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Full-text: Pennsylvania v. Neel (October 31 2002)
Secret Service, protest zone, free speech zone
“The Bush family must surely love the poor. They made so many of us.” (September 2 2002).

Before District Magistrate Shirley R. Trkula in and for Allegheny County, Pennsylvania


 )
Commonwealth of Pennsylvania,)
Plaintiff,)
)
v.)
)
William R. Neel,)
Defendant.)
 )

“ When Mr. Bush’s motorcade came through Neville Island, Pa. last year, pro-Bush citizens could line the curb to wave and cheer. But anti-Bush protestors like retiree Bill Neel were ordered behind a fence, out of sight of the president and the press. “My moment to speak out was taken away from me,” says Neel.”

Lee Cowan, “Silencing Voices of Dissent” (CBS Evening News with Dan Rather, Dec. 4 2003).

Transcript of Proceedings

Held before District Magistrate Shirley R. Trkula, 923 Fifth Avenue, Coraopolis, Pennsylvania 15108, commencing at 10:38 a.m. on Thursday, October 31, 2002.

Appearances:

On behalf of the Defendant:

Thomas J. Farrell, Esq.
Thieman & Farrell
2312 Koppers Building
436 Seventh Avenue
Pittsburgh, Pennsylvania 15219

{p.2}

 

Proceedings

Magistrate Trkula. Whoever is going to testify, raise your right hand and I’ll swear you in.

(Whereupon, the witness were sworn by Magistrate Trkula.)

Magistrate Trkula. So we have Mr. Neel.

And what was your name again, sir?

The Witness. Detective John Ianachione, County Police.

Magistrate Trkula. Ianachhione {sic}. Okay.

Do you want to start? Tell us how this all occurred.

Wasn’t your wife arrested?

Mr. Neel. No. My sister.

Mr. Farrell. His sister.

Magistrate Trkula. Sister. We’re not having those together? Was it a different officer?

Detective Ianachione. Yes. I issued the citation to Mr. Neel. {p.3}

Mr. Neel. May I say something? She asked if she could be at this —

Magistrate Trkula. Anyone’s allowed at a hearing. Oh, you mean she wanted to have her hearing at the same time?

Mr. Neel. Yeah, but they refused her.

Magistrate Trkula. Well, you know what, she probably sent in her money later.

Mr. Neel. Okay.

Magistrate Trkula. As we get them — You know, we can’t tell who was arrested with who. We just, as they come in, we just put them together.

Detective John Ianachione

having been duly sworn, was examined and testified as follows:

Direct Examination

Magistrate Trkula. Okay, Detective, let me hear what you have to say.

The Witness. Yes, Your Honor.

On September 2nd, President Bush was coming {p.4} to town, and over on Neville Island there, and I was assigned to a uniformed detail, and I was specifically assigned to the firehouse area along the main route of travel into town.

There was an assembly permit established for the memorial park area for protesters at that site.

My duties were pretty much to guide protesters into the assembly area, made sure that all the protesters went into the assembly area. It’s a large fenced-in baseball field.

Magistrate Trkula. Who applied for the permit? The protesters —

The Witness. It was the protest group, yes.

Magistrate Trkula. — applied for the permit —

The Witness. Yes, Your Honor.

Magistrate Trkula. — to —

The Witness. Assemble in that area.

Magistrate Trkula. — protest and assemble in the memorial park?

The Witness. Yes, ma’am. {p.5}

Magistrate Trkula. Okay. But that is if they were just going to protest?

The Witness. Yes.

Magistrate Trkula. Okay. So does that mean all protesters had to go in the park?

The Witness. Yes. That was my —

Magistrate Trkula. If they belonged to that group. What if they didn’t belong to that group? What if they lived on the island?

The Witness. Well, it was my understanding if they were exhibiting themselves as a protester, they were to go in that area.

Magistrate Trkula. Who told you that?

The Witness. My supervisors.

Magistrate Trkula. Okay.

The Witness. And also the Secret Service.

“ He pointed out a relatively remote baseball diamond that was enclosed in a chain-link fence. I could see these people behind the fence, with their faces up against it, and their hands on the wire. It looked more like a concentration camp than a free speech area to me, so I said, “I’m not going in there. I thought the whole country was a free speech area.””

