Appeal of US District Trial on NonViolent Action

Docket No.: 02-CR-369 (NAM) Hon. Norman A. Mordue, United States District Court Judge ____________________________

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
-vs- JOHN MURTARI,
Defendant-Appellant.

Appeal from the United States District Court for the Northern District of New York Hon. Gustave J. DiBianco, United States Magistrate Judge ____________________________

BRIEF ON APPEAL FOR DEFENDANT-APPELLANT, JOHN MURTARI

Copy to: Respectfully submitted, ALEXANDER BUNIN Richard R. Southwick Assistant United States Attorney By: Lisa A. Peebles, Esq. Office of the United States Attorney Assistant Federal Public Defender PO Box 7198 Bar Roll No.: 507041 100 South Clinton Street Melissa A. Tuohey, Esq. (as to Brief) Syracuse, New York 13261-7198 Research and Writing Attorney Bar Roll No.: 510807 Office of the Federal Public Defender The Clinton Exchange, 3rd Floor 4 Clinton Square Syracuse, New York 13202 (315) 701-0080

TABLE OF AUTHORITIES ii

STATEMENT OF THE ISSUES 1

STATEMENT OF THE CASE 2

STATEMENT OF THE FACTS 4

ARGUMENT 11

POINT I THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT A VERDICT OF GUILT ON COUNTS 3 AND 4 OF THE SUPERSEDING INFORMATION. 11

STANDARD OF REVIEW 11

A. Trespass 12

B. Disorderly Conduct 15

POINT II THE CHARGES SET FORTH IN THE SUPERSEDING INFORMATION SHOULD HAVE BEEN DISMISSED BECAUSE MR. MURTARI�S ACTIVITIES IN THE FEDERAL BUILDING WERE PROTECTED BY THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION 18

STANDARD OF REVIEW 18

A. The prohibitions set forth in 41 CFR � 101-20.305 are not limited to legitimate purposes set forth in the regulations and result in an unreasonable and unconstitutional restriction on speech. 19

B. The federal permit regulations do not apply to political activities and, even if they did, they have been arbitrarily and subjectively applied by GSA employees in violation of the First Amendment. 21

(1) The permit regulations apply to educational, recreational, and cultural activities and not political activities. 21

(2) Although the permit regulations comply with the First Amendment on their face, their application violates the First Amendment because they are arbitrarily and subjectively enforced by GSA employees. 22

POINT III THE COURT�S ORDER OF DECEMBER 13, 2002 PROHIBITING MR. MURTARI FROM VISITING THE OFFICES OF SENATORS CLINTON AND SCHUMER AND FROM MARCHING, PICKETING, PROTESTING, OR DEMONSTRATING IN THE INTERIOR OF THE FEDERAL BUILDING IS AN UNCONSTITUTIONAL PRIOR RESTRAINT ON SPEECH. 26

CONCLUSION 28

TABLE OF AUTHORITIES

CASES

Adderly v. Florida, 385 US 39 (1966) 18

Alexander v. United States, 113 S.Ct. 2766 (1993) 22

Bantan Books, Inc. v. Sullivan, 372 US 58 (1963) 22

Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 US 788 (1985) 18,19,20

Cox v. Louisiana, 379 US 536 (1965) 27

Forsyth v. Nationalist Movement, 505 US 123 (1992) 20

Glasser v. United States, 315 US 60 (1942) 11

Grayned v. City of Rockford, 408 US 104 (1972) 20

In re Winship, 397 US 358 (1970) 11

Jackson v. Virginia, 443 US 307 (1979) 11

Lovell v. Griffin, 303 US 444 (1938) 26

Moore v. Kilgore, 877 F.2d 364 (5th Cir. 1989) 22,26,27

Nebraska Press Ass�n v. Stuart, 427 US 529 (1975) 22

People v. Balnis, 14 Misc.2d 928 (Otsego County Court, 1958) 16

People v. Basch, 36 NY2d 154 (1975) 12,14

People v. Chesnick, 302 NY 58 (1950) 16

People v. Hill, 60 Misc.2d 277 (Yates County Court, 1969) 15

People v. Leonard, 62 NY2d 404 (1984) 12

People v. Lo Vecchio, 185 Misc. 197 (Utica City Court, 1945) 16

People v. Monnier, 280 NY 77 (1939) 15 People v. Murphy, 177 Misc.2d 907 (Dist.Ct., Nassau County, 1998) 12,14

People v. Ranieri, 144 AD2d 1006 (4th Dept. 1988) 14

People v. Szepansky, 25 Misc.2d 239 (Steuben County Court, 1960) 16

Perry Education Association v. Perry Local Educators� Association, 460 US 37 (1983) 19

United States v. Kokinda, 110 S.Ct. 3115 (1990) 18

United States v. Mulheren, 938 F.2d 364 (2d Cir. 1991) 11

STATUTES

US Const. Amend. 1 passim

18 U.S.C. � 7(3) 2,12,15

18 U.S.C. � 13 2,12,15

Fed. Rule Crim. Proc. 58 (g)(2)(B) 3

41 CFR �101-20.304 2,19

41 CFR �101-20.305 2,13,19,20

41 CFR �101-20.315 2,19

41 CFR �101-20.400 21

41 CFR �101-20.401 23

41 CFR �101-20.402(a)-(c) 23

41 CFR �101-20.403(a)(1)-(6) 23

41 CFR �101-20.403(b) 23

NY Penal Law � 140.00(5) 12

NY Penal Law � 140.05 2,11,12

NY Penal Law � 240.20(6)

STATEMENT OF THE ISSUES

1. Was the evidence at trial sufficient as a matter of law to prove beyond a reasonable doubt that Mr. Murtari committed Trespass and Disorderly Conduct in violation of New York Penal Law �� 140.05 and 240.20(6)?

