Petition for Writ of Certiorari — Bursey v. United States

(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.

STATEMENT OF THE CASE

A. Statement of Facts

On October 24, 2002, the President of the United

States visited Columbia, South Carolina, for a rally

being held in a hanger located at the airport. In

advance of the President's trip, the Secret Service had

defined what it called a “restricted area” around the

site of the visit. That area extended approximately 100

yards on either side of the hanger and approximately ¥2

mile away from the hanger. (Appendix 82-83). There

were, however, no cordons, barriers or other indicia of

a boundary surrounding this area. (Judge Magistrate

Order and Verdict Appendix 47-63). According to the

site agent for the Secret Service, this area was

“restricted” from 7:30 in the morning until the

President left the rally. (Appendix 73-74). Nonetheless,

from 7:30 until shortly before the President's arrival at

approximately noon, vehicles were permitted to

traverse the roads and pedestrians were allowed to

walk freely through the area. The Secret Service's

policy was, according to their testimony at trial, that

while people could pass through the “restricted” area

(Appendix 73-74), no one other than ticket holders was

supposed to come into this area and “remain in or, in

effect, ‘hang out’ in the area.” (Cohen Appendix 77-78).

It was stipulated at trial that tickets for the event were

taken at the door of the venue (Cohen Appendix 71-72)

and that numerous unscreened citizens were in the

immediate area at the time and place the petitioner was

arrested (Abel Appendix 91).

Petitioner, Mr. Brett Bursey, arrived at the

airport for the purpose of protesting the President's

policies. Mr. Bursey, carryir ; a sign and a megaphone,

walked to a grassy area on the side of Airport

Boulevard approximately 500 feet from the entrance to

the hanger (Gov. Exhibit’ 1: aerial photograph not

included, Fourth Circuit Joint Appendix 681). When he

was advised that he could not remain in that location,

Mr. Bursey crossed the street diagonally to the far

corner of the intersection across from the hanger. He

was advised that he could not remain in that location

either and that he would have to leave the area.

Special Agent Abel told Mr. Bursey that if he wanted to

demonstrate, the only place he could do so was the

designated demonstration area (Abel Appendix 88-89)

approximately one-half-mile away. (Cohen Appendix

72-73). When Mr. Bursey did not leave, Agent Abel

contacted the airport police and asked them to arrest

Mr. Bursey (Abel Appendix 93-94).

Several people joined Mr. Bursey and were also

told they had to go to the demonstration area or be

arrested. At this point, Mr. Bursey was holding a

poster board sign that said: “No more war for oil, don’t

invade Iraq.” Mr. Bursey was approached by

Metropolitan Airport Sergeant Campbell and toid to go

to the demonstration area or be arrested (Campbell

Appendix 99). Mr. Bursey then asked what he would

be arrested for and he was told “for trespassing.”

(Campbell Appendix 99). Mr. Bursey was unaware of

any law making him liable for entering or remaining in

a restricted area, and unaware that the area in question

was federally restricted. (Bursey Appendix 114-115).

Mr. Bursey refused to leave and was arrested on state

charges of trespass after notice.

The trespass charges were dismissed when the

airport police realized that a trespass charge could not

be prosecuted given that Mr. Bursey was arrested on

public property. (Campbell Appendix 100-103). Four

and a half months later, and concurrent with the

dismissal of state charges, Mr. Bursey was charged ina

one-count information that he “knowingly and

willfully did enter and remain in and on

grounds...which was then a posted, cordoned off and

restricted area where the President of the United States

was temporarily visiting, in violation of the regulations

governing ingress and egress thereto” in violation of

Title 18 United States Code, Section 1752(a)(1)(ii).

B. Conflicting Evidence and Findings of Fact

Mr. Bursey was tried before United States

Magistrate Judge Bristow on November 12 and 13,

2003. A judgment of conviction was entered on

January 6, 2004 and Mr. Bursey was sentenced to pay a

$500.00 fine and Special Assessment of $10.00. In part,

the Magistrate found that law enforcement officers

were stationed at the perimeters of the alleged

“restricted area” and were patrolling the area inside.

