Free Speech Trial

[Russell Kanning]

Yep

[hook]

Just to clear things up. The date on April 5 is a hearing on whether I can represent Kat or Russell or both. I am to turn in a memorandum on the issue by Monday. That date is not a trial. I would like the NHCLU to get back to me so I can just co-chair 2nd attorney with them and fix this problem of me being counsel. They have told me 4 times already they will call me back and have not done so. I dont know what their problem is. In the meantime I am working on finalizing a motion to dismiss. I would ideally like to be heard on it on April 5 but I am not sure if I can as the judge's letter to me expressed how a motion must be accompanied by an affidavit stating the facts are true. I had intended to rely on the police report but the prosecutor refuses to provide it to me as the court temporarily refused to allow me to act as counsel.

You might want to cite the following case in your motion to dismiss.


THE STATE OF NEW HAMPSHIRE v. DAVID NICKERSON & a.

No. 80-058

Supreme Court of New Hampshire

Rockingham

Decided December 17, 1980


1. Constitutional Law ? Freedom of Speech and Press ? Disorderly Conduct
   Laws
     Criminal code provision that "a person is guilty of disorderly conduct
   if he refuses to comply with a lawful order of the police to move from a
   public place" is unconstitutional, as it sweeps unnecessarily broadly
   into the constitutionally protected area of free speech. RSA 644:2 I.

2. Constitutional Law ? Freedom of Speech and Press ? Disorderly Conduct
   Laws
     Where disorderly conduct statute was held unconstitutional under first
   amendment, convictions of nuclear power protestors charged with violating
   the statute, in that they constituted a traffic hazard when they stood on
   a traffic island outside a nuclear power plant and held a protest
   demonstration and refused to move upon order of police, would be
   reversed. RSA 644:2 I.

3. Constitutional Law ? Freedom of Speech and Press ? Construction of Laws
     When a statute threatens a fundamental right, such as freedom of
   speech, special judicial scrutiny is required.

4. Constitutional Law ? Due Process ? Statutory Vagueness
     Laws which by their broad or vague language leave to the police
   unfettered discretion in enforcement are invalid, particularly when their
   potential for use in the suppression of first amendment rights is great.

5. Sheriffs and Constables ? Competing Duties
     State police have competing concerns of maintaining safe travel
   conditions for traffic and protecting first amendment rights of those
   using the streets to protest or otherwise express their views.

6. Constitutional Law ? Due Process ? Generally
     Rights under state and federal constitutions may not be summarily
   circumscribed.

7. Constitutional Law ? Police Orders ? Failure To Obey
     One cannot be punished for failing to obey the command of a police
   officer if that command is violative of federal constitution.

8. Constitutional Law ? Freedom of Speech and Press ? Construction of Laws
     New Hampshire criminal statutes must take into account the fact that
   the people must be afforded an opportunity to engage in the peaceful
   expression of their views, and the state has the duty to see to it that
   when a group of people in the state choose to exercise such rights the
   opportunity to do so is maintained.

  Gregory H. Smith, acting attorney general (Martha V. Gordon, assistant
attorney general, orally), for the State.

  James E. Duggan, of Concord, by brief and orally, for the defendants.

  BROCK, J.

  [1, 2] This is a criminal case involving a total of nine defendants who
were charged with disorderly conduct (RSA 644:2 I) because of their
participation in a protest demonstration directly outside the gates of the
Seabrook Nuclear Power Station on August 25, 1978. After a consolidated
jury trial in the Superior Court (Randall, J.), each of the nine defendants
was found guilty. The defendants then filed a notice of appeal with this
court asserting that their arrests and convictions were in violation of the
rights guaranteed to them under the first and fourteenth amendments of the
United States Constitution and part 1, articles 22 and 32 of our own State
Constitution. Specifically, the issue on this appeal is whether RSA 644:2 I
is void for vagueness or overbreadth. Because we conclude that the language
of the statute sweeps unnecessarily broadly into the constitutionally
protected area of free speech, we hold that the portion of the statute at
issue in this case is unconstitutional and reverse the defendants'
convictions.

  On August 25, 1978, the defendants, with a number of other people,
assembled on a public place, a traffic island located directly outside the
main entrance to the Seabrook Power Station. The exact number of people in
the group is not known, but one police witness testified that it could have
been thirty.

  The traffic island is triangular in shape with one side bordering Route 1
and the other two sides bordering entrance and exit roads to the nuclear
power plant. Some members of the group erected a crude information booth
and posted signs advocating the use of hydroelectric, wind and solar power
as alternative energy sources to nuclear power. Other members of the group
distributed leaflets, held signs, or simply stood around. In general, all
of this activity was aimed at protesting the construction of the nuclear
power plant.

  During this "occupation" of the traffic island, the protestors were
observed by twenty-six members of the State Police. Twenty minutes after
the "occupation" began, the officer in charge of the State Police ordered
all of the protestors to leave the traffic island and advised them that
should they fail to do so, they would be arrested for disorderly conduct.
This order was repeated five minutes later but many people remained on the
island. At this point, the nine defendants, along with several others, were
arrested.

