Pro Se Appellant Urge D.C. Court of Appeals to Curb Police Powers

PRESS RELEASE--FOR IMMEDIATE RELEASE  April 3, 2009

 

CONTACT: Max Obuszewski [410] 366-1637 or mobuszewski at verizon.net

 

PRO SE APPELLANTS URGE D.C. COURT OF APPEALS TO CURB POLICE POWERS & PROTECT RIGHTS OF PROTESTERS

 

WHO: The Pledge of Resistance was formed for people willing to engage in nonviolent civil resistance to first prevent and later to protest the war in Iraq. It is affiliated with the National Campaign for Nonviolent Resistance [NCNR].

 

Baltimore Pledge members have repeatedly risked arrest to protest the war with Iraq. On September 26 & 27, 2006 they joined with activists from around the country in protests organized by NCNR and the Declaration of Peace aimed at telling Congress to cut off funding for the war in Iraq. In response, religious and secular peace activists were denied access to their legislators and arrested on Capitol Hill. The 71 peace activists arrested on Sept. 26 were charged with either “crossing a police line” or “unlawful assembly.” The 26 citizens who were arrested outside the Rayburn House Office Building on Sept. 27 were charged with “unlawful assembly.”

 

WHAT: The defendants who did not pay a citation fee were either prosecuted in a trial which concluded on Feb. 16, 2007 or on March 14, 2007. Both trials were conducted by Chief Judge Rufus King III, and all but one were convicted and sentenced to pay a small assessment fee. Nine defendants, including Pledge members Ellen Barfield and Max Obuszewski, felt they were unjustly convicted and appealed the decision.

 

Mark Goldstone, a highly-regarded First Amendment lawyer, acted as attorney advisor to the pro se defendants during the two trials and agreed to take on the appeal.  He filed an excellent brief challenging the convictions.   The District of Columbia Court of Appeals scheduled oral arguments, and pro se appellants Johnny Barber and Obuszewski argued that the convictions should be overturned, as the U.S. Capitol Police pre-empted their First Amendment rights to petition the government.  The activists urged the court to curb police powers, which proved to be excessive around the country during the Bush-Cheney administration.

 

WHEN: Oral arguments were heard from 11:35 AM to 12:40 PM on Thursday, April 2, 2009

 

WHERE: Sixth Floor, District of Columbia Superior Court, 500 Indiana Ave., NW, Washington, DC

 

WHY: Mark Goldstone’s wife died last week, and he was unable to do oral arguments. But he was present to provide guidance to the activists and informed Judges Noel Kramer, Vanessa Ruiz and Michael Farrell of his situation.

 

Appellant Obuszewski started the process, and was challenged immediately as he was speaking on behalf of the appellants convicted of unlawful assembly: Barfield, Kathryn McClanen and Eve Tetaz.  Ruiz discovered he was not an attorney and thus could not represent other appellants.  Nevertheless, he and Barber were allowed to argue before the court.

 

Obuszewski started with a comment that all presidents, including Lincoln, abused the Constitution in a time of crisis.  Most notoriously under Bush, the police ignored the protections provided under the Bill of Rights.  For example, appellants Barfield and Obuszewski were under surveillance by the Maryland State Police and labeled terrorists in a federal database.

 

In between questions from the judges, Obuszewski pointed out issues raised in the Goldstone brief.  For example, the government amended the unlawful assembly charge by deleting the words “under circumstances which threaten a breach of the peace.” Chief Judge King allowed the amendment, despite defense objections.   The brief indicates this was judicial error, as the government, to convict a defendant of unlawful assembly, must offer evidence of disorderly conduct or an obstruction of the free use of public facilities.  There was no testimony that any of the defendants charged with unlawful assembly engaged in disorderly conduct.  Goldstone cited several cases which affirm the necessity of including a breach of peace provision in an unlawful assembly charge. 

 

Obuszewski urged the judge to consider the arguments in the brief citing case law against guilt by association.  There was never any testimony during the two trials as to individual guilt.  It is typical in D.C. in a mass arrest that police testimony will focus on the group.  The brief argues that guilt must be individualized.  Otherwise, the arrest is illegal and a violation of the defendants’ First Amendment rights.

 

Barber then, in between questions, cited case law to challenge the two police lines set up on Sept. 26, 2006. He was arguing on behalf of himself, Beth Adams, Michelle Grise, Sherrill Hogen, Joan Nicholson, Obuszewski and Tetaz.  While the police claimed there were emergencies, concern about access in the Capitol case and construction in the Russell case, Barber pointed out this did not hold up under cross-examination.  Moreover, the police ignored the criteria demanded by D.C. Code, so it can be surmised that the appellants were arrested because of their antiwar message. The pro se appellant brought up Abney v. District of Columbia and Bloch v. District of Columbia, explaining in the first decision that there was an emergency concern unlike the situation on September 26, and in the second the police erred in setting up a police line pre-emptively.  

 

Assistant U.S. Attorney Sidney Bixler argued the convictions must be upheld.  He argued the Bloch case on Dec. 2, 2004, in  

which the Court overturned a conviction.  Bixler faced a withering array of questions from the judges, most of which expressed a concern that the appellants’ First Amendment rights may have been violated.  The judges expressed skepticism that it was a legitimate concern that the demonstrators might get violent.  And like the trial judge, Bixler was prepared to give deference to the police. In a comical moment, Judge Farrell pointed out that the WASHINGTON POST reported on a loud, raucous demonstration inside Russell on March 31 in support of the Obama budget and attended by several senators.

 

In rebuttal, Obuszewski cleared up the facts of the case, as Bixler misrepresented them in response to questions.  The Capitol affinity group carrying a commemorative coffin had no intent of going inside the building, but wanted to gather near the steps where many people had gathered.  The intent of the other group was to go inside the Hart building to conduct a peaceful prayer service.  But the police stopped the group near the Russell building.  Some people then called their senators’ offices inside Russell and tried to go inside, but were thwarted by the police.  Later the other group did enter Hart.

 

While expressing a concern about the abuse of police powers, Obuszewski was asked by Judge Kramer who should decide who can engage in First Amendment activities? The pro se appellant said the judiciary.  This brought a smile to the judge.

 

Bixler stated the Capitol group could have gathered in a grassy area, but in rebuttal Barber pointed out police testimony confirmed the lobbyists would be nowhere near anyone who could hear or see their antiwar message.  The pro se appellant also corrected Bixler on Cox v. Louisiana, as the Supreme Court overturned a conviction on the grounds that protesters should not seek undue permission from the police when engaging in rights guaranteed by the First Amendment. 

 

After observing oral arguments, Adams who just concluded a walk with a peace group from Massachusetts to the District of Columbia offered this observation: “The appellants clearly represented the arbitrary nature of the police lines and their disruption and obstruction of First Amendment rights.” She added, “It is not only our right, but our obligation as citizens to petition our government for redress of grievances.” The Court of Appeals should rule in the next several months.

 

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