U. S. DISTRICT COURT: SOUTHERN DISTRICT OF NEW YORK


United States of America
Prosecutor

v.                                                                                                                                                                                                                                                            10 Cr. Misc 1 Pg. 4(HBP)

      Julian Heicklen
Defendant

UNLAWFUL DISTRIBUTION OF PAMPHLETS

IMPEDING ARREST

BRIEF FOR DISMISSAL




_________________
Julian Heicklen
Defendant
Counsel Pro Se


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Date

A. CHARGES

Defendant was arrested several times for distributing Fully Informed Jury Information (FIJA) pamphlets without a permit in the courtyard in front of the U. S. District Court for the Southern District of New York at 500 Pearl Street, New York, NY 10007, in violation of the Department of Homeland Security Regulation 41 C. F. R. §102–74.415.

On one occasion, he also was charged with impeding arrest in violation of 18 U. S. C. § 111.

B. THE  FACTS

Defendant distributed FIJA pamphlets with an additional flyer in the courtyard in front of the U. S. District Courthouse at 500 Pearl Street, New York, NY 10007 on 12 occasions.

The dates of the distributions in 2009 were 10/19, 10/26, 11/02, 11/09, 11/16, and 11/23.  In 2010 they were 04/12, 04/19, 05/03, 05/25, 06/14, and 08/04.

On all of these occasions 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.

On 7 occasions he was arrested for violation of the Department of Homeland Security Regulation 41 C. F. R. 41 § 102–74.415.  On one of those occasions he also was cited for violation of 18 U. S. C. § 111.

On 2 other occasions he was arrested on bench warrants for failure to appear at court hearings.

On one occasion he was arrested, but not cited.

On one occasion he was neither arrested not cited, but his sign, pamphlets, and flyers were seized.  This was robbery by the police.

On one occasion, he was neither arrested nor cited.  His property was not confiscated.

On 8 of the above occasions his JURY INFO sign, pamphlets, and flyers were confiscated by the Department of Homeland Security Police.

On another occasion, his JURY INFO sign and 2 pens, but not his pamphlets nor flyers were confiscated by the Department of Homeland Security Police.
 
On one occasion all of his personal belongings were confiscated.  A list of the items taken is given at the end of this brief.

On two occasions none of his property was confiscated.

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.

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 not free speech.

E. TIME AND PLACE REQUIREMENTS

Government permits authorized 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 19 different U. S. District Courthouses.

At 16 of these Defendant was not arrested nor driven away.  These were in:

Fort Lauderdale, FL
Trenton, NJ—two times
Philadelphia, PA—three times
Reading, PA
Johnstown, PA
Pittsburgh, PA
Harrisburg, PA
Camden, NJ
Albany, NY
Hartford, CT
Concord, NH
Boston, MA
Baltimore, MD
Alexandria, VA
Washington, DC
Allentown, PA–two times. Once a photographer was arrested.

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.
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.”

32. 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.”

33. 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.”

34. 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.”

35. 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.

Defendant moves that the Court order the Department of Homeland Security, the federal marshals, the NY City Police

Department, and the NY City Department of Corrections to return all of Defendants confiscated property by placing it with the Property Clerk of the U. S. District Court S.D.N.Y. for Defendant to reclaim at his convenience.

I. CERTIFICATE OF SERVICE

Defendant certifies that copies of the BRIEF FOR DISMISSAL have been sent by certified U. S. mail on August 27, 2010 to the following:

Bruce Hampton, Courtroom Deputy, U. S. District Court S.D.N.Y., U. S. Courthouse, 500 Pearl Street, New York, NY 10007

Magistrate Judge Henry Pitman, U. S. District Court S.D.N.Y., U. S. Courthouse, 500 Pearl Street, New York, NY 10007

Chief Judge Loretta A. Preska, U. S. District Court S.D.N.Y., U. S. Courthouse, 500 Pearl Street, New York, NY 10007

Pro Se Clerk, Room 230, U. S. District Court S.D.N.Y., U. S. Courthouse, 500 Pearl Street, New York, NY 10007

AUSA Rebecca Mermelstein, United States Attorney’s Office, One Saint Andrew’s Plaza, New York, 10007


________________
Julian Heicklen
Defendant
Counsel  Pro Se

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Date