Moreover, the Magistrate found that there were no

barriers or other indicia of a boundary surrounding the

area. The court also determined that Mr. Bursey was in

a restricted area as defined by the statute at the time of

his arrest. Finally, the Magistrate found that no

evidence showed 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 upon the President's arrival.

(Magistrate Order and Verdict) The court, however, did

not make a finding “as to the precise time of Mr.

Bursey’s arrest in relation to the time of the shut

down,” as conflicting testimony was present in the

record. (4CCA Judgment).

On January 13, 2004, a Notice of Appeal was

filed with the District Court which rendered its

Judgment Affirming Conviction on September 14, 2004.

Although the District Court determined that no specific

finding was made by the Magistrate on the precise time

of Mr. Bursey’s arrest, the District Court nevertheless

determined that at the time of Mr. Bursey’s arrest the

restricted area had been “shut down.” (Order on

Appeal). This terminology, which constituted a new

factual determination, was not used by the Magistrate,

nor found in the language of the statute or regulations.

A Notice of Appeal was filed with the Fourth Circuit

Court of Appeals on September 14, 2004. On July 25,

2005, the Fourth Circuit Panel affirmed the District

Court’s judgment, finding that the boundaries of the

restricted area were visibly marked in light of the fact

that officers were stationed along the perimeters of the

area. The Fourth Circuit also determined that “the area

was restricted to all but authorized persons, as

provided for in the Regulations, at the time of his

arrest,” and affirmed the District Court’s determination

that the restricted area had been “shut down.” (4CCA

Judgment). No such finding was made by the

Magistrate Judge. Nor could such a finding be made

consistent with any fair reading of the record.

REASONS FOR GRANTING THE WRIT

I,

THIS CASE ALLOWS THE COURT TO

ESTABLISH THAT PUBLIC AREAS

WHERE FIRST AMENDMENT |

RIGHTS ARE RESTRICTED FOR THE

SECURITY OF THE PRESIDENT,

MUST BE CLEARLY MARKED AND

ENTRANCE RESTRICTED, SO AS TO

AVOID VIOLATING FIRST AND

FOURTEENTH AMENDMENT

RIGHTS TO FREE SPEECH AND DUE

PROCESS

Carefully balancing presidential security with

the right to engage in political dissent is truly a task of

exceptional importance. Concerns that government

officials may selectively and discriminatorily enforce

“restricted areas” at the request of the Secret Service

are not hypothetical or limited to this case. (See, e.g.,

Michigan case: Appendix 135; Philadelphia case:

Appendix 120-126; Pittsburgh case Appendix 127-131;

St. Petersburg case: Appendix 132-134). In virtually all

of several recent cases, protesters who refused to go to

a designated free speech zone were charged with

trespass, disorderly conduct, and the like, however,

most charges were later dismissed. Thus, while the

Court must necessarily rule on the facts of this case and

the statute at issue here, these other incidents

demonstrate the importance of determining the limits

on the government's power to restrict the exercise of

free speech in the name of security.

A. The restriction imposed upon Petitioner’s First

Amendment right to free speech and lawful

assembly was not narrowly tailored to achieve

the government’s interest in protecting the

President's safety.

The government has the. power to regulate

conduct associated with First Amendment rights to

speech and assembly, although the breadth of this

power depends upon the designation of the forum. In

balancing the government's interest in limiting the use

of its property against the interests of those who wish

to use the property for expressive activity, this Court

has identified three types of fora: the traditional public

forum, the public forum created by government

designation, and the nonpublic forum. Board of Airport

Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 572-73

(1987). Publicly owned spaces have a ‘public forum’

nature that imbues speech in such spaces with greater

First Amendment protection, and consequently

subjects any restriction to heightened scrutiny. Id. at

573.

In a traditional public forum, the state may

enforce regulations of time, place, and manner of

expression which are content-neutral, but they must be

narrowly tailored to serve a significant government

interest. Jews for Jesus, 482 U.S. at 573, citing Perry Ed.

