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Full-text: December 10 2003
Protest zones: “No War for Oil” (October 24 2002)

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

Filed, DEC 10 2003, Larry W. Propes, Clerk, Columbia S.C.


Criminal No.: 3:03-309

United States of America)
Brett A. Bursey)

Response to Defendant’s Reply Brief

The government feels obligated to briefly respond to the defendant’s latest filing because the defendant has once again failed to appropriately identify or address the relevant facts or law applicable to the question of selective prosecution or constitutional enforcement of the statute in question.

Selective Prosecution

As stated in the government’s earlier brief, to prevail in a claim of selective prosecution Bursey 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).

Bursey’s sole argument that others were similarly situated to him is that these others were present at the same location where he was arrested. However, this simplistic approach does not address the correct question, which is whether there are any legitimate prosecutorial considerations which distinguish the defendant from anyone else present, {p.2} which is answered after examining all relevant factors. See United States v. Olvis {27kb.html/txt, 48kb.pdf}, 97 F.3d 739, 744 (4th Cir. 1996). The answer to this question in this case is indisputably “yes.”

Bursey may be correct in stating that others may have entered the restricted area in violation of the regulations. However, this criticism of what Bursey sees as ineffective enforcement of the restricted area is irrelevant because this fact alone would not establish a violation of the statute, which also requires one to knowingly enter the restricted area or, as was the government’s theory in this case, to knowingly remain in the restricted area. There is no proof whatsoever that anyone other than the defendant entered the restricted area in violation of the regulations and then, after being told of the existence of the restricted area, refused to leave. In fact, the evidence is that everyone else in that status (the defendant’s companions) left and, as a result, they were not prosecuted. Thus, by his own act of knowingly violating the law, Bursey distinguished himself from everyone else present at the airport on October 24, 2002, and for this reason alone he was prosecuted, and properly so. See United States v. Hastings {30kb.html/txt, 48kb.pdf}, 126 F.3d 310, 315 (4th Cir. 1997).

With regard to the second factor required to be proven to prevail on a selective prosecution claim, Bursey has candidly admitted that he completely failed to offer any direct proof that his prosecution was for a discriminatory purpose and instead asks the court to make conclusions based on speculation drawn from the slimmest of circumstantial evidence. Even his recitation of “undisputed facts” (Defendant’s Reply, p.5) is disputable, both what in includes and what it omits. Contrary to Bursey’s {p.3} ”undisputed” assertion, others displaying signs critical of the President were present and not arrested (the defendant’s companions), and there is no proof whatsoever that “no sign critical of the Republican party or the current administration was in the restricted area 1 .” Although it may be undisputed that Bursey was holding a sign critical of the President and he was arrested, it is equally undisputed that he was knowingly in the restricted area in violation of the regulations and he refused to leave. See D. G. Restaurant Corp. v. City of Myrtle Beach, 953 F.2d 140, 143-44 (4th Cir. 1991) (“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.”).

Lastly, Bursey does not even address whether the official responsible for his prosecution, not the law enforcement officials, had a discriminatory purpose in prosecuting him as is required by the Fourth Circuit. See Hastings {30kb.html/txt, 48kb.pdf}, 126 F.3d at 314. He has never offered such proof, and for this reason alone his claim fails.

Constitutional Enforcement

Bursey’s claim of vague and ambiguous enforcement of this statute fails for lack of proof. It is undisputed that Bursey was within a restricted area established by the United States Secret Service, he was repeatedly made aware of this fact, and by his own admission, he had no ticket and was therefore in violation of the regulations. While the {p.4} statute by necessity requires flexibility in administration, in this case there is simply nothing vague or ambiguous about the defendant being put on notice that he is in violation of the statute and his willing violation of it. As the Supreme Court has stated:

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) (citations omitted). Bursey clearly understood he was violating the law, he simply had no desire to obey it.

Bursey’s supposed defense that he engaged in this same conduct at other times and locations is wholly irrelevant since he did not and cannot establish that those incidents were in any relevant way similar to what occurred on October 24, 2002. Bursey testified that he did not know where the restricted area was at those other locations, and thus he may well have been demonstrating outside of the restricted area on those occasions and was not arrested for that reason.

Similarly, Bursey’s alleged reliance on the fact that on October 24, 2002, he saw others carry signs and not being arrested and therefore he “had no reason to expect he alone was in violation of the regulation” (Defendant’s Reply, p.9) is equally irrelevant since he did not testify that he ever saw anyone carrying a sign who admitted that they had no ticket and who refused to leave after being told to do so by the Secret Service. Those {p.5} facts only apply to Bursey, and with full knowledge of the consequences of his conduct, he chose to knowingly commit a crime.

Lastly, Bursey’s assertion that the enforcement of the statute was vague because he was not told the exact parameters of the restricted area is no more that {sic: than a} litigiously convenient, after-the-fact attack on the activities of the Secret Service that is also equally irrelevant. Bursey clearly intended to demonstrate and never indicated any desire or intention to do otherwise, and thus law enforcement directed him to the location established by the Airport Police for this purpose. The creation and location of the demonstration area is also irrelevant since Bursey refused to relocate there and since there has been no claim or proof that the Airport demonstration regulations or the actions of the Airport Police in creating or locating the demonstration area were illegal or discriminatory.

For the foregoing reasons, the defendant’s motion to dismiss for selective prosecution should be denied and the defendant should be convicted.

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

{ p.6 }


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 December 10, 2003, I served one true and correct copy of the Response to Defendant’s Reply Brief, 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



Tracey S. Donaldson


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

 1  While this may be a reasonable inference given the nature of the event, such an inference cannot be sufficient to satisfy Bursey’s “heavy burden” of proving selective prosecution.


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, 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 Brief in Opposition to U.S. Brief (Dec. 9 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. 19 2003. Updated June 1 2008.


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