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Full-text: December 9 2003
Protest zones: “No War for Oil” (October 24 2002)

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

Original Filed, DEC –9 2003, Larry W. Propes, Clerk, Columbia S.C.


Cr. No. 3:03-309

United States of America)
Brett A. Bursey)

Defendant’s Reply Brief on Constitutional Enforcement and Selective Prosecution

Brett A. Bursey’s claim for selective prosecution and unconstitutional enforcement is very simple and basic. He contends that enforcement of the statute and regulations against him was because he was the only person prosecuted, or even investigated for prosecution, because he was carrying a sign critical of the present administration. He further contends that the statute and regulations as applied to him violate the First and Fifth Amendments to the Constitution of the United States of America. He contends that the application of the statute and regulations under the facts of this case is so vague and overboard that Mr. Bursey was deprived of his right to protest the policies of the current administration. He further contends that the application of the statute and regulations are enforced in such a vague manner that a person does not know when his conduct violates the law.

Aside from the defense of this country by the military, there is no {p.2} greater obligation for the federal government than the protection of the President. Due to the high importance of this function, plans to protect the President are often shrouded in secrecy for many compelling reasons. But because the duty is great and the plans are secret, there is also a greater potential for abuse by the government than in many other government functions.

Selective Prosecution

To determine whether the statute and regulations are being selectively enforced, one must first determine what the statute and regulations prohibit. As noted in the briefs discussing the elements of this case, the government must prove that Mr. Bursey was in a restricted area and that he entered or remained in the area in violation of the regulations. The only regulation with which this case is concerned is whether Mr. Bursey was an invitee, that is did he possess an invitation. To determine if the statute and regulation is being selectively enforced, one must first determine if any other person entered or remained in the “restricted” area in violation of the regulations. 1  The regulations prohibit anyone from entering the restricted area without being an invitee. ¶

The government’s case shows that the vast majority of the restricted area was not enforced in accordance with this regulation. {p.3} Mr. David Cohen testified that he was not concerned with anyone before they went through the metal detectors. Tr. at 64-1, II 7-18. The testimony further showed that everyone was admitted into the restricted area without regard to whether they had tickets. In fact, Mr. Cohen testified that a person could obtain a ticket while in line. Tr. at 1-68, II 18-25. The testimony from all witnesses was that except for a few minutes when the President arrived, Airport Boulevard was open to traffic without anyone being checked to determine if they had tickets or were there on business. ¶

Simply put, many people entered the “restricted” area who did not have tickets or were not checked to determine if they had tickets. The restricted area was not enforced in a manner to limit the area in accordance with the regulations. Of all the people who entered the restricted area who either did not have a ticket or were not checked to determine if they had a ticket, only one, Brett Bursey, was arrested.

If the evidence had shown that the officers were in fact checking for tickets before a person entered the restricted area, but that a few people managed to sneak through and Mr. Bursey was the only one arrested, then the government may have a valid point that Mr. Bursey was not selectively prosecuted. ¶

But those are not the facts here. The people who entered the restricted area were not checked to determine if they were an invitee. Entering the restricted area without being an invitee is a violation of the regulations. Mr. Bursey has shown that others were not {p.4} arrested nor were they even checked to see if they were entitled to enter the restricted area. As the regulations were not even sought to be enforced against anyone other than Mr. Bursey, he has met the first prong required to establish selective prosecution. United States v. Hastings {30kb.html/txt, 48kb.pdf}, 126 F.3d 310 (4th Cir. 1997).

Mr. Bursey has also proven the discriminatory purpose. Mr. Bursey was not confronted until he started to take out his signs. While the government may have produced testimony that the arresting officers did not see the signs, it belies belief to find that the officers did not know that Mr. Bursey intended to protest the policy of the government. ¶

First, Mr. Bursey testified that he in fact had his sign out as well as Mr. Jerry Rudolph testified that the officers told him he could not display his sign. Tr. at 163, II 10-25 to 166, II 1-9. When Mr. Rudolph placed his sign down, he was not arrested.

Mr. Bursey also introduced numerous pictures that show signs were present in the resticted {sic: restricted} area. Most, if not all, of these signs had metal rods holding them in the ground. Obviously someone had entered the restricted area and placed these sign in the ground. ¶

When Mr. Bursey arrived with his signs, he was then told he could not display them in the area. Interestingly, he was not told that he could place his signs in the ground and then leave, as had been done with the signs favorable to the Republican party. The government has given no explanation as to {p.5} why a sign in the ground with a metal rod was less of a danger to the President than a sign being held by Mr. Bursey without either a wooden stick or a metal rod. ¶

The only person arrested that day for a violation of the regulations was a person who refused to put down his sign.

This court should not expect the officers to testify that they arrested Mr. Bursey because of his signs. Certain facts are, however, undisputed. Mr. Bursey was the only protester who refused to put down his sign. Signs favorable to the Republican party were permitted within the restricted area. No sign critical of the Republican party or the current administration was in the restricted area. Mr Bursey, holding a sign critical of the President was the only person arrested. ¶

To use the Fox News slogan, “We report, you decide.” When those are the facts, the only logical conclusion to be reached is that Mr. Bursey was singled out because of the content of this sign. That is an arrest for a discriminatory purpose.

