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Full-text: September 14 2004
Protest zones: “No War for Oil” (October 24 2002)

Filed, SEP 14 2004, Larry W. Propes, Clerk, Columbia S.C.

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

 




Criminal No. 3:03-309-22

 )
United States of America)
)
v.)
)
Brett A. Bursey,)
Defendant)
 )

Order on Appeal

This matter is before the court on Brett A. Bursey’s appeal of his conviction for violation of 18 U.S.C. § 1752(a)(1)(ii). That conviction followed a bench trial conducted by United States Magistrate Judge Bristow Marchant whose decision is set forth in an Order and Verdict entered January 6, 2004 (hereinafter “Verdict”). For the reasons set forth below, the conviction is affirmed.

Introduction

Bursey raises two primary arguments on appeal. Bursey first asserts that the trial judge erred by finding that Bursey was, at the time of his arrest, within a “restricted” area within the scope of 18 U.S.C. § 1752. This argument has two subparts. First, Bursey argues that the area was not restricted as required by the statute because there was no form of physical demarcation of the boundaries of the restricted area. Second, he argues that the area was not truly “restricted” at the time of his arrest because others were allowed to be in the area.

Bursey also argues that the trial judge erred by finding that Bursey possessed the requisite specific intent to violate the statute. This argument focuses on Bursey’s understanding that he could not be prosecuted for state law trespass, the particular crime for which he was initially arrested.

Bursey has also alluded to several constitutional concerns. These concerns are before the court only to the extent they relate to the proper construction to be given the statute under which Bursey was convicted. Bursey does not, however, challenge the Magistrate Judge’s finding that there {p.2} was no evidence of selective prosecution. 1  Neither does Bursey challenge the Magistrate Judge’s finding that it was reasonable to restrict the area in which Bursey was located at the time of his arrest, making concerns as to the outer boundaries of the area irrelevant. 2  In addition, while some of Bursey’s arguments suggest concerns with the placement of what has been described alternately as a “free speech” or a “demonstration” zone, the constitutionality of that zone is not at issue in this appeal. See generally Bl(a)ck Tea Society v. City of Boston {47kb.html, 84kb.pdf}, 2004 WL 1700115 (1st Cir. 2004) {378 F.3d 8} (affirming denial of injunction against substantial but content-neutral limitations on demonstrations at the Democratic National Convention).

Standard of Review

The legal conclusions of the trial judge, including his interpretation of the statute and related regulation are reviewed de novo. E.g., United States v. Williams {41kb.pdf, 41kb.pdf}, 364 F.3d 556, 558 (4th Cir. 2004). Other aspects of the conviction are, by contrast, reviewed under a sufficiency of the evidence standard. United States v. Pasquantino {155kb.pdf}, 336 F.3d 321, 332 (4th Cir. 2003) (en banc). Under this {p.3} standard, the appellate court determines “whether there is substantial evidence in the record, when viewed in the light most favorable to the government, to support the conviction.” Id. “In determining whether the evidence in the record is substantial,” the appellate court examines “whether there is evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. (also noting that “reversal on grounds of insufficient evidence is confined to cases where the prosecution’s failure is clear”).

Statement of Facts 3 

On October 24, 2003, the President of the United States visited Columbia, South Carolina for a political rally being held in a hanger at the Columbia airport. Verdict at 1-2. See also Record at 1-27. 4  Prior to the President’s arrival, the Secret Service defined a “restricted area” around the hanger where the rally would be held. Record 1-13 (testimony of Secret Service Special Agent Cohen). See also Record at 1-51 (Cohen indicating that although there was no written diagram of the area restricted, he and other law enforcement officers involved in planning security walked “every inch of it” during the week before the President’s arrival and “it was pretty defined” — also stating that “on the day of the [President’s] visit, my police counterpart takes his police assets and posts them based on what we talked about and gives them their verbal instructions”).

The restricted area extended approximately 100 yards on either side of the hanger and approximately one-half mile away from the hanger. Record 1-84 (colloquy with court) & 1-100 {p.4} (testimony of Airport Chief of Police Blackmon). See also Record at 1-18 (Cohen). 5  The boundaries of the area were not, however, marked by any physical barriers or signs. Verdict at 6-7.

According to Cohen, the Secret Service agent in charge of securing the site, the restrictions were in effect from 7:30 in the morning until the President’s departure. Record 1-27 (Cohen). Vehicles were, however, permitted to traverse the roads though the restricted area until shortly before the President’s anticipated noon arrival. Verdict at 3 & 7; Record at 1-22 (Cohen). Pedestrians were, likewise, allowed to pass through the area until shortly before the President’s arrival. Id. Record at 1-49 (Cohen stating “the restrictions don’t mean people can’t pass through [the] restricted area”). Nonetheless, vehicles were not allowed to stop or remain in the area.

Pedestrians were allowed to remain in the area only if they were or appeared to be ticket holders. 6  Verdict at 3 & 7. These individuals were all directed to a line awaiting entry to the hanger. Numerous individuals were present in this line as roughly 7000 tickets had been freely distributed by the rally’s sponsor, the Republican Party of South Carolina. Record at 2-44 & 2-49 to 2-50.

