Dan Choi and Robert Feldman

There were several jaw-dropping moments from the Dan Choi trial today, but none more dramatic than the moment Lt. LaChance of the Park Police admitted he was advised by Solicitor Randolph Myers of the Department of Interior to press federal charges against the DADT protesters on November 15 — three hours before they began protesting.

Choi’s defense Attorney Robert Feldman wrestled with Assistant US Attorney Angela George to get a copy of the following letter from Myers, sent at 10:50 am on the morning of November 15, 2010. The protesters didn’t even arrive at the White House until 1:45 pm. LaChance said he first learned of the protest from an email written by the Secret Service and forwarded to him prior to November 15. LaChance said he was told “there were people who were going to chain themselves to the White House fence.” But organizers of the demonstration said they did not publicly disclose anyone would be chaining themselves to the White House fence prior to the demonstration, so it’s not yet known how the Park Police came by that information.

George is fighting furiously to to prevent Feldman from being able to argue a selective prosecution defense, filing a motion with Judge Facciola to exclude it. Judge Facciola said he would not make a decision on that until such time as the defense actually tried to argue selective prosecution, but he did allow Feldman to get a copy of the Myers letter.

White House protesters are routinely charged with local misdemeanors. However the letter indicates that the Park Police made the pre-emptive decision to charge the DADT protesters with federal charges. George insisted for months that the protesters be left with a federal conviction on their records as part of any plea deal before finally dropping that demand. The protesters did, however, have to admit guilt. Choi refused to admit guilt, so the government is currently prosecuting him.

The subject line of the Myers email says it all: “At least two CFR citations may be invoked against protesters who chain themselves to the White House fence.”

From: Myers, Raldolph 11/15/2010, 10:50 am
To: Hodge, Timothy; Guddemi, Charles; MacLean, Robert
Subject: At least two CFR citations may be invoked against protesters who chain themselves to the White House fenceSgt Hodge: 

This follows up on our telephone conversation this morning, to confirm that the Solicitor’s Office believes that the act of chaining oneself to the White House fence violates at least two NPS regulations. First, it could constitute disorderly conduct under 36 CFR 2.34(a)(4), which prohibits anyone A with intent to cause public alarm, nuisance, jeopardy…or knowingly or recklessly creating a risk thereof that creates or maintains a hazardous or physically offensive condition. Second, it could constitute tampering under 36 CFR 2.31(a)(2), which prohibits [t]ampering or attempting to tamper with property …except when such property is under one’s lawful control or possession.

Indeed, while both NPS regulations provide the legal basis that make such chaining illegal, if the violator fails to obey a Park Police order to unchain, you may be free to cite the violator under another charge: NPS=s 36 CFR 2.32(a)(2) which prohibits failure to obey a lawful order. [The act of chaining oneself to the White House fence, in itself, may not technically violate 36 CFR 7.96(g)(5)(vii) insofar as it prohibits signs or placards being tied, fastened, or otherwise attached to or leaned against the White House fence, lamp post or other structures on the White House sidewalk]

The NPS’s regulatory history of its disorderly conduct regulation, found at 47 Federal Register 11598, 11607 (March 17, 1982), explain that [t]he concept of jeopardy is meant to apply to situations or hazards which threaten physical harm or injury. The term nuisance is meant to be construed in accordance with its commonly accepted legal definition. For purposes of this regulation the definition set forth in Blacks Law Dictionary is instructive: That class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, either real or personal, or from his own improper, indecent, or unlawful personal conduct, working an obstruction of or injury to the right of another or to the public, and producing such material annoyance, inconvenience, discomfort, or hurt, that the law will presume resulting damage. Blacks Law Dictionary (5th ed. 1979) Public alarm is meant to prohibit actions which will produce an apprehension of danger or excite with sudden fear. Chaining oneself obviously works as an obstruction or injury to the right of another or to the public insofar as it hinders the views and reactions of security personnel to monitor and protect such an extremely important physical barrier of the White House complex, and may pose a hazard which threatens physical harm or injury, especially in this sensitive post-911 world where explosive-laden persons have breached governmental secured areas.

The NPS’s regulatory history of its tampering regulation, found at 48 Federal Register 30252, 30270 June 30, 1983), explained that this selection A is designed to address incidents where unauthorized manipulation of the property, real property or the component parts thereof has occurred or is occurring, and the elements of other criminal offenses such as theft, trespassing, burglary or vandalism have not been realized. The National Park Service views the utilization of this section as a means to prevent unauthorized activities from developing into more serious offenses. WE believe that chaining oneself to a fence constitutes such an unauthorized manipulation of Federal property.

This is consistent with Green v Lujan, No. 90-2293 (D.D.C. February 11, 1991 which cites Restatement (Second) of Torts “202, 821B (1965, 1979)’s public nuisance as an unreaonable interference with a right common to the general public including but not limited to conduct which is prescribed by a statute, ordinance or administrative regulation. Indeed, demonstrators who have chained themselves in public areas or on private property have been convicted under various state laws. In People of the State of New York v. Berardi, 690 N.Y.S.2nd 916 (N.Y. City Crim. Ct. 1999), the court held that New York’s disorderly conduct law applied where demonstrators chained themselves front of a department store’s doorway, finding that the chaining caused public inconvenience, annoyance or alarm. In Huffman and Wright Logging Co. v. Wade, 857 P.2d 101 (Oregon 1993) the court noted the earlier convictions of demonstrators, who chained themselves to logging equipment, in violation of the Oregon criminal mischief law that prohibits tampering or interfering with property of another with an intent to cause substantial inconvenience to another. In State of North Dakota v. Purdy, 491 N.W.2d 402 (North Dakota 1992), the court affirmed a conviction for physical obstruction of a government function funder North Dakota law, where the demonstrators used cryptonite locks to lock themselves together in an abortion clinic, finding that the act of locking themselves together was to impede or hinder police and where it took three hours for locksmiths to safely remove them.

While we believe that chaining oneself violates 36 CFR2.34(a)(4) and 36 CFR2.31(a)(2), we will defer to prosecutor’s assessment of the facts of the particular case as to what charge they proceed with. And if a prosecutor elects to go forward with some other charge, their changing of the charge can negate the legality of the officer’s initial charge, since it has been long recognized that “an arrest will be upheld if probable cause exists to to support arrest for an offense [even if] that is not denominated as the reason for the arrest by the arresting officer.” United States v. Joyner, 492 F.2d 655, 656(D.D. Cir.1974). See also Washington Mobilization Comm. v. Cullinane, 566 F.2d 107, 123 (D.C. Cir. 1977) (“A policeman on the scene cannot be expected to assay the evidence with the technical precision of a prosecutor drawing an information.”); Christensen v. United States , 259 F.2d 192, 193 (D.C. Cir. 1959) (“In determining wither there was probable cause for the arrest, we must view the situation as it appeared to ‘the eyes of reasonable, cautious and prudent police officer under the circumstances of the moment.’”).

I hope that this information is useful. I have no objections if you share this with prosecutors. If you share this with prosecutors. I you or they have any questions, please do not hesitate to contact me at (202) 208-4338.

Randy Myers

Photo by Brad