Maureen Dowd’s latest New York Times column, “No Stars, Just Cuffs,” describes what appears to be a terrible violation of the First Amendment:
In World Wars I and II, gold star mothers were the queens of their neighborhoods, the stars in their windows ensuring that they would be treated with great respect for their sacrifice in sending sons overseas to fight and die against the Germans and Japanese.
Instead of a gold star, Sue Niederer, 55, of Hopewell, N.J., got handcuffed, arrested and charged with a crime for daring to challenge the Bush policy in Iraq, where her son, Army First Lt. Seth Dvorin, 24, died in February while attempting to disarm a bomb.
She came to a Laura Bush rally last week at a firehouse in Hamilton, N.J., wearing a T-shirt that blazed with her agony and anger: “President Bush You Killed My Son.”
Mrs. Niederer tried to shout while the first lady was delivering her standard ode to her husband’s efforts to fight terrorism. She wanted to know why the Bush twins weren’t serving in Iraq “if it’s such a justified war,” as she put it afterward. The Record of Hackensack, N.J., reported that the mother of the dead soldier was boxed in by Bush supporters yelling “Four more years!” and wielding “Bush/Cheney” signs. Though she eventually left voluntarily, she was charged with trespassing while talking to reporters.
The moment was emblematic of how far the Bushies will go to squelch any voice that presents a view of Iraq that’s different from the sunny party line, which they continue to dish out despite a torrent of alarming evidence to the contrary.
Sounds bad, doesn’t it? As Brian Leiter puts it in his understated way, “Sieg heil, American style“? It seems bad enough that I began to wonder if it could have been quite as bad as Dowd suggests. I know this will shock VC readers, but a bit of google and Westlaw research suggests it wasn’t.
To begin with, I am unsure how Dowd reaches the conclusion that Niederer “eventually left voluntarily.” According to Niederer herself, as reported here, as soon as she started shouting “it became chaotic and I was pushed and shoved.” “[Secret Service agents] engulfed me. It wasn’t plain, ordinary folks, but people in suits with earphones.” The Secret Service agents escorted her to the exit of the building. Once near the exit, Niederer “refused to leave,” according to this CNN.com report:
As the Hamilton police and Secret Service agents surrounded her and reporters pressed her with questions, she held her ground, claiming “I had my ticket” to attend the speech by the first lady.
Police subsequently handcuffed her and she was led away to a nearby van. As she was escorted, she repeatedly shouted “Police brutality” and demanded to know her rights and the charges.
Later, she was charged with defiant trespass and released.
Hmm, so much for leaving voluntarily. Well, what about the basis for the trespass charge? Was Niederer’s arrest a flimsy pretext for suppressing anti-Bush views, as Dowd suggests, or was there a solid basis for a trespass charge? We get a few more details of the facts from the New York Daily News, which reports Niederer’s description of what happened as follows:
“The police said I was trespassing because I was blocking an exit from the hall while I spoke to reporters,” [Niederer] said.
“I said how could I be trespassing when I had an entry card to be there? This is a democratic country. I should have the right to say what I want at all times, and not be arrested because my thoughts are different to the President’s.”
. . . .
“The police were very nice to me,” she said. “I don’t think they wanted to arrest me, but they did what they felt they had to do. I’m expecting the charge to be dismissed.”
(This is an aside, but is anyone else struck by the fact that Niederer “repeatedly shouted ‘police brutality'” while she was being arrested but soon afterwards volunteered that “the police were very nice to me”? Oh well, back to the story.) We get still more details about Neider’s theory of why she was not trespassing from the Asbury Park Press:
“I had a ticket to get in,” said Niederer, adding that Hamilton police kept her ticket as evidence. “I was in there legitimately.”
Niederer said she obtained a ticket by going to Republican campaign headquarters Tuesday, as a local newspaper had advised readers to do. She said some campaign workers recognized her as an outspoken anti-war activist, but still gave her a ticket. No one stopped Niederer when she checked in by name at yesterday’s event.
Okay, those are the facts, let’s now turn to the law. Niederer was charged under New Jersey’s defiant trespasser statute, N.J.S.A. 2C:18-3(b), which prohibits leaving private property after the owner/operator of the property has told you to leave:
Defiant trespasser. A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he . . . remains in any place as to which notice against trespass is given by . . . [a]ctual communication to the actor.
Defenses. It is an affirmative defense to prosecution under this section that . . . [t]he structure was 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 structure[.]
Under New Jersey precedents, it seems likely that Niederer violated this provision. The fact that she had a ticket to enter the firehouse for the speech doesn’t answer the question, as permission granted can also be revoked. For example, in State v. Brennan, 344 N.J.Super. 136, 780 A.2d 585 (N.J. App. Div. 2001), the defendant became disruptive at a public meeting and was told by the police to leave. The defendant refused, and was charged and convicted of defiant trespass. The Appellate Division affirmed the conviction, holding that refusal to obey a reasonable police order to leave violated the statute:
Although defendant had been lawfully on the premises, when the police officers asked him to leave, that privilege was revoked.
Id. at 146. Similarly, in State v. Dargon, 165 N.J.Super. 500, 398 A.2d 891 (N.J. App. Div. 1978), union representatives were granted permission to come to a private hospital to represent the union prior to the opening of a unionization vote. When the polls opened, the representatives decided to stay to monitor the vote. After they were asked to leave and refused, the representatives were arrested and charged with defiant trespass. The Appellate Division affirmed the convictions:
Although defendants entered the premises with the permission of the hospital for the limited purpose of the preliminary representation of the Association prior to the opening of the polls, the hospital authorities had the right to ask them to leave the building thereafter. And whether they were in the lobby or elsewhere in the building, their deliberate and persistent refusal to leave pursuant to the several requests rendered them wilful trespassers within the interdiction of the foregoing statute.
Id. at 503-04.
Based on these precedents, it seems that the ticket Niederer received to attend the speech did not give her an inalienable right to stay on the premises. Although we don’t know the facts with enough specificity to know for sure, it seems that once she was told to leave by officers acting reasonably within the scope of their duties, Niederer’s permission to remain was revoked.
But did Niederer actually know that she did not have permission to stay on the premises? The statute was not violated unless Niederer knew that she was “not licensed or privileged” to remain on the property. Niederer knew that she had been told to leave, but presumably will claim that she didn’t know that being told to leave was enough to make her presence unauthorized. However, under New Jersey law what matters is her knowledge of the relevant facts, not Niederer’s beliefs that the ticket trumped as a matter of law: “Neither knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the code so provides.” N.J.S.A. 2C:2-2(d). Although I couldn’t find any cases on point, my understanding is that this means that Niederer can be prosecuted if she knew she had been told to leave by the authorities, even if she had a good faith (but incorrect) belief that the ticket gave her a legal right to remain on the premises.
Of course, this doesn’t mean that Niederer should be prosecuted. I have tremendous sympathy for her situation; she has suffered a tragic loss. But at least on the facts that we know, Maureen Dowd’s statement that Niederer was “handcuffed, arrested and charged with a crime for daring to challenge the Bush policy in Iraq” seems a bit hard to square with reality.
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