Once the President’s plane landed and before he arrived at the hanger, the restricted area was “shut down,” meaning that it was cleared except for law enforcement and related security personnel, {p.5} all of whom wore lapel pins issued by the Secret Service. Verdict at 3; Record at 1-23 & 1-31 (Cohen). This clearing extended to passing vehicle traffic, traversing pedestrians and presumed ticket holders waiting in line. 7  Record at 1-22 & 1-29 to 1-31 (Cohen). The area was again cleared at the time of the President’s departure. Verdict at 3. See also Record at 1-22 to 1-23 (Cohen). 8  See also Verdict at 2 (noting that, following the rally, “the President left the airport by motorcade to attend to other matters in the Columbia area”).

Secret Service Agent Cohen testified that the Secret Service considered the presumed ticket holders who were waiting in line to be part of the general public. Record at 1-64 (Cohen). After waiting in line, the ticket holders presented their tickets to the hosting group or Presidential staff and then were screened through a metal detector by the Secret Service before entering the hanger area. Id. & Record at 1-87 (Cohen).

Prior to the time the area was cleared for the President’s arrival, Brett Bursey arrived by car. Record 2-207. Bursey came to the event for the purpose of protesting certain of the President’s policies. Verdict at 2. He had previously announced these intentions to Major Weaver of the South Carolina Law Enforcement Division when he called to inquire regarding any planned “demonstration {p.6} area.” 9  Bursey also carried signs which, likewise, signaled his intent. Record at 2-200 & 2-207 to 2-209 (Bursey). Upon arrival, Bursey walked over to a grassy area near the hanger, carrying a number of signs as well as a megaphone. Record 1-120 (Secret Service Agent Abel); 2-207 to 209 (Bursey).

After stopping on one side of a road intersection near the hanger, Bursey was approached by law enforcement officers who advised Bursey that he could not remain where he was because he was in a restricted area. 10  After being provided this information, Bursey crossed the street diagonally to the far corner of the same intersection. Verdict at 4. Law enforcement officers advised Bursey that this side of the intersection was also restricted. Id. One of the two officers, Secret Service Special Agent Abel, advised Bursey that he had several choices: (1) go home; (2) get in line if he had a ticket; (3) go to the designated demonstration area; or (4) suffer the consequences and be arrested. Abel 1-159. See also Record at 1-188 to 1-189 (Abel testifying that she advised Bursey: “If he wanted to demonstrate, he needed to go to the demonstration area. If he wanted to go in the event, he needed to get in line. But he couldn’t just hang out in that area.”). See also Record at 2-212 to 2-213 (Bursey testimony that Abel was “strident about her insistence that I couldn’t be there, I had {p.7} to go to the free speech zone” but also stating that no police officer in the group advised him where that zone was located). 11 

Several other individuals joined Bursey after he crossed the intersection. These individuals were also told that they could not remain in the area and would have to go to the demonstration area. 12  Record at 2-61 (Sergeant James Campbell, Airport Police). See also Record at 2-212 to 13 (Bursey to same effect).

At some point after Bursey crossed the intersection to his second location, he pointed out to Agent Abel that there were individuals waiting in line who were closer to the hanger than he was. {p.8} Bursey asked why he could not remain where he was without risking arrest when there were others standing even closer to the hanger. Record 1-173 to 74 (Abel). Abel responded that those individuals had tickets to the rally. Id. 13  Bursey continued his refusal to leave.

Secret Service Agent Abel then contacted the Airport Police and asked that they remove Bursey from the area. Record at 1-183. Airport Police Sergeant Campbell responded and advised Bursey “to leave the area, he was trespassing.” Record at 2-62 (Campbell). Bursey, being aware of a prior South Carolina Supreme Court decision dismissing a trespassing charge against a demonstrator on airport property based on the public nature of the property and specific language of the trespass statute, believed that he could not be charged with trespassing. 14  Record at 2-216 to 17 (Bursey).

Bursey continued his refusal to leave and was arrested for “trespass after notice” by Sergeant Campbell of the Airport Police. Record at 2-62. The trespass charges were dismissed when the Airport Police realized that the charge was defective because the property was public property not subject to South Carolina’s trespass statute. Record 2-66 (Campbell). 15  Federal charges were brought, over four months after the incident, pursuant to the federal statute under which Bursey was ultimately convicted, 18 U.S.C. § 1752(a)(1)(ii). See Information. {p.9}

Bursey testified that he was not aware of the existence of the law under which he was ultimately convicted: for entering or remaining in a federally restricted area. Record at 2-220 (Bursey). He also testified that he was not aware that the area was federally restricted. Id. 16 

Discussion

Bursey was convicted of violation 18 U.S.C. § 1752(a)(1)(ii) which reads as follows:

§ 1752. Temporary residences and offices of the President and others

(a)  It shall be unlawful for any person or group of persons—

(1)  willfully and knowingly to enter or remain in

* * *

(ii)  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 temporarily visiting,

in violation of the regulations governing ingress or egress thereto[.]

18 U.S.C. § 1752(a)(1)(ii).

The regulations governing ingress or egress limit access to various categories of individuals, none of which could apply to Bursey. The only possible category to which he could have belonged was that of “invitee” which did not apply because he did not have a ticket. The relevant regulation reads as follows:

§ 408.3 Rules governing access.