2. Should the Magistrate Judge have dismissed the Superseding Information on the ground that Mr. Murtari�s activities inside the federal building were protected by the First Amendment to the United States Constitution?

3. Is the December 13, 2002 Order of the Magistrate Judge an unconstitutional prior restraint on speech in violation of the First Amendment to the United States Constitution?

STATEMENT OF THE CASE

On or about October 2, 2002, a four-count Superseding Information was filed against the
Defendant-Appellant, John Murtari. (A 7). Count 1 charged that on July 29, 2002, John Murtari engaged in loitering and other conduct on property which unreasonably obstructed the usual use of entrances, corridors, offices, and elevators in violation of 41 CFR �101-20.305 and � 101-20.315. (A7). Count 2 charged that on July 29, 2002, John Murtari knowingly failed to comply with official signs of a prohibitory, regulatory and or directory nature and with the lawful direction of Federal Protective Officers when directed to cease and desist said activity; that is, knowingly engaging in loitering and other conduct which unreasonably obstructed the usual use of entrances, corridors, offices and elevators in violation of 41 CFR �101-20.304 and �101-20.315. (A8). Count 3 charged that on July 29, 12002, John Murtari, on land acquired for the use of the United States and under the concurrent jurisdiction thereof, did remain unlawfully at the James M. Hanley Federal Building in Syracuse, New York after being given a lawful order by a Federal Protective Service Officer to leave the building in violation of New York Penal Law � 140.05 and 18 U.S.C. �� 7(3) and 13. (A8). Count 4 charged that on July 29, 2002, John Murtari on land acquired for the use of the United States and under the concurrent jurisdiction thereof, did congregate with other persons in a public place and refuse to comply with a lawful order of the police to disperse in violation of New York Penal Law � 240.20(6) and 18 U.S.C. �� 7(3) and 13. (A9).

Prior to trial, John Murtari moved to dismiss the Superseding Information on the ground that his activities in the Federal Building on July 29, 2002, were protected by the First Amendment to the United States Constitution. (A4). The Government opposed the motion and it was denied by the Honorable Gustave J. DiBianco, United States Magistrate Judge, by Memorandum Decision and Order, dated October 28, 2002. (A10).

Mr. Murtari proceeded to trial before the United States District Court for the Northern District of New York, Magistrate DiBianco, presiding, on October 29, 2002. (A4). At the conclusion of the non-jury trial, Magistrate DiBianco did not make any findings about guilt on counts 1 and 2 of the superseding information but did find Mr. Murtari guilty of violating counts 3 and 4 of the superseding information. (A153-154). Thereafter, on November 21, 2002, Magistrate DiBianco sentenced Mr. Murtari to 10 days incarceration. (A163).

Mr. Murtari timely filed a Notice of Appeal on November 26, 2002. (A167). Jurisdiction is invoked in this court pursuant to Rule 58 (g)(2)(B) of the Federal Rules of Criminal Procedure.

STATEMENT OF FACTS

The charges set forth in the Superseding Information stem from Mr. Murtari petitioning his United States Senators and Congressman to meet with his organization, AKidsRight.Org, to discuss family law reform on a national level. Mr. Murtari formed the organization after a Family Court Judge in Onondaga County granted physical custody of Mr. Murtari�s nine-year-old son to Mr. Murtari�s former wife. After custody was granted, Mr. Murtari�s former wife moved across the country to Colorado making it difficult for Mr. Murtari to visit his son and participate in his son�s life. The result in Mr. Murtari�s case may have been decided differently in a different county in this state or in another state. As such, the group is seeking uniformity in the family court law on a national level.

On December 14, 1999, Mr. Murtari first entered the James Hanley Federal Building located at 100 South Clinton Street in Syracuse, New York carrying a placard with a photograph of Mr. Murtari with his son and three photographs of 3 different families that states, “Senator Clinton Please Help Us �www.akidsright.org.” (A161). Mr. Murtari was approached by building security and told that he could not continue walking in the building. Mr. Murtari told security he believed he was lawfully in the building and was not going to leave. As a result, Mr. Murtari was arrested by the Syracuse City Police.

At all times, Mr. Murtari�s activity in the federal building consisted of quietly walking the corridors of either the 8th, 13th, or 14th floors carrying his placard. (A114,125). Mr. Murtari did not speak to anyone, unless he was spoken to and made sure to maintain a pleasant demeanor and appear well dressed. (A115).

