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Full-text: April 14 2004
Protest zones: “No War for Oil” (October 24 2002)
On appeal, to U.S. District Judge Cameron M. Currie
from U.S. Magistrate Judge Bristow Marchant

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


Criminal No. 3:03-309

Oral Argument Requested

United States of America)
Brett A. Bursey,)

Defendant/Appellant’s Brief

Standard of Review

The scope of this appeal is the same as in an appeal to a court of appeals from a judgment entered by a district judge. Fed. R. Crim. P. 58(g)(2)(D).

A conclusion of law, such as the interpretation of a statute and its essential elements or the interpretation of a regulation; whether facts fall within the meaning of a statutory or regulatory provision; and the applicability of a statute, is reviewed de novo. Elliot v. United States {107kb.pdf}, 332 F.3d 753, 760 (4th Cir.), cert. denied, 124 S.Ct. 487 (2003); United States v. Boynton {35kb.html}, 63 F.3d 337, 341-42 (4th Cir. 1995); United States v. Murphy, 35 F.3d 143, 147 (4th Cir. 1994).

The sufficiency of the evidence is judged by determining whether there is substantial evidence in the record, when viewed in the light most favorable to the government, to support the conviction, i.e., whether there is evidence that a reasonable finder of fact could accept as adequate and sufficient to prove each of the elements of the crime beyond a reasonable doubt. See United States v. Pasquantino {155kb.pdf}, 336 F.3d 321, 332 (4th Cir. 2003) (en banc); Elliot {107kb.pdf}, supra. 332 F.3d at 760-61; United States v. McMahon {46kb.html, 72kb.pdf}, 104 F.3d 638, 642 (4th Cir. 1997); United States v. Clark, 986 F.2d 65, 68 (4th Cir. 1993).

Statement of Facts 1 

On October 24, 2003, the President of the United States visited Columbia, South Carolina for a rally being held in a hanger located at the airport. Order and Verdict (hereinafter “Order”) at 1-2.

In advance of the President’s trip, the Secret Service had defined a “restricted area” around the site of the visit. Testimony of Special Agent Cohen (hereinafter “Cohen”), 1-13. ¶ 

That area extended approximately 100 yards on either side of the hanger and approximately 1/2 mile away from of the hanger. Colloquy with court, 1-84; Testimony of Airport Chief of Police Blackmon, 1-100. ¶ 

There were, however, no barriers or other indicia of a boundary surrounding this area. Order at 6-7. ¶ 

According to the site agent for the Secret Service, this area was “restricted” from 7:30 in the morning until the President left the rally. Cohen, 1-49. ¶ 

Nonetheless, from 7:30 until shortly before the President’s arrival at approximately noon (Cohen, 1-27), vehicles were permitted to enter and traverse up and down the roads and pedestrians were freely allowed to walk through the area. Order at 3, 7. 2  ¶ 

The Secret Service’s policy was, according to their trial testimony, that while people could pass through the “restricted” area, no one other than ticket holders was supposed to come into this area and “remain in or, in effect, ‘hang out’ in the area.” Order at 3, 7.

Once the President’s plane landed, all general public vehicular and pedestrian traffic was cleared of the “restricted” area. Order at 3. This included ticket holders waiting to get into the rally. Order at 3. 3  ¶ 

At this time, the only persons allowed in the area were those “authorize[d] to be in [the] secure or restricted area” such as “staff or military, communications people, so forth” and they were required to wear a “lapel pin identification” issued by the Secret Service. Cohen, 1-23. The area was similarly cleared upon the President’s departure. Order at 3.

The rally was sponsored by the Republican Party of South Carolina, and some 7,000 tickets to the event were freely and widely distributed. Testimony of Katon Dawson, Chairman of the South Carolina Republican Party, 2-44; 2-49-50. The ticket holders who arrived for the event waited in line and gave their tickets to the event staff after which they were screened by the Secret Service through a metal detector. Cohen, 1-87.

