U. S. DISTRICT COURT for the District of New Jersey


United States of America
    Prosecutor

                                                                                                                                                                                                                                                        H5010031
H50110050

Julian Heicklen

    Defendant

UNLAWFUL DISTRIBUTION OF PAMPHLETS

Disturbances

MEMORANDUM OF LAW



_________________
Julian Heicklen
Defendant
Counsel Pro Se


February 22, 2011
Date
A. CHARGES

Defendant was arrested on August 25, 2010 for distributing Fully Informed Jury Information (FIJA) pamphlets without a permit on the public sidewalk in front of the U. S. DISTRICT COURT for the District of New Jersey at Martin Luther King, Jr. Federal Building and United States Courthouse, 50 Walnut Street, Newark NJ 07102, in violation of the Department of Homeland Security Regulation 41 C. F. R. §102–74.415(c) (Citation H5010031).

In addition, Defendant was charged with Disturbances in violation of the Department of Homeland Security Regulation 41 C. F. R. §102–74.390(c) (Citation H5010050) for disturbance after, but not prior to, the arrest by citation.  He was also charged with Conformity 41 CFR 102–74.385 (citation H5010030).


Defendant was served with arrest warrants for distributing materials and disturbances, but not for conformity, by unidentified Federal Protective Service Police on February 18, 2011, in the U. S. District Court for the Southern District of New York, 500 Pearl Street, New York, NY 10007.

B. THE  FACTS

Defendant distributed FIJA pamphlets with an additional flyer on the public sidewalk in front of the U. S. District Courthouse at 50 Walnut Street, Newark NJ 07102.

On the date of citation, August 25, 2010, Defendant was standing alone with a sign that read JURY INFO.


He did not shout, use voice amplification, electronic devices, or harass passersby.


When placed under arrest, he fell to the ground, remained motionless, and did not utter a sound.

 
His JURY INFO sign, pamphlets, and flyers were confiscated by the Department of Homeland Security Police.


A more detailed description is given in the Exhibit at the end of the MEMORANDUM OF LAW.


C. THE  LAW

Department of Homeland Security Regulation 41 C. F. R. § 102–74.415 reads in part:

“All persons entering in or on Federal Property are prohibited from...(c) Distributing materials, such as pamphlets, handbills or flyers, unless conducted as part of authorized Government activities.  This prohibition does not apply to public areas of the property as defined in 10271.20 of this chapter.  However any person or organization proposing to distribute materials in a public area under this section must first obtain a permit from the building manager as specified in subpart D of this part.”

“Public area means any area of a building under the control and custody of GSA that is ordinarily open to members of the public, including lobbies, courtyards, auditoriums, meeting rooms, and other such areas not assigned to a lessee or occupant agency.”

In effect, this regulation requires a permit to distribute pamphlets in the courtyard.

Department of Homeland Security Regulation 41 C. F. R. § 102.385 reads:

“Persons in and on property must at all times comply with official signs of a prohibitory, regulatory or directory nature and with the lawful direction of Federal police officers and other authorized individuals.”

In effect this regulation requires compliance with official signs and lawful directions.

Department of Homeland Security Regulation 41 C. F. R. § 102.–74.390(c) reads:
“all persons entering or on Federal property are prohibited from loitering, exhibiting disorderly conduct or exhibiting other conduct on property that —

Otherwise impedes or disrupts the performance of official duties by Government employees”

In effect this regulation prohibits interfering with the performance of official duties by Government employees.

D. CONSTITUTIONAL  ISSUE

The law is unconstitutional on its face, since it violates Amendment I of the U. S. Constitution which reads: “Congress shall make no law...”

What is the part of “NO” that the Department of Homeland Security does not understand?

Furthermore the regulation permits government authorized speech with a permit; i.e. speech approved by the government.  This is not free speech.


E. TIME AND PLACE REQUIREMENTS

Government permits authorize distribution of pamphlets at the time and place of Defendant’s arrests.  


Defendant cannot be denied the same opportunity.

F.  NON-UNIFORM ENFORCEMENT

Defendant has distributed FIJA pamphlets and his flyer while holding a JURY INFO sign at 23 different U. S. District Courthouses.

At 21 of these Defendant was not arrested nor driven away.  These were in:
Fort Lauderdale, FL—two times
Trenton, NJ—two times
Philadelphia, PA—three times
Reading, PA
Johnstown, PA
Pittsburgh, PA
Harrisburg, PA
Camden, NJ
Albany, NY—two times
Hartford, CT
Concord, NH
Boston, MA
 Baltimore, MD
Alexandria, VA
Washington, DC
Allentown, PA–two times. Once a photographer was arrested.
Manhattan, NY–12 times. Ten times Defendant was arrested, but the charges dropped and the cases were dismissed.  Once a photographer was arrested, but the case was dismissed and the photographer was awarded damages.
Miami, FL
Tampa, FL
West Palm Beach, FL
Wilmington, DE


Defendant has been arrested at 3 U. S. District Courthouses.  These are:

Manhattan, NY—12 times, 10 arrests plus 1 police robbery.  Only once was a photographer arrested.  All cases were dismissed by the U. S. Attorney.
Springfield, MA—1 time; 1 arrest.
Newark, NJ—1 time; 1 arrest.

At most of these U. S. District Courthouses Department of Homeland Security Regulation 41 C. F. R. § 102–74.415 is not enforced.
Even in Manhattan, the regulation is not enforced uniformly.

Detailed descriptions of all of these events are given at:
http://www.personal.psu.edu/faculty/j/p/jph13/FIJADemonstrations.html

G.  COURT  OPINIONS

Several U. S. Supreme Court decisions have declared such laws as unconstitutional.