(a)  For the purposes of 18 U.S.C. 1752 (84 Stat. 1891, 96 Stat. 1451), ingress or egress to or from ... any posted, cordoned off, or otherwise restricted areas of a building or grounds where the President or other person protected by the United States Secret Service is or will be visiting is authorized only for the following persons:

(1)  Invitees: Persons invited by or having appointments with the protectee, the protectee’s family, or members of the protectee’s staff; {p.10}

* * *

(b)  Authorized persons must possess and display identification documents issued by or satisfactory to the United States Secret Service.

(c)  Unauthorized entry is prohibited.

(d)  The term “protectee” as used in this rule includes the President and any other person receiving protection from the United States Secret Service as provided by law.

31 C.F.R. § 408.3 {2002: 3kb.txt, 24kb.pdf; current rule: 3kb.txt, 24kb.pdf}.


Posting or cordoning off of restricted area.

Bursey asserts that the trial court erred in finding that he was in a restricted area at the time of his arrest because the boundaries of the area were not physically marked. This argument presumes that such physical manifestation of the boundaries is required to establish that an area was “posted, cordoned off, or otherwise restricted” as that phrase is used in the statute.

In arguing for such an interpretation, Bursey rests on two canons of construction. First, he relies on the rule that penal statutes must be strictly construed. See United States v. Eppinette, 365, 367 (4th Cir. 1973). Second, he relies on the canon of ejusdem generis, which is that “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 {288kb.pdf} (2003) (citations and internal quotations omitted). Thus, he argues that the “general term ‘otherwise restricted’ must be construed to embrace only physical indicia similar in nature to ‘posted’ or ‘cordoned off.’” Appellant’s opening brief at 8.

This allegation of error fails, even applying these cannons of construction as Bursey argues they should be applied, because the meaning of the terms “posted” and “cordoned” are not nearly so narrow as Bursey suggests. Post, for instance, has numerous definitions encompassing both the posting of physical boundaries or notices and the posting of a sentry or guard including: “to publish, {p.11} announce, or advertise by or as if by use of a placard”; “to forbid (property) to trespassers under penalty of legal prosecution by notices placed along the boundaries”; “the place at which a soldier is stationed”; “a sentry’s beat or station”; and “to station in a given place «guards were [post]ed at the doors».” Merriam Webster’s Collegiate Dictionary at 909 (10th Ed. 1997) (emphasis added). Cordon, likewise, encompasses both the use of physical barriers and the use of personnel including the following definitions: “a line of troops or of military posts enclosing an area to prevent passage”; “a line of persons or objects around a person or place «a [cordon] of police»”; and “to form a protective or restrictive cordon around — usu[ally] used with off.” Id. at 257 (emphasis in original). Thus, Bursey’s argument ignores the more basic canon of construction that words in statutes are generally to be given their “ordinary, contemporary, and common meaning.” Scott v. United States {69kb.pdf}, 328 F.3d 132, 138-39 (4th Cir. 2003). As explained in Scott:

When interpreting a statute, the goal is always to ascertain and implement the intent of Congress. The first step in this process is to determine whether the statutory language has a plain and unambiguous meaning. If the statute is unambiguous and if the statutory scheme is coherent and consistent, our inquiry ends there.

When examining statutory language, [the courts] generally give words their ordinary, contemporary, and common meaning. The Supreme Court has explained that “[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”

Scott {69kb.pdf}, 328 F.3d at 138-39 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).

Bursey’s argument also fails to recognize that the word “otherwise” suggests, at the least, a different means of accomplishing the same result. “Otherwise” is defined as: “something or anything else: something to the contrary”; “in a different way or manner”; and, simply, as “different.” Id. at 823-24. 17  {p.12}

This citation (Id. at 823-24) is, I believe, to Merriam Webster’s Collegiate Dictionary (10th Ed. 1997), cited above on this page 11. The Merriam-Webster Online Dictionary defines three forms of the word “otherwise,” verbatim, respectively, as a pronoun, adverb, adjectiveCJHjr

The purpose of the requirements for cordoning or posting in the statute now at issue is clearly to give notice that one is entering or within a restricted area. See S. Rep. No. 91-1252, 91st Cong., 2d Sess., 9 (1970) (“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).”emphasis added). See also id. at 8 (stating concern that public needs a “rational way of predicting whether one’s activities were actually violating the law or not”). 18  In light of this purpose and the context of the statute, the court concludes that the phrase “otherwise restricted” suggests use of a different means to achieve the same purpose of giving notice that one is entering or within a restricted area. See generally Norfolk and Western Ry. Co. v. American Train Dispatchers Ass’n, 499 U.S. 117, 129 (1991) (principle of ejusdem generis “does not control ... when the whole context dictates a different conclusion”); Scott {69kb.pdf}, 328 F.3d at 139 (noting requirement to consider “the specific context in which that language is used, and the broader context of the statute as a whole” — quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).

This court concludes that the purpose of the statute and context in which the terms are used support rather than undermine giving the terms, “posted” and “cordoned off,” their normal broad meanings. Likewise, these considerations support construing the term “otherwise restricted” to include other means of giving notice that an individual is entering or within a restricted area. {p.13}

While Bursey may not have had notice of the precise limits of the restricted area, the evidence is overwhelming that the location where he insisted on remaining was, in fact, designated as a restricted area and was “posted” or “cordoned off” within the meaning of the statute. 19  It is undisputed that Bursey was personally advised that he was within a restricted area, although he claims some lack of understanding of the purpose of the restrictions or by whom they were imposed. There is also undisputed evidence that Bursey was repeatedly instructed to leave by multiple law enforcement officers and repeatedly refused. Testimony from prosecution witnesses puts these repeated requests as covering a period of over twenty minutes and indicates that Bursey was told that one of the persons giving the instructions was a Secret Service Agent. Thus, the conclusion that Bursey willfully remained within a restricted area is well supported by the evidence.