On December 16, 1999, Mr. Murtari applied for a permit for members of his organization to demonstrate in the plaza area outside of the Federal Building between December 20 through December 23, 1999. (A156). Although the permit states at the top of the page, “APPLICATION/PERMIT FOR USE OF SPACE IN PUBLIC BUILDINGS AND GROUNDS” (A156), David Talarico, a General Services Administration ( “GSA”) employee with the property management office, informed Mr. Murtari that the permit application system concerns only the outside plaza area but not the interior of the federal building. (A59-62). Mr. Talarico informed Mr. Murtari that he was not allowed to demonstrate at all inside the federal building. (A59-62). Prior to these events, the GSA property management office had approved a permit that allowed a man to read poetry in the front lobby of the federal building. (A72). After Mr. Murtari�s permit was approved on December 16th, he proceeded to walk inside the federal building with his placard. (A67). The permit, that applied to activity that was to take place 4 days later, was taken from him and torn up in his presence. (A67-68,72).

On December 20, 1999, Mr. Murtari was arrested in the federal building for walking on the 13th floor of the building with his placard where Congressman James Walsh�s office is located. Mr. Murtari testified that after March of 2000, he was able to walk inside the federal building on the 8th and 13th floor without being arrested for approximately a month and a half. (A120-121). Mr. Talarico testified that GSA gave Mr. Murtari blanket permission to walk the corridors of the 13th floor. (A69,74). Mr. Talarico stated that Joan Grennan, the GSA property manager of the James Hanley Federal Building, wanted to conduct an experiment and allowed Mr. Murtari to proceed with his activity until the tenants complained. (A69). Ms. Grennan confirmed this through her testimony but stated she only allowed Mr. Murtari to proceed for one day. (A95). Ms. Grennan and Federal Protective Services Officer Berwald obtained permission from the tenants on the 13th floor to conduct this experiment. (A93-95). Ms. Grennan believed that if they allowed Mr. Murtari to do this, “he would stop, stop and go away.” (A95).

On June 21, 2000, Mr. Murtari was issued six federal tickets at the Federal Building in connection with his activities. The tickets charged Mr. Murtari with unwanted loitering, unauthorized loitering, and prohibited protesting. The charges were dismissed upon the motion of Assistant United States Attorney Michael Olmsted. (A123-124).

Mr. 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, the Syracuse City Court dismissed all pending state charges against Mr. Murtari. The following day he was issued a Federal Appearance Ticket charging him with disorderly conduct. He returned to the Federal 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, Cathy Calhoun, Senator Clinton’s staff representative came down to the lobby and gave Mr. Murtari the name and address of a representative in Washington for him to contact for the purpose of initiating dialogue. (A111-112). Mr. Murtari stopped his petitioning efforts in the federal building and attempted to pursue his efforts through the Washington representative. (A112). His correspondence to that representative, however, went ignored.

On March 20, 2002, federal violation notices charging Mr. Murtari with loitering and disorderly conduct and failure to abide by the lawful directive of a federal protective officer were dismissed upon the motion of Assistant United States Attorney Richard Southwick. (A124,151). At trial, Richard Jackson, a Special Agent with the United States Federal Protective Service (“FPS”) testified on behalf of the Government. (A21). Special Agent Jackson testified that the FPS is the law enforcement branch of the GSA and their duties include controlling the facilities that house government agencies. (A21). On July 26, 2002, Special Agent Jackson received information from the FPS office in Syracuse that John Murtari intended to enter the federal building on July 29, 2002, to demonstrate on the 14th floor where Senator Clinton�s office is located. (A25-26). This information came from a letter mailed to Senator Clinton�s office and a press release mailed to the James Hanley Federal Building Manager by Mr. Murtari. (A25-26). Specifically, Mr. Murtari�s letter to Senator Clinton stated in part, “A group of us will be outside your offices in Syracuse, on Monday, July 29th, in a continuing effort to petition you and get your support and guidance in this reform effort.” (A159). The press release stated in part, “On Monday, July 29th, a small group of mothers and fathers will try to encourage Senator Hillary Rodham Clinton to take a personal interest in their search for National Family Law reform…A few of the group members plan to spend some time quietly walking in the hall outside of her office, not making any noise, but simply carrying a picture of their children.” (A157).

On July 29, 2002, Special Agent Jackson met FPS Officers Joe Chapman and Charles Cauley at the FPS office, located on the first floor of the federal building and awaited Mr. Murtari�s arrival. (A127). At approximately 2:00 p.m. they received notice that Mr. Murtari had entered the building with three people and were on their way to the 14th floor by elevator. (A30). Special Agent Jackson and FPS Officers Chapman and Cauley took the elevator to the 14th floor and observed Mr. Murtari walking in the hallway area of the elevator with a photograph of a child. (A30). Special Agent Jackson advised Mr. Murtari to stop what he was doing, directed Officer Chapman to stay with Mr. Murtari while he went to look for the three other individuals. (A30). Agent Jackson observed three people standing outside Senator Clinton�s office engaged in conversation with Cathy Calhoun, Senator Clinton�s representative. (A30-31). Agent Jackson waited for the three people to finish their conversation with Ms. Calhoun and stopped them as they began walking toward the hallway. (A31). Special Agent Jackson identified himself, showed them his credentials and asked if they were with John Murtari. (A31). They stated they were and Agent Jackson escorted them to the hallway where Officer Chapman and Officer Cauley stood with Mr. Murtari. (A31,55). Agent Jackson then informed the three individuals that John Murtari had a history of being in the building and being arrested for demonstrating. (A32). Although Special Agent Jackson only observed them in conversation with Ms. Calhoun, he advised these three people they were violating GSA building rules and regulations and that they would be arrested if they did not leave the building. (A32). The three people voluntarily left the 14th floor but Mr. Murtari refused to leave. (A32). Mr. Murtari informed Agent Jackson that he did not believe he violated any federal or local laws because all prior charges against him for demonstrating in the federal building had been dismissed. (A33). Agent Jackson placed him under arrest, escorted him to the FPS Office and provided him with a violation notice for failure to comply with a direct order from a federal officer in that he failed to cease and desist with his activity and to leave the building. (A38).

