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Full-text: November 21 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 A. Bursey | ) |
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Government’s Brief on Constitutional Enforcement and Selective Prosecution
The defendant’s claims of unconstitutional enforcement of this statute and his selective prosecution have been so vague that the government asks the court to permit the government to reply to any response the defendant files on these issues which better defines the bases for his arguments or which raises new issues.
Constitutional Enforcement
As explained in the Government’s earlier memorandum concerning the facial constitutionality of 18 U.S.C. § 1752, this statute is “content neutral” and only imposes incidental burdens on speech. Relying on multiple Supreme Court precedents, the Fourth Circuit in Satellite Broadcasting and Communications Ass’n v. F.C.C. {169kb.pdf}, 275 F.3d 337 (4th Cir. 2001) and D.G. Restaurant Corp. v. City of Myrtle Beach, 953 F.2d 140, 143-44 (4th Cir. 1991), made it clear that the standard to be used by this court in reviewing the constitutional application of such statutes is found in United States v. O'Brien, 391 U.S. 367 (1968), which requires this court to determine:
“[1] if it [the statute] is within the constitutional power of the Government; [2] if it [the statute] furthers an important or substantial governmental {p.2} 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.
Obviously the statute in this case is within the constitutional power of the government, the interest it seeks to further (protection of the President) is not just substantial but “overwhelming,” Watts v. United States, 394 U.S. 705, 707 (1969), and this interest is unrelated to any suppression of free expression. The only remaining question is whether any incidental restriction on free expression that may have resulted from the enforcement of the statute on October 24, 2002, was no greater than essential to protect the President. At trial, the defendant apparently sought to prove that enforcement of the restricted area was greater than “essential” to the protection of the President because that enforcement was either not effective and/or other enforcement alternatives existed. However, such an analysis of the enforcement of a statute has been specifically rejected by the Supreme Court.
The government discussed United States v. Albertini, 472 U.S. 675 (1985) in its response concerning the vagueness of this statute, and this case provides this court with the guidance to be used when analyzing the enforcement of 18 U.S.C. § 1752 on October 24, 2002. In that case, Albertini had been barred from admission onto Hickam Air Force Base in Hawaii. After finding that the first three O'Brien factors had been satisfied, the Supreme Court addressed the method of enforcing Albertini’s exclusion and rejected the {p.3} 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 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.... Nor are such regulations invalid simply because there is some imaginable alternative that might be less burdensome on speech.... Instead, an incidental burden on speech is no greater than is essential, and therefore is permissible under O'Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.... 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.
Albertini, 472 U.S. at 688-89 (citations and internal punctuation omitted) (emphasis added). This same reasoning is found throughout the decisions of the Supreme Court {p.4} which review the constitutionality of the enforcement of similar statutes. See Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (Court rejected the appellate court’s conclusion that National Park Service restrictions on sleeping in parks were unnecessary because those findings “represent no more than a disagreement with the Park Service over how much protection the core parks require or how an acceptable level of protection is to be attained”); and Ward v. Rock Against Racism, 491 U.S. 781, 797 (1989) (in reversing appellate court’s striking down of city noise ordinance, the Court stated: “The Court of Appeals erred in sifting through all the available or imagined alternative means or regulating sound volume in order to determine whether the city’s solution was the ‘least intrusive means’ of achieving the desired end.”).
Thus, this court need not determine whether other motorcade routes would have been less intrusive, whether barricades should have been used to identify the restricted area, whether the restricted area should have been differently configured, or whether anyone at the airport that day should have been asked more questions about their reasons for being present. To do so would be to attempt to answer the wrong question — whether the substantial government interest could have been more effectively achieved through some other method of enforcement, a determination which is very likely beyond the competence of any court. It is for this reason the Supreme Court has stated that the correct question for this court to answer is whether protection of the President would have been less effectively achieved on October 24, 2002, had the Secret Service not enforced {p.5} the restricted area in the manner it chose. That answer is undeniably “yes,” and that appropriately ends this inquiry 1 .