10

Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 45

(1983). The State must also leave open ample

alternative channels of communication for free speech.

Id. A state entity cannot exclude a speaker from a

traditional public forum altogether unless “the

exclusion is necessary to serve a compelling state

interest and the exclusion is narrowly drawn to achieve

that interest.” Arkansas Educational Television

Commission v. Forbes, 523 U.S. at 677, 1641.

It is undisputed that the airport premises upon

which Petitioner attempted to exercise his First

Amendment rights were public property, as evidenced

by prior court ruling. State v. Hanapole, 255 S.C. 258,

267 (S.C. 1970). As a public space in which citizens

have previously engaged in political protest, the

airport grounds represent a traditional public forum

which provided Petitioner with heightened protection

of his First Amendment rights. Although Petitioner

does not dispute that the security of the President

constitutes a legitimate government interest, the State

failed to narrowly tailor its restriction of Petitioner’s

right to free speech to serve this interest. The imposed

restriction (ie. the statute and regulation) was

unreasonable as applied to Petitioner given the

Government's failure to clearly and visibly demarcate

the boundary creating the “restricted area.” The

District Court and Fourth Circuit ignored the

Magistrate’s finding “that there were no barriers or other

indicia of a boundary surrounding the area” (emphasis

added) (Magistrate Judge’s Verdict), and made a

factual determination that positioning of an

unspecified number of officers around the perimeter

who did not prohibit entry, or advise citizens they

11

were entering a restricted area (Agent Cohen Appendix

83-85; Rogers Appendix 104-105; Sanders Appendix

106-107; Rudolph Appendix 110-112), met the statutory

requirement for public notice of a restricted area.

Improperly relying on another statement from the

Magistrate verdict, which was taken out of context, the

Fourth Circuit concluded:

“We need not determine whether, as

Bursey contends, the Statute requires a

physical demarcation of a restricted area.

This is because, contrary to Bursey’s

assertions of fact, the boundaries of this

restricted area were visibly marked.

Indeed, the Magistrate Judge specifically

found that the law enforcement agents

were stationed at the perimeters of the

area.” (4CCA Opinion).

Furthermore, it was clear error and distortion of

the congressional intent and the plain meaning of the

express language of the statute to equate “stationed”

with “cordoned off.” As the panel noted, “cordoned

off” includes “to prevent passage”. (4CCA Opinion).

The same dictionary used by the panel reveals that

among the many meanings of “station,” none of them

include preventing passage or closing off or restricting

passage. Thus, the Magistrate was accurate to say

officers were “stationed” at the perimeters of the so-

called restricted area. It is a totally different issue as to

whether ingress and egress was restricted as required

by the statute and the regulation. Mr. Bursey does not

challenge the finding that officers were located at

intersections leading to the airport. Traffic was heavy

12

and officers were directing traffic and assisting with

parking for the event. However, there was absolutely

no testimony that officers lined the entire 100- square

acres serving notice and prohibiting entry. Moreover,

those officers at the intersections leading to the airport

did not prevent passage and were not operating to

close off, restrict, or control access as required to serve

any notice that the area was restricted. Quite to the

contrary, thousands of individuals in vehicles were

allowed by these “stationed” officers to pass into the

so-called “restricted area.” After acknowledging

several times that these “stationed” officers allowed

access into the so-called restricted area (Appendix 73-

76; 76-78), Secret Service Agent in Charge Douglas

Cohen was further questioned by the Judge Magistrate

on this point: Q. “And you had police officers, not

necessarily Secret Service Agents, but police officers

posted at what you considered to be the perimeter of

what you wanted to be your restricted area?” A. “Yes”

(Appendix 84) Q. “Now, but prior to the president's

arrival, they weren’t stopping people coming in and

out, were they? Like, if a car pulls off [Highway] 302

onto Airport Boulevard, the officer do n there i. not

stopping them?” A. “That's correct.” (Appendix 84)

Mr. Bursey testified that he was standing at the

main area of egress where the Fourth Circuit assumed

that police were posted to insure compliance with the

statute. “They (police) weren’t saying “are you

ticketed, let me see your ticket. They were stopping

traffic and telling pedestrians to cross, much as if you

were going to a sporting event.” (Bursey Appendix 80-

81) Those officers were the ones the Magistrate was

referring to when he wrote “law enforcement agents

-

13

were stationed at the perimeters of the area” and

clearly those officers had not “posted, cordoned off or

otherwise restricted” ingress and egress to the area as

specifically required by both the statute and regulation.