Bill Neel, quoted in Dave Lindorff, “Keeping dissent invisible” (Salon.com, Nov. 14 2003)

Like I said, I was there. We were guiding — All the protesters went in except for Mr. Neel and his sister at that time, Joyce Lynn Neel.

They were asked numerous times over and over to go into the area. They were exhibiting this sign here. {p.6} We explained to them that —

Magistrate Trkula. I can’t see it.

The Witness. We explained that they had to go there or they would be detained and arrested.

Mr. Neel. That —

Magistrate Trkula. You don’t say anything.

The Witness. But anyways, we continued to, you know, ask them to go in there. They refused.

They were arrested at that point. They were taken right into the adjacent firehouse, and myself and Detective Mett sat there with Mr. Neel and Mrs. Neel until the President was done and he left town.

Magistrate Trkula. Okay.

The Witness. That’s my understanding of the situation. That’s all really I have to say.

Magistrate Trkula. Okay. So you wrote him up under disorderly conduct.

The Witness. Yes, I just issued a citation for disorderly conduct and that was all.

Magistrate Trkula. Okay. {p.7}

Cross-Examination

By Mr. Farrell

Q. Detective, you said you were instructed that protesters had to go into this fenced-in area?

A. Yes, sir.

Q. And by protesters, what do you mean?

A. Basically my understanding, people exhibiting themselves as protesters, in particular carrying signs, and readily apparent as protesters. I can’t describe that any further than that.

Q. I’m sorry, maybe I —

A. People that were there making a statement pretty much against the President and his views.

Q. Okay. So by protesters, you mean people with signs critical of the President?

A. Yes. Yes, sir.

Q. And there were also people walking around outside Memorial Field, weren’t there?

A. There were lots of people traveling along the path to go to the podium area.

Q. The podium area was south of Memorial Field? {p.8}

A. Yes, sir. Right by the carpenters union.

Q. Okay. And the people who were walking outside that fenced-in area, did that also include folks with signs supportive of the President?

A. It could have, but I really didn’t notice if it did or not. I didn’t really take notice of all the signs.

Q. All right. In terms of people you selected to direct behind the fence, it was only folks with signs critical of the President?

A. They were pretty much the only signs I saw, sir .

Q. All right.

A. I didn’t really notice any supportive signs of this nature or anything like that.

Q. Well, how about your directions — I’m sorry.

A. I’m not saying there wasn’t any, but —

Q. Uh-huh. But your directions were only those folks with signs critical of the President needed to be in the protest area?

A. Yes, sir, people as I would understand to be in protest. {p.9}

Q. Okay. And you were given those directions by who?

A. My direct chain of command was Sergeant Gorcheck and the Secret Service. I’m sorry, I don’t know the names of the Secret Service.

Q. Were you at a meeting before the 2nd with the Secret Service?

A. There was a brief meeting. People were detailed to different areas and it was explained the assembly area was there, and the people protesting were to go into the assembly area where there was a permit obtained for that area for that purpose.

Q. And you were told that by both Sergeant Gorcheck and the Secret Service at this briefing before the protest?

A. Yes, sir.

Q. And the briefing, was it that day or the day before? When was it?

A. It was that day.

Q. Okay. And you say the Secret Service. Was it the Secret Service or were these folks White House staff? Do you know?

A. Primarily, as I understood, they were {p.10} Secret Service that gave the briefing.

Q. Did they identify themselves as being from the Secret Service?

A. Yes, sir.

Q. All right. Let me show you — When you saw Mr. Neel, he was standing outside the fence?

A. Yes, sir. Right, pretty much right in front of the area.

Q. With his back right up against the fence pretty much?

A. He was pretty much coming towards me. I didn’t detect his exact body position, but we were there for quite some time talking to Mr. Neel trying to get him to go in there.

Q. All right. When you talked to Mr. Neel, did he make any threatening gestures toward you?

A. Nothing threatening, no, sir.

Q. Did he raise his voice to you?

A. No, sir.

Q. Did he use any obscenities or vulgarities in talking to you?

A. No, sir.

Q. And the sign he had, the sign, he was {p.11} holding it so that it displayed toward the road, the side of the sign — Which side?

A. Pretty much this side.

The Bush family must surely love the poor. They made so many of us.

Bill Neel's sign (September 2 2002)

Q. The side that says, “The Bush family must surely love the poor. They have made so many of us.”? Is that the side that was being displayed toward the road?

