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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, -vs- CRIMINAL ACTION NO. 02-CR-369 (GJD) JOHN MURTARI, Defendant. MEMORANDUM OF LAW DATED: October 17, 2002 Respectfully submitted, ALEXANDER BUNIN By: Lisa A. Peebles, Esq. 1. Factual Background/History The Defendant, John Murtari, has been arrested and charged with the instant offenses in violation of his First Amendment Right to Petition his Government for redress of his grievances. Mr. Murtari's grievance is that there are no uniform federal laws that address child custody issues when one parent moves to a different part of the country with a child. Specifically, a Family Court Judge in Onondaga County granted physical custody of Mr. Murtari's nine year old son to Mr. Murtari's former wife who then moved across the country to Colorado. This result may have been completely different in a different county in this State or in another State. The difficulties Mr. Murtari has experienced in trying to be a father to his nine year old son who now lives hundreds of miles away led him to form a grass roots organization known as A Kid's Right. This organization is devoted to seeking federal reform of the Family Court Laws. Mr. Murtari has attempted to deliver his message to his United States Senators that have been elected to represent him in the United States Congress. On December 14, 1999, Mr. Murtari first walked through the James M. Hanley Federal Building in Syracuse, New York carrying a placard with photograph of his son that states "Senator Clinton Please Help Us - www.akidsright.org". He was approached by security and told that he could not continue walking without a permit. After Murtari advised security of his belief that he was lawfully in the building, and thus was not going to leave, he was arrested by Syracuse City Police. On December 16, 1999, Murtari applied for a permit to picket in the plaza area of the James M. Hanley Federal Building. See the permit application attached hereto as Exhibit "A". Prior to the permit being approved, he proceeded to the eighth floor of the Federal Building, where Senator Charles Schumer's Office is located, and walked through the corridor holding a picture of his son, without interference. On December 17, 1999, Murtari received a copy of the approved permit application signed by Emma Moore, General Service Administration "GSA". On that same day, the permit was torn up by Emma Moore in his presence, and he was again arrested. On December 20, 1999, he returned to the building, and while walking the corridor of the thirteenth floor was again arrested. By March 2, 2000, Murtari had been arrested 12 times in connection with his peaceful petitioning endeavors and at least one of those arrests involved a federal charge. Thereafter, he was allowed to proceed with his peaceful petitioning for approximately one and one-half months, between May 2000 and June 21, 2000. On June 21, 2000, Murtari was issued six tickets for, inter alia, unwanted loitering, unauthorized loitering and prohibited protesting. Assistant United States Attorney Michael Olmsted sought and obtained dismissal of all charges against Murtari, and in the course of doing so, told Murtari that he was required to weigh his Constitutional Right to petition the Government for a redress of grievances against enforcing a violation for being in the building. In or about April 2001, Murtari had successfully arranged for several meetings with congressional staff members. He and several other representatives from his lobbying group met with staff members of U.S. Senators Charles Schumer and Hillary Rodham Clinton. Unlike Senator Schumer's representative, Senator Clinton's staff representative showed little interest toward the group's effort to bring about Family Law Reform at the federal level. To express his disappointment at the Senator's staff''s attitude following that meeting, Murtari sent her a letter outlining his position and requesting her help. See letter to Senator Clinton's staff attached hereto as Exhibit B. Shortly after these meetings Murtari entered the Federal Building and went to the thirteenth floor where Congressman James Walsh's office is located, and began walking with a small placard with his son's photograph on it. On this occasion, Federal Police Officer Berdwall approached him and told him "we do not want you doing this". Murtari responded that he had a right to do what he was doing; Officer Berdwall then said he would allow him to do it that day, but told him not to come back. Murtari returned to the Federal Building on October 15 and October 22, 2001 and was arrested on both occasions. When he returned to the building on October 29, 2001, he was left alone. On November 13, 2001, he was arrested, but when he returned again on November 19, 2001, he was left alone. On January 7, 2002, City Court Judge Higgins dismissed all pending state charges against Murtari. The following day he was issued a Federal Appearance ticket charging him with disorderly conduct. He returned to the building on January 14, 2002, without incident. On January 16, 2002, however, he was arrested. Sometime between January 16, 2002 and January 30, 2002 he entered the Federal Building, but was barred by security from going upstairs. On that occasion, Senator Clinton's staff representatives came down to the lobby and gave him the name of the representative in Washington for him to contact for the purpose of initiating dialogue. His correspondence to that representative, however, went ignored. In light of his lack of success in gaining the attention of congressional representatives to his plight, Murtari's efforts to petition Senator Clinton's office resumed on July 29, 2002, giving rise to the instant filing of criminal charges by the Government. On that day, he simply walked into the building and rode the elevator to the fourteenth floor, where he exited the elevator and began quietly walking through the corridors with his son's photograph. He was told by building security to stop, but after he continued to quietly walk through the public hallways, he was arrested and taken into custody. Significantly, prior to entering the Federal Building for purposes of petitioning his Congressional representatives, Murtari routinely sent letters to GSA and the building manager, advising them of his intentions. Additionally, all of his activities within the building occurred during normal business hours. 2. The Government May Not Rely On Inapplicable Building Regulations To Curtail Murtari's Political Speech This case deals with a fundamental and well-entrenched Constitutional Right, the First Amendment Right to free speech, assembly, and the freedom to petition the Government for a redress of grievances. (U.S.C.A. Const. Amend. 