The evidence also clearly supports the conclusion that, regardless of whether the outer limits of the restricted area were reasonable, it was wholly reasonable to restrict the area where the events at issue occurred. There is, moreover, only minimal evidence that Bursey made any effort to move in the direction of the outer boundaries (that being his minimal movement across the intersection from his initial stopping point), and no evidence (at least none that the trial court was required to accept), that Bursey made any genuine effort to remove himself from the restricted area. 20  Under {p.14} these circumstances, Bursey cannot argue that the restricted area was not properly designated as required by the statute under which he was convicted or was somehow excessive in scope. 21  It is, in this regard, significant that Bursey was convicted not of improperly entering the restricted area, but of remaining within it. Verdict at 4 (finding “beyond a reasonable doubt that [Bursey] knowingly remained in this restricted area” — emphasis added). 22 


Level of Restriction.

Bursey’s second argument is that, even the area was “restricted” in some sense, it was not adequately restricted at the time he was told to leave because others were allowed to traverse the area. Ticket holders (or persons presumed to be ticket holders) were, as Bursey suggests, allowed to remain in the restricted area, at least up until shortly before the President’s arrival. Likewise, vehicles were allowed to traverse the area during this time. {p.15}

The evidence, however, is virtually undisputed that the presumed ticket holders were directed to a particular area (along a fence) to wait in line. Record at 1-18 to 1-20 (Cohen). 23  Indeed, it was Bursey’s failure to move to the ticket holder line that first drew attention to him. 24  Thus, while not “shut down” at the time Bursey was first approached, the area was clearly subject to restrictions, that is, to limitations and controls. As the Magistrate Judge noted, the evidence shows that Bursey was the only person who insisted on ignoring these restrictions after being advised of them. See Verdict at 11 (unchallenged finding that there was “no evidence to show that any other person, either supporting the President or opposing his policies, entered and remained in the restricted area with no ticket and no intention of attending the rally, and then refused to leave the restricted area when so instructed”).

There is nothing in the statute to suggest that the Secret Service can only control an area through an absolute prohibition on entry. Such an argument equates “restricted” with “shut down” which is not only contrary to the flexibility suggested by the statute but defies common sense as it would require the Secret Service to impose draconian measures (such as closing off all traffic along this route to the airport for an extended period of time) in order to provide any protection within a given area. See Verdict at 7 (“Both foot and vehicular traffic by necessity had to travel through this area for people to come to the event, and it was also necessary to keep the area open for travel to and {p.16} from the airport itself.”). In any case, the need for an interim period in which access to an area is controlled and limited is imminently logical. 25  Bursey’s reliance on this argument also ignores the evidence that, at the time of his arrest, the area had, in fact, been shut down. 26 


Specific intent.

Bursey’s final argument is that he lacked the required specific intent to violate the statute because he did not know that his conduct was unlawful. In this regard, he argues that the oral {p.17} warnings and directions he was given were vague and “insufficient to supply the knowledge that his conduct was unlawful.” Appellant’s opening brief at 16. This argument ignores significant trial testimony some of which is set forth in Bursey’s statement of facts. Additional factual support for the conclusion that Bursey “willfully and knowingly ... remain[ed] in [a] posted, cordoned off, or otherwise restricted area ...where the President [would] be temporarily visiting” is set forth below.

First, it is beyond dispute that Bursey was aware the President was visiting the area. This was, in fact, his reason for being present as he intended to protest the President’s policies. See, e.g., Record at 1-123 (Abel testimony that when first approached Bursey stated that he was there to “demonstrate” or to “exercise his freedom of speech” or words to that effect). It is also beyond dispute that Bursey was repeatedly-advised that “he was in a secure or restricted area and that he would need to leave.” Record at 1-198 (Baker). See also Record at 1-124 (Abel-stating that she “explained to him that this was a restricted area, and that he could not stay there”).

While Bursey denied being advised that Abel was a Secret Service Agent, she testified that she did so inform him. Record at 1-123. To the extent such knowledge may be required, Bursey’s own testimony confirms that he understood the restrictions would be established by the Secret Service. 27  {p.18}

Abel also testified that she advised Bursey of the designated demonstration area and advised him where it was located. Id. According to Abel, Bursey responded that he was aware of the demonstration area’s location, that it was too far away to be effective, and that he did not want to go there. Record at 1-124. See also Record at 1-126 (Abel indicating that when others arrived to join Bursey she “explained the same thing to them about the demonstration area”); Record at 1-203 (Baker-same). Also according to Abel, Bursey never indicated a desire to go to the demonstration area through their long encounter, even when the others who joined him left, but instead indicated a preference for being arrested. 28 

Bursey’s own testimony also supports the conclusion that he did not misunderstand the nature of the restrictions but took a calculated risk in challenging them, as he had successfully done in prior situations. 29  Indeed, Bursey’s counsel argued at trial that his defense was that he believed the {p.19} government was merely bluffing and that he had a right to rely on that belief due to these prior encounters:

The Court:  [A]re you telling me his defense is that he didn’t think that he was knowingly in a restricted area and would be arrested if he didn’t leave because he had been told that before and hadn’t been arrested, so he had a right not to believe them when they told him that this time?

