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Full-text: September 29 2003
Protest zones: “No War for Oil” (October 24 2002)

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

 

	)
United States of America	)
)
vs.	)
)
Brett Bursey	)
	)

Reply to Government’s Response to Defendant’s Memorandum in Support of Dismissal for Vagueness

The Defendant, Brett Bursey, by and through undersigned counsel, submits its reply to the Government’s Response to Defendant’s Memorandum in Support of Dismissal for Vagueness.

Its case lacking a firm foundation in law or fact, the government has responded to Defendant’s Memorandum in Support of Dismissal with accusations, ad hominem attacks and specious legal reasoning. The government wants to turn the political prosecution of an anti-war protester into a presidential security issue, and it will stoop to accusing Defendant’s counsel of misconduct, if expedient. {p.2}

The government first attempt is to reconstruct the federal statute as a trespass statute. The federal government has no authority to acquire by eminent domain any area where a protester might stand, with the exception of remote allocated free speech zones, when the President is in town. ¶

But the facts are that Defendant was arrested and charged with the State offense of trespass. Those charges were dismissed because the Supreme Court of South Carolina had already determined thirty years prior in a remarkably similar case involving the Defendant that his actions did not constitute trespass because the area where Defendant stood was a public forum. ¶

In what amounts to little more than a SLAPP prosecution, the federal government nevertheless decided to prosecute Defendant under 18 U.S.C. § 1752, four months after the President’s visit. Yet the government argues any vagueness in the statute is cured by the fact that Mr. Bursey deliberately choose to remain in an alleged “restricted” area whereas all of his fellow protesters elected to leave. ¶

The undisputed facts are that Mr. Bursey was never confronted with a charge under section 1752 on the day of the President’s visit; he was advised that if he did not leave and go to a “protest zone” he would be arrested for trespass — an offense for which he knew he could not rightfully be charged or convicted. The failure to use section 1752 on that day strongly suggests its inapplicability to the facts of this case. Its use over four months later exemplifies its vagueness, and overbreadth.

Next, the government creates ridiculous hypothetical flagellations about bank robbers and marijuana farmers with expressive t-shirts in an effort to confuse the argument and arouse prejudice against Defendant. It claims, quite correctly, {p.3} that a robber with such a t-shirt would not be immunized from prosecution by the First Amendment. But a more thorough look at the hypothetical exposes its weakness. Imagine two criminals robbed a bank, one wearing a “Down with Imperialism” t-shirt and the other wearing an “I Love Imperialism” t-shirt. If the government decided to prosecute the robber with the anti-imperialist t-shirt because of its content, while deciding that the other robber did not merit prosecution because the government approved of the content of his t-shirt, the prosecution would certainly be unconstitutional. ¶

Here, the Defendant engaged in no unlawful conduct because the area where he was arrested was not an area roped or cordoned off by the Secret Service. If the Defendant’s conduct been unlawful, it would still be improper for the government to selectively prosecute the Defendant for carrying a sign hostile to the current administration while turning a blind eye to those carrying signs supportive of the administration. Thus, section 1752 and its vagueness, which allows it to be misused to chill or deny free speech, has First Amendment ramifications and requires judicial scrutiny.

Defendant in this case contends that the federal statute is constitutionally defective. The statute is void for vagueness as it provides no fair notice, and it invites arbitrary and discriminatory enforcement by law enforcement authorities who could use it to curtail Defendant’s First Amendment rights. ¶

Contrary to the government’s assertion, Defendant has never conceded that the statute is not subject to two or more interpretations and misuse. Defendant’s Memorandum Concerning the Elements of the Offense expressly stated: “Further, the statute in question, because of the typographical error, is vague and therefore {p.4} unconstitutional.” (Memo p.1) Even if the legislative history does indicate that the punctuation is a typographical error, the very fact that several law clerks, attorneys and a federal court judge labored to determine the meaning by exhaustively searching the legislative history amply demonstrates the inscrutability of the statute. Furthermore, the very same legislative history evinces concern of members of Congress that the statute not be written or utilized in an unconstitutional manner that would infringe upon the First Amendment. See Legislative history, attachment to Government’s Memorandum of Authorities Concerning the Elements of the Offense.

The government accuses counsel of willful omission and deceit, which is hereby denied, in {sic: . In} the government’s Response its very first case citation, or lack thereof, quotes without any citation Cox v. Louisiana, 379 U.S. 536, at 555 (1965), yet totally omits the very crux and holding of the case. In that case, a civil rights protester was improperly convicted of disturbing the peace in violation of his constitutional right to free speech and free assembly under a statute that was unconstitutionally vague, which allowed officials unfettered discretion in its enforcement. The Supreme Court said:

The Supreme Court took umbrage with the statute because it gave officials unfettered discretion rather than defined standards containing procedural safeguards that prevent the prohibition of ideas they do not agree with. How peculiar that the government should omit from its discussion this facet of the case and the Supreme Court jurisprudence.

Defendant has asserted that the vagueness of {the} statute allows it to be arbitrarily and discriminatorily used to deny First Amendment rights. Again, Defendant turns to the case the government failed to cite or fully explain. Cox v. Louisiana. In that case:

And, in the case at bar, Defendant led a group who wished to protest. They peaceably assembled at the Columbia Airport attempting to holds signs expressing their views in opposition to Administration policy. The group was well controlled and orderly. ¶

During the planning stage before the Presidential visit, law enforcement officials met and discussed the fact that Defendant “was planning on attending President Bush’s event to ‘protest’.” ¶

At that meeting, a law officer was instructed to tell Mr. Bursey that he had to go to a specific area to protest. That area was more that one half mile away from the site of the President’s visit and from where thousands of other individuals not expressing views critical of the President were allowed to remain. It was out of sight of most of the people attending the event and the reporters covering the event. Defendant’s conduct was not objectionable except as it voiced opposition to the war. ¶

Defendant’s sign read “No War for Oil.” A policeman told him he had to put down his sign or leave. Defendant asked the officer if the problem related to the content of the sign. The officer said, “Yes, sir, it’s the content of your sign.” Defendant kept the sign and was arrested. ¶

He watched Air Force One land from the back of a patrol wagon {p.7} and spent the night in the county jail.

Defendant asks that the Court grant Defendant’s pending motion because the statute is unconstitutionally vague and overbroad.

Respectfully submitted this ___ day of September 2003.

Attorneys for Brett Bursey

______________________

Certificate of Service

I, , certify that I served a copy of the above Memorandum on Assistant USA John Barton by hand delivery to him or a responsible person in his office the 30 day of September, 2003.

{Signature: B.A. Bursey}

 

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

Posted Dec. 16 2003. Updated June 29 2008.

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