1). While these Rights are not without limits, any statute, ordinance or Court Order that restricts such activity must be consistent with the First Amendment. The Rights guaranteed by the First Amendment are not confined to verbal expression. Rather, they embrace appropriate types of action which unquestionably include the right, in a peaceable and orderly manner, to protest by silent and reproachful presence in a place where the protestant has every right to be. See Brown v. Louisiana, 383 U.S. 131 (1966). Undeniably, this case presents a clash of Murtari's First Amendment Rights and the interest of the Government, in its capacity as owner of the Federal Building, to maintain order on its property. The Government, "no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated." Adderly v. Florida, 385 U.S. 39, 47 (1966). Even when acting in its proprietary capacity however, the Government does not enjoy the absolute freedom from First Amendment constraints. United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 3119 (1990). The extent to which the Government can control access depends on the nature of the relevant forum. Cornelius v. NAACP Legal Defense and Educ. Fund Inc., 473 U.S. 788, 799-800, 105 S.Ct. 3439, 3447 (1985). Regulation of speech on Government property that has been traditionally open to the public for expressive activity, such as public streets and parks, is subject to strict scrutiny. Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37, 45, 103 S.Ct. 948, 955 (1983). Moreover, regulation of speech on Government property that is not a traditional public forum, but that the Government has specifically dedicated as a place for expressive activity, is also examined under strict scrutiny. See Perry, 460 U.S. at 45-46, 103 S.Ct. at 955. Defendant acknowledges that even in a public forum, free expression is subject to reasonable time, place and manner restrictions. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n.5 104 S.Ct. 3065, 3069 (1984). The strict scrutiny standard requires that restrictions on speech be content neutral and narrowly tailored to serve a substantial governmental interest. Specifically, in a public forum, speech restrictions are valid "provided they are justified without reference to content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of information." Id. at 293-94. In United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673 (1968) the Supreme Court held that content neutral laws must "further an important or substantial governmental interest" and involve an "incidental restriction on alleged First Amendment freedoms that is no greater than is essential to the furtherance of that interest." In this case, the permit application (GSA Form 3453), on its face, allows an applicant to request permission to use space inside the Federal Building for expressive activity. See Exhibit A. Since the Government has thereby specifically dedicated inside the Federal Building as a place for expressive activity, any attempt by the Government to regulate Murtari's speech and expression, must accordingly be examined under the strict scrutiny standard. Significantly, Murtari's political expression occurred in the public hallways of the Federal Building, outside the offices of his congressional representatives during regular business hours, and was never disruptive, loud or intrusive. The Government, in an attempt to curtail Murtari's political speech and presence in the Federal Building, has now charged him, inter alia, with knowingly engaging in loitering and other conduct on property which unreasonably obstructed the usual use of entrances, corridors, offices and elevators in violation of Title 41, Code of Federal Regulations, Chapter 101-20.305 and 101-20.315. While Murtari's conduct may have been annoying or uncomfortable to some individuals working inside the building, there are no allegations that he unreasonably obstructed the usual uses of entrances, corridors, offices and elevators. Except for the content of his message, Murtari's conduct is no different than for example, another individual walking the hallways of the Federal Building wearing an American flag on his or her lapel. Simply put, his First Amendment Right to petition his Government for a redress of grievances cannot be denied under the guise that he is violating a lawful order by an authorized federal protective officer to leave the building because he is viewed as annoying by individuals in the building. 3. The Permit Process is Arbitrarily Applied and Therefore Unconstitutional Permit requirements for speech in a public forum have been upheld when they contain some objective criteria that curtail the possibility of discrimination against disfavored content. See Cox v. New Hampshire, 312 U.S. 569 (1941). Although, on its face, the permit requirement complies with the First Amendment, as it is applied, however, it does not. In this case, the permit process was arbitrarily applied and thus fatally flawed. The building management is not vested with arbitrary power or an unfettered discretion. See Id. The building management is not exercising the permit process with uniformity. Early on in Murtari's campaign, he applied for a permit and on the same day it was issued, a GSA representative tore it up in his presence. He thereafter continued his petitioning efforts and on many occasions he was left alone. The Supreme Court does not favor prior restraints upon speech under the First Amendment. "Any system of prior restraint of expression comes to this Court bearing a heavy presumption against its validity". Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). A licensing statute placing unbridled discretion in the hands of a Government official or agency constitutes a prior restraint and may result in censorship. E.g., Shuttlesworth, supra, 394 U.S. at 151, 89 S.Ct. at 938 and Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453. And these evils engender identifiable risks to free expression that can be effectively alleviated only through a facial challenge. First, the mere existence of the licensor's unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused. Conclusion The charged violations against John Murtari are being used as a means to curtail his First Amendment Rights under the U.S. Constitution and, therefore, all charges against him should be dismissed. DATED: October 25, 2002 Respectfully submitted, ALEXANDER BUNIN By: Lisa A. Peebles, Esq. Assistant Federal Public Defender Bar Roll No. 507041 The Clinton Exchange, 3rd Floor 4 Clinton Square Syracuse, New York 13202 (315) 701-0080 |
