Julian Heicklen and the Political Distribution
Incidents at Walmart


COURT DISMISSES CHARGES
D. A. BRIEFING
COURT ORDER
HABEAS CORPUS


 


 

COURT DISMISSES CRIMINAL CHARGES AGAINST HEICKLEN


      Julian Heicklen, a Libertarian Party candidate for County Commissioner, was arrested on March 12, 1999, for distributing campaign literature in front of the Wal-Mart on the Benner Pike in Centre County,
PA.  He was carried away in handcuffs for arraignment, where he was charged with criminal trespass and released on his own recognizance.

        The following day, Heicklen returned to the front of the Wal-Mart store and again distributed campaign literature. He was arrested and charged with criminal trespass and disorderly conduct.  He was incarcerated in Centre County prison in lieu of $75,000 straight bail.  At his preliminary hearing on March 17, 1999, he was bound over for trial and released on $20,000 straight bail.

        Heicklen's attorney, Joseph Devecka, filed a writ of Habeas Corpus to dismiss the charges.  On June 15, 1999, Judge Thomas King Kistler of the Centre County Court of Common Pleas granted the writ of Habeas Corpus and dismissed the criminal trespass charges.  In his Opinion, Judge Kistler stated that: "Wal-Mart has not uniformly and generally prevented the area in front of the store from becoming a public forum."


 
 

WALMART ARRESTS -- D.A. BRIEFING

IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA CRIMINAL LAW COMMONWEALTH OF PENNSYLVANIA  (NO. 99-489 ) 99-490 JULIAN P. HEICKLEN

    Commonwealth's Brief in Opposition to Defendant's Motion for Writ of Habeas Corpus  And Now, comes the Commonwealth of Pennsylvania, by and through its attorney, Lance T. Marshall, Esq., and respectfiilly presents the following brief in opposition to Defendant Julian P. Heicklin's Motion for Writ of Habeas Corpus. The Defendant, a candidate for Centre County Commissioner running on the Libertarian party ticket wanted to distribute leaflets and campaign for support in front of the Benner Pike Wal-Mart, in State College, Pennsylvania. Defendant is an admitted, minor party candidate, and holds what may be considered controversial views. Defendant sought permission to distribute the leaflets and campaign in front of the Wal-Mart store from, presumably, the highest ranking official at that store. On Friday March 12, 1999, Defendant reached, a relatively young, Assistant Manager. Despite a Wal-Mart policy that specifically does not permit the solicitation and/or distribution of leaflets by non-Associates, Defendant was given permission to distribute leaflets and campaign, as long as no customers complained about him. The Assistant Managers received customer complaints, and asked Defendant to leave two times. Defendant relused and State College Police were called to the scene. Defendant was arrested and charged with Defiant Trespass, 18 Pa.C.S.A. ¤ 3503, and then released.

    On Saturday March 13, 1999, Defendant repeated the process. Again, despite the uniform policy of Wal-Mart that prohibits the solicitation and/or distribution of literature by non-Associates, Defendant was given permission by a different, relatively young, Assistant Manager to distribute leaflets and campaign as long as no customers complained about him. The Assistant Manager received complaints and Defendant was asked to leave. Defendant refused and the State College Police were called to the scene. Defendant was arrested and this time incarcerated on $75,000 bail. Defendant was charged with Defiant Trespass. 18 Pa.C.S.A. ¤ 3503(b). It is a defense to Defiant Trespass if the premises were open to members of the public and the actor complied with all lawful conditions imposed on remaining on the premises. 18 Pa.C.S.A. ¤ 3503(c). The issue is whether the assistant store manager's decision to permit Defendant to distribute leaflets and campaign for political office, as long as the store does not receive any customer complaints, is a lawful condition. The Commonwealth suggests it is a lawful condition and the defense afforded Defendant by the statute is not available to him.