In Cantwell v. Connecticut, 310 U. S. 296 (1940), the Court ruled:


    “The statute here, however, is not such a regulation.  If a certificate is issued, solicitation is permitted without other restrictions; but if a certificate is denied, solicitation is altogether prohibited.”

The Court held:

“that defendant’s (i. e. the arresting officer) conviction of the common law offense of breach of the peace was violation of constitutional guarantees of religious liberty and freedom of speech.”

In Cox v. Louisiana, 379 U. S. 559 (1965), the U. S. Supreme Court ruled:


“Appellant was convicted of violating a Louisiana statute prohibiting picketing ‘near’ a courthouse with the intent of obstructing justice, the charge being based on the facts set forth in No. 24, ante at 383 U. S. 536, and the conviction was upheld by the Louisiana Supreme Court.”

The U. S. Supreme Court then discussed a number of principles and concluded:

“The application of these principles require us to reverse the judgment of the Supreme Court of Louisiana.”

In United States v. Grace, 461 U. S. 171 (1983), the Court ruled:


“Title 40 U. S. C. § 13k prohibits the ‘display of any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement’ in the United States Supreme Court building or on its grounds, which are defined to include the public sidewalks constituting the outer bounds of the grounds.  One appellee was threatened with arrest by Court police officers for violation of the statute when he distributed leaflets concerning various causes on the sidewalk in front to the Court. The other appellee was similarly threatened with arrest for displaying on the sidewalk a picket sign containing the text of the First Amendment.  Appellees then filed suit in Federal District Court, seeking an injunction against enforcement of § 13k and a declaratory judgment that it was unconstitutional on its face.  The District Court dismissed the complaint for failure to exhaust administrative remedies.  The Court of Appeals, after determining that such dismissal was erroneous, struck down § 13k on its face as an unconstitutional restriction on First Amendment rights in a public place.”

“Held: Section 13k, as applied to the public sidewalk surrounding the Court building, is unconstitutional under the First Amendment. Pp. 461 U. S. 175–184.”

H. REMEDIES

Defendant moves that all charges be dropped and all complaints be dismissed on the basis of Constitutional law, no time and place restrictions, non-uniform enforcement, previous U. S. Supreme Court decisions, and in the interest of justice.

I. CERTIFICATE OF SERVICE

Defendant certifies that a copy of the MEMORANDUM OF LAW has been sent by certified U. S. mail on February 22, 2011 to the following:

Pro Se Clerk,  Room 4015, U. S. District Court for the District of New
Jersey, U. S. Courthouse, 50 Walnut Street, Newark, NJ 07102
U. S. Attorney Paul J. Fishman, United States Attorney’s Office, Peter Rodino Federal Building, 970 Broad Street, Suite 700, Newark, NJ 07102
Anthony R. Mautone, U. S. District Judge, U. S. District Court, District of New Jersey, 50 Walnut Street, Newark, NJ 07102–3539

________________
Julian Heicklen
Defendant
Counsel Pro Se

February 22, 2011
Date

FIJA Demonstration in Newark, NJ on August 25, 2010

    I arrived at the U. S. District Courthouse at 50 Walnut Street in Newark, NJ at 11:25 am on Wednesday, August 25, 2010, .  It was an overcast and rainy day.  I stood with my umbrella under a tree that provided some cover over the public sidewalk in front of the courthouse.  The sidewalk was on federal property.

    I distributed 4 American Jury Institute pamphlets entitled “A Primer for Prospective Jurors” with my insert when I was approached by Federal Protective Service Officers Kirsch and Jedra, who identified themselves.  Soon they were joined by a third officer who did not identify himself.  Officer Kirsch informed me that I could not distribute literature in front of the courthouse and asked me to move.  I declined and said that I was allowed to distribute literature there.  He said that I was on federal property and that it was not permitted.  I informed him that I was a part owner of the property and had given myself permission.

    Several more times he asked me to leave, but I did not respond.  I just stared at him.  Then he placed me under arrest and reached for my JURY INFO sign.  I fell to the wet sidewalk and did not move a muscle or make another sound.  The officers called the Emergency Medical Service Ambulance 1108.  After several minutes it arrived, and I was placed on gurney and put into the ambulance.  The police officers knew who I was and that I had been to many courthouses.  They provided the ambulance personnel with my name, address, age, and social security number (which they must have obtained illegally, because I do not release that number except to medical persons and the IRS).  The police kept my umbrella, tote bag, JURY INFO sign, clipboard, and 40 American Jury Institute pamphlets.

    On the way to the hospital, the ambulance attendants took my blood pressure and tried to make me talk. First they told me that protesting against the government was futile and that I would be punished.  Then they threatened me that they would  stick needles into me.  Finally one of the attendants rubbed by rib cage as hard as he could.  This was extremely painful, and I moaned in pain.

    When I got to the hospital, the procedure was repeated. One of the nurses said that she opposes the government also, but fighting was hopeless.  That is why she bought a house in a different country.  Also my sweater and shirt were removed.  One of the officers then gave me three citations for Posting and Distributing Material 41 CFR 102-74.415(c), Conformsty (whatever that is) with signs and Directions 41 CFR 102-74.385, and Disturbances 41 CFR 102-74.390.  Then he said that I no longer was under arrest.  I immediately sat up, demanded my belongings, and said that I was leaving.  I recovered my shirt, sweater, and baseball cap, but none of the property taken by the police.  The hospital staff said the I could not leave until I had seen a doctor and signed out. I refused to do so. I stopped by the bathroom and left the hospital at 1:30 pm.

    On the way back to the courthouse where my car was parked, I passed a demonstration at city hall protesting civil service layoffs. I did not necessarily agree with them, but I hate to pass up a urinal or a demonstration.  Since all the demonstrators were black, I felt it necessary to integrate the demonstration and joined them.