Mr. Pitts:  That’s exactly right, Judge. Because that’s the bluff that they do. That’s their bluff that’s been occurring....

Record at 2-184.

Ultimately, Agent Abel requested that an airport police officer be summoned to remove Bursey when he would not leave voluntarily. 30  The airport police officer arrived and was advised by Abel that the area was now completely shut down and that Bursey refused to leave. Record at 1-131. The airport police officer, Campbell, advised Bursey that he was going to be arrested and did, in fact, arrest him on a charge of “trespass after notice.” Record at 1-132 (Abel). 31 

The trial court found that Bursey

both willfully and knowingly remained in th[e] restricted area after he had been instructed to leave. The testimony and evidence shows that the Defendant was {p.20} initially in a grassy area near the sidewalk located right next to the hanger and right next to the area where the President’s motorcade would pull up.... When the Defendant was advised that he could not remain in that location, he proceeded to cross Airport Boulevard diagonally to the far corner of the intersection across from the hanger. ... The evidence ... establishes that the Defendant was again advised that he could not remain in that location and would have to leave the area, and that he refused to do so.

Verdict at 4. In light of the above evidence, this court concludes that there was more than sufficient evidence to support these conclusions and to establish that Bursey had the requisite specific intent to violate 18 U.S.C. § 1752(a)(1)(ii).

Conclusion

For the reasons set forth above, this court finds no error and affirms Appellant’s conviction for violation of 18 U.S.C. § 1752(a)(1)(ii).

It is so ordered.

Signature: Cameron McGowan Currie

{Signature}

Cameron McGowan Currie
United States District Judge


Columbia, South Carolina
September 13, 2004

AO 72A
(Rev. 8/82)

_______________________

Filed, SEP 14 2004, Larry W. Propes, Clerk, Columbia SC

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

 




Criminal No. 3:03cr0309 (01)

 )
United States of America)
)
vs.)
)
Brett A. Bursey)
 )

Judgment in a Criminal Case


Appeal from Magistrate Judge Decision


Decision by Court. This action came to hearing before the Court, The Honorable Cameron McGowan Currie, United States District Judge, presiding. In accordance with the written opinion of this Court filed September 14, 2004, the Court affirms the Magistrate Judge’s decision as set forth in an Order and Verdict entered January 6, 2004.

It is so ordered and adjudged that the conviction of the defendant, Brett A. Bursey, entered on January 6, 2004 is affirmed.

Larry W. Propes, Clerk

Signature: Rebecca A. Willis

By

{Signature}

{Rebecca A. Willis}

Deputy Clerk


Columbia, South Carolina
September 14, 2004

Footnotes

Each footnote appears entirely on the same page with its text reference, except where an embedded page number marks a carryover to the foot of the next page (n.17, n.20).  CJHjr


 1  The Magistrate Judge found that the evidence did not “support Defendant’s claim that the only reason he was charged ... was because he was protesting against the President.” In reaching this conclusion, the Magistrate Judge observed that there “was no evidence ... that any other persons, either supporting the President or opposing him, were allowed to remain in the area around the hanger for the purpose of demonstrating, pro or con, upon the President’s arrival.” Verdict at 6. See also Verdict at 11 (finding “no evidence ... that any other person, either supporting the President or opposing his policies, entered and remained in the restricted area with no ticket and no intention of attending the rally, and then refused to leave the restricted area when so instructed” — emphasis in original).

 2  The Magistrate Judge found that, at the time Bursey was first advised that he was in a restricted area and would have to leave, Bursey was “literally within a few yards from where the President’s automobile would be parked.” Verdict at 4. The Magistrate Judge also found that while Bursey moved from his initial stopping place after being told he would have to leave the area, he only moved diagonally across the intersection. Id. Thus, Bursey “remained in close proximity to the hanger, as well as being on the corner of the intersection where the President’s automobile would have to exit the parking lot and make a slow u-turn.” Id. The Magistrate Judge also found that Bursey was “again advised that he could not remain in that location and would have to leave the area, and that he refused to do so.” Id.

 3  This statement of facts is taken predominantly from Bursey’s opening brief which states that the facts are as “found by the trial court, testimony of government witnesses, or uncontroverted testimony of defense witnesses in the record.” Appellant’s opening brief n.1. Additional citations to supporting portions of the record beyond those cited by Bursey are indicated by “see also” cites. Other evidence before the trial court which differs from or extends beyond the facts as recited by Bursey is addressed in footnotes to this section or in later sections of this opinion.

 4  References to the trial transcript are set forth by volume and page number, e.g.Record 1-27.”

 5  Secret Service Agent Cohen described the restricted area as follows: “The restricted area went from along Airport Boulevard up to the next intersection ... about 100 yards up Lexington Avenue ..., basically to the mouth of the [college] parking lot entrance ... [continuing] down Airport Boulevard all the way to 302, which was the motorcade route, primary and emergency.” Record at 1-18.