    Two Pennsylvania Supreme Court cases control the outcome of this case. The first case is Commonwealth V. Tate. 495 Pa. 158, 432 A.2d 1382 (1981). In Tate. the FBI director in 1976 was speaking at Muhlenberg college. Members of a group called LEPOCO attempted to obtain a permit to protest actions of the FBI. The college summarily denied the permit to LEPOCO. Members of LEPOCO however, did peacefully protest. It was undisputed that the members of LEPOCO engaged in no disorderly conduct, carried no signs, used no loud or offensive language, and made no attempt to enter any of the college buildings. They blocked no building entrances and did not attempt to force their leaflets upon unwilling passersby. They received no complaints from any members of the public regarding their presence on campus. The police arrested members of LEPOCO and charged them with defiant trespass. Interestingly, the Assistant District Attorney filed a motion to nol pros the case, but the motion was denied. After trial, the members of LEPOCO were found guilty of defiant trespass. In reversing the conviction, the Pennsylvania Supreme Court held Muhlenberg College could not, under these circumstances, exercise its right of property to invoke a standardless permit requirement and the state's defiant trespass law to prevent the members of LEPOCO from peacefully presenting their point of view in an area of the college normally open to the public. The members of LEPOCO complied with all "lawful conditions" for access to the premises. The Supreme Court found that Muhlenberg College permitted the public to walk its canipus freely and use many of its facilities. Muhlenberg College provided a public forum for the Director of the FBI, then a controversial figure. The Supreme Court found that the rights of LEPOCO to peacefully and unobtrusively express their belief that the public in general had been wronged by the FBI outweighed Muhlenberg College's right to property.

    The second Pennsylvania Supreme Court case that is controlling here is Western Pennsvlvania Socialist Workers 1982 Campaign V. Connecticut General Life Insurance Companv 512 Pa. 23, 515 A.2d 1331(1986). In this case, the Western Pennsylvania Socialist Workers began a drive to collect signatures on nominating papers in an effort to place a candidate on the November's gubernatorial ballot. They sought permission to solicit signatures and educate the public about their cause in a shopping mall. This shopping mall had a uniform policy of forbidding all political solicitation and the request was denied. In upholding the shopping mall's decision to forbid the Workers from collecting signatures, the Supreme Court contrasted the Western Pennsylvania case from the Tate decision. The Supreme Court concluded that the mall had not made itself a public forum in this political manner. The shopping mall had invited the public into the mall for commercial business. The Supreme Court determined that the shopping mail had operated as a market place for the exchange of goods and services, but not as a market place for the exchange of ideas. Therefore, the Tate analysis did not support the Socialists Workers right to campaign. If the present case were squarely on point with the Western Pennsylvania decision, the Commonwealth would have little difficulty prosecuting the within case.