  At trial the officer in charge of the arrests explained the reason for
the arrests as follows:

    "[T]hey were creating a hazard to the traffic there
    because [of] their presence, not only by being on and off
    the island there, but the fact that people driving cars
    down there, it was just human nature for them to be
    looking over to the right or left, and I was afraid there
    was going to be an accident there, someone was going to
    run into one [of] them there."

No evidence was offered, however, to indicate which, if any, of the
individual defendants actually stepped onto the highway.

  [3, 4] The State concedes that the sole statutory basis for the
defendants' arrests and convictions is the following pertinent portion of
RSA 644:2 I:

      "A person is guilty of disorderly conduct if

      I. [H]e refuses to comply with a lawful order of the
    police to move from a public place . . . ."

(Emphasis added.) The definition of "lawful order" is not provided in the
statute. Reference to comments made by the commission for the revision of
criminal laws relating to the disorderly conduct statute does, however,
provide some insight. Those comments were provided to the General Court
when the statute was being considered by the legislature and states that the statute "is designed to
deal with such situations as where an individual is disturbing a public
gathering and refuses to remove himself after having been ordered to do so
by the police." RSA 644:2 Comments to 1969 Report. It is evident, however,
that both the commission's comment to the statute and the language of the
statute itself are set in general terms and can conceivably apply to a
broad spectrum of "such situations." The situation to which the statute was
applied in the case before us involved a group of people who were engaged
in an apparently peaceful and orderly public expression of their views on
nuclear power. This issue has been the subject of substantial public
attention in this State and elsewhere for several years. It is therefore
obvious that this case involves the issue of freedom of speech. When a
statute "threatens a fundamental right such as freedom of speech . . .
special judicial scrutiny is required." State v. Piper, 117 N.H. 64, 65,
369 A.2d 199, 200 (1977). Moreover, "[l]aws which by their broad or vague
language leave to the police unfettered discretion in enforcement are
invalid, particularly when their potential for use in the suppression of
first amendment rights is great." State v. Albers, 113 N.H. 132, 134,
303 A.2d 197, 199 (1973).

  In this State "[t]he people have a right, in an orderly and peaceable
manner, to assemble and consult upon the common good, give instructions to
their representatives, and to request of the legislative body, by way of
petition or remonstrance, redress of the wrongs done them, and of the
grievances they suffer." N.H. CONST. pt. 1, art. 32. Likewise, the first
amendment to the United States Constitution also protects the right to
freedom of speech. It is not surprising that both the State and Federal
Constitutions address themselves to the right of the people to peacefully
assemble and raise public attention to matters they consider of importance
because "[m]aintenance of the opportunity for free political discussion is
a basic tenet of our constitutional democracy." Cox v. Louisiana,
379 U.S. 536, 552 (1965).

  With these factors in mind we proceed to inquire whether RSA 644:2 I is
so broad as to invade the constitutionally protected area of speech.

  [5] It is undisputed that the police ordered the defendants to leave the
traffic island because of a perceived traffic hazard. This perceived hazard
was the basis for the alleged "lawful order" to move from a public place.
No one can seriously dispute the fact that such concerns should be
paramount in the minds of the State Police. See generally State v. Albers,
113 N.H. 132, 138,

303 A.2d 197, 201-02 (1973). By the same token, however, the police should
be equally concerned with the maintenance of constitutionally safeguarded
liberties. Complicating their duties even further is the fact that the
guarantee of the first amendment does not mean "that people who want to
propagandize protests or views have a constitutional right to do so
whenever and however and wherever they please." Greer v. Spock,
424 U.S. 828, 836 (1976), quoting Adderley v. Florida, 385 U.S. 39,
48 (1966). The competing concerns of maintaining safe travel conditions for
traffic on public streets and the protection of first amendment liberties
has often been an issue resolved by the calm deliberations of the courts on
the basis of individual fact situations. See Cox v. Louisiana,
379 U.S. 536, 553-58 (1965), and cases cited therein; State v. Albers
supra. Calm and lengthy deliberations, however, are not often a viable
procedure for the policeman on the street who is faced with a perceived
safety hazard. His immediate concern is the swift and safe resolution of
the hazard according to the statutory powers available to him. For that
reason, when constitutional rights of the people are involved, a broadly
drawn and vague statute provides as little guidance to the police officer
as it does to the public.

  In the case before us, there are only two factors which it is alleged
caused a traffic safety hazard: some unidentified members of the group were
stepping out into the roadway and passing motorists were being distracted
by the activities. These concerns caused the police to issue the order to
disperse. Apparently, no individual defendant was arrested for obstructing
traffic, RSA 644:2 II(e), or for violating the latter part of RSA 644:2 I;
"knowingly creat[ing] a hazardous or physically offensive condition by any
act which serves no legitimate purpose."

