Anti-war protest appeal brief - Bloch v. United States

TABLE OF CONTENTS
TABLE OF AUTHORITIES	2
STATEMENT OF THE CASE	3
A. Procedural History	3
B. Facts of the Case	3
STATEMENT OF THE ISSUES	6
ARGUMENT	7
INTRODUCTION	7
A. THE POLICE LINE REGULATION IS UNCONSTITUTIONAL WHEN USED AS A PRIOR RESTRAINT	8
B. THE POLICE LINE REGULATION WAS UNCONSTITUTIONALLY APPLIED IN THE CIRCUMSTANCES OF THIS CASE.	13
C. SHORT FENCING ALONE, WITHOUT MARKINGS, SIGNS, OR VERBAL WARNINGS, DOES NOT PROVIDE ADEQUATE NOTICE OF THE EXISTENCE OF A POLICE LINE.	15
CONCLUSION	18
CERTIFICATE OF SERVICE	20

On March 19, 2003, Defendant was arrested with about 20 others at a peaceful anti-war demonstration on Pennsylvania Avenue in front of the White House. Defendant requested a trial and on June 4, 2003, Defendant was tried with nine codefedants at a bench trial and convicted on the charge of “Crossing a Police Line” in violation of 24 DCMR § 2100, commonly called the Police Line Regulation. Defendant, having timely filed a notice of appeal on July 2, 2003, hereby appeals his conviction. (Defendant is the only codefendant who chose to appeal.)

In an address to the nation on March 17, 2003, President George W. Bush issued an ultimatum to Iraq demanding that Saddam Hussein, then the President of Iraq, and his sons relinquish their power and leave Iraq within 48 hours, or face war. Expecting a large number of anti-war demonstrators in Lafayette Park on March 19, the U.S. Park Police, at the request of the Secret Service, closed off the 1600 block of Pennsylvania Avenue¹ and the White House sidewalk sometime prior to 6 o'clock in the morning. Sup. tr. at 19; Tr. at 30.² Only individuals with appropriate passes or appointments at the White House were allowed into that area. Id. The area was blocked off by unmarked “bicycle fencing” -- interlocking metal barricades about three feet in height that resemble bicycle racks. Sup. Tr. at 17. At trial, the government argued that the fencing was a “police line” along the border of an “emergency zone” set up pursuant to 24 DCMR § 2100; however, there was no yellow “Police Line” tape along the fencing nor any other signs or markings to indicate that the 1600 block of Pennsylvania Avenue was in fact an emergency zone on March 19. Tr. at 28, 51. The police witnesses testified at trial that the police line was set up to provide a police staging area for crowd control operations. Sup. tr. at 18; Tr. at 32.

Large groups of peaceful anti-war demonstrators did indeed assemble in Lafayette Park that day. Observing the demonstrators and spread out along Pennsylvania Avenue between Lafayette Park and the White House fence were about eight to fifteen uniformed U.S. Park Police officers. Tr. at 19. The police did not give any verbal warnings to the demonstrators as a whole not to cross over the fencing. Tr. at 49, 63. After a peaceful prayer service and vigil shortly after noon, a small group of about twenty demonstrators, including Defendant, stepped or climbed over the short fencing onto Pennsylvania Avenue to demonstrate closer to the White House. Sup. tr. at 32. Officers shouted orders at Defendant and the rest of the group of demonstrators that had stepped onto Pennsylvania Avenue to get down, and the Defendant with the rest of the group immediately complied. Sup. tr. at 32. The Defendant and the rest of the group sat in a circle and proceeded quietly to talk, sing, and pray or meditate for peace while waiting for the police to issue further instructions -- which never came. Tr. at 68. One by one each demonstrator, including the Defendant, was restrained with hard plastic disposable handcuffs³ (despite being docile and cooperative), photographed with the arresting officer, and led onto prisoner transports. Tr. at 68. They were then driven to the Park Police processing center and waited longer inside the transports, then removed and processed. Tr. at 69.

The Defendant was tried along with nine of the other demonstrators on June 4th, 2003. In the interest of judicial efficiency, Defendant and codefendants requested a unitary trial and joined together in their defense. Defendant and all but one of the codefendants tried that day were convicted. This appeal follows.