    What makes this case difficult to prosecute is the two Assistant Manager's decision to permit Defendant to hand out leaflets and campaign. (N.T. 9 and 16). The Commonwealth will represent to this Honorable Court that on neither day, was the store manager of Wal-Mart working. Assistant Manager Daniel Bitter had been an assistant manager for two years. (N.T. 12). Assistant Manager Allen Jackson had been an employee of Wal-Mart since 1990, and an assistant manager for approximately two years. (N.T. 5). The shopping mall in Western Pennsylvania uniformly enforced its no solicitation policy. Nevertheless, the Commonwealth is satisfied that the Western Pennsylvania decision is closer to this case than the Tate decision. Like Western Pennsylvania Wal-Mart is closer in nature to the shopping mall than Muhlenberg College. Wal-Mart has, by virtue of its policy, not made itself a public forum like Muhlenberg College had done. Wal-Mart, like the shopping mall in Western Pennsylvania has invited the public at large into its store only for commercial purposes. Wal-Mart operates itself as a market place for the exchange of goods and services, not as a market place for the exchange of ideas. The decision of two, young Assistant Managers to permit Defendant to distribute leaflets, does not somehow transform Wal-Mart, which the Court may judicially recognize as a giant multi-national chain of stores, into a market place of ideas. Furthermore, Defendant is in a different position than either the Western Pennsylvania Socialist Workers or the members of LEPOCO. The Western Pennsylvania Socialist Workers sought a permit from the shopping mall. Had Defendant done the same thing here, i.e., apply for a permit from Wal-Mart, he most certainly would have been denied. Defendant's 'permit' was from the Assistant Managers of one store. Similarly, the record in Tate was clear that nobody complained about the members of LEPOCO. Here, Wal-Mart did receive customer complaints about Defendant. In a business where 'the customer is always right,' the Assistant Managers told Defendant to leave. When Defendant did not leave the Wal-Mart area, after he was told numerous times by the appropriate officials he committed the offense of Defiant Trespass, 18 Pa.C.S.A. ¤ 3503(b). It a defense to Defiant Trespass if the premises were open to members of the public and the actor complied with all lawful conditions imposed on remaining. 18 Pa.C.S.A. ¤ 3503(c). Here, quite explicitly, the Defendant was told he could remain as long as no customers complained about him. For the above stated reasons, the Commonwealth argues that this is a lawful condition. WHEREFORE, for the foregoing reasons, the Commonwealth respectfully asks this Court to deny Defendant's Motion for Writ of Habeas Corpus.

Respectfully Submitted, /s/ Lance T. Marshall, Esq. Assistant District Attorney, Centre County



WALMART ARRESTS -- COURT ORDER

IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA CRIMINAL ACTION  LAW COMMONWEALTH OF PENNSYLVANIA (Nos. 1999-489) 1999-490 JULIAN P. HEICKLEN OPINION AND ORDER KISTLER, J.
 

    Presently before the Court is Defendant's Petition for a Writ of Habeas Corpus Challenging the District Justice's Holding Defendant for Court on the two (2) Counts of Criminal Trespass contained in Criminal Informations 1999-489 and 1999-490. FACTUAL BACKGROUND 1. On March 12,1999, Defendant was engaged in distributing campaign literature while standing on the front sidewalk near the entrance to Wal-Mart, State College, Pennsylvania. 2. Initially, Defendant engaged in these activities without requesting permission from the Wal-Mart staff to do so. 3. Wal-Mart Assistant Manager Allen Jackson testified he later gave Defendant permission to stay until there were customer complaints. [Preliminary Hearing Transcript, p.11, lines 9-12]. 4. Wal-Mart's solicitation policy prohibits solicitation and/or distribution of literature by non-associates (non-employees) at all times in any area of the store. [Preliminary Hearing Transcript1 p.7, lines 18-21]. 5. Assistant Manager Jackson and another Wal-Mart employee eventually asked the Defendant to leave and when Defendant refused, the police were called. [Preliminary Hearing Transcript, p.8, lines 2-20]. 6. Officer Mark Gabrovsek, of the State College Police Department, responded and placed Defendant under arrest for Criminal Trespass, 18 Pa. C.S.A. ¤ 3503(b)(1)(i). 7.