In addition, the defendant’s efforts to show that the enforcement of the restricted area by the U.S. Secret Service was not effective also fails for another reason: simple lack of proof. The defendant only offered testimony concerning the individual perceptions of certain limited aspects of what occurred from the perspective of untrained lay persons who were ignorant of all the security measures taken by the Secret Service. In light of the testimony from Agent Cohen about the extensive preparations that had been made for the President’s protection, the defendant’s evidence is woefully inadequate to form any basis for questioning the sufficiency or effectiveness of the Secret Service’s efforts.
The defendant also sought to criticize the arrangements that had been made for the designated demonstration area, apparently in an effort to support his claim that certain persons were segregated based on the content of their message. There was simply no evidence to support this assertion. To the contrary, the evidence clearly established that people were directed to the demonstration area 2 , not based on the content of their speech, but rather because demonstration activity was permitted by state law and airport {p.6} regulations only in that area. Content neutral and uniformly applied time, place and manner restrictions on protected activity have long been permitted. See Cox v. State of Louisiana, 379 U.S. 536 (1965).
In this case, the evidence was uncontroverted that the demonstration area was established solely by local law enforcement based on credible, reasonable and rational factors. Chief Blackmon of the Airport Police testified that the he choose the location of the demonstration area because “traditionally” that was where demonstrators were permitted to picket, the Presidential motorcade would pass by the location, and due to the congestion and construction at the airport, he considered that location to be the safest for demonstrators. There is no evidence from any witness that the demonstration area was located based content of anyone’s speech. While the defendant might disagree with the location of the demonstration area, like other content neutral regulations, the “least restrictive-alternative analysis ... has never been a part of the inquiry into the validity of time, place and manner regulation.” Ward, 491 U.S. at 797 (citing Regan v. Time, Inc., 468 U.S. 641, 657 (1984)) (emphasis added).
Furthermore, if the defendant disagreed with the arrangements that had been made for demonstration activity, his remedy was to seek injunctive relief 3 , not to knowingly and willfully disobey the law. {p.7}
Selective Prosecution
Selective prosecution occurs when a defendant has been selected for prosecution in contravention of his constitutional rights. To prove such a claim, a defendant has the “heavy burden” of establishing that (1) persons similarly situated to him were not prosecuted and (2) the decision to prosecute him was invidious or made in bad faith. United States v. Hastings {30kb.html/txt, 48kb.pdf}, 126 F.3d 310, 313 (4th Cir. 1997). See also United States v. Marcum, 16 F.3d 599, 602 (4th Cir. 1994). To avoid frivolous claims, a defendant must come forward with some evidence making a credible showing of these factors before discovery is even allowed, which is a rigorous threshold showing intended to be “a significant barrier to the litigation of insubstantial claims.” United States v. Armstrong, 517 U.S. 456 (1996); Hastings, 126 F.3d at 314. Since the defendant has failed to come forward with any evidence sufficient to prove either of the above requirements, no further discovery should be permitted and his Motion to Dismiss Based on Selective Prosecution must be dismissed.
1. Similarly situated. In making the determination of whether similarly situated persons were not prosecuted, the defendant wants this court to focus on only one limited aspect of his conduct: “others present in the alleged ‘restricted zone’ were not arrested or charged with any criminal offense” (Defendant’s Motion, p.1). From this limited review, the defendant apparently wants the court to conclude that since he was the only one arrested, he must have been arrested for the views he was expressing. However, {p.8} rather than such a restrictive review, a court “must examine all relevant factors,” United States v. Olvis {27kb.html/txt, 48kb.pdf}, 97 F.3d 739, 744 (4th Cir. 1996), after which a court can find persons to be similarly {situated} only “when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.” Id.
