Posted by Orin Kerr:
Maureen Dowd's Police State:
Maureen Dowd's latest New York Times column, [1]"No Stars, Just
Cuffs," describes what appears to be a terrible violation of the First
Amendment:
In World Wars I and II, gold star mothers were the queens of
their neighborhoods, the stars in their windows ensuring that they
would be treated with great respect for their sacrifice in sending
sons overseas to fight and die against the Germans and Japanese.
Instead of a gold star, Sue Niederer, 55, of Hopewell, N.J., got
handcuffed, arrested and charged with a crime for daring to
challenge the Bush policy in Iraq, where her son, Army First Lt.
Seth Dvorin, 24, died in February while attempting to disarm a
bomb.
She came to a Laura Bush rally last week at a firehouse in
Hamilton, N.J., wearing a T-shirt that blazed with her agony and
anger: "President Bush You Killed My Son."
Mrs. Niederer tried to shout while the first lady was delivering
her standard ode to her husband's efforts to fight terrorism. She
wanted to know why the Bush twins weren't serving in Iraq "if it's
such a justified war," as she put it afterward. The Record of
Hackensack, N.J., reported that the mother of the dead soldier was
boxed in by Bush supporters yelling "Four more years!" and wielding
"Bush/Cheney" signs. Though she eventually left voluntarily, she
was charged with trespassing while talking to reporters.
The moment was emblematic of how far the Bushies will go to
squelch any voice that presents a view of Iraq that's different
from the sunny party line, which they continue to dish out despite
a torrent of alarming evidence to the contrary.
Sounds bad, doesn't it? Or, as Brian Leiter puts it in his
understated way, "[2]Zeig heil, American style"? It seems bad enough
that I began to wonder if it could have been quite as bad as Dowd
suggests. I know this will shock VC readers, but a bit of google and
Westlaw research suggests it wasn't.
To begin with, I am unsure how Dowd reaches the conclusion that
Neiderer "eventually left voluntarily." According to Neiderer herself,
as reported [3]here, as soon as she started shouting "it became
chaotic and I was pushed and shoved." "[Secret Service agents]
engulfed me. It wasn't plain, ordinary folks, but people in suits with
earphones." The Secret Service agents escorted her to the exit of the
building. Once near the exit, Neiderer "refused to leave," according
to this [4]CNN.com report:
As the Hamilton police and Secret Service agents surrounded her
and reporters pressed her with questions, she held her ground,
claiming "I had my ticket" to attend the speech by the first lady.
Police subsequently handcuffed her and she was led away to a
nearby van. As she was escorted, she repeatedly shouted "Police
brutality" and demanded to know her rights and the charges.
Later, she was charged with defiant trespass and released.
Hmm, so much for leaving voluntarily. Well, what about the basis for
the trespass charge? Was Neiderer's arrest a flimsy pretext for
suppressing anti-Bush views, as Dowd suggests, or was there a solid
basis for a trespass charge? We get a few more details of the facts
from the [5]New York Daily News, which reports Neiderer's description
of happened as follows:
"The police said I was trespassing because I was blocking an exit
from the hall while I spoke to reporters," [Neiderer] said.
"I said how could I be trespassing when I had an entry card to be
there? This is a democratic country. I should have the right to say
what I want at all times, and not be arrested because my thoughts
are different to the President's."
. . . .
"The police were very nice to me," she said. "I don't think they
wanted to arrest me, but they did what they felt they had to do.
I'm expecting the charge to be dismissed."
(This is an aside, but is anyone else struck by the fact that Neiderer
"repeatedly shouted 'police brutality'" while she was being arrested
but soon afterwards volunteered that "the police were very nice to
me"? Oh well, back to the story.) We get still more details about
Neider's theory of why she was not trespassing from the [6]Asbury Park
Press:
"I had a ticket to get in," said Niederer, adding that Hamilton
police kept her ticket as evidence. "I was in there legitimately."
Niederer said she obtained a ticket by going to Republican
campaign headquarters Tuesday, as a local newspaper had advised
readers to do. She said some campaign workers recognized her as an
outspoken anti-war activist, but still gave her a ticket. No one
stopped Niederer when she checked in by name at yesterday's event.
Okay, those are the facts, let's now turn to the law. Neiderer was
charged under New Jersey's defiant trespasser statute, N.J.S.A.
2C:18-3(b), which prohibits leaving private property after the
owner/operator of the property has told you to leave:
Defiant trespasser. A person commits a petty disorderly persons
offense if, knowing that he is not licensed or privileged to do so,
he . . . remains in any place as to which notice against trespass
is given by . . . [a]ctual communication to the actor.
Defenses. It is an affirmative defense to prosecution under this
section that . . . [t]he structure was at the time open to members
of the public and the actor complied with all lawful conditions
imposed on access to or remaining in the structure[.]
Under New Jersey precedents, it seems likely that Neiderer violated
this provision. The fact that she had a ticket to enter the firehouse
for the speech doesn't answer the question, as permission granted can
also be revoked. For example, in State v. Brennan, 344 N.J.Super. 136,
780 A.2d 585 (N.J. App. Div. 2001), the defendant became disruptive at
a public meeting and was told by the police to leave. The defendant
refused, and was charged and convicted of defiant trespass. The
Appellate Division affirmed the conviction, holding that refusal to
obey a reasonable police order to leave violated the statute:
Although defendant had been lawfully on the premises, when the
police officers asked him to leave, that privilege was revoked.
Id. at 146. Similarly, in State v. Dargon, 165 N.J.Super. 500, 398
A.2d 891 (N.J. App. Div. 1978), union representatives were granted
permission to come to a private hospital to represent the union prior
to the opening of a unionization vote. When the polls opened, the
representatives decided to stay to monitor the vote. After they were
asked to leave and refused, the representatives were arrested and
charged with defiant trespass. The Appellate Division affirmed the
convictions:
Although defendants entered the premises with the permission of
the hospital for the limited purpose of the preliminary
representation of the Association prior to the opening of the
polls, the hospital authorities had the right to ask them to leave
the building thereafter. And whether they were in the lobby or
elsewhere in the building, their deliberate and persistent refusal
to leave pursuant to the several requests rendered them wilful
trespassers within the interdiction of the foregoing statute.
Id. at 503-04.
Based on these precedents, it seems that the ticket Neiderer
received to attend the speech did not give her an inalienable right to
stay on the premises. Although we don't know the facts with enough
specificity to know for sure, it seems that once she was told to leave
by officers acting reasonably within the scope of their duties,
Neiderer's permission to remain was revoked and her refusal to leave
constituted defiant trespass.
Of course, this doesn't mean that Neiderer should be prosecuted. I
have tremendous sympathy for her situation; she has suffered a tragic
loss. But at least on the facts that we know, Maureen Dowd's statement
that Neiderer was "handcuffed, arrested and charged with a crime for
daring to challenge the Bush policy in Iraq" seems a bit hard to
square with reality.
Of course, if there are other important facts or legal questions
that I overlooked, please send them on and I'll be happy to post a
correction.
References
1.
http://www.nytimes.com/2004/09/19/opinion/19dowd.html?ex=1096564306&ei=1&en=2e95863d243f00c0
2. http://webapp.utexas.edu/blogs/bleiter/archives/002044.html#002044
3. http://www.app.com/app/story/0,21625,1053697,00.html
4. http://edition.cnn.com/2004/US/09/17/bush.protester/
5. http://www.nydailynews.com/news/wn_report/story/232937p-200045c.html
6. http://www.app.com/app/story/0,21625,1053697,00.html
_______________________________________________
Volokh mailing list
[EMAIL PROTECTED]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