Therefore, it is not inconsistent to say, as the Magistrate

did, that there were officers stationed at the perimeter

of the area and also find “there were no boundaries or

other indicia of a boundary.” (Magistrate Order and

Verdict).

Moreover, evidence in ‘ve record clearly

indicated that officers refused to tell Mr. Bursey where

the alleged restricted zone ended. During trial, when

asked whether Mr. Bursey was told where the secure

area ended, the agent at the site stated: “No sir. But

_ there was no reason for us to tell him that because of

the security of the president.” (Baker Appendix 96-97).

This testimony speaks volumes: not only was there no

notice, law enforcement clearly believed concealing the

boundaries was essential to security. Such lack of

definition is not consistent with reasonable time, place,

and manner restrictions because it fails to provide

reasonable notice of the area in which First

Amendment privilege is restricted.

B. The regulation, as applied by law enforcement

officials and interpreted by the lower courts,

was overbroad, vague and provided unfettered

discretion to law enforcement officials.

This Court must provide guidance in

interpreting what level of notice is required under 18

U.S.C. § 1752(a)(1) to create a “restricted area.” If the

lower courts’ determinations are allowed to stand, this

14

statute will provide government officials with

unfettered discretion to remove protesters from the

sight and sound of their intended audiences. Although

the government may regulate a citizen’s First

Amendment right to use public spaces to communicate

views on national questions, this right “must not, in the

guise of regulation, be abridged or denied.” Hague v.

Committee for Indus. Org., 307 U.S. 496, 515-16 (1939).

As this court cautioned in Hague, a law or regulation

must avoid enabling a government official to refuse the

free expression of speech according to her “mere

Opinion that such refusal will prevent” disorderly

behavior or, in this case, a lack of security for the

President. (307 U.S. at 516). Such unbridled discretion

could allow the law and regulation to “be made the

instrument of arbitrary suppression of free expression

of views on national affairs.” (internal citations

omitted) Id.

A criminal law must give persons reasonable

notice of what is prohibited, and must not authorize or

encourage arbitrary or discriminatory enforcement, or

it violates the due process clause. City of Chicago v.

Morales, 527 U.S. 41, 56 (1999). The Supreme Court has

repeatedly condemned laws which are so vague as to

allow for the unfettered discretion in the hands of law

enforcement. See, e.g., Morales, 527 U.S. at 60; Kolender v.

Lawson, 461 U.S. 352, 358-60 (1983); Shuttlesworth v. City

of Birmingham, 382 U.S. 87, 90 (1965); Cox v. Louisiana,

379 U.S. 536, 556-57 (1965). This court must correct the

lower courts’ interpretation and enforcement of 18

U.S.C. § 1752(a)(1)(ii), as to do otherwise would allow

the government to make ad hoc rules and “entrust

iawmaking to the moment-to-moment judgment of the

15

policeman on his beat” that results in the suppression

of free speech. Kolender, 461 U.S. at 360. (citations and

internal quote omitted).

Understandably, among the main concerns of

Congress in passing, Title 18 U.S.C. § 1752(a)(1)(ii) was

that the public be given adequate notice of the actual

area designated by the Secret Service to be restricted.

(“It is anticipated that the Secret Service will make

every effort, consistent with Presidential security, to

make such restricted areas known to the public.” [S.

Rep. No. 91-1252. 91st Cong. 2d Sess., 9 (1970): District

Court Order). In fact, strict construction of this criminal

statute and due regard for constitutionality prompted

even the District Court below to state: “[t]he 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.” (District Court

Order).