    Again on March 13, 1999, Defendant was engaged in distributing campaign literature in front of the same Wal-Mart store. 8. Again, Defendant did not initially request permission to stand in that area and distribute his materials. 9. Wal-Mart Assistant Manager Daniel Breitenbach was the manager on duty and he later gave Defendant permission to stay as long as there were no customer complaints. [Preliminary Hearing Transcript, p.16, lines 14-21]. 10. Eventually, Assistant Manager Breitenbach asked the Defendant to leave at least three different times. [Preliminary Hearing Transcript, p.14, lines 10-18]. 11. The police were called after Defendant refused to leave. [Preliminary Hearing Transcript, p.14, lines 21-25; p.15, lines 1-7]. 12. Officer Anthony Lopinsky and two other officers of the State College Police Department responded to the call. [Preliminary Hearing Transcript, p.19, lines 14-25; p. 20, lines 1-11]. 13. The police officers asked the Defendant to leave the area and Defendant did not respond. Officer Lopinsky told the Defendant he was under arrest, at which point the Defendant intentionally fell to the ground. [Preliminary Hearing Transcript, p.21, lines 1-11]. 14. The police officers warned the Defendant to get up and move from the area as he was blocking the doorway or he would be charged with. disorderly conduct. [Preliminary Hearing Transcript, p.21, line 25; p.22, line 1-5]. 15. The police officers picked up the Defendant and placed him into the patrol vehicle. [Preliminary Hearing Transcript, p.23, lines 9-11]. 16. Defendant was charged with one (1) count of Criminal Trespass, 18 Pa. C.S.A. ¤ 3503 (b)(1)(i); and one (1) count of Disorderly Conduct, 18 Pa. C.S.A. ¤ 5503 (a) (4). 17.

    After a Preliminary Hearing held on March 17,1999, Defendant was bound over to court on all charges in both Informations. 18. On April 7, 1999, Defendant filed a Petition for a Writ of Habeas Corpus and argument was held on May 10,1999. CONCLUSIONS OF LAW 1. A person commits the offense of defiant trespasser if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by actual communication to the actor.... 18 Pa. C.S.A. ¤ 3503(b)(1 )(i). 2. It is a defense to prosecution for defiant trespasser under this section that... the premises were 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 premises.... 18 Pa. C.S.A. ¤3503 (c)(2). 3. This statutory defense [18 Pa. C.S.A. ¤ 325303 (c) (2)] merely requires that the defendant be in a place open to the public and that he comply with all lawful conditions imposed on access to or remaining on the premises. Commonwealth V. White, 342 Pa. Super. 1, 92 A.2d 32 (1985). 4. É The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.... Pennsylvania Constitution, Article 1, ¤ 7. 5. A private institution cannot exercise its right of property by invoking a standardless permit requirement in such a manner as to prevent defendants from presenting their point of view by distributing leaflets outside such a building in an area normally open to the public. Commonwealth v. Tate, 495 Pa. 158,432 A.2d 1382 (1981). 6. Any condition or restriction imposed must be both reasonable and nondiscriminatory and may not be based simply upon an undifferentiated fear or apprehension of disturbance. Id 432 A.2d at 1390,1392. 7. [T]he Pennsylvania Constitution does not guarantee access to private property for the exercise of such rights where ... the owner uniformly and effectively prohibits all political activities and similarly precludes the use of its property as a forum for discussion of matters of public controversy. Western Pennsylvania Socialist Workers V. Conn. Gen Life, 512 Pa. 23, 26, 515 A.2d 1331, 1333 (1986) (citations omitted).