Brett Bursey arrived at the airport by car. Testimony of Brett Bursey (hereinafter “Bursey”), 2-207. He came to the airport for the purpose of protesting against some of the President’s policies. Order at 2. He had contacted law enforcement prior to that day to advise them of his intentions. Bursey, 2-200.

Bursey parked his car and carried a bunch of signs under his arm and a megaphone over his shoulder to a grassy area near the sidewalk next to the hanger. Testimony of Special Agent Abel (hereinafter “Abel”), 1-120; Bursey, 2-207-09. ¶ 

When he was advised that he could not remain in that location, Bursey then crossed the street diagonally to the far corner of the intersection across from the hanger. Order at 4. ¶ 

He was advised that he could not remain in that location either and that he would have to leave the area. Order at 4. ¶ 

Specifically, Special Agent Abel told him that he had three choices: ¶ 

(1)  he could go home; ¶ 

(2)  he could get in line if he had a ticket; ¶ 

(3)  he could go to the designated demonstration area; or ¶ 

(4)  he would have to suffer the consequences and be arrested. ¶ 

Abel, 1-159. ¶ 

According to Agent Abel, if Bursey wanted to demonstrate, the only place he could do so was the designated demonstration area. Id. at 1-189; Bursey, 2-212-13. ¶ 

Several people joined Mr. Bursey and were also told they had to go to the demonstration area. Testimony of Sargent James Campbell (hereinafter “Campbell”), 2-61. ¶ 

At that point in time, there were still people standing in line waiting to enter the hanger. Abel, 1-173-74. ¶ 

Bursey asked why he would be arrested when there were other people standing even closer to the hanger. Id. at 174. Agent Abel told him they had tickets to the rally even though she didn’t actually know that they had tickets. Id. at 174-75. ¶ 

When Bursey did not leave, Agent Abel contacted the airport police to request that he be removed from the area. Id. at 1-183. Sargent James Campbell of the Airport Police responded. Campbell, 2-57. He advised Mr. Bursey “to leave the area, he was trespassing,” Id. at 2-62 and if he didn’t he would be arrested for trespassing on airport property. Bursey, 2-220. ¶ 

Bursey, who had previously participated in a peaceful demonstration at the airport to protest the policies of another president, was aware that the South Carolina Supreme Court had thrown out trespassing charges arising out of that demonstration on the grounds that the airport was public property and, therefore, not subject to the trespass statute. Bursey, 2-216-17. See State v. Hanapole, 255 S.C. 258 (1970). ¶ 

Bursey was unaware of any law making him liable for entering or remaining in a restricted area or that the area in question was a federally restricted area. Bursey, 2-220. ¶ 

When Bursey refused to leave, he was arrested and charged with trespassing. Defendant’s Exhibit 9.

The trespass charges were dismissed when the airport police realized that a trespass charge could not be prosecuted since Bursey was arrested on public property. Campbell, 2-66. At that time, about 4-1/2 months after the incident, charges were brought pursuant to 18 U.S.C. 1752(a)(1)(ii). See Information.



The Trial Court Erred in Finding That Defendant Was in a Restricted Area at the Time He Was Ordered to Leave.

Since the area in which defendant was standing when he was ordered to leave was not a “posted, cordoned off, or otherwise restricted area” within the meaning of the statute and the regulations promulgated by the Secretary of the Treasury, he cannot be convicted of violating those regulations governing ingress or egress.


The trial court erred in determining that defendant was in a restricted area where there was no physical manifestation of the restricted area as required by the statute.

Since there were no physical manifestations of the boundaries of the “restricted” area, defendant did not violate the statute. 4 

18 U.S.C. § 1752(a)(1)(ii) provides that the area into which it shall be unlawful for a person to willfully and knowingly enter or remain must be “posted, cordoned off, or otherwise restricted.” ¶ 

“[U]nder the established interpretative canons of noscitur a sociis and ejusdem generis, where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” ¶ 

Washington State Dept. of Social and Health Services v. Guardianship Estate of Danny Keffeler, 537 U.S. 371, 384 (2003) {288kb.pdf} (citations and internal quotes omitted).