The Fourth Circuit's determination _ that

stationing officers at the perimeter sufficiently notified

Petitioner of a “restricted area” according to 18 U.S.C. §

1752(a)(1)(ii) and its implementing regulations, ignored

material facts and a fair reading of the statute.

Petitioner's right to engage in political protest, as

protected by the First Amendment, can only be

protected by requiring that any area deemed by the

Secret Service to be restricted from public access

according to the statute be narrowly drawn, clearly and

visibly marked. This ensures proper notice that entry

is a criminal violation. The First Amendment does not

permit the federal government to leave decisions as to

the size, contours, and rules for access to secure areas

16

to the standardless and unfettered discretion of

individual Secret Service officers, as demonstrated by

the factual record. See, e.g. Kolender, 461 U.S. at 358 (of

concern is the “potential for arbitrarily suppressing

First Amendment activities...[as well as] the

constitutional right to freedom of movement”)

(citations and internal quotes omitted). The District

Corrt and Fourth Circuit’s strained and erroneous

interpretation of this statute gives unbridled discretion

to law enforcement contrary to well established

constitutional principles.

The dangerously ambiguous nature of the

government's power to regulate protected speech, in

contrast to the statute’s requirement that any restricted

area be “posted, cordoned off, or otherwise restricted,”

is illustrated by the Judge Magistrate’s attempt to

determine what would have been an unconstitutional

restriction on speech at the area in question. The Judge

Magistrate found that had Defendant only “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.” (Judge Magistrate’s Verdict). Note

that the Judge Magistrate made no reference to the

Defendant being inside, or outside, of the alleged

restricted zone, only “further away.” Petitioner

testified at trial that when speaking with a Secret

Service Agent, he offered to move to an area away

from where he was standing, but was told he couldn't

be anywhere but the free speech zone. (Abel Appendix

112-113). It was later revealed at trial that the area Mr.

17

Bursey had proposed to move to (Bursey Appendix

112-113) was in fact outside the alleged “restricted

area,” illustrating the very danger of allowing

individual officers to determine the limits of free

speech with little or no guidance from physical

boundaries or markers. (Cohen 72-73).

The factual record also contained statements by

both of the key Secret Service Agents in this case

admitting that balancing security with free speech and

first amendment rights was never considered as they

planned and executed the events on October 24, 2002.

Agent Cohen had never heard of any Secret Service

policy that addressed that balance and did not know if

one even existed (Cohen Appendix 78-79, 80-82). Agent

Abel testified that no such discussion occurred

regarding the President's visit that day or for any other

presidential visit she had been a part of as an agent

(Abel Appendix 87-88). Citing Zwicker v. Koota, 389

US. 241, 250 (1967), the Magistrate Judge

acknowledged that “the Government may not, under

the guise of performing a security function, seal off

government officials from criticism or unduly restrict

the First Amendment rights of citizens to engage in

peaceful protest.” (Judge Magistrate’s Verdict). As

clearly illustrated by the record, individual officers

were allowed significant discretion to determine who

entered and remained in the undefined restricted area,

in contravention of explicit language present in the

statute. This lack of clarity surely does not provide

reasonable time, manner and place _ restrictions

necessary to give notice to sufficiently avoid violating

Petitioner’s rights to free speech and due process.

18

Il.

THIS CASE ALLOWS THE COURT TO

ESTABLISH THAT FEDERAL AGENTS

DO NOT HAVE THE “FLEXIBILITY”

OF UNFETTERED DISCRETION

WHEN ENFORCING CRIMINAL

STATUTES.

The District Court found, “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...”

(District Court Order, emphasis added).

The cannon of strict construction of criminal

statutes precludes the flexibility the District Court

offers the government agents in enforcing the rule of

law. The District Court disregards the statute’s clear

regulations that do indeed require an absolute

prohibition on entry to the referenced restricted areas

to all but invitees, authorized persons displaying Secret

Service identification documents, and protectees (31

CFR § 408.3).