    DISCUSSION Defendant asserts (1) that the facts in this case support his ¤ 3503(c)(2) statutory defense and, as a related claim, (2) that the facts show a denial of his rights guaranteed under the Pennsylvania Constitution Article I, ¤ 2 and ¤ 7; and under the Constitution of the United States, Amendment 1. (Footnote: 1) Defendant argues the area in front of the Wal-Mart store is "open to the public" and that he complied with all "lawful conditions" imposed by Wal-Mart. Defendant relies on Tate, supra, for the proposition that the front area of the Wal-Mart store is open to the public" because of the presence of public telephones, vending machines, benches. newspaper dispensers, and the lack of signage designating the area as restricted for certain purposes. Defendant also contends Wal-Mart's policy was an attempt to control the exercise of his political free speech, which is not a "lawful condition." The Commonwealth first asserts that Tate, supra, is distinguishable because the location of the incident in that case, although a private college, was found to be a public marketplace for ideas. The Commonwealth maintains the present case is analogous to Western Pennsylvania Socialist Workers, supra, wherein the court held the state could not constitutionally guarantee access to private property for the exercise of free speech rights where the owner of a shopping mall uniformly and effectively prohibited all political activities. The Commonwealth argues the Wal-Mart store is in the same position as the mall owner in Western Pennsylvania Socialist Workers, supra, and urges this Court to rule accordingly. The Commonwealth next argues the Wal-Mart policy "to allow Defendant to distribute campaign literature as long as the store did not receive any customer complaints" was a "lawful condition" with which the Defendant did not comply and therefore, the ¤3503(c)(2) statutory defense is not available to Defendant. In Tate, supra, the court found the private college to be a marketplace for ideas and held the campus was "open to members of the public" because it maintained on its campus a United States Post Office station, a public cafeteria, an information and sales booth for tickets to public events, and a federal book depository library. In addition, the college had no policy about off-campus visitors and many people walked the campus. In Western Pennsylvania Socialist Workers, supra, the court found the privately owned mall was not "open to the public" within the meaning of 18 Pa. C.S.A. ¤ 3503 (c)(2). In so determining, the court focused on the practical aspects of the mall's functions and found significant both the limiting aspects of a self-contained shopping arena and the fact that the mall's prohibition on political activity was uniformly applied. The court implied that had the policy not been uniformly applied, then such a restriction on political speech could make the privately owned mall susceptible to state regulation as a public forum. The court expressly recognized the state's authority to regulate private property's use in the public interest as an-exercise of its police powers.

    With the above principles from Tate and Western Pennsylvania Socialist Workers in mind, this Court must examine the functions of the Wal-Mart store to determine if the area in question is held open to the public. The Wal-Mart store is a free standing building with a dedicated parking lot. It is undisputed that the structure, parking lot and land on which they are situate is privately owned by Wal-Mart. Directly in front of the entrance doorways to the store is a common area which contains a sidewalk, public telephones, vending machines, benches, and newspaper dispensers. The public is generally invited to this area and into the store. Also. as Defendant points out, there are no signs which restrict the area for certain purposes. other than those designating reserved parking spaces for disabled individuals. The inquiry into the front area of the store's private or public status does not end with a description of its facade. The Court must also assess how Wal-Mart applied its policy prohibiting solicitation and/or distribution by all non-associates. The testimony from both of the Wal-Mart assistant store managers is that Defendant was granted permission to distribute his campaign literature in front of the store on March 12th and 13th. [Preliminary Hearing Transcript, p.11, lines 9-12]. The assistant store managers then attempted to revoke that permission asserting the store had received customer complaints. White, supra (holding the mere fact that permission to be on the premises is revoked is not sufficient to remove the defendant from the protection of subsection (c)(2)). Although the Wal-Mart policy purports to be an absolute prohibition on all non-employee s6licitation and/or distribution in any area of the store, the policy was not uniformly applied. Compare Western Pennsylvania Socialist Workers, supra (holding the state may not constitutionally interfere with a private person who uniformly precludes political activities on his property) (emphasis added). In view of such variable application, this Court cannot conclude the policy was a unlawful condition" within the meaning of 18 Pa. C.S.A. ¤ 3503 (c) (2). Furthermore, unlike the mall owner in Western Pennsylvania Socialist Workers, the Wal-Mart assistant store managers did not adhere to a strict no political solicitation policy. As such, Wal-mart has not uniformly and generally prevented the area in front of store from becoming a public forum.

