogether the efforts of the legislative branch. It is preferable for courts to demonstrate restraint by entertaining challenges to applications of a law as those challenges arise.

Schleifer {147kb.html, 216kb.pdf}, 159 F.3d at 853.

Rule of Lenity

The defendant’s Memorandum contains an interesting discussion the Rule of {p.14} Lenity, but he provides no argument as to why it should apply here. The Government maintains that the rule is inapplicable because its use is limited to ambiguous statutes, which 18 U.S.C. § 1752 is not.

In his law review article, Decker describes an ambiguous statute as one that “is subject to two or more different interpretations....” Decker at 260-61. See also: Johnson v. United States, 529 U.S. 694, 713 n.13 (2000) (“Lenity applies only when the equipoise of competing reasons can not otherwise be resolved....”) and United States v. Murphy {216kb.pdf}, 326 F.3d. 501, 504 (4th Circuit, 2003).

It is clear that 18 U.S.C. § 1752 is not subject to two or more interpretations. The defendant has conceded that his earlier interpretation of the statute (based upon the typographical error involving the colon) was wrong, and this concession would seem to lead to the self-evident conclusion that there is only one interpretation of the statute. However, the defendant insists that since he earlier believed (wrongly) that there was another interpretation, albeit one that was patently absurd, the statute is capable of two interpretations. As explained at length in earlier pleadings, ignorance of the law is no defense, and the defendant’s claimed ignorance of the meaning of this statute does not (and cannot) create an ambiguity 5 . {p.15}

The defendant attempts to bolster his argument by pointing out that the government provided me court with in depth research in order to clarify the meaning of this statute. This is hardly and unique exercise, but more importantly, the lengths to which one parry goes to show that there is only one plain meaning of a statute does not change the fact that the statute has only one meaning, not two.

Since this statute has only one meaning there is no ambiguity, and without an ambiguity, the rule of lenity has no relevance to this analysis.


For the foregoing reasons, the Government asks that the defendant’s motion be denied.

Respectfully submitted,

J. Strom Thurmond, Jr.
United States Attorney

Signature: John M. Barton



John M. Barton
Assistant U.S. Attorney
(Federal I.D. # 1226}
1441 Main Street, Suite 500
Columbia, S.C. 29201
(803) 929-3000

September 12, 2003 {p.16}


Certificate of Service

{Case caption, omitted}

I hereby certify that I am an employee in the Office of the United States Attorney for the District of South Carolina, Columbia, South Carolina, and on September 12th, 2003, I served one true and correct copy of the attached Response to Defendant’s Memorandum in Support of Dismissal Because of Vagueness by depositing the same, in the United States Mail, postage paid, on the following persons(s):

Rauch Wise, Esquire
305 Main Street
Greenwood, SC 29646

Pascal Lewis Pitts, Jr., Esquire
1030 Carolina Avenue
Durham, NC 27705

Signature: Lisa B. Gillam


Lisa B. Gillam, Legal Assistant
to AUSA John M. Barton

Columbia, South Carolina


Each footnote appears entirely on the same page with its text reference.  CJHjr

 1  While there are differences between traditional state law trespass and 18 U.S.C. § 1752, the Government will refer to the crime charged in the Information as “trespass” for the sake of simplicity.

 2  In an early dissenting opinion, then Judge Scalia expressed this proposition thusly: “All our holdings (though admittedly not some of our discussion) support the conclusion that ‘the only First Amendment analysis applicable to laws that do not directly or indirectly impede speech is the threshold inquiry of whether the purpose of the law is to suppress communication. If not. that is the end of the matter so far as First Amendment guarantees are concerned....’ Community for Creative Non-Violence v. Watt, 227 U.S.App.D.C. 19, 55-56, 703 F.2d 586, 622-623 (1983) (enbanc) (Scalia, J., dissenting), (footnote omitted; emphasis omitted), rev’d sub nom. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). See also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 578-79.

 3  Texas v. Johnson, 491 U.S. 397, 406 (1989).

 4  Such lawful restrictions might include those applicable to private property or local picketing statutes and regulations.

 5  Furthermore, the rule of lenity states that when interpreting an ambiguous statute, the court is to apply the interpretation most favorable to the defendant. Apparently the defendant believes the interpretation of this statute that is most favorable to him is his original one, which he has conceded was wrong. Obviously the rule of lenity should not to be used to interpret a statute in a manner that is acknowledged to be correct.


Source: Photocopy of a duplicate original (the court’s file copy), scanned to pdf.

By CJHjr: Converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting, added paragraphing (for ease of reading) marked with this trailing paragraph symbol:  ¶, box p.5.

This case: United States v. Brett A. Bursey (D.S.C., No. 3:03cr309 {175kb.html}, criminal information filed March 7 2003, jury trial denied June 4 2003, bench trial Nov. 12-13 2003, bench trial Nov. 12-13 2003, verdict Jan. 6 2004: guilty, $500 fine (Bristow Marchant, U.S. Magistrate Judge), district appeal docketed Jan. 13 2004, affirmed Sept. 14 2004 (Cameron McGowan Currie, U.S. District Judge), circuit appeal docketed Oct. 7 2004, affirmed July 25 2005 {64kb.pdf, 64kb.pdf}, rehearing denied Sept. 8 2005 (4th Cir., No. 04-4832), petition for certiorari docketed Dec. 14 2005, certiorari denied Jan. 17 2006 (U.S., No. 05-767).

Previous: Defendant’s Memorandum in Support of Dismissal Because of Vagueness (August 20 2003).

Next: Defendant’s Reply to Government’s Response to Defendant’s Memorandum in Support of Dismissal for Vagueness (Sept. 29 2003).

See alsoOther Secret Service protest zone cases” on the docket-sheet page. Brett Bursey

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.


Posted Dec. 16 2003. Updated June 6 2008.


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