Mary Jo Marceau-Hawthorne, one of the three people that entered the federal building with Mr. Murtari on July 29, 2002, testified that she entered the building to try to obtain an appointment with Senator Hillary Clinton�s office to meet and talk about certain issues concerning family rights and family court reform. (A100-101). She met Mr. Murtari, Richard Ichinger, and Chris Rainey outside the federal building and they all entered the building and took the elevator to the 14th floor. (A101). Once they reached the 14th floor, Ms. Marceau-Hawthorne, Mr. Ichinger and Mr. Rainey went to Senator Clinton�s office with a packet of information and petitions to leave for the Senator. (A102). Cathy Calhoun became agitated when she learned that they were associated with John Murtari. (A103). Mr. Murtari was walking the corridors with his placard and was not engaged in this conversation. (A104). Ms. Marceau-Hawthorne and the other two men did not plan to walk the corridors with Mr. Murtari but only intended to visit the offices of Senators Clinton and Schumer. (A104). When these three people were ordered to leave the building, they gained permission from the officers to visit Senator Schumer�s office and they left the building after doing so. (A108-109).

Special Agent Jackson testified that on July 29th Mr. Murtari was not loud, (A46), there was no unusual noise, (49), people were able to use all six elevators located on the 14th floor (A47), Mr. Murtari was not standing in front of any of the elevators or blocking the entranceway to any of the elevators (A47), Mr. Murtari was not blocking the stairways, parking lot, corridors, or offices (A47-48), Mr. Murtari was not interfering with anybody who was in performance of their official duties and he was not interfering with anyone from the public in connection with any business that they had in the building. (A48).

This appeal ensued as a result of Mr. Murtari�s convictions on counts 3 and 4 of the superseding information; the court�s denial of Mr. Murtari�s motion to dismiss the superseding information on the ground that Mr. Murtari�s activities in the federal building were protected by the First Amendment; and from the court�s Order of December 13, 2002 that has resulted in an unconstitutional prior restraint on speech in violation of the First Amendment.

ARGUMENT

POINT I
THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT A VERDICT OF GUILT ON COUNTS 3 AND 4 OF THE SUPERSEDING INFORMATION.

At the conclusion of Mr. Murtari�s non-jury trial, Magistrate DiBianco did not make any findings regarding Mr. Murtari�s guilt on counts 1 and 2 of the Superseding Information but did find Mr. Murtari guilty on counts 3 and 4 of the Superseding Information. (A152-154). The evidence at trial failed to prove beyond a reasonable doubt that Mr. Murtari committed trespass in violation of New York Penal Law � 140.05 and that Mr. Murtari engaged in disorderly conduct in violation of New York Penal Law � 240.20(6).

STANDARD OF REVIEW

A defendant may not constitutionally be convicted of a criminal offense except by proof that establishes guilt beyond a reasonable doubt. In re Winship, 397 US 358, 368 (1970). A conviction challenged on sufficiency grounds will be affirmed if, viewing all of the evidence in the light most favorable to the Government, a reviewing court finds that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 US 307, 319 (1979). A “mere modicum” of evidence is not sufficient to support a finding of guilt beyond a reasonable doubt. Jackson 443 US at 320. Instead, there must be “substantial evidence, taking the view most favorable to the Government,” to support the verdict. Glasser v. United States, 315 US 60,80 (1942); see also United States v. Mulheren, 938 F.2d 364, 368 (2d Cir. 1991).

A. Trespass

Count 3 charged that John Murtari, on July 29, 2002, did remain unlawfully at the James M. Hanley Federal Building located at 100 South Clinton Street, Syracuse, New York after being given a lawful order personally communicated to him by an authorized Federal Protective Officer to leave the building in violation of New York Penal Law � 140.05 and 18 U.S.C. � � 7(3) and 13. (A8). The New York offense of Trespass is violated when a person “knowingly enters or remains unlawfully in a building or upon real property.” NY PL � 140.05. To “enter or remain unlawfully” is defined in pertinent part as follows:
A person “enters or remains unlawfully” in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. NY PL � 140.00(5).

“[A] person who enters upon premises accidentally, or who honestly believes that he is licensed or privileged to enter is not guilty of any degree of criminal trespass.” People v. Basch, 36 NY2d 154, 159 (1975). Mr. Murtari entered the federal building, premises open to the public, during normal business hours. When the property is open to the public at the time of the alleged trespass, the accused is presumed to have a license and privilege to be present. People v. Leonard, 62 NY2d 404, 408 (1984). Therefore, in order for Mr. Murtari to be found guilty of trespass, the Government was required to prove beyond a reasonable doubt that Mr. Murtari remained unlawfully in the federal building by defying a lawful order to leave.