The Magistrate Judge, in deferring to the

discretion of the agents on the ground, found that “In

this age of suicide bombers...the Secret Service's

concern...is not only understandable, but manifestly

reasonable.” (Magistrate Judge Order, emphasis

added). Justice Thurgood Marshall warned in 1985

that “History teaches us that grave threats to liberty

19

often come in times of urgency, when constitutional

rights seem too extravagant to endure.”

While the Petitioner believes that strict

interpretation of the statute, and its regulations,

provides for both the President’s security and the

citizens’ First and Fourteenth Amendment Rights, the

Lower Courts cite perilous times, statutory flexibility

and common sense as compelling reasons to yield

discretion to individual federal agents. Should the

statutes and regulations not afford the agents the

necessary authority to protect the President, the

remedy lies with Congress, not with the Courts.

The District Court’s result-driven review of the

evidence, which culminated in a dispositive finding

that the “restricted area” had been “shut down,”

exceeded the courts’ scope of review and violated

Petitioner's rights to due process and reasonable

dissent. A district court may review de novo only the

magistrate’s findings of law, and is limited to

determining whether there was a sufficiency of

evidence to support a conviction when reviewing a

magistrate’s factual determinations. United States v.

Pasquantino, 336 F.3d 321, 332 (4th Cir. 2003). Although

the district court views the evidence “in the light most

favorable to the government,” the district court's

power of review is limited to vacating factual findings

that are clearly erroneous or remanding the case for

further factual determinations. Pasquantino, 336 F.3d at

332. A district court may not create its own findings of

fact upon review of a magistrate’s decision.

20

Since the trial court did not find as a matter of

fact that the area in question was “shut down” at the

time of defendant's arrest, the panel erred in upholding

the conviction based on this essential fact. Mr. Bursey

could not have been convicted if the area in which he

chose to remain was not restricted within the statute

and regulations of 18 U.S.C. § 1752(a)(1)(ii) which

makes it an offense to “remain in...a restricted area...in

violation of the regulations governing ingress or

egress...”. The area in question was not restricted

within the meaning of the regulations because it was

not marked so as to give notice and other people were

present in the allegedly “shut down” area. Neither the

court nor the Secret Service can deviate from the

statute and create a restricted zone called “shut down”

that fails to meet the constitutional requirements

imposed by Congress, i.e., marked boundaries to give

notice and exclusion to all except those authorized by

the written regulation. Secret Service agents cannot,

consistent with the statute and the constitution, simply

select persons to allow in the so-called restricted area

and eject those it wants excluded. Such selectivity

invites content-based or other non-security based

discrimination.

The Fourth Circuit determined that Mr. Bursey’s

contention on this point was without merit “because

the area was restricted to all but authorized persons, as

provided for in the Regulations, at the time of his

arrest.” (4CCA Judgment). No such finding was made

by the Magistrate Judge. Nor could such a finding be

made consistent with any fair reading of the record. As

the panel even acknowledged, “no specific finding was

21

made on the precise time of Bursey’s arrest in relation

to the time of the shut down.” (4CCA Judgment).

One of the statutory criteria for establishing

restricted areas is a provision for the allowance of

“invitees” to enter the restricted area. It is common

practice for tickets to be issued to determine who is an

“invitee” and who may enter the restricted area. The

record is clear on the point that where Mr. Bursey was

arrested, citizens had not been screened for tickets, and

accordingly, the area was not restricted according to

statute.' Secret Service Agent Cohen testified that

people standing in line were “not screened (for tickets)

until they come to the building.” (Cohen Appendix 71-

72). The District Court acknowledged this speculative

exercise when it found that “pedestrians were allowed

to remain in the area only if they were or appeared to

be ticket holders.” (emphasis added) (District Court

Opinion).