THE POLICE LINE REGULATION IS UNCONSTITUTIONAL WHEN USED AS A PRIOR RESTRAINT

THE POLICE LINE REGULATION WAS UNCONSTITUTIONALLY APPLIED IN THE CIRCUMSTANCES OF THIS CASE

SHORT FENCING ALONE, WITHOUT MARKINGS, SIGNS, OR VERBAL WARNINGS, DOES NOT PROVIDE ADEQUATE NOTICE OF THE EXISTENCE OF A POLICE LINE.

Defendant was convicted of violating the Police Line Regulation, 24 DCMR § 2100, which provides, in pertinent part:

2100.1 When fires, accidents, wrecks, explosions, parades, or other occasions cause or may cause persons to collect on the public streets, alleys, highways, or parkings, the Chief of Police, an inspector or captain of the police, or an officer acting for him or her may establish an area or zone that he or she considers necessary for the purpose of affording a clearing for the following:

(d) The exclusion of the public from the vicinity of a riot, disorderly gathering, accident, wreck, explosion, or other emergency; and

2100.3 No person shall enter the emergency area or zone unless duly authorized by the person in command of the emergency occasion, except as provided in § 2100.4.

The emergency zone was set up well in advance of the demonstration, and justified by the police as necessary to provide the police space for a “staging area,” with authorization springing from either section 2100.1 (a) or (e). All the issues in this case involve this regulation, as written and as applied.

A. THE POLICE LINE REGULATION IS UNCONSTITUTIONAL WHEN USED AS A PRIOR RESTRAINT

In Washington Mobilization Committee v. Cullinane, 184 U.S. App. D.C. 215, 566 F.2d 107 (1977), the court upheld the constitutionality of this Police Line regulation, both on its face and as applied to the arrestees in that case. The holding in Cullinane is suspect in light of more recent Supreme Court opinions requiring more rigorous analysis than the time, place, and manner analysis used by the court in Cullinane. See Madsen v. Women's Health Center, Inc., 512 U.S. 753, 765 (1994) (holding that the test is "whether the challenged provisions . . . burden no more speech than necessary to serve a significant government interest."). But more importantly, in Cullinane, the police established a police line only after “obstructive conduct or actual or imminent violence infected the demonstrations in substantial measure,” and that decision can only apply to such circumstances. 184 U.S. App. D.C. at , 566 F.2d at 120. In the instant case, the U.S. Park Police established the police line as a prior restraint well in advance of a peaceful demonstration. Sup. tr. at 19; Tr. at 30. When used as a prior restraint, the Police Line Regulation is void for overbreadth and vagueness.

The first step in an overbreadth inquiry is to determination whether a substantial amount of protected conduct is potentially affected. City of Houston v. Hill, 482 U.S. 451, 458, 96 L. Ed. 2d 398, 107 S. Ct. 2502 (1987); Village of Hoffman Estates v. Flipside 455 U.S. 489, 494 (1982). The effect of the Police Line Regulation on protected conduct is not mere speculation. Besides being used in this case to contain a political demonstration, the Police Line Regulation was adopted and used by the police to control disorderly demonstrations against the Vietnam War. Cullinane, supra, 184 U.S. App. D.C. 215, 566 F.2d 107 (1977); Leonardson v. City of East Lansing, 896 F.2d 190 (6th Cir., 1990).

In Leonardson, the Sixth Circuit considered an ordinance that had been patterned after the D.C. Police Line Regulation, but contained a second section, not found in the D.C. regulation, authorizing the mayor to order the establishment of police lines in advance. 896 F.2d 190. The Leonardson court, citing Cullinane, upheld the first section (which it interpreted as applying only to ongoing demonstrations that had become obstructive or violent) but found that the second section was void for overbreadth and vagueness:

Accordingly, in Cullinane, the court approved the ordinance as a device to control demonstrations which had become obstructive or had been infected with actual or imminent violence, and therefore had lost their protected quality as expression under the First Amendment. As a practical matter, where operation of such an ordinance is limited to the existence of exigent circumstances, police discretion in deciding when to invoke control measures is markedly circumscribed. However, such a limit on police discretion is lacking when an ordinance authorizes a police line to be established prior to the occurrence of an "occasion or event" that causes people to gather on public streets, simply because the event has the potential of evolving into a public disturbance.