 6  At one point, Cohen testified that tickets were checked when individuals came into the area as well as when they reached the metal detectors. Record at 1-63 to 64 (indicating uncertainty as to the precise location where they were first checked, although it was “in the vicinity of Airport Boulevard and Lexington”). This checking was not, however, done by law enforcement. Record at 1-66. Other testimony, including from Cohen, suggests that any ticket checking was random or consisted only of asking individuals if they had tickets. The Magistrate Judge made no specific finding as to this point. For purposes of this order, therefore, the court assumes that persons in line were merely presumed ticket holders and, therefore, not necessarily “invitees” within the meaning of the relevant regulations. See infra Discussion.

 7  Rather than actually being removed from the area, the individuals who were still waiting in line were moved around the opposite side of the building to where they would not have line of sight of the President’s arrival.

 8  Secret Service Agent Cohen testified that, up until shortly before the President’s arrival, security allowed vehicles to “pass through” but not to stay in the area. However, “right when the President is about to arrive, we shut down all access, even to Airport Boulevard, in this case, to all traffic and all foot traffic.” This applied also to individuals with tickets because they were “in our secure or restricted area, but they [were] not screened until they c[a]me to the building.” Record at 1-22. The area would be shut down for two reasons. First, “it was [the] emergency egress upon arrival, and [the] primary egress ... for the motorcade route when we departed. And also it was in close proximity to the arrival area, close enough that someone standing there that was unscreened could cause harm.” Record at 1-23.

 9  There is some dispute in the record as to what occurred in the conversation. Bursey testified that he called Weaver and was told that someone would get back with him but that no one ever did. Bursey conceded that he did not follow up to determine where the “demonstration area” was located. Record at 2-234-35 (indicating that Bursey did not follow up because he expected someone from SLED to get back with him). Lieutenant Baker testified that she understood that Bursey was told to call her but that he did not. Record at 1-235 (this testimony was brought out on cross examination and no challenge was made to its foundation). For purposes of this appeal, the dispute is of no significance beyond showing that law enforcement was aware that Bursey planned to demonstrate and that Bursey was aware that access to areas around the hanger would be restricted.

 10  The recitation of facts in Appellant Bursey’s brief is quite limited on the communications which occurred at this point. Testimony regarding the encounter was, however, extensive and revealed a sharp dispute between Appellant and the government witnesses as to what Bursey was told and as to what comments he made to law enforcement. See infra at Discussion, Specific Intent (discussing testimony of Abel and Baker).

 11  When asked if he was saying that there was “no one out there that day [who] could direct you to where ... the designated area was,” Bursey gave the following qualified response:

I think the record reflects that there were multiple places, multiple sets of directions and confusion. And the answer to your question is, yes, I don’t believe there was anyone out there that could have competently directed me to an area in which I could have expressed my free speech adequately.”

Record at 2-243 (emphasis added). He also testified that “no police officer gave me that instruction.” Record at 2-244 (the query was, however, limited in this manner — emphasis added). Other defense witnesses present during the latter part of Bursey’s encounter with law enforcement also denied being advised where the demonstration area was located. E.g., Record at 2-154 (Sanders); Record at 2-141 (Rogers). By contrast, both Abel and Baker testified that they directed Bursey to the demonstration area. Record at 1-123 & 1-198 (Abel) & 1-204 (Baker).

 12  The demonstration area was established by local law enforcement personnel at Airport Boulevard and 302. Record at 1-25 to 26. According to Cohen’s description of the restricted area, this would either be within or at the very edge of the restricted area and along the President’s motorcade route. While established by local authorities, the demonstration area was subject to Secret Service approval. Record at 1-25 (Cohen stating “we discussed it with the police and they had told us that this would be the designated demonstration area and asked us if it was a problem for us being there, and we said no”). Bursey, however, testified that none of the law enforcement officers at the site told him where the demonstration site was located and further indicated that he was not aware of the location. Record at 2-213. Nonetheless, he indicated that he gave signs to a fellow demonstrator when she left so that she “could take them to the free speech zone.” Id. Thus, he does not suggest that he could not have determined the location which was, in fact, only a short distance away. Moreover, the officers on the scene testified that Bursey indicated that they told him where the demonstration area was located but Bursey told them “he did not want to go there.” Record at 1-123 (Abel) & 1-204 (Baker).

 13  While not discussed in Bursey’s recitation of the facts, there is substantial evidence that the area was cleared even of the presumed ticket holders prior to the time of Bursey’s arrest. See, e.g., Record at 1-174 (Abel noting that even the individuals with tickets were required to move once the area was “shut down”); Record at 1-29 to 1-30 (Cohen discussing measures taken to keep even ticket holders out of the area where they would have a line of sight to the President’s arrival when it appeared the President might arrive before all of the ticket holders could be cleared through the metal detector and moved into the hanger).

 14  The case to which Bursey refers is apparently State v. Hanapole, 178 S.E.2d 247 (S.C. 1970).

 15  The decisions to effect Bursey’s removal through his arrest and to charge him with trespass were made by the Airport Police, not the Secret Service. Record at 1-131 to 1-132 (Abel) & 2-63 (Campbell).

 16  Bursey’s claim of ignorance contrasts with his own testimony regarding his extensive prior dealings with the Secret Service and local law enforcement at similar events. See infra Discussion, Specific Intent (discussing additional testimony).