A. Pretty much he was holding the sign as I recall. Both sides were visible. I’m not sure exactly which side he had out at the time.

Q. Okay. But you could see that it was a sign of protest against the President?

A. Yes, sir. That’s how it appeared to me.

Q. There’s nothing obscene or vulgar on that sign, is there?

A. No, sir.

(Whereupon, Defense Exhibit Number 1 was marked for identification.)

By Mr. Farrell

Q. Let me show you a photo I’ve marked Exhibit 1 for identification. {p.12}

A. That’s pretty much how I recall.

Q. Okay. So Exhibit 1 accurately shows where Mr. Neel was standing on September 2nd?

A. Yes, sir. In that general area there, yes.

Q. All right. And so he was — If you would, this street out here is Grand Avenue, the street in front of him?

A. Yes, sir.

Q. And off Grand Avenue, there’s then a concrete berm or shoulder of about seven feet?

A. Yes, sir.

Q. And Mr. Neel wasn’t standing on — Well, he wasn’t standing in the street, first of all, was he?

A. I think initially he was walking up along the roadway here.

Q. Uh-huh.

A. And we were pretty much in this area here along with a number of state police officers.

Q. Okay. I’m sorry, you’ll have to say — He was —

A. This is the firehouse here.

Q. Yes.

A. And we were pretty much located in this {p.13} area here.

Q. The parking lot of the firehouse?

A. Yes, sir. Mr. Neel was — intended to proceed down the path towards the assembly area down further.

Q. Okay, he was walking south on Grand Avenue?

A. Yes, sir.

Q. And he — was he walking along the grass or the berm?

A. Pretty much right along the berm here, as I recall .

Q. All right. Were people able to get by him?

A. Yes.

Q. And people were walking by him?

A. Yes, sir.

Q. He wasn’t blocking either vehicular or pedestrian traffic?

A. No, there was a number of people, lots of people walking through.

Q. He wasn’t starting any fights with people, bystanders, was he?

A. No, sir.

Q. He wasn’t shouting to the general public? {p.14}

A. No, sir.

Q. Was any sort of crowd, unruly or not, gathering around him?

A. (No audible response.)

Q. Before you approached him.

A. Not so much anyone unruly. I mean there was lots of chants and shouts from the other protesters who had assembled in the area there.

Q. The protesters who were within the fenced-in area?

A. Yes, sir. Yes, sir.

Q. Okay. But not from Mr. Neel?

A. No, sir .

Mr. Farrell. Your Honor, I’d move for the admission of Exhibit 1. And here, you can take a look .

(Whereupon, Defense Exhibit Number 2 was marked for identification.)

By Mr. Farrell

Q. I show you Exhibit 2. Does that also accurately show where Mr. Neel was when you {p.15} approached him?

A. In that general area, yes, sir.

Q. Okay. So just to his left there was a telephone pole?

A. No, I don’t recall the exact — Yes, there’s a telephone pole there. He was — We were pretty much all along this area in front of the fence.

Q. Uh-huh.

A. As he was walking up. And at which point he was asked to go into the assembly area, at which point he firmly refused.

Q. Uh-huh. You say firmly refused. Do you remember what he said to you?

A. He was pretty much stating his rights. He did not have to go into the assembly area. That he had a right to be right outside the assembly area where he wanted to be.

Q. Uh-huh. And you said that you asked him several times, you say?

A. Numerous times.

Q. Okay. During the times that you asked him, did he become violent or aggressive at all with you? {p.16}

A. No, sir.

Q. And when you told him he was under arrest, did he go with you peacefully?

A. Yes, sir.

Mr. Farrell. And finally, I’d move for the admission of Exhibit 2 and just let you see it, Your Honor.

By Mr. Farrell

Q. Oh, the telephone pole, you do remember there being a telephone pole out there?

A. There’s telephone poles all along the road, sir. I —

Q. I mean that folks would have to walk around as they were walking south on Grand.

A. I don’t know about the passage, but there’s telephone poles there, yes, sir.

(Whereupon, Defense Exhibit Number 3 was marked for identification.)

By Mr. Farrell

Q. And finally, if you’d just look at Exhibit 3, does — is that — does that show more {p.17} closely the sign that Mr. Neel was displaying?