If the Police Line Regulation authorizes the police to set up police lines as preventative devices, it fails to provide a clear standard to prevent the use of police lines as prior restraints on activities that the First Amendment protects. The trial court in the instant case noted “that there was nothing of an alarming or emergent nature” about the demonstrations, but nevertheless felt that the asserted justification – the need for a police staging area – was proper. Tr. at 112-13. Leaving aside the question of whether that was the true motivation of the police in this case,⁴ the need for a police staging area could always be used as a pretext for any buffer zone at any demonstration, and the Police Line Regulation could be used as an easy end-run around the constitutional limitations imposed on both court-ordered injunctions and more narrowly specified regulations. See, e.g., Hill v. Colorado, 530 U.S. 703 (2000); Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357 (1997); Madsen, supra, 512 U.S. 753 (1994). For example, the police could set up a police line in advance of an anti-abortion protest to prevent all protesters from coming close to an abortion clinic, allowing only workers and patients past. Or police could set up a police line to prevent peaceful congregations in front of embassies – effectively nullifying part of Boos v. Barry, where the Supreme Court upheld a section of D.C. code allowing police to order the dispersal of congregations within 500 feet of embassies but only because it was given a narrowing construction restricting its application to congregations that pose security threats. Boos v. Barry, 485 U.S. 312, 331 (1988).

Furthermore, if the police could justify the buffer zone merely by claiming a need for a staging area, without any procedure for review, would-be demonstrators would have no recourse to challenge whether the buffer zone was imposed in a discriminatory manner or whether it was narrowly tailored to “burden no more speech than necessary.” Madsen, supra, 512 U.S. 753, 765 (1994). Before imposing such prior restraints on speech, police should have to follow procedures similar to those required for injunctions and denials and revocations of permits, including notice affording the opportunity to appeal to a court. Yet the Police Line Regulation as currently interpreted requires no balancing of First Amendment concerns, nor does it instruct the police to implement the least restrictive means.

In Leonardson, supra, the Sixth Circuit invalidated the East Lansing prior-restraint section – even though there was a procedure for implementing the prior restraint which required a report to the mayor and the mayor's assent – because there was an absence of clear standards and the section “could be used in advance to prevent persons wishing to demonstrate from engaging in protected speech or it could be used to set up police lines on an arbitrary basis against political dissenters.” 896 F.2d at 198. Allowing the police staging area as a justification for police lines permits nearly unfettered police discretion. Such discretion is an invitation to arbitrary, discriminatory, and overzealous implementation and renders the regulation void for vagueness. Cullinane, supra, 566 F.2d at 117.

The court might consider limiting the application of the Police Line Regulation to situations involving ongoing demonstrations which have turned obstructive or violent. When one of two or more interpretations of a regulation would raise serious constitutional issues, a court should interpret the regulation to avoid such issues. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988). However, the Police Line Regulation still could be used unconstitutionally by the police even when limited to ongoing and obstructive or violent demonstrations, unless police are given and follow clear guidelines to ensure that they “burden no more speech than necessary.” Madsen, supra, 512 U.S. at 765. At a minimum, the police must make a concerted attempt to deal with small numbers of obstructive or destructive demonstrators individually before infringing the First Amendment rights of a much larger group. Otherwise, a small group or even one individual (or an undercover police officer) opposed to the message could easily sabotage an entire demonstration. The Police Line Regulation must be limited in application to true emergencies, not political demonstrations.

B. THE POLICE LINE REGULATION WAS UNCONSTITUTIONALLY APPLIED IN THE CIRCUMSTANCES OF THIS CASE.

Even if the Police Line Regulation constitutionally authorizes the police to set up police lines in advance of political demonstrations in some situations, the regulation as applied was an unconstitutional infringement on the Defendant's freedom of speech. The proper standard for evaluating content-neutral time, place, and manner restrictions are whether the restrictions “burden no more speech than necessary to serve a significant government interest." Madsen, supra, 512 U.S. at 765.

The government witnesses testified that the need for a staging area required them to close off the entire 1600 block of Pennsylvania Avenue, including the White House sidewalk, without backing up that assertion with any facts. The facts supplied by these witnesses and the defendants' witnesses actually proves the reverse. First, there were fewer than sixteen police officers initially, spaced far apart along the entire block. Sup. tr. at 19. Such a small number of officers would not need the entire block as a staging area. Second, the police were not in a rush to remove Defendant and his fellow demonstrators from Pennsylvania Avenue. Tr. at 68. If the area truly was necessary as a staging area, the demonstrators would have been quickly handcuffed and moved. Finally, people with business at the White House were allowed to pass on the White House sidewalk. Tr. at 41. The police clearly did not need the entire area to themselves.