One of the first legitimate prosecutorial factors listed in Olvis is “the strength of the evidence against a particular defendant,” id., such as exists in this case. There is a bright line distinction between the defendant and all others who were present at the airport on October 24, 2002: there is clear and substantial evidence that he committed a crime, and there is no evidence that anyone else did so. The defendant wants the court to ignore the overwhelming evidence that he was told he was in a restricted area, he was in fact in a restricted area, he acknowledged that he was not authorized to be there, and he refused to leave. Even the defendant’s fellow demonstrators left the restricted area when told to do so by law enforcement. There is simply no evidence that anyone else engaged is {sic: in} similar conduct, and therefore there is no evidence that anyone else {is} similarly situated to the defendant. See United States v. Hastings {30kb.html/txt, 48kb.pdf}, 126 F.3d 310, 315 (4th Cir. 1997) (“[The defendant] is unable to show that any other person not prosecuted has any of the characteristics identified” as the reason for his prosecution) (emphasis in original).
Thus, since the defendant has failed to establish the first requirement concerning selective prosecution, his motion should be dismissed. {p.9}
2. Discriminatory purpose. The defendant has also completely failed to prove that the decision to prosecute was based on his exercise of a protected constitutional right and therefore was invidious or made in bad faith. The only evidence 4 that the defendant was possibly arrested for such a discriminatory purpose is his own testimony concerning a hearsay statement by the arresting officer who allegedly told the defendant that he was being arrested because of the content of his sign. In contrast to this self-serving testimony, many of the defendant’s own witnesses had prolonged discussions with law enforcement officers about their exclusion from the restricted area and no one testified that they were told by anyone that the content of their speech was the reason for their exclusion. No witness testified that they even overheard such a statement from any law enforcement officer. The defendant and some of his companions may have concluded that the content of their speech was the reason they were told to leave the restricted area {p.10} and/or go to the demonstration area, but there is no reliable or credible evidence to support that conclusion 5 . Thus, the defendant has fallen far short of carrying his heavy burden of proving he was selected for prosecution in contravention of his constitutional rights.
The defendant’s motion should also be denied for another reason. Even if the court were to conclude that the law enforcement officer who arrested the defendant did so, at least in part, for an unconstitutional reason, the defendant’s selective prosecution motion must still be denied. In Hastings, 126 F.3d at 314, the Court stated that even if law enforcement harbors some unconstitutional animus toward the defendant, the defendant must nonetheless show
evidence that the government official who actually made the decision to prosecute the case was motivated by impermissible considerations. We will not impute the unlawful biases of the investigating agents to the persons ultimately responsible for the prosecution.
Hastings {30kb.html/txt, 48kb.pdf}, 126 F.3d at 314 (citing United States v. Monsoor {16kb.txt}, 77 F.3d 1031, 1035 (7th Cir. 1996) and United States v. Goulding, 26 F.3d 656, 662 (7th Cir. 1994)). See also United {p.11} States v. Bernal {8kb.txt}, 28 F.3d 630, 632 (7th Cir. 1994). The defendant has offered absolutely no evidence whatsoever that any official with the United States Department of Justice made the decision to prosecute him for any unconstitutional or otherwise inappropriate reason. The defendant has not even attempted to do so, which was the reason he was not permitted to conduct discovery earlier in these proceedings, and no evidence from the trial provided any additional proof in this regard.
Clearly the defendant has failed to carry his burden of proof as to the second selective prosecution requirement, and therefore his motion to dismiss should be denied.
Respectfully submitted,
J. Strom Thurmond, Jr.
United States Attorney
by:
{Signature}
John M. Barton
Assistant U.S. Attorney
(Federal I.D. # 1226)
1441 Main Street, Suite 500
Columbia, S.C. 29201
(803) 929-3000
______________________
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, and on November 21, 2003, I served one true and correct copy of the Government’s Brief on Constitutional Enforcement and Selective Prosecution, in the above-captioned case via first class United States Mail, return address clearly stated, proper postage affixed thereto, addressed as follows:
Rauch Wise, Esquire
305 Main Street
Greenwood, SC 29646
Pascal Lewis Pitts, Jr., Esquire
1030 Carolina Avenue
Durham, NC 27705
{Signature}
Tracey S. Donaldson
Footnotes
1 Furthermore, the defendant’s suggested analysis could lead to an unintended and undesirable result. If the Secret Service’s arrangements for the President’s security are found to be ineffectual, the solution might well be to make those arrangement even more restrictive and thus incidentally burden protected speech to an even greater degree.