A person remains lawfully on public property as long as the person does not interfere with the particular purpose of the property. People v. Murphy, 177 Misc.2d 907, 911 (Dist. Ct., Nassau County1998). Special Agent Jackson testified that Mr. Murtari was required to cease and desist his activities on the 14th floor on July 29, 2002, because he was in violation of federal building regulation 41 CFR � 101-20.305, entitled “Disturbances.” This regulation states:

“Any loitering, disorderly conduct, or other conduct on property which creates loud or unusual noise or a nuisance; which unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots; which otherwise impedes or disrupts the performance of official duties by Government employees; or which prevents the general public from obtaining the administrative services provided on the property in a timely manner, is prohibited.” 41 CFR � 101-20.305.

Special Agent Jackson testified that when he stopped Mr. Murtari at approximately 2:00 p.m. on July 29, 2002 on the 14th floor of the Federal Building, Mr. Murtari was not loud (A46), there was no unusual noise (A47), people were able to use all six elevators located on the 14th floor (A47), Mr. Murtari was not standing in front of any of the elevators or blocking the entranceway to any of the elevators (A47), Mr. Murtari was not blocking the stairways, parking lot, corridors, or offices (A47-48), Mr. Murtari was not interfering with anybody who was in performance of their official duties and he was not interfering with anyone from the public in connection with any business that they had in the building (A48).

Based upon Special Agent Jackson�s own testimony, Mr. Murtari�s conduct did not amount to a violation of any of the provisions of the building regulation that Special Agent Jackson arrested him for violating. Therefore, Special Agent Jackson�s order for Mr. Murtari to leave the building was arbitrary and capricious and was designed to interfere with Mr. Murtari�s exercise of his First Amendment Rights.

Although the Government relied heavily upon the permit process to support a finding of guilt on all counts of the superseding information, Mr. Murtari was never charged with violating the permit regulations. In addition, Joan Grennan and David Talarico, GSA employees, told Mr. Murtari that he could not obtain a permit to conduct his activity inside the federal building. Since Mr. Murtari was told the permit system was inapplicable to his activities inside the building, he certainly could not be held accountable for failing to apply for a permit.

Mr. Murtari testified that when he was arrested for trespass and issued federal tickets the charges were dismissed. Mr. Murtari further testified that he read the building regulations and did not believe he was in violation of them because he would walk quietly through the corridors with his placard and not speak to anyone or disturb anyone and he did not create any disturbances.

Finally, on certain occasions Mr. Murtari was allowed to proceed without being arrested. In fact, Joan Grennan testified that she allowed Mr. Murtari to proceed in the hope that he would stop and go away. Mr. Murtari was entitled to assume that he had the right to continue his activity. See People v. Murphy 177 Misc.2d at 911 (holding Government failed to prove defendant knowingly remained unlawfully on the premises because defendant had not been arrested on many prior occasions that he carried out the same conduct at the same site involved in the instant charges). As such, it was reasonable for Mr. Murtari to believe that he had a license or privilege to be on the premises and walk the corridors carrying his placard. Id. (citing People v. Ranieri, 144 AD2d 1006, 1008 (4th Dept. 1988); People v. Basch, 36 NY2d 154).

The trial testimony clearly reveals that Mr. Murtari was not given a lawful order to leave the federal building because the order was premised upon a violation of a building regulation that Special Agent Jackson could not cite any provision that was violated by Mr. Murtari�s activity. It can be said that Mr. Murtari honestly believed that he was licensed or privileged to enter the building and walk the corridors when he was randomly allowed to proceed, randomly arrested and any arrests resulted in the dismissal of charges.

B. Disorderly Conduct

Count 4 charged that John Murtari, on July 29, 2002, did congregate with other persons in a public place and refuse to comply with a lawful order of the police to disperse in violation of New York Penal Law � 240.20(6) and 18 U.S.C. �� 7(3) and 13. (A9). New York Penal Law � 240.20(6) provides:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

(6) He congregate with other persons in a public place and refuses to comply with a lawful order of the police to disperse. NY PL 240.20(6).

Magistrate DiBianco found Mr. Murtari guilty of disorderly conduct simply because other people entered the federal building with Mr. Murtari. (A154). “[T]he gravaman of the offense and the conduct which the statute proscribes must �at least be such that a breach of the peace has become imminent or might reasonably be expected or intended to flow from such conduct.�” People v. Hill, 60 Misc. 2d 277 (County Court, Yates County 1969)(citing People v. Monnier, 280 NY 77, 79 (1939)). There was no proof that Mr. Murtari or the three other individuals intended to cause public inconvenience, annoyance or alarm or that they recklessly created a risk thereof. “To sustain a conviction the offensive conduct must be public in nature and must cause inconvenience, annoyance or alarm to a substantial segment of the public, or be of such nature and character that it would appear beyond a reasonable doubt that the conduct created a risk that a breach of the peace was imminent.” People v. Hill 60 Misc.2d at 280 (citing People v. Chesnick, 302 NY 58 (1950); People v. Szepansky, 25 Misc. 2d 239 (Steuben County Court, 1960); People v. Balnis, 14 Misc. 2d 928 (Otsego County Court, 1958)).