“This canon of statutory construction is particularly applicable because the section is part of a criminal statute that must be strictly construed.”

United States v. Eppinette, 365, 367 (4th Cir. 1973).

Thus, the general term “otherwise restricted” must be construed to embrace only those types of physical indicia similar in nature to “posted” or “cordoned off.”

In United States v. Headspeth, 852 F.2d 753 (4th Cir. 1988), the Fourth Circuit interpreted a sentencing statute that defined a sentence-enhancing previous conviction as including one that “is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” ¶ 

The “otherwise” clause in that statute is substantially narrower and more specific than the “otherwise restricted” clause at issue in this case. ¶ 

Nonetheless, the Headspeth court held that the “otherwise” clause was ambiguous. The court noted that “the specifically enumerated crimes that precede the catch-all language — ‘burglary,’ ‘arson,’ ‘extortion,’ and ‘use of explosives’ — are all offenses which by their very nature obviously pose an inherent risk of injury to the person.” Id. at 758. The “otherwise” clause, however, could be read to refer “not only to crimes which, in their generic sense, pose an inherent risk of injury to the person, but also to any particular offense which, under the facts and circumstances of its commission, actually posed such a risk.” Id. at 759. ¶ 

The court started from the proposition that ¶ 

“ambiguities in criminal statutes must be resolved in favor of lenity for the accused.” ¶ 

Id. Therefore, the court held, the catchall “otherwise” clause must be limited in the same sense as the specifically enumerated crimes are limited — to “offenses which ... pose by their very nature a serious risk of injury to another.” Id. (emphasis in original). Accord United States v. King, 979 F.2d 801, 803 (10th Cir. 1992).

This case demonstrates the importance of a physical manifestation of the restricted area. No one was stopped from entering the so-called restricted area and no one was told that he or she was entering such an area. Mr. Bursey’s only notice was an order to leave. Since the airport was a public area, see State v. Hanapole, 255 S.C. 258, 267-68 (S.C. 1970), without clear physical notice, citizens have no way of knowing that they are entering a federally restricted zone. Moreover, there was no reason why the area in question could not have been posted, condoned off or otherwise physically delineated. As stated by the Senate Report 5  on the statute:

It is anticipated that the Secret Service will make every effort, consistent with Presidential security, to make such restricted areas known to the public (i.e. by posting or cordoning off).

S. Rep. No. 91-1252, 91st Cong., 2d Sess., 9 (1970) (hereinafter “S. Rep.”) (annexed to the Government’s Memorandum of Authorities Concerning the Elements of the Offense,” filed July 8, 2003).

“Otherwise restricted” must be understood to be an actual physical indication of the area “much like” (Washington State, supra. 537 U.S. at 385) {288kb.pdf} posting and cordoning off. Accord Rockford Life Ins. Co. v. Illinois Dept. of Revenue, 482 U.S. 182, 188 (1987) (“of the same type”). ¶ 

Since the Magistrate Judge found that “there were no barriers or other indicia of a boundary,” (Order at 6, 7), Mr. Bursey could not be guilty of violating the statute.


The area designated as “restricted” was not, in fact, restricted within the meaning of the regulations and therefore defendant could not be convicted of violating those regulations.