 17  The case of United States v. Headspeth, 852 F.2d 753 (4th Cir. 1988), on which Appellant relies, requires no contrary result. Indeed, the case has been overruled in part, although arguably not as to the precise point for which Appellant cites it in this appeal: the narrow construction of the term {p.12} “otherwise” in defining crimes which might support sentencing-enhancement. See Taylor v. U.S., 495 U.S. 575, 579-584 (1990) (resolving split in the circuits regarding proper construction of sentencing statute’s reference to meaning of “burglary”).

 18  In this case, for instance, had Bursey been arrested upon entry to the area and prior to personal warning, he might well be able to argue that his arrest (and conviction) was improper. The relevant argument, however, would go to the combined effect of the need for some form of demarcation (physical or through personnel) and the requirement that any violation of the restricted area be “willful.”

 19  Although the large restricted area was not marked by physical barriers, security officers were posted on the perimeter and as rovers within the restricted area. Record at 1-27 (Cohen stating that beginning roughly five hours before the President’s arrival “we posted the perimeter with the police and the secure area with our agents as well”); Record at 1-43 to 44 (Cohen indicating that they sometimes use bike racks and sometimes “have people standing there to demark your area” and, in this case, used bike racks only in one area on the tarmac side of the hanger). Secret Service Agent Cohen testified that an individual would be able to determine where the restricted area was because they “put the police and the agents out.” Record at 1-19 to 20 (also indicating that an officer or agent would have been posted at the end of each of the areas described).

 20  See generally Verdict at 7-8 (“the issue ... is not whether the outer boundaries of this restricted area were unreasonable. The Defendant was not at the outer boundaries, or even close to those boundaries”) & Verdict at 9 (“This is not to say that the Secret Service’s power to restrict the area around the President is absolute. Nor are protestors required to go to designated demonstration {p.14} areas, as long as they do not otherwise remain in a properly restricted area. ... Hence, if the Defendant had chosen to keep moving further and further away from the hanger, and if he had still been arrested, not at the location where he was, but at a much further distance from the hanger, he would have had a stronger case that the Government’s actions were unreasonable and therefore unconstitutional. Again, however, that is not what happened in this case. The Defendant effectively sealed his own fate when he chose to make his principled stand in a location manifestly reasonable for the Secret Service to secure.”)

 21  In light of these conclusions, the court does not reach the question of whether the Secret Service may refuse to provide notice of the outer boundaries of an area on request. This question raises competing concerns relating to security (given testimony that providing notice of the boundaries may raise security concerns) and the rights of individuals to traverse or remain in any area which is not restricted.

 22  On reply, Bursey argues that the oral notice he was given that he was in a restricted area was inadequate because he was not “told that the area had been designated a restricted area by the United States Secret Service.” Reply at 2. This argument assumes a requirement of notice that is not suggested by the statutory language. In any case, Bursey was neither unaware of the reason for the restriction (protection of the President) nor of the active involvement of the Secret Service in enforcing the restrictions. See infra Discussion, Specific Intent (discussing Bursey’s significant prior actions relating to such restricted areas).

 23  The security forces on site assumed that individuals arriving in the area were coming to the event unless there was something unusual to alert them to the contrary such as the individuals not getting in line or indicating they did not have a ticket. Record at 1-21.

 24  Agent Abel first noticed Bursey standing near the intersection of Lexington and Airport Boulevard, within the restricted area. Record at 1-120. Bursey had “a bunch of signs underneath his arm” as well as “a megaphone in the other hand” and was “standing by himself.” Record at 1-120 to 1-121. Other individuals within the area were either in line or walking down Lexington Avenue. Record at 1-121. Bursey appeared “out of place” because other “people were not congregating in that area, they were only there to cross that intersection and get in line.” Record at 1-122.

 25  Bursey has not challenged the trial court’s conclusion, which with this court, in any case, agrees, that the possibility that Bursey could have been screened where he stood does not require the Secret Service to accommodate his preferences. As the trial court noted:

The Defendant is not an island, with rights unto himself not shared by others. If the Defendant had a constitutional right to stand in that location, and the Secret Service did not have the power and authority to require him to move, then the Service similarly would not have had the power and authority to move other citizens who also wanted to stay in that location.

Verdict at 9, n.2. This rationale, of course, applies to the whole of the restricted area. That is, if the Secret Service could not restrict non-invitees (and invitees for that matter) from remaining in this part of the restricted area, they could not restrict them from any other part of the restricted area.

 26  At the point Able sought out a local law enforcement officer to remove Bursey due to his repeated refusals, the area was “restricted to everybody except law enforcement.” Record at 1-126. See also Record at 1-131 (Abel testimony that she advised Sergeant Campbell that Bursey “was in a restricted area and now it had been completely shut down”) & Record at 1-205 to 1-206 (Baker testimony that, at the time of the arrest, “the [ticket holders] had actually been moved out of the area” and that they had been moved so “they did not have a line of sight”); Record at 1-207 (Baker testimony that President arrived within two to ten minutes after Bursey’s arrest); Record at 1-255 (Baker) explaining that line was cut and moved out of the line of sight because “[w]hen the President is coming in ... you can’t have anybody ... where they can see him. It’s a security issue, it’s for his protection.”) Once the area was restricted to this level and prior to his arrest, Abel testified that she told Bursey:

Look around you, there is nobody else here. ... Don’t you understand, it’s completely closed off now. ... I don’t care if you are a little girl with a bunch of flowers to give the President, I would make you leave, because at this point this entire area is closed except for Secret Service and law enforcement.