  Rather, the police, understandably concerned about alleviating a
potentially hazardous situation, employed the wide discretion given them
under RSA 644:2 I and ordered the group to leave. The statute does not
premise the giving of a lawful order upon any particular conduct. Moreover,
the order apparently need not be based on any type of conduct at all; mere
presence in a public place seems sufficient under the broad terms of the
statute. Our concern therefore becomes whether a narrower order and/or
statute could have afforded the defendants a continued opportunity to
present their views and at the same time insured the safety of both the
passing motorists and the demonstrators themselves. In other words, the
question is whether the statute's language leaves the police with
"unfettered discretion." State v. Albers. 113 N.H. 132, 134, 303 A.2d 197,
199 (1973).


  [6, 7] Clearly, police concern over individuals stepping out into the
street could have been dealt with by simply ordering members of the group
not to step out into the street. Because of the obvious danger to the
demonstrators themselves, and the hazard to motorists, the State does have
the authority to regulate such conduct. See, e.g., Cox v. Louisiana,
379 U.S. 536 (1965); State v. Albers supra. Acting under the literal terms
of the statute, however, the police sought to alleviate a potential traffic
hazard by ordering the demonstrators to disperse. Rights afforded to the
people under the State and Federal Constitutions may not be so summarily
circumscribed. See Cox v. Louisiana, supra at 551-52. When peaceful,
orderly public comment is involved, the police have a duty to take
reasonable affirmative steps to insure the maintenance of the protestors'
rights to freedom of speech and expression. See Edwards v. South Carolina,
372 U.S. 229, 231-38 (1963). Directing traffic is one such affirmative
step. We therefore share the United States Supreme Court's view that a
statute which "makes it a criminal offense for any person `to refuse or
fail to comply with any lawful order . . . of a police officer' . . . [is]
so broad as to evoke constitutional doubts of the utmost gravity."
Shuttlesworth v. Birmingham, 382 U.S. 87, 93 (1965). Moreover, "one cannot
be punished for failing to obey the command of an officer if that command
is itself violative of the Constitution." Wright v. Georgia, 373 U.S. 284,
291-92 (1963). We therefore hold that the language: "[H]e refuses to comply
with a lawful order of the police to move from a public place . . ."
contained in RSA 644:2 I is unconstitutional under the first amendment to
the United States Constitution and part 1, articles 22 and 32, of our State
Constitution.

  [8] The criminal statutes of this State must take into account the fact
that the people must be afforded an opportunity to engage in the peaceful
public expression of their views. It is equally true that the State has the
duty to see to it that when a group of people in this State choose to
exercise such rights the opportunity to do so is maintained. See Edwards v.
South Carolina, 372 U.S. at 238. Such a group, engaged in the peaceful and
otherwise lawful exercise of their constitutional right, has as much right
to police protection as other people and institutions in the community. See
Cox v. Louisiana, 379 U.S. at 551, citing Edwards v. South Carolina,
372 U.S. at 237 and Watson v. Memphis, 373 U.S. 526, 535 (1963).

  The State has the authority to pass statutes that vest a limited amount
of discretion in police officers to insure and protect travel
Page 827
on the streets. Cox v. Louisiana, 379 U.S. at 554; see State v. Albers,
113 N.H. 132, 303 A.2d 197 (1973). In this case, however, there was no
evidence to suggest that the State Police, had they chosen to do so, could
not have insured the safe flow of traffic without having to resort to
arrests and criminal charges. Nothing herein is to be construed as excusing
any person from obeying any lawful orders of the police under RSA ch. 262-A.

  Reversed.

  All concurred.

[Russell Kanning]

How much more plain can it be?

[JonM]

Well, your problem is you weren't interfering with traffic.  That was your first mistake . . .

[Lloyd Danforth]

They were interferring with the 'trafficing'  of the Bush administration's insanity

[Dave Ridley]

I'm still wondering what the contact information is for the prosecutor and who the prosecutor is.  We got good results in the Scott Talbot case when the prosecutor found out scott had friends and supporters who were starting to get active and starting to question the whole process.

[Russell Kanning]

The Lt. was the only guy we have spoken too so far.

[danhynes]

Here is the prosecutor's information: Gregory Muller
City of Manchester
Office of the City Solicitor
(603) 624-6523
fax 603 624-6528
email gmuller@manchesternh.gov

[president]

Here is the prosecutor's information: Gregory Muller
City of Manchester
Office of the City Solicitor
(603) 624-6523
fax 603 624-6528
email gmuller@manchesternh.gov

Did you do the request for discovery, or tell russell and kat to do it?

[Kat Kanning]

Just got a call from the NHCLU Lawyer...Vogelman is his name.  He's going to meet with us next Thursday and wants to represent both Russell and I.

BTW, if people want to help, it might be nice to make a donation to the NHCLU:

http://www.nhclu.org/giving.htm

[JonM]

No paypal?  What century are these guys in?!?

If you send a check, make sure they know it's because of Kat and Russell!

[Russell Kanning]

I bet they will be familiar with many of us in a short time. We might all need a 1st amendment lawyer as each of the presidential hopefulls come rolling through our state.

[Dreepa]

I think only front runners get SS protection.
I can't wait for prez wannabees coming rolling in.  We can ask them all sorts of questions.

[Dave Ridley]

what time is the apr 5 hearing, and can someone please post that to the top of this thread

[Kat Kanning]

8:15