At a minimum, the police could have allowed small groups of demonstrators to rotate through the zone and to the sidewalk, while still maintaining a sufficient staging area. See A Quaker Action Group v. Morton, 516 F.2d 717 (D.C. Cir. 1975) (Quaker Action IV). In Quaker Action IV, the court found that, for permit purposes, at least 750 demonstrators could be safely accommodated on the White House sidewalk. Id. Even if the whole length of the 1600 block of Pennsylvania Avenue was needed for a police staging area to allow the passage of police vehicles, the police never explained why the entire White House sidewalk was also needed.

The government might argue that Lafayette Park provided the demonstrators with ample alternative space to exercise their freedom of speech, but that argument ignores that “there are unique First Amendment values in use of the White House sidewalk.” Quaker Action IV, supra, 516 F.2d at 733. The Quaker court noted: “That unique symbolism may well account for the fact that the Government has never proposed a complete ban on such demonstrations, the only absolutely riskless way of avoiding all conceivable danger to the White House from such demonstrations.” Id. at 733 n.49a.

Aside from symbolism, there are several practical reasons why demonstrators would wish to be as close as possible to the White House. First, they would be more likely to be seen and heard by those on the other side of the White House fence, from the President on down to the groundskeepers. Second, the demonstrators would have had an opportunity to engage White House visitors in political discourse as they walked along the sidewalk and entered the White House grounds. Third, the demonstration would be more likely to appear on news footage and would appear larger against the backdrop of the White House.

Furthermore, even though there may be “ample alternative channels of communication,” content-neutral time, place, and manner regulations must still be “narrowly tailored to serve a significant government interest.” Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). The staging area has been shown not to be narrowly tailored. The police line was a significant restriction on Defendant's freedom of speech that burdened much more speech than necessary to serve the purported government interest.

C. SHORT FENCING ALONE, WITHOUT MARKINGS, SIGNS, OR VERBAL WARNINGS, DOES NOT PROVIDE ADEQUATE NOTICE OF THE EXISTENCE OF A POLICE LINE.

To avoid chilling First Amendment activity, the requirement of notice implicit in the Police Line Regulation must be held to a higher standard than a regular criminal case not involving First Amendment issues, for several reasons. First, if the risk of arrest is too high, demonstrators will avoid participating in peaceful demonstrations, chilling the exercise of free speech. Second, demonstrators may wish to challenge a restriction on their speech in court without risking arrest, making clear notice of the existence of a police line and the justification for it essential. Third, demonstrators who believe a restriction is invalid and are willing to risk arrest need to know which regulations they may be violating so they can properly decide whether arrest would be worth the risk of detention, conviction, and the time and expense of a full appeal. Fourth, demonstrators who want to take full advantage of the zone they are allowed in need to know precisely where the line is drawn. Finally, a weak notice requirement invites police officers to both trap unsuspecting demonstrators by making legitimate police lines unclear, while controlling more passive demonstrators beyond their legal authority to do so by setting up barricades that appear to be police lines but are not.

The trial court applied the wrong notice standard, even ignoring First Amendment implications. The court, misquoting Cullinane, felt that the proper standard was “whether a person of common intelligence would appreciate that the police sought to keep the public out of the area....” Tr. at 113. The trial court was misled by a passage in Cullinane where the notice requirement was mentioned near the end of a vagueness analysis:

If the location of the line is clearly indicated and if adequate notice is given, which we interpret to be requirements implicit in the regulation, its application will not trap innocent persons. In short, it cannot be said that persons “of common intelligence must necessarily guess" at the meaning of the prohibition. Connally v. General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926).

Cullinane, supra, 566 F.2d at 118. The second sentence refers to the vagueness standard for the statute as a whole, which is objective, not the notice or mens rea standard, which is subjective and involves the actual belief of a defendant. The proper standard without even considering First Amendment issues is whether the Defendant knew that the fencing was a police line which the police may have legally set up under the Police Line Regulation or some other regulation. Cf. Staples v. United States, 511 U.S. 600 (1994).