A. Yes, sir.

Q. Okay. And is that how the sign more or less appeared on September 2nd?

A. Yes, sir.

Mr. Farrell. I’d move for the admission of Exhibit 3.

And I have no other questions, Your Honor.

Magistrate Trkula. Okay.

Mr. Farrell. Thank you, detective.

The Witness. You’re welcome, sir.

Mr. Farrell. If the Commonwealth is done, I would move to dismiss the charge before we need to present evidence as it just doesn’t make out disorderly conduct. Mr. Neel was not behaving in a disorderly fashion. He was actually pretty polite and peaceful.

Oh, if I may, one other question.

By Mr. Farrell

Q. Did you ever determine whether or not Mr. Neel belonged to the group that had obtained the permit?

A. Well, they pretty much at first said that {p.18} they weren’t part of the group. We did talk to Mr. Neel and his sister.

Q. Uh-huh.

A. And they were familiar with the people there.

Q. Uh-huh.

A. And it was apparent that they knew the people there.

Q. But they said they were not part of the group?

A. Yes. You know, their acquaintance with the people, I don’t know that that registers them as part of the group or not, but —

Q. Uh-huh.

Magistrate Trkula. Okay. I have a question.

There were a lot of people along the road, they live on Neville Island, I’m very familiar with the —

The Witness. Yes, sir. Lots of people.

Magistrate Trkula. All right. If they would have had a derogatory sign sitting on their property, would they have been arrested? {p.19}

The Witness. I can’t answer that. I don’t believe so, Your Honor.

Magistrate Trkula. I saw in the paper where a woman was very happy to see the President and she had a sign.

The Witness. I mean as far as I know, if it’s their property, they’re free to —

Magistrate Trkula. What were the orders given?

The Witness. The orders given to me directly were to —

Magistrate Trkula. Anybody that has a sign —

The Witness. — guide all the prostesters, as such, into the fence where the assembly area was, where the permit for assembly was.

Magistrate Trkula. Guide them behind the fence.

Yeah, but what if you didn’t belong to that group? What if they didn’t like you?

The Witness. Well, Your Honor, I did my best at the time to discern that, in fact, Mr. Neel was in protest. {p.20}

Magistrate Trkula. Okay. All right. Yeah, I understand.

I understand where you’re coming from, and I understand where you’re coming from, because it’s a critical time. And I guess because of 9/11 they’re a little more careful than before.

But I do not believe that this rises to the charge of disorderly conduct. And I believe this is America, and that’s why our forefathers came here, for freedom of speech. And I don’t — Once you stop that, whatever happened to {“}I may not agree with what you say, but I’ll defend to my death your right to say it{”}?

The Witness. Your Honor, I was just —

Magistrate Trkula. So I’ll dismiss this, and good luck to you, and maybe the next time find a different way to protest. I don’t know. So you don’t have to end up in here.

Mr. Farrell. What were you going to say?

The Witness. I was following my orders for the day.

Magistrate Trkula. That’s right, he was following his orders and — {p.21}

Mr. Farrell. I should say, whether it’s for the record or not, I mean Mr. Neel has told me many times that the officers were very polite and courteous to him.

Magistrate Trkula. He was very polite now. I’d be scared to death in front of this group.

Off the record.

(Whereupon, at 10:54 a.m., the hearing was closed.) {p.22}

Certificate

I, Randall W. Kim, the undersigned, do hereby certify that the foregoing is a true and correct transcription of the proceedings held before District Magistrate Shirley R. Trkula, 923 Fifth Avenue, Coraopolis, Pennsylvania 15108, commencing at 10:38 a.m. on Thursday, October 31, 2002.

Signature: Randall W. Kim

{Signature}

Randall W. Kim
Court Reporter.

Pittsburgh, Pennsylvania
November 16, 2002.

–   –   –

Pittsburgh Court Reporting, Inc. (412) 734-2500

 

“Shirley Trkula, 69, who has been district justice since 1991, when she replaced Walter Casasanta, Barbara Casasanta’s father, did not seek re-election because of a mandatory retirement age of 70.”

Election 2003: Republicans surprise in Carnegie (Pittsburgh Post-Gazette, Nov. 5 2003), and see, In Re: Shirley Rowe Trkula, District Justice in and for Magisterial District 05-2-25 (Commonwealth of Pennsylvania, Court of Judicial Discipline, No. 7 JD 96, June 27 1997).