The trial testimony of Mr. Murtari, Special Agent Jackson and Mary Jo Marceau-Hawthorne illustrate that all these four people did together was enter the building and proceed to the 14th floor. Mr. Murtari and Ms. Marceau-Hawthorne both testified that the three other individuals intended to visit the offices of Senator Clinton and Senator Schumer, drop off petitions and try to secure an appointment with the Senators regarding their family law issues. (A100-104, 112-113). Mr. Murtari�s intention was to walk the corridors of the 14th floor with his placard. (A113).

Special Agent Jackson observed that although they were on the same floor, Mr. Murtari was walking the corridors with his placard and the three other individuals were speaking with Senator Clinton�s representative. (A30-31). After Special Agent Jackson asked the three individuals to leave the building, they were allowed to proceed to Senator Schumer�s office and then leave the building. There was no testimony at trial that they caused public inconvenience, annoyance or alarm.

To be found guilty of New York Penal Law � 240.20(6), Mr. Murtari�s refusal to leave the building had to be coupled with congregating with others. People v. Lo Vecchio, 185 Misc. 197, 201 (City Court of Utica 1945). The word “congregate” implies the joint action of two or more persons. Id. A person cannot congregate at any given time or place without the co-operation of someone else. Id. There was no joint action between Mr. Murtari and the three other individuals. The three individuals cooperated with Special Agent Jackson, gained permission to visit Senator Schumer�s office, and then left the building.

In order to be found guilty of counts 3 and 4 of the Superseding Information, the court had to find Mr. Murtari guilty of violating counts 1 and 2 of the Superseding Information. Although the court made no finding as to Mr. Murtari�s guilt on the first two counts, the court did state that it did not hear any testimony regarding obstruction and that the wording of the building regulation requires the loitering to cause an obstruction in the corridors. (A146-148). Special Agent Jackson�s order to Mr. Murtari to leave the building was based upon this regulation. Since the regulation was not violated, the order to leave in reliance upon it was not lawful.

POINT II
THE CHARGES SET FORTH IN THE SUPERSEDING INFORMATION SHOULD HAVE BEEN DISMISSED BECAUSE MR. MURTARI�S ACTIVITIES IN THE FEDERAL BUILDING WERE PROTECTED BY THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION.

Mr. Murtari argued before Magistrate DiBianco and now on appeal, that the building regulations are an impermissible restriction on speech in a public place. Mr. Murtari�s activity in the federal building involved petitioning his United States Senators and Congressman for redress of his grievances. Mr. Murtari sought to deliver his message by quietly walking the corridors of the 8th, 13th, and 14th floors of the James Hanley Federal Building with a placard where the offices of his duly elected United States Senators� and Congressman are located. This activity is protected by the First Amendment to the United States Constitution. US Const. Amend. 1.

STANDARD OF REVIEW

The Government has the power to preserve the property under its control for use to which it is lawfully dedicated. Adderley v. Florida, 385 US 39, 47 (1966). “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right of free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker�s activities.” Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 US 788, 799-800 (1985). However, the Government does not enjoy absolute freedom from First Amendment constraints while acting in its proprietary capacity. United States v. Kokinda, 110 S.Ct. 3115, 3119 (1990).

The extent to which the Government may limit access depends on whether the forum is public or nonpublic. Cornelius 473 US at 797. The Supreme Court has identified three different types of public property for free speech purposes: (1) the traditional public forum, (2) the designated public forum, and (3) the nonpublic forum. Perry Education Association v. Perry Local Educators� Association, 460 US 37, 45-46 (1983). Magistrate DiBianco found, and Mr. Murtari concedes, that the corridors located in the interior of the federal building are a nonpublic forum.

“In addition to time, place, or manner regulations, the state may reserve [a nonpublic forum] for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker�s view.” Perry 460 US at 47. As a nonpublic forum, the Government may restrict First Amendment activity in the Federal Building so long as the restrictions are “viewpoint neutral” and “reasonable in light of the purpose served by the forum.” Cornelius 473 US at 806.

The Government argued, and the court agreed, that Mr. Murtari�s First Amendment rights are limited by the federal building regulations, codified at 41 CFR ��101-20.304, 101-20.305 and 101-20.315 and the federal permit regulations, codified at 41 CFR �� 101-20.400 through 101-20.409.

A. The prohibitions set forth in 41 CFR � 101-20.305 are not limited to legitimate purposes set forth in the regulations and result in an unreasonable and unconstitutional restriction on speech.

Special Agent Jackson testified that Mr. Murtari�s activity violated the federal building regulation entitled “Disturbances”. The regulation states:

This regulation is viewpoint neutral as written and is justified by the need to prevent disturbances inside the federal building. However, it sweeps too broadly by inviting federal protective officers to restrict behavior that in no way creates a disturbance, such as quietly walking the corridors carrying a placard. “A Government regulation that allows arbitrary application, and is thus unconstitutionally overbroad, is �inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view.” Forsyth v. Nationalist Movement, 505 US 123, 130 (1992). For example, a person working in the federal building who wears an anti-abortion button could be subject to arrest if they enter the building, take the elevator to their respective floor, exit the elevator and walk the corridor to their office.

A crucial inquiry is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Grayned v. City of Rockford, 408 US 104, 116 (1972). For example, a silent vigil would not interfere with a public library whereas making a speech in the reading room of the library would. Id. Peaceful walking in the corridors of the federal building, as Special Agent Jackson testified, does not interfere with the normal activity of the federal building. (A46-48).