18 U.S.C. 1752(a)(1)(ii) provides, in pertinent part, that it is unlawful to ¶ 

“willfully and knowingly enter or remain in” “any posted, cordoned off, or otherwise restricted area of a building or grounds where the President ... is or will be temporarily visiting, in violation of the regulations governing ingress and egress thereto.” ¶ 

The regulation in question, 31 C.F.R. § 408.3(a) {2002: 3kb.txt, 24kb.pdf; current rule: 3kb.txt, 24kb.pdf}, provides that ingress to “any posted, cordoned off, or otherwise restricted areas” is authorized only for ¶ 

(1)  invitees of the President, his family or staff; ¶ 

(2)  members of the President’s family and staff; ¶ 

(3)  military and communications personnel assigned to the Office of the President; ¶ 

(4)  law enforcement officials and other persons necessary to provide services or protection for the premises or persons therein; and ¶ 

(5)  holders of grants of easement to the property (provided such persons show title and obtain authorization from the Secret Service). ¶ 

Those persons who are authorized “must possess and display identification documents issued by or satisfactory to the United States Secret Service.” 31 C.F.R. 408.3(b). Finally, “[u]nauthorized entry is prohibited.” 408.3(c).

In contrast to the regulations, the Secret Service’s policy, (at least in this case) was that until it was “shut down,” people could freely enter and traverse the “restricted area.” The restriction was not as set forth in the regulations, but rather that one could not remain or “hang out” in that area. Even then, an exception was made for people who appeared to have tickets to the rally by standing in line. ¶ 

Only shortly before the President’s arrival was the location treated as called for in the regulations, at which time all unauthorized persons (including ticket holders 6 ) were cleared from the area. It was only at that time that the area in question was restricted within the meaning of the regulations. Thus, the only persons allowed to enter or remain in the area at that time were those authorized, as specifically set forth in the regulations, and they were required to wear a lapel pin identification issued by the Secret Service, just as required by the regulations. ¶ 

At the time Mr. Bursey was ordered to leave the area (while there were still people in line), it was not yet restricted pursuant to 31 C.F.R. § 408.3 {2002: 3kb.txt, 24kb.pdf; current rule: 3kb.txt, 24kb.pdf}.

Whatever the scope of the authority of the Secret Service to protect the President and no matter how well intentioned or reasonable the agents’ actions may appear, citizens cannot be held criminally liable for conduct which does not violate the statute and properly promulgated regulations. ¶ 

Government agents simply cannot make up regulations on the scene and then seek to hold citizens criminally liable for violating those unwritten regulations. ¶ 

If the government wishes to enforce a regulatory scheme which sets up a “restricted area” to which people may freely enter and traverse but may not stop, it must do so by properly promulgated regulation and the statute in question does not permit a conviction unless the conduct of the defendant is in violation of properly adopted regulations.

This Court must hold the government to its own regulations governing restricted areas. Failure to do so would allow the government to make up ad hoc rules and “entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat.” Kolender v. Lawson, 461 U.S. 352, 360 (1983) (citations and internal quote omitted). ¶ 

This is, after all, a government of laws, not of men. Marbury v. Madison, 5 U.S. 137, 163 (1803). ¶ 

The Supreme Court has repeatedly condemned laws which allow for unfettered discretion in the hands of law enforcement. See e.g. City of Chicago v. Morales, 527 U.S. 41, 60 (1999); Kolender, supra. at 358-60; Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90 (1965); Cox v. Louisiana, 379 U.S. 536, 556-57 (1965). ¶ 

Allowing such broad discretion puts every citizen’s constitutional rights at jeopardy. At issue here is the ¶ 

“potential for arbitrarily suppressing First Amendment activities ... [as well as] the constitutional right to freedom of movement.” ¶ 

Kolender, supra. at 358 (citations and internal quotes omitted).