Record at 1-128.

 27  Bursey testified that he was aware that the Secret Service was responsible for establishing restricted areas for such events. Indeed, he stated a personal view that the Secret Service influenced or required the placement of demonstration areas at inconvenient or ineffective locations and generally preempted local law enforcement in regard to the restricted areas. Record at 2-202 (Bursey explaining, as to two prior events, that “local police told me that the Secret Service had basically preempted the security arrangements and that they had established free speech zones for us to go to.”); Record at 2-235 (Bursey explaining his failure to follow up with SLED by stating: “I had more reason than not to believe that at that event, October, when the President came to town, that the circumstances would be similar to his prior visits, where it doesn’t matter what you discuss with the local police or the state police, the Secret Service comes in and preempts it. ... I didn’t see any need or that it would be productive to discuss the issue with local police once the Secret Service had preempted control of the event.”).

 28  At the point the other individuals arrived, Abel had been conversing with Bursey for ten to fifteen minutes. Record at 1-127 (Abel); Record at 1-199 (Baker testimony re extended exchange). After being advised that they would have to leave or be arrested, the other individuals made some calls on cell phones, not giving their answer right away, while Bursey gave the immediate response: “Arrest me.” Record at 1-129 (Abel). After about five minutes, the other individuals departed but Bursey remained. Record at 1-130 (Abel); Record at 1-203 (Baker). A member of local law enforcement (other than Baker) was also present by this time telling Bursey the same things. Record at 1-130 to 31 (Abel).

 29  Bursey testified that he had achieved at least some prior successes in having the demonstration areas moved either by protesting the location after arriving at the site or by simply refusing to move. Record at 2-226 (discussing event in Charleston in which he was threatened with arrest for refusing to leave a restricted area “[a]nd the arguments went back and forth to a point that we had ... probably 40 or 50 people there. And the police decided that they would move the free speech zone.”); Record 2-227 (indicating that as a result of these prior encounters “I thought that calmer rational minds would prevail and that I could work something out with the local authorities to allow us to be somewhere we felt was an effective venue for our expressing our freedom of speech”); Record 2-212 (Bursey indicating that during the encounter with Baker and Abel “I was reflecting on the fact that we had just been through similar scenarios in two different cities where they told us the same thing, and that we basically found a place that we felt was out of the way to accommodate their concerns and ours, and they left us there.”). As to the date in question he testified: “I had every reason to believe I would not be arrested based on the past conduct of the Secret Service and local police during President Bush’s visits.” Record at 2-215.

 30  Abel explained the decision to have the local officer make the arrest as follows:

That’s just something that we usually do. It facilitates the whole process if a local law enforcement handles it as opposed to us. It’s their jurisdiction. That way if the locals are handling the arrest, then we won’t be coming to South Carolina to testify and fill out paperwork.

Record at 1-132.

 31  Bursey also testified to a remark by Sergeant Campbell that, if accepted as true by the trial court, would have raised serious concerns about the reason for the arrest. That is, Bursey testified that Sergeant Campbell indicated the reason for the arrest was the content of his sign. Record at 2-250. There is, however, no evidence that any of the other law enforcement officers present either made statements or took action which suggested such a motivation.

 

Source: Photocopy of a duplicate original (the court’s file copy), scanned to pdf.

By CJHjr: Converted to text (OCR: FineReader 7.0), 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 {275kb.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).

See alsoOther Secret Service protest zone cases” on the docket-sheet page. Brett Bursey

Commentary: Jonathan M. Katz, “Thou Dost Protest Too Much: An old law turns protesters into threats against the president.” (Slate, Sept. 21 2004). “[H]undreds of protesters are being rounded up at presidential visits all over the country, making Bursey the 56-year-old canary in a demonstrators’ coal mine.”

Commentary: G. Jeffrey MacDonald, “A close eye — and tight grip — on campaign protesters” (Christian Science Monitor, Sept. 27 2004). “President Bush was about to arrive at a rally. A couple wearing T-shirts with anti-Bush slogans were sitting just feet from the stage. Charleston, W. Va., police working with the US Secret Service had a quick decision to make.

What ensued that July 4 was either a prudent choice in high-risk times or a blatant violation of free-speech rights. Police arrested the two for wearing the T-shirts and refusing to relocate to an area for protesters.”

Rank v. Jenkins: Jeffery Rank and Nicole Rank v. Gregory J. Jenkins (Deputy Assistant to the President of the United States and Director of the White House Office of Presidential Advance), W. Ralph Basham (Director of the United States Secret Service}, and John Does 1-2 and 3-4, filed Sept. 14 2004 (S.D.W.Va., No. 04-CV-997). See also American Civil Liberties Union (New York City), “Secret Service and White House Charged with Violating Free Speech Rights in ACLU Lawsuit” (September 14 2004).  CJHjr

This document is not copyrighted and may be freely copied.

Charles Judson Harwood Jr.

CJHjr

Posted Sept. 22 2004. Updated Nov. 1 2008.

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