One factor bearing upon reasonableness is the availability of alternative channels of communication. Cornelius 473 US at 807. Mr. Murtari was informed by GSA employee David Talarico that he was only allowed to demonstrate in the plaza area outside of the federal building. The impact of Mr. Murtari�s message will suffer if it must be conveyed only outside the building. The James Hanley Federal Building contains one main entrance that faces the plaza. However, employees of the building may park underneath the building and enter through the basement. In addition, they may exit from the main entrance, the basement, or an exit that faces the opposite side of the plaza. The federal building contains 14 floors with offices on all sides of the building. In order for Mr. Murtari�s message to reach his duly elected representatives, they, or their staff, must enter the main entrance of the building. Otherwise, they could enter through the basement, go to their offices that may or may not contain a view of the plaza, and exit the building through the basement or the alternative exit without ever knowing that Mr. Murtari was trying to deliver a message to them.

B. The federal permit regulations do not apply to political activities and even if they did, they have been arbitrarily and subjectively applied by GSA employees in violation of the First Amendment.

(1) The permit regulations apply to educational, recreational, and cultural activities and not political activities

The Code of Federal Regulations, subpart 101-20.4, entitled “Occasional Use of Public Buildings” “establish the rules and regulations for the occasional use of public areas for cultural, educational and recreational activities.” 41 CFR �101-20.400. Although Mr. Murtari was not charged with violating the permit regulations, during Mr. Murtari�s trial, the Government requested the court to take judicial notice of this subpart because the permit regulations applied only to educational, recreational and cultural activities and not political activities. (A78). In light of this request, the Government continuously argued to the court that Mr. Murtari was demonstrating in the building without applying for a permit where one was required. (A145,150). However, if the scope of the permit regulations apply only to the listed activities and excludes political activities, then Mr. Murtari was not required to apply for a permit to walk the corridors of the building carrying his placard.

In addition, Mr. Murtari was informed by a GSA employee, David Talarico, that the permit application system concerned only the outside plaza area of the federal building and not the interior of the federal building. (A59-62). Although Mr. Talarico knew that the GSA had granted a man a permit to read poetry in the lobby of the federal building, he informed Mr. Murtari that he could not obtain a permit to demonstrate inside the federal building. (A72).

A prior restraint on speech occurs when administrative and judicial orders forbid certain communications in advance of the time that such communication is to occur. Alexander v. United States, 113 S.Ct. 2766,2771 (1993). The Supreme Court has warned that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 US 58, 70 (1963). The heavy presumption is justified because “prior restraints on speech…are the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Ass�n v. Stuart, 427 US 529, 559 (1975). Assuming that the federal permit regulations do apply to Mr. Murtari�s political activity inside the federal building, then the regulations require Mr. Murtari to obtain written permission from the GSA before Mr. Murtari may exercise his protected First Amendment activity. If a speaker must seek permission or review before speaking, then the system is a prior restraint. Moore v. Kilgore, 877 F.2d 364,386 (5th Cir. 1989).

The permit policy requires an individual to complete a written application providing the name, address and telephone number of the applicant, the organization sponsoring the proposes activity, the individual responsible for supervising the activity along with a description of the proposed activity, including dates, times and the number of people involved. 41 CFR � 101-20.401. The GSA must approve or disapprove the permit within 10 working days following its receipt of the completed application. 41 CFR � 101-20.402(a). When more than one permit is requested for the same area and times, permits will be issued on a first-come, first-served basis. 41 CFR � 101-20.402(b). All permits involving demonstrations and activities which may lead to civil disturbances should be coordinated with the Chief, Law Enforcement Branch, before approval. 41 CFR � 101-20.402(c).

The GSA may disapprove any application or cancel an issued permit for six stated reasons: (1) The applicant has failed to submit all information required under 101-20.401, or has falsified such information; (2) The proposed use is a commercial activity as defined in 101-20.003(d); (3) The proposed use interferes with access to the public area, disrupts official Government business, interferes with approved uses of the property by tenants or by the public, or damages any property; (4) The proposed use is intended to influence or impede any pending judicial proceeding; (5) The proposed use is obscene within the meaning of obscenity as defined in 18 U.S.C. � 1461-65; or (6) The proposed use is violative of the prohibition against political solicitations in 18 U.S.C. � 607. 41 CFR �101-20.403 (a)(1)-(6). The GSA is required to promptly notify the applicant or permittee of the reasons for disapproving an application or cancelling a permit and must inform the applicant or permittee of his/her appeal rights. 41 CFR � 101-20.403(b).

The permit application (GSA Form 3453), states that it is an application for use of space in public buildings and grounds. (A156). Mr. Murtari was informed by GSA employee David Talarico on December 16, 1999 that he could not obtain a permit from GSA to walk quietly in the corridors of the building carrying a placard. (A59-62). Although Mr. Murtari�s activity does not fall within any of the above cited categories, he was notified, before applying for a permit, that he could not obtain one. He was not given a reason for the denial and he was not informed of his right to appeal this verbal decision.