The Senate Judiciary Committee was particularly concerned with the potential impact on First Amendment rights when it proposed 18 U.S.C. § 1752. One of its concerns was that there be a ¶ 

rational way of predicting whether one’s activities were actually violating the law or not.” ¶ 

S. Rep., 8. Otherwise, ¶ 

“such vagueness could have a chilling effect on individuals seeking to demonstrate, thereby impinging upon the full, free exercise of first amendment rights.” ¶ 

Id. Whereas a prior version of the bill provided for “orders, regulations, and ‘proper authority’{”} governing admission to restricted areas, the final version of the bill provided only for regulations — ¶ 

“all of which will also be available to everyone in the Federal Register. With clearly defined areas and clearly defined regulations, the question of vagueness here is overcome.” ¶ 

Id. at 9. ¶ 

If the Secret Service chooses not to clearly define areas for the general public and if it chooses not to follow the clearly defined regulations required by the statute, the precise problem sought to be avoided by Congress is presented.

Indeed, the record in this case reveals that of the thousands of people present at or about the airport hanger that day, the only ones ordered to leave the area were those with signs protesting the President’s policies. ¶ 

Had the regulations been observed by the Secret Service, the potential for arbitrary or discriminatory enforcement would not have arisen.

Since the Secret Service did not treat the area in question as a restricted area as defined in the regulations until after Mr. Bursey was ordered to leave, he cannot be convicted of violating those regulations.


The Statute is Question Requires Proof of Specific Intent; The Trial Court Erred In Not Requiring Such Proof and the Government Failed To Establish That Defendant Knew That His Conduct Was Unlawful.

The Magistrate Judge erred in not requiring proof of a specific intent to violate the law as is required by 18 U.S.C. § 1752(a)(1) and the government failed to prove that Mr. Bursey knew that his conduct was unlawful.

That statute, by its terms, requires proof of willful as well as knowing conduct in order to sustain a conviction. This is a specific intent statute which requires the government to prove that Mr. Bursey had specific knowledge that his conduct was unlawful. See Ratzlaf v. United States, 510 U.S. 135 (1994). 7  See also United States v. Wilson, 721 F.2d 967, 971 (4th Cir. 1983) (“we recognize that the term ‘willfully’ ... connotes a specific intent requirement”). ¶ 

This is particularly true when, as here, the criminal conduct is contained in a regulation, rather than the text of the statute, and when the conduct punished is not obviously unlawful, thus creating a ¶ 

“danger of ensnaring individuals engaged in apparently innocent conduct.” ¶ 

United States v. Henderson, 243 F.3d 1168, 1172 (9th Cir. 2001). See also United States v. Hernandez, 662 F.2d 289, 292 (5th Cir. 1981) (a statute’s requirement of willfulness “connote[s] a voluntary, intentional violation of a known legal duty. ... [P]articularly where the [criminal acts] covered by the statute are spelled out in administrative regulations, specific intent is required.”); United States v. Adames, 878 F.2d 1374, 1377 (11th Cir. 1989) (same).

As noted, this specific intent statute requires proof that the defendant knew that his conduct was unlawful. ¶ 

Here the Magistrate Judge found that Bursey was first “advised that he could not remain in that location” and after moving “was advised again that he could not remain in that location and would have to leave the area.” Order at 4. ¶ 

Such vague, oral notice is insufficient to supply the knowledge that his conduct was unlawful. Merely advising one to move or disperse does not suffice to give adequate warning of the unlawfulness of the underlying conduct. City of Chicago v. Morales, supra., 527 U.S. at 58-9. Compare United States v. Henderson, supra, 243 F.3d at 1173-74 (while the court held that the trial court erred in not giving an instruction that “willfully” meant that defendant knew that his conduct was unlawful, it was harmless error due to the fact that defendant had been personally served with a written notice informing him that his conduct was in violation 43 C.F.R. {sic: ?U.S.C.?} § 1733(a) and would subject him to criminal liability under 43 U.S.C. § 1733(a)).

In this case, Brett Bursey freely entered the area in question first in a vehicle and then on foot. Indeed, he entered on foot with a megaphone over his shoulder and protest signs under his arm. The area was not marked and no one told him, as he entered, that there were any restrictions on his right to free speech. He was thereafter ordered to leave the location in which he was standing and when he went to another location, he was told to leave that location. He was then offered three choices, to go home, to go to a designated demonstration area or to be arrested. He was told by the law enforcement officer who arrested him that if he did not leave the area, he would be arrested for trespassing and that is precisely what he was arrested for.