 

“Allegheny County police arrested him and took him away in handcuffs. They detained him for two hours in a fire hall and confiscated his sign. ...

“It’s not me that’s in trouble. It’s the country,” said Neel.”

Milan Simonich,Bush foe loses 'fencing' match: Sign-carrier arrested after balking at curbs” (Pittsburgh Post-Gazette, September 4 2002).

“ The first time was in July of 2001, when Vice President Cheney delivered a major energy policy speech at the Community College of Allegheny County.

I arrived with my sign only to discover that protesters were being herded into a remote "free speech zone" located some distance from where Cheney and his press entourage would enter.

At that time, I backed off, fearing arrest since it was private property and the Bush people had successfully used the private property trespass ploy during the election campaign to avoid exposure to demonstrators of dissent.

However, I was angry at both the authorities and myself and hoped I would never let fear of arrest limit my First Amendment rights again.

After that, Bush came to western Pennsylvania several times, but always hiding in small private venues with no public access to allow protest.

Then, the week before Labor Day 2002, the local paper announced that "Dubyah" would be speaking at the carpenter’s union apprentice training center on Neville Island.

Neville Island is a narrow isle in the middle of the Ohio River a few miles downriver from Pittsburgh. It was once a heavy industrial site. There is very limited access to the island, all of it along a major public highway that is also the main city thoroughfare.

I figured this could be my chance to have my message heard. So on Labor Day morning, I picked up my sister Joyce, who is also politically active, and we drove 40 miles to Neville Island.”

Statement of Bill Neel (ACLU, September 23 2003) (source)

 

Source: ACLU: American Civil Liberties Union (“Because freedom can't protect itself”), “Pennsylvania v. Neel Transcript (9/23/2003){386kb.pdf}.

By CJHjr: Converted to text (OCR: FineReader 6.0), formatted (xhtml/css), links, text {in braces}, highlighting.

This case: Pennsylvania v. Neel (Allegheny County Magistrate’s Court, Coraopolis Pennsylvania, District Magistrate Shirley R. Trkula, Oct. 31 2002) (disorderly conduct citation dismissed). Neel was then a 65-year-old retired steelworker. See, Milan Simonich, “Judge clears Bush opponent” (Pittsburgh Post-Gazette, Nov. 1 2002), “Freedom Under Fire: Dissent in Post-9/11 America (5/8/2003)” (ACLU), Dave Lindorff, “Keeping dissent invisible” (Salon, Nov. 14 2003).

This transcript supports argument in 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).

That argument being, that a Secret Service Agent ordered airport police to arrest Brett Bursey — not out of concern for the safety of the President (an hour or more away, from that locale), and not because he was in an invisible “restricted area,” but instead — because he would not go to a distant protest zone, a half-mile outside any “restricted area,” an unlawful order by the Secret Service, who have no legal authority to concern themselves with the content of speech and with innocent activity outside a “restricted area.”

Brett Bursey understood this, and the Secret Service agent, she made a choice, to conceal from Brett Bursey the boundary of the invisible “restricted area,” so that he could go there, instead of the distant protest zone. She didn’t want him to go where he wanted to go and so she decided, unlawfully, to attack him, with force, to silence his free speech, by refusing instead to inform him, of what the law required of her, namely, where was the boundary.

This transcript is also cited in ACORN v. City of Philadelphia (E.D. Pa., 03-CV-4312 {50 kb}, filed July 24 2003). See ACLU Fact Sheet, “Free Speech Under Fire: The ACLU Challenge to ‘Protest Zones’” (ACLU, Sept. 23 2003).

See alsoOther Secret Service protest zone cases” for other instances of apparent Secret Service policy to require its Agents to incite, conspire, and aid and abet local police to wrongfully arrest citizens for violating state and local law which the police know the citizens did not violate (trespass, disorderly conduct, obstructing passage), and the ready willingness of local police officers to obey the unlawful orders of a federal executive chain-of-command and willfully violate with armed force the law they are sworn to uphold. Brett Bursey

This document is not copyrighted and may be freely quoted.

CJHjr

Charles Judson Harwood Jr.

Posted Nov. 22 2003. Updated June 2 2009.

http://homepage.ntlworld.com/jksonc/docs/neel-2002-10-31.html

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