Nor is this case like Wayte v. United States, 470 U.S. 598 (1985) in which the United States Supreme Court approved of a passive enforcement of the draft law. Here the government purpose, the protection of the President, is far too important to approve of a selective enforcement of the law in question. In the present case, there was not passive enforcement, but non-enforcement of the restricted area. {p.6}

Constitutional Enforcement

As applied to Mr. Bursey, the enforcement of the statue and the regulations was vague and ambiguous. Probably the best example of how the law was ambiguous as to Mr. Busrsey {sic: Bursey}, is that Officer Baker refused to simply tell Mr. Bursey that the end of the restricted area was only about one hundred yards up Lexington Boulevard. Tr. at 1-233, II 23-25 to 1-234, II 1-3. ¶

When a government agent declines to tell a person where the line is, beyond which he could not be prosecuted, a defendant is left to guess for himself where the unknown imaginary line is located. He is then required to suffer the consequences if he guesses wrong. Mr. Bursey first started protesting on the side of Airport Boulevard that is closest to the hanger. When he was told he was in a restricted area, he moved. When told he was still in a restricted area, he received no information as to where the line was located.

The application of the regulations was further ambiguous on the day in question because there was no enforcement of the restricted area. Bursey saw, as the officers testified, that no one checked for tickets as they entered the area. All were free to enter, whether it be vehicular traffic or pedestrian traffic. Thus, Mr. Bursey had no objective evidence that the area he was in fact entering was a restricted area. The officers are not permitted to determine where the boundaries of {p.7} the restricted area are located. Mr. Bursey could not objectively know that the area within which he was remaining was a restricted area when people and vehicles were permitted to enter the area without being checked. 2 

As the United States Supreme Court has said ¶

“[B]ecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. ... [I]f arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” ¶

Grayned v. Rockford, 408 U.S. 104, 108 (1972).

Under the facts of this case, Mr. Bursey did not have the adequate notice. Even assuming the validity of the restricted area, the actions of the officers in permitting everyone to enter without having to produce an invitation, would lead a person of normal intelligence to believe that he was not in a restricted area. Mr. {p.8} Bursey had every right to believe that his remaining in the area did not violate any law. He saw other people entering the area without producing a ticket. He saw those people not being arrested. ¶

To say that Mr. Bursey had notice he was in the restricted area, is simply to ignore the facts that were present on the day in question. The government cannot claim that Mr. Bursey had notice when no one else in the restricted area was being made to produce anytime type of authority to be in the area. This type of restricted area cannot as a mater of law provide notice to Mr. Bursey that he was in violation of any regulations. ¶

Just as a vague law may trap the innocent, a vague application of a law that is not vague will trap the innocent. This is especially true when the individual is exercising his right to protest activities of the government.

In Lytle v. Doyle {72kb.pdf}, 326 F.2d 463 (4th Cir. 2003) the Fourth Circuit held unconstitutional as applied a Virginia law that prohibited the loitering of person on bridges and overpasses. The plaintiffs had sought to demonstrate on the overpasses and were arrested for loitering. In holding the law unconstitutional as applied the Fourth Circuit said “If anything the language in the statute, prohibiting ‘loitering’ on bridges, suggested that their conduct would be permitted.” Id. at 469. Also, in Lytle, as in the present case, on two previous occasions the plaintiffs had protested on the overpass but were not arrested and no mention was made of the loitering {p.9} statute. ¶

When Mr. Bursey can see thousands of other people entering the restricted area without being stopped or questioned he likewise had not reason to expect he alone was in violation of the regulation. Also, Mr. Bursey testified, he on two previous occasions had been ordered to the “free speech zone”, but he had been able to resolve the matter without being arrested. He, therefore, had no reason to believe that his actions on this occasion would violate the law. ¶

Simply put, even a law that is not vague and indefinite, may not be enforced in a vague and indefinite manner. To do so violates due process. {p.10}


When Brett Bursey, who is holding a sign protesting the activities of the government, is the only person investigated or arrested for a violation of the statute and regulations in question, he has proven selective enforcement of the law. When Mr. Bursey is never informed about the parameters of the restricted area and thousands of people are admitted into the restricted area, Mr. Bursey has also established the fact that the law is being enforced in an arbitrary and capricious manner as to deny to him the notice that he is violating the law as is required by the due process clause of the Fifth Amendment to the Constitution of the United States of America.

Signature: C. Rauch Wise

December 6, 2003

{ Signature }

C. Rauch Wise
305 Main Street
Greenwood, South Carolina 29646
(864) 229-5010
District Court No. 4723

Lewis Pitts
1030 Carolina Avenue
Durham, NC 27705
District Court No. 3068

Attorneys for Brett A. Bursey {p.11}


Certificate of Service

{Not attached to the brief}


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

 1  While Mr. Bursey contends there is a serious question as to whether the area he was in was in fact a “restricted” area, for purposes of this argument, Mr. Bursey will assume that the area was in fact a restricted area.

 2  The government conceded in its pre-trial brief that Mr. Bursey was arrested before the entire area was shut down when the President actually arrived. This admission is in keeping with the testimony of Special Agent David Cohen and SLED agent Tamara Baker.


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:  ¶.

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: Government’s Brief on Constitutional Enforcement and Selective Prosecution (Nov. 21 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. 10 2003. Updated Dec. 10 2003.


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