As the Magistrate Judge noted, ¶ 

“protestors are not required to go to designated demonstration areas.” ¶ 

Order at 9. ¶ 

In addition, Mr. Bursey knew from personal experience that the Supreme Court of South Carolina had held, in a virtually identical context, in virtually the identical location, that one could not be charged with trespassing at this public area of the airport. ¶ 

He was unaware of any law making him liable for entering or remaining in a “restricted area” or that the area in question was, in fact, a federally restricted area. 8 

As previously noted, the Senate Judiciary Committee was concerned that there be a “rational way of predicting whether one’s activities were actually violating the law or not.” S. Rep., 8. That is why it was important to Congress ¶ 

“that the Secret Service make every effort to make such restricted areas known to the public (i.e. by posting or cordoning off). Even so, it is provided that one of the elements of the crime is that the person ‘knowingly and willfully’ violates the restricted area.” ¶ 

Id. at 9. ¶ 

It is particularly important that the government be held to proof beyond a reasonable doubt that a defendant knowingly and willfully violated the regulations required by the statute.

Under the circumstances of this case, not only did the government fail to prove that Bursey was aware that his conduct was unlawful (for which the court should have granted defendant’s motion for acquittal), it is manifest that Bursey lacked the specific intent necessary to violate the statute and regulations.


For the foregoing reasons, the Order and Verdict of the Magistrate Judge should be reversed and a Judgment of Acquittal should be entered.

Respectfully submitted,

Lewis Pitts
1030 Carolina Avenue
Durham, NC 27705
(919) 416-1762

Of counsel and on the brief:

Jeffrey E. Fogel, Esq.
Leonard Kaplan, Esq.
Center for Constitutional Rights
666 Broadway
New York, NY 10012

Attorneys for Brett Bursey


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

 1  The facts set forth herein are either those found by the trial court, testimony of government witnesses or uncontroverted testimony of defense witnesses in the record. Reference to testimony is designated by volume-page (e.g. 1-15).

 2  As explained by the site agent, “the restrictions don’t mean people can’t pass through our area or our restricted area.” Testimony of Special Agent Cohen, 1-49.

 3  As explained by the site agent, even the ticket holders were considered part of the general public as they were not known to the Secret Service, “especially in this scenario, 6,000 people.” Testimony of Special Agent Cohen, 1-64.

 4  Without discussion, the Magistrate Judge found that defendant was in a restricted area “as defined by the statute.” Order at 3.

 5  Committee Report are the authoritative source for ascertaining legislative intent. See Eldred v. Ashcroft, 537 U.S. 186, 209 n.16 (2003) {802kb.pdf}.

 6  Because the people waiting in line to get into the rally were not known to the Secret Service (and displayed no identification) they were not considered invitees but rather members of the general public. Cohen, 1-64.

 7  Even if the meaning of the term willfully in the statute were considered ambiguous, doubts must be resolved in favor of the defendant. Ratzlaf v. United States, supra. 510 U.S. at 148 (citing Hughey v. United States, 495 U.S. 411, 422 (1990) (lenity principles “demand resolution of ambiguities in criminal statutes in favor of the defendant”)).

 8  Even if he had read the regulations as he was being ordered to leave, Bursey would have concluded that this was not a restricted area as set forth in those regulations. See Point I, B, infra.


Source: Defendant’s .doc file. Omitted: Table of Contents and Table of Authorities

By CJHjr: 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 {200kb.html}, criminal information filed March 7 2003, jury trial denied June 4, bench trial Nov. 12-13, 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).

Next: Appellee’s Brief (July 13 2004), U.S. Government’s brief on appeal {100 kb} in opposition to this brief.

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 May 3 2004. Updated June 13 2008.


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