    Consequently, this Court enters the following: ORDER AND NOW, this 15th day of June, 1999, after consideration of Defendant's Petition for a Writ of Habeas Corpus and argument on same, it is the ORDER of this Court that: 1. Defendant's Petition for a Writ of Habeas Corpus Challenging the District Justice's Holding for Court on Count I of Criminal Information 1999-489 (March 13,1999 incident) is hereby GRANTED. The Charge of Criminal Trespass, 18 Pa. C.S.A. ¤ 3503(b)(1)(i), is hereby DISMISSED. 2. Defendant's Petition for a Writ of Habeas Corpus Challenging the District Justice's Holding for Court on Count 1 of Criminal Information 1999-490 (March 12,1999 incident) is hereby GRANTED. The Charge of Criminal Trespass, 18 Pa. C.S.A. ¤3503(b)(1)(i) is hereby DISMISSED. BY THE COURT: /s/ Thomas King Kistler, Judge Ê Footnote (1) The First Amendment to the United States Constitution only protects the right of free speech against governmental restraint, not against the actions of private property owners whose property is being used for a private purpose. Thus, the First Amendment's protections are not applicable to Wal-Mart's actions as a private property owner and Defendant's claim in this respect is without merit. The Court will therefore review Defendant's Petition under the referenced Pennsylvania Constitution provisions. See Commonwealth v. White, 342 Pa. Super. 1, 92 A.2d 32 (1985) (a finding of state action is not
necessary for a defendant to seek protection in the subsection (c)(2) defense).


 



 


WALMART ARRESTS -- HABEAS CORPUS

IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLVANIA (OTN: F 318571-1 Ê ) (OTN: F 270600-1) JULIAN P. HEICKLEN

MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR A WRIT OF HABEAS CORPUS ARGUMENT

    The Commownealth bears the burdens of production and persuasion concerning showing
Julian Heicklen was not privileged to be on the sidewalk, see Commonwealth V. White, 342 Pa.Super 1, 492 A.2d 32 at p 36. The Commonwealth relied entirely on the existence of a 'policy" of WalMart stores (that is not enforced by the testimony on both direct and cross-examination) to rebut this defense. The facts establish that Julian Heicklen was told by WalMart management authorities he could exercise political free speech on the sidewalk outside said WalMart store, N.T. pp.1 ~ and 16, as long as there were no customer complaints.

    These facts also clearly establish that the non-solicitation policy, is not enforced, N.T. p.7. THE QUESTIONS IS: DOES AN ANONOMOUS CALL (AS FAR AS THE PRELIMINARY HEARING TESTIMONY SHOWS) MAKE JULIAN HEICKLEN A TRESPASSER? With no names given how does the Commonwealth show that any caller was an actual customer or had ever been inside any WalMart store? No caller was ever identified, N.T. pp.11 and 16-~7. In fact no name was ever taken by Daniel Breitenbach, N.T. pp.16-17. It is alleged that this condition of remaining on the contested sidewalk is a lawful condition for the exercise of political free-speech. Thus Julian Heicklen was privileged to remain on the sidewalk because anonymous phone call complaints may not be a legal condition. This is true simply
because it is totally beyond the control of Julian Heicklen and his right of political flee speech may be curtailed in that place by an anonymous phone call of a person who need not be a WalMart customer.

    Political Free-Speech is by definition no unanimously accepted speech. Any person not wishing Julian Heicklen to exercise his political free-speech may halt that free-speech merely by complaining by phone. WalMart may prohibit any person from soliciting inside the store. The sidewalk is open to the public and no lawful condition outside the control of Julian Heicklen may turn him from a person exercising political free-speech into a trespasser. See Commonwealth v. Tate. 495 Pa. 158,432 A.2d 1382 (1981). In Tate. supra a College was found to illegally attempt to impose a requirement of paying a symposium registration fee as a condition for remaining in a public place. Here, once Julian Heicklen was lawfully in a public place. WalMart could not lawfully impose any condition outside his control to exercise his political free speech. To do so would violate Julian Heicklen's Pennsylvania Constitutional Rights under Article One, Sections Two and Seven and the First Amendment to the Federal Constitution.

Respectfully submitted Ê DEVECKA & RAYMAN ÊÊ BY: /s/ Ê Joseph M. Devecka, Attorney for Defendant Ê Julian Heicklen 1315 W. College Avenue, Suite 300 Ê State College, PA 16801 (814) 234-5227 Dated: 4/7/99 Attorney ID #29938 Ê Ê