2 The defendant’s claim that he was not given directions to the demonstration area is not credible in light of the testimony from both the government witnesses and the defendant’s own witnesses who acknowledged being told where the area was located.
3 Such injunctive relief, based on the events of October 24, 2002, is being pursued by at least one of the defendant’s witnesses. See Rudolph v. Ridge, CA# 3:03-1580-10, filed in District Court in Columbia.
4 To the extent the court finds their testimony credible, Amanda Martin and Michael Berg did testify that they were told to leave the area immediately after displaying a sign critical of the President from the window of their car. However, there was no testimony that any reference was made to the sign by law enforcement, and it is much more likely that the demand to leave was as a result of Martin stopping her car in the middle of the one road that every other witness testified was the sole access road being used by the heavy traffic going to the only parking lot that was available for the event on October 24.
Similarly, while Gerald Rudolph testified that he was told to put down his sign, he did not testify that anyone giving him these instructions made reference to the content of the sign (Rudolph also testified {490 kb} that he did not even know what message was on the sign he displayed). Since Rudolph’s actions indicated that he intended to demonstrate, it is far more likely that Rudolph was simply told that if he wanted to demonstrate he should go to the designated demonstration area. This conclusion would be consistent with the testimony of numerous other witnesses concerning the instructions given about the demonstration area.
5 It is actually possible to reconcile the proper intentions of law enforcement with the conclusion the defendant and his companions reached about law enforcement’s supposed biased motivation. The defendant observed others in the area (those attending the event) who were expressing their support for the President, and he was in the same general area with a message expressing opposition to the President. Since the others are permitted to remain while he is required to leave, he believes that the reason he was excluded was his message. However, that conclusion is based on an incorrect premise. The reason he was required to leave was because he was not authorized to be present, whereas the reason the others were permitted to remain was that they were authorized to be present. The respective messages were simply irrelevant.
Commentary
Let’s see if I understand this:
South Carolina state officials, in order to facilitate their hospitality, have implemented regulations which transform public property — bought and paid for by the sweat of their taxpayers — into a private club, where they can host the dignitaries of the day in polite and pleasant company.
And those who might wish to despoil this serene scene by “demonstrating” their political opposition to the invited dignitaries are “not authorized to be present,” and so violate the rules of this private club.
To strong-arm the private club’s rules, the armed forces of state — also bought and paid for by the sweat of the taxpayers — are likewise privatized into the service of the private club, to obey the commands of the club’s directors.
Naturally, the rules of the private club permit “demonstrations” of affection and support by the polite company, in the custom of Southern Hospitality. And, they do not prohibit bystanders from observing the proceedings, if they don’t “demonstrate,” because it’s a useful instruction to the citizenry, that they be permitted to watch and see the benefits of club membership, and so inspire their aspirations to join this elite and powerful club and thereby encourage their contributions, to strengthen the club’s objectives.
These polite “demonstrations” are not the sort of “demonstrations” which the rules of the private club prohibit, because the directors of the club are entitled to designate which “demonstrations” are authorized and which are not.
That goes without saying. Of course. And it’s certainly not written down anywhere. You can’t write everything down in a rule book; it would be too heavy to carry around.
And it would be embarrassing. To put down in black and white, that state officials can usurp public property for their private functions.
Very Southern. Makes me feel right at home.
Oh. And those chain gangs? Hacking at the grass on the road side? Well don’t mind about them, that’s nothing to trouble you. That’s only for people who don’t obey the rules. And want to make an issue about it.
–Charles Judson Harwood Jr., Dec. 4 2003
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.
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: Trial Transcript, Day 1, Nov. 12 2003 {475 kb}.
Previous: Trial Transcript, Day 2, Nov. 13 2003 {525 kb}.
Next: Defendant’s Brief in Opposition to U.S. Brief (Dec. 9 2003).
See also “Other 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. 4 2003. Updated June 1 2008.
http://homepage.ntlworld.com/jksonc/docs/bursey-dsc-d69.html