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Full-text: October 20 2003
Protest zones: “No War for Oil” (October 24 2002)

Filed, OCT 20 2003, Larry W. Propes, Clerk, Columbia S.C.

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


Criminal No. 3:03-0309

Entered, OCT 20 2003
United States of America)
Brett A. Bursey)


The Defendant has been charged with a violation of Title 18 U.S.C. § 1752(a)(1)(ii), which makes it unlawful for any person or group of persons to willfully and knowingly enter or remain in any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporary {sic: temporarily} visiting, in violation of the regulations governing ingress or egress thereto. ¶

The Defendant has filed a motion to dismiss the charge against him on the ground that the statute as written and as applied is unconstitutionally vague and overbroad. The Government filed a memorandum in opposition to Defendant’s motion on September 12, 2003, and the Defendant filed a reply memorandum on September 29, 2003.

After review of the arguments presented and the applicable caselaw, the Court does {p.2} not find that the statute under which the Defendant has been charged is unconstitutionally vague or overbroad. ¶

Defendant cites in support of his argument the case of United States v. Harriss, 347 U.S. 612 (1954), wherein the United States Supreme Court held that ¶

“[t]he constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principal is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” ¶

Harriss, 347 U.S. at 617. ¶

However, the statute here sets out precisely what conduct is made unlawful, and further contains a scienter requirement that the proscribed conduct be both willful and knowing. Cf. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982) [“[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”]. See also Hill v. Colorado, 530 U.S. 703, 727, 732-733 (2000) [rejecting protestor’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 where there was a “knowing” requirement in the statute]. See also, Harriss, 347 U.S. at 618. ¶

Therefore, this argument is without merit.

Defendant’s complaint that the statute is unconstitutional because it could lend itself to discriminatory enforcement by prosecuting officials is also without merit. ¶

“Every criminal law ... 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). ¶

The plain language of the statute clearly proscribes only certain specific conduct. If the facts and evidence submitted at trial show that the statute was applied in an unlawful or discriminatory manner, then {p.3} such facts and evidence could be the basis for an acquittal. See generally, United States v. Zwick {80kb.txt, 80kb.txt}, 199 F.3d 672, 683, n.8 (3rd Cir. 1999); United States v. Purdy {17kb.pdf}, 264 F.3d 809, 811-812 (9th Cir. 2001). However, that does not mean that the statute itself readily lends itself to harsh and discriminatory enforcement by prosecuting officials. Cf. Thornhill v. Alabama, 310 U.S. 88, 98 (1940); see also Schleifer, 159 F.3d at 853 [“Striking down ordinances (or exceptions to the same) as facially void for vagueness is a disfavored judicial exercise. Nullification of a law in the abstract involves a far more aggressive use of judicial power than striking down a discrete and particularized application of it.... It is preferable for courts to demonstrate restraint by entertaining challenges to applications of a law as those challenges arise”].

Finally, Defendant’s argument that the statute under which he has been charged should be void for vagueness or for being overbroad because, at the time of his arrest, he was exercising his First Amendment right to protest, is without merit. Defendant cites to the case of NAACP v. Button, 371 U.S. 415 (1963), for the proposition that government may regulate in the area of the First Amendment only with narrow specificity. However, this argument goes more to how the statute is being applied in Defendant’s case, not to the underlying validity of the statute itself. Indeed, the Government contends that the facial constitutionality of the statute here is not subject to scrutiny under the First Amendment at all, because it is a general law which does not by its express terms restrict, inhibit or even reference speech in any form. See Adderley v. State of Florida, 385 U.S. 39, 47-48 (1966). In any event, the Government posits the correct analysis to be used in this case when it states in its brief that while ¶

“this statute, like any statue {sic: statute}, cannot be enforced in an unconstitutional manner, ... that is a separate and distinct issue which is to be decided based upon the facts established at trial.” ¶

This Court agrees. Therefore, {p.4}

It is ordered that the Defendant’s motion to dismiss the charges against him on the ground that the statute as written and as applied is unconstitutionally vague and overbroad is denied.

It is so ordered.

Signature: Bristow Marchant


Bristow Marchant
United States Magistrate Judge

Columbia, South Carolina
October 20, 2003

AO 72A
(Rev. 8/82)


Source: Photocopy of a duplicate original (the court’s public 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:  ¶.

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

Next: Defendant’s Motion to Dismiss Based upon Selective Prosecution (Oct. 28 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 5 2008.


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