The police could have easily strung a roll of yellow police line tape along the fencing making the status clear. The absence of such a simple but clear form of notice put the legal significance of the fencing in serious doubt, particularly for a demonstrator intent on exercising his First Amendment rights to the fullest extent legally possible. Instead, the Defendant was left to guess at the significance of the fencing, which one of the government witnesses even admitted changes “not only from day to day, sometimes from hour to hour.” Tr. at 35- 36. Yellow police line tape is such a common practice by the Park Police that the other government witness misremembered that yellow tape was present, before having his memory refreshed by a photograph of the fencing during the demonstration. Tr. at 50- 51.

Federal regulations require other non-emergency park closures or restrictions to be published in advance in the Federal Register, with a written determination available to the public justifying the action – and public notice through conspicuous signs at reasonable intervals, maps, newspaper publications, and/or other means – but unmarked fencing is not mentioned as a suitable method of notice. 36 C.F.R. §§ 1.5, 1.7. Suitable notice (and written justification) should be even more necessary in First Amendment situations.

The police could have easily and clearly marked the police line with a roll of yellow police line tape and announced clearly, loudly, and regularly to the demonstrators that they would be arrested if they crossed over the fencing. The failure of the police to use any police line tape or make announcements was and is puzzling, because to do so would require so little effort. Whether or not the failure to give clear notice was accidental, the location of the police line was not clearly marked – in fact it was not marked in any way – and no notice was given. These “requirements implicit in the regulation” being missing, the Defendant's conviction cannot stand.

Defendant was convicted of violating the Police Line Regulation, which is an unconstitutional time, place, and manner restriction on free speech rights whenever it is used as a prior restraint on peaceful protests. Even if the Police Line Regulation is found to be constitutional on its face when used to justify a prior restraint, in the instant case it was unconstitutionally applied to the Defendant. Finally, the trial court applied the wrong standard for the notice and mens rea element of the regulation, and under the proper standard any trier of fact would have acquitted the Defendant.

WHEREFORE, Defendant respectfully requests this Honorable Court REVERSE the lower court ruling, OVERTURN the Police Line Regulation, and GRANT the Defendant an acquittal.

I hereby certify that a true and correct copy of the above and foregoing was mailed, first-class postage prepaid, to counsel for the Appellee on this 23^rd day of December, 2003, addressed as shown below:

1The 1600 block of Pennsylvania Avenue has been closed to vehicle traffic for several years. Ordinarily, pedestrians are free to walk along this stretch of Pennsylvania Avenue and to cross Pennsylvania Avenue from Lafayette Park to the White House sidewalk anywhere along the block.

2The trial transcript as originally prepared was missing the government's opening statement and the direct examination of the government's first witness. Hence, a second transcript marked “Supplemental” was made covering the gap in the first transcript. The supplemental transcript belongs at page 23 of the orginal transcript, between lines 21 and 22.

3The type of handcuffs used were of a poor design, becoming painful after a short time, and being difficult to remove without cutting the wrist. Tr. at 68-69, 70-71.

4The Park Police closures may actually be causing more disturbances than they avoid. Shortly after the date of Defendant's arrest, the D.C. Council passed two emergency resolutions on the need to have public parks remain open to demonstrations, citing serious traffic problems caused when demonstrators are forced out of parks and migrate onto streets and sidewalks. D.C. Resolutions 15-85 & 15-86 of 2003 (approved April 1, 2003).

Cases	Pages
* Boos v. Barry, 485 U.S. 312 (1988)	10-11
City of Houston v. Hill, 482 U.S. 451 (1987)	8
Connally v. General Construction Co., 269 U.S. 385 (1926)	17
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568 (1988)	12
Hill v. Colorado, 530 U.S. 703 (2000)	10
* Leonardson v. City of East Lansing, 896 F.2d 190 (6th Cir., 1990)	9,11
* Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994)	8,10-13
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983)	15
* A Quaker Action Group v. Morton, 516 F.2d 717 (D.C. Cir. 1975)	14
Schenck v. Pro-Choice Network of Western N.Y., 519 U.S. 357 (1997)	10
Staples v. United States, 511 U.S. 600 (1994)	17
Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982)	8
* Washington Mobilization Committee v. Cullinane, 184 U.S. App. D.C. 215, 566 F.2d 107 (1977)	8,9,12,16
Regulations and Resolutions
36 C.F.R. §§ 1.5, 1.7	18
24 DCMR § 2100	3-19
D.C. Resolutions 15-85 & 15-86 of 2003 (approved April 1, 2003)	10