The testimony of Joan Grennan and Mr. Talarico reveal that GSA had a policy, outside of the permit regulations, of prohibiting political speech inside the federal building. The testimony from those responsible for enforcing the permit regulations reveal that they were arbitrarily and subjectively applied to Mr. Murtari since he was allowed to proceed on certain occasions and not on others. Mr. Murtari was allowed to demonstrate on the 8th and 13th floors of the federal building without interference for a month and a half after March of 2000. (A69-70,120-121). Building Manager Joan Grennan testified that she did not know if Mr. Murtari was allowed to demonstrate inside the federal building and that she had to ask Federal Protective Officer Berwald if Mr. Murtari�s activity was legal. (A87-88). Officer Berwald “did not believe so.” (A88). After this conversation, Ms. Grennan and Officer Berwald chose to conduct an experiment with Mr. Murtari by allowing him to walk the corridors of the 13th floor as long as the tenants on that floor did not object. (A92-95). Ms. Grennan�s motivation in conducting the experiment was her hope that Mr. Murtari would stop and go away. (A95). Although Ms. Grennan testified that the permission was granted for one day (A95), David Talarico testified that Mr. Murtari was given blanket permission over a certain period of time. (A69,74). Mr. Talarico believed Mr. Murtari was allowed to proceed without interference between 5 and 20 times. (A77-78).

Although the permit regulations appear to have guidelines, they are unconstitutionally applied to Mr. Murtari by GSA employees. Even though Mr. Murtari�s form of expression did not fall within any of the 6 enumerated categories that allow GSA to deny him a permit, he was told that he would never obtain a permit to conduct his activity inside the federal building.

POINT III
THE COURT�S ORDER OF DECEMBER 13, 2002 PROHIBITING MR. MURTARI FROM VISITING THE OFFICES OF SENATORS CLINTON AND SCHUMER AND FROM MARCHING, PICKETING, PROTESTING, OR DEMONSTRATING IN THE INTERIOR OF THE FEDERAL BUILDING IS AN UNCONSTITUTIONAL PRIOR RESTRAINT ON SPEECH.

On December 13, 2002, Magistrate DiBianco issued an Order that prohibits Mr. Murtari from engaging in marching, picketing, protesting, or demonstrating in the interior of the James M. Hanley Federal Building without prior, written permission of the GSA in the form of a permit for the private use of federal property. (A165). The Order also prohibits Mr. Murtari from visiting the offices of Senators Clinton and Schumer. (A165). As previously mentioned, the permit regulations do not appear to apply to political activities, and if they do, GSA employees have stated that they do not apply to the interior of the federal building. In accord with the above cited First Amendment law regarding prior restraints, the court�s order of December 13, 2002, is an unconstitutional restriction on speech and must be vacated.

The court�s Order “threatens at least three of the values that undergird the First Amendment: truth, knowledge, and tolerance.” Moore v. Kilgore, 877 F.2d 364, 386 (5th Cir. 1989). Mr. Murtari has been directed by the court not to speak to his United States Senators about his political concerns. “When speech is gagged…the words do not go forth” and “[t]the public does not receive information, so the public is denied the opportunity to judge the truth of the speech, and is deprived of useful knowledge necessary to be able to make informed decisions.” Id. The effect of this prior restraint results in censorship by the court. See Lovell v. Griffin, 303 US 444 (1938). This is especially true in Mr. Murtari�s case, because the order contains no time limit and no guidelines and therefore serves as a “device for the suppression of the communication of ideas and permits the official to act as a censor.” Cox v. Louisiana, 379 US 536, 557 (1965). “Censorship distorts the dissemination of truth and knowledge to conform with the official�s vision of truth and knowledge.” Moore 877 F.2d at 386.

The court�s Order contains no time limits, it is completely devoid of evidence that Mr. Murtari poses any kind of threat to Senators Schumer and Clinton justifying a ban on visitation to their offices. The Order is based upon the court�s finding that Mr. Murtari was convicted after trial of violating 18 U.S.C. � 13 (Assimilated Crimes Act/Trespassing and Disorderly Conduct) and that Mr. Murtari has been charged on previous occasions with the same conduct for which he has been found guilty. (A165). The Order then goes on to state that Mr. Murtari�s “stated purpose for his protest in the interior of the Federal Building in Syracuse, New York is to obtain federal legislation with respect to child custody and/or visitation matters, and that John Murtari has already succeeded in bringing these issues to the attention of two offices of the United States Senators located in the Federal Building.” (A165-166). The court has in essence decided that Mr. Murtari�s message has gone as far as the court wishes it to go. The court, by its Order, has become the screener of Mr. Murtari�s message. Thus, the Order clearly violates the First Amendment and must be vacated.

CONCLUSION

Based upon the foregoing, Mr. Murtari�s convictions on counts 3 and 4 of the Superseding Information must be reversed; the Superseding Information must be dismissed because Mr. Murtari�s activities were protected by the First Amendment to the United States Constitution; and the court�s December 13, 2002 Order must be vacated because it is an unconstitutional prior restraint on speech.
DATED: January 13, 2003 Respectfully submitted, ALEXANDER BUNIN
By:
Lisa A. Peebles, Esq.
Assistant Federal Public Defender
Bar Roll No. 507041
Melissa A. Tuohey, Esq. (as to Brief)
Research and Writing Attorney
Bar Roll No.: 510807
The Clinton Exchange, 3rd Floor
4 Clinton Square
Syracuse, New York 13202
(315) 701-0080