Though the panel noted that “there was

conflicting testimony on this point,” it failed to

acknowledge the extent of that conflict, that the

overwhelming weight of the evidence demonstrated

that the area was not shut down at the time of his

arrest and that the only objective evidence (including a

signed written memo by Lt. Baker Appendix 116)

demonstrated that Mr. Bursey was arrested before the

1 In fact, Mr. Bursey’s witnesses, who were present at the time and

place of his arrest, all testified that no one ever asked them for a

ticket. (Rogers Appendix 105: “They did not.”); (Sanders

Appendix 106 “No”); “No one asked me for anything.” (Rudolph

Appendix 112). One witness even testified that the police officer

“actually didn’t tell me to leave, he told me I couldn’t be there

with a sign.” (Rudolph Appendix 108).

22

area was shut down. The Judge Magistrate’s order was

clearly erroneous when it stated: “Defendant has

presented no evidence to show that any other

person...entered or 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.” (Judge Magistrate Order).

A number of witnesses testified that they were

present in the area and observed Mr. Bursey being

arrested and placed in the waiting paddy wagon.

Harry Rogers testified that he saw Mr. Bursey arrested

and placed in a van from across the street. (Appendix

103) Gerald Rudolph testified that he saw Mr. Bursey

being arrested and placed in a paddy wagon and that

“[w]hen they started arresting him, he gave me his car

keys.” (Appendix 109-110). Mr. Bursey testified that

when he was brought to the paddy wagon there were

still people present and he spoke to them. (Appendix

113-115). Indeed, Secret Service Agent Abel

contradicted herself on this very question. (Compare

Appendix 85-87, “when I gave him these choices, [to go

home, to get in line if he had a ticket, to got to the

designated demonstration area, or to be arrested]...at

that point it had become restricted to everybody except

law — enforcement,” with Appendix 89-93

acknowledging on cross-examination that when she

gave him these options, at that point in time there were

other people standing on the south side of Airport

Boulevard, waiting in line; Agent Abel acknowledged

there were “50 or less, yeah” people waiting in line at

Doolittle Hanger when Mr. Bursey was arrested. (Abel

Appendix 92). There is no dispute that Bursey asked

why he was being arrested when there were other

23

people standing even closer to the hanger than he was

who were not being arrested. (See Appendix 90-93,

testimony of Agent Abel; Appendix 94-95, testimony of

Lt. Baker). Consistent with that, Lt. Baker’s signed

memorandum to State Law Enforcement Division

Chief Robert Stewart dated February 19, 2003 states:

“Mr. Bursey asked why we weren't arresting everyone

in the line waiting to go inside the event.” (Appendix

116). These are the same people, previously cited as

“unscreened” and who “appeared to be ticket holders,”

who were in the same “restricted area” as Mr. Bursey

when he was arrested.

It is entirely understandable that the Secret

Service would seek to be flexible in how its operations

affect local events, but this flexibility must still provide

sufficient notice and remain narrowly tailored so as to

avoid unconstitutional levels of discretion in inhibiting

free speech. Moreover, if the Secret Service wishes to

be more flexible than its regulations require, for

example by allowing traffic and pedestrians to travel in

an area it is monitoring, it must do so consistently, and

not selectively use the regulation to justify criminal

prosecution. To hold otherwise would be to allow the

Secret Service to restrict the area person-by-person,

solely at its discretion, in contravention of the

requirement that a restriction on First Amendment

speech be narrowly tailored to achieve its purpose.

The lower courts erred in granting unfettered

discretion to individual agents and the District Court

and the Fourth Circuit engaged in result-driven fact

finding in order to justify the criminal conviction, and

acted outside the scope of their review in order to

24

affirm a conviction which violated Petitioner’s First

and Fourteenth Amendment rights. This Court must

not allow 18 U.S.C. § 1752(a)(1) to be used by the

government as a tool to violate the right to voice

political dissent.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

BRETT A. BURSEY

BY: P. Lewis Pitts, Jr.

Counsel of Record

Post Office Box 2101

Durham, North Carolina 27702

(919) 266-0051

Jeffrey E. Fogel

William D. Goodman

CENTER FOR

CONSTITUTIONAL RIGHTS

666 Broadway

New York, New York 10012

(212) 614-6427

Counsel for Petitioner