Submitted by Gene Howington, Guest Blogger
Coincidentally and often, abuses of civil or human rights in the United States derive from the same source as law made via precedent. That source is vague or overly broad legislation and imprecise use of language. As a matter of good drafting practice, this is why precision language is encouraged – to provide clarity and minimize ambiguity in the letter of the law. When vague laws create issues in court, the court either makes a ruling creating precedent and consequently a plan of action for how to address the issue moving forward although occasionally a law is overturned in toto for vagueness and the legislature can take a fresh swing writing the law.
However, it seems to be a trend that vague or overly broad language could be fairly described as being purposefully adopted allowing “wiggle room” for Federal authorities to potentially abuse civil and human rights under the color of authority. This is a dangerous practice. The issue of vagueness is at the heart of the NDAA scandal as recently discussed on the blog here, here and here. While the NDAA poses a threat to your 4th, 5th and 6th Amendment rights, the newest attack of vague language is aimed at your 1st Amendment rights of Freedom of Speech, Freedom of Assembly and Freedom to Petition. It is found in the pending legislation of H.R. 347, innocuously titled the “Federal Restricted Buildings and Grounds Improvement Act of 2011”. As currently worded, it might as well have been called the “Federal We’re Too Important To Be Annoyed By Your Protest Act of 2011” or (as described by Rep. Justin Amash (R-MI), one of the few Representatives to vote against the bill) the “First Amendment Rights Eradication Act” because it effectively outlaws protests near people who are “authorized” to be protected by the Secret Service. Being that the bill passed on a House vote 388-3 and is currently coming out of committee in the Senate, its progress is something civil libertarians and activists may want to monitor. UPDATE: President Obama signed H.R. 347 into law on March 9, 2012.
This is H.R. 347 (proposed 18 U.S.C. § 1752) in its entirety as it is coming out of committee:
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Federal Restricted Buildings and Grounds Improvement Act of 2011’.
SEC. 2. RESTRICTED BUILDING OR GROUNDS.
Section 1752 of title 18, United States Code, is amended to read as follows:
‘Sec. 1752. Restricted building or grounds
‘(a) Whoever–
‘(1) knowingly enters or remains in any restricted building or grounds without lawful authority to do so;
‘(2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions;
‘(3) knowingly, and with the intent to impede or disrupt the orderly conduct of Government business or official functions, obstructs or impedes ingress or egress to or from any restricted building or grounds; or
‘(4) knowingly engages in any act of physical violence against any person or property in any restricted building or grounds;
or attempts or conspires to do so, shall be punished as provided in subsection (b).
‘(b) The punishment for a violation of subsection (a) is–
‘(1) a fine under this title or imprisonment for not more than 10 years, or both, if–
‘(A) the person, during and in relation to the offense, uses or carries a deadly or dangerous weapon or firearm; or
‘(B) the offense results in significant bodily injury as defined by section 2118(e)(3); and
‘(2) a fine under this title or imprisonment for not more than one year, or both, in any other case.
‘(c) In this section–
‘(1) the term ‘restricted buildings or grounds’ means any posted, cordoned off, or otherwise restricted area–
‘(A) of the White House or its grounds, or the Vice President’s official residence or its grounds;
‘(B) of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or
‘(C) of a building or grounds so restricted in conjunction with an event designated as a special event of national significance; and
‘(2) the term ‘other person protected by the Secret Service’ means any person whom the United States Secret Service is authorized to protect under section 3056 of this title or by Presidential memorandum, when such person has not declined such protection.’. [emphasis added]
Contrast this with how 18 U.S.C. § 1752 is currently worded:
18 U.S.C. § 1752 : US Code – Section 1752: Temporary residences and offices of the President and others
(a) It shall be unlawful for any person or group of persons –
(1) willfully and knowingly to enter or remain in
(i) any building or grounds designated by the Secretary of
the Treasury as temporary residences of the President or other
person protected by the Secret Service or as temporary offices
of the President and his staff or of any other person protected
by the Secret Service, or
(ii) any posted, cordoned off, or otherwise restricted area
of a building or grounds where the President or other person
protected by the Secret Service is or will be temporarily
visiting,
in violation of the regulations governing ingress or egress
thereto:
(2) with intent to impede or disrupt the orderly conduct of
Government business or official functions, to engage in
disorderly or disruptive conduct in, or within such proximity to,
any building or grounds designated in paragraph (1) when, or so
that, such conduct, in fact, impedes or disrupts the orderly
conduct of Government business or official functions;
(3) willfully and knowingly to obstruct or impede ingress or
egress to or from any building, grounds, or area designated or
enumerated in paragraph (1); or
(4) willfully and knowingly to engage in any act of physical
violence against any person or property in any building, grounds,
or area designated or enumerated in paragraph (1).
(b) Violation of this section, and attempts or conspiracies to
commit such violations, shall be punishable by a fine under this
title or imprisonment not exceeding six months, or both.
(c) Violation of this section, and attempts or conspiracies to
commit such violations, shall be prosecuted by the United States
attorney in the Federal district court having jurisdiction of the
place where the offense occurred.
(d) The Secretary of the Treasury is authorized –
(1) to designate by regulations the buildings and grounds which
constitute the temporary residences of the President or other
person protected by the Secret Service and the temporary offices
of the President and his staff or of any other person protected
by the Secret Service, and
(2) to prescribe regulations governing ingress or egress to
such buildings and grounds and to posted, cordoned off, or
otherwise restricted areas where the President or other person
protected by the Secret Service is or will be temporarily
visiting.
(e) None of the laws of the United States or of the several
States and the District of Columbia shall be superseded by this
section.
(f) As used in this section, the term “other person protected by
the Secret Service” means any person whom the United States Secret
Service is authorized to protect under section 3056 of this title
when such person has not declined such protection.”
As the bill relevantly cites to 18 U.S.C. § 3056, selected portions of that code read:
18 U.S.C. § 3056 : US Code – Section 3056: Powers, authorities, and duties of United States Secret Service
(a) Under the direction of the Secretary of Homeland Security,
the United States Secret Service is authorized to protect the
following persons:
(1) The President, the Vice President (or other officer next in
the order of succession to the Office of President), the
President-elect, and the Vice President-elect.
(2) The immediate families of those individuals listed in
paragraph (1).
(3) Former Presidents and their spouses for their lifetimes,
except that protection of a spouse shall terminate in the event
of remarriage unless the former President did not serve as
President prior to January 1, 1997, in which case, former
Presidents and their spouses for a period of not more than ten
years from the date a former President leaves office, except that
–
(A) protection of a spouse shall terminate in the event of
remarriage or the divorce from, or death of a former President;
and
(B) should the death of a President occur while in office or
within one year after leaving office, the spouse shall receive
protection for one year from the time of such death:
Provided, That the Secretary of Homeland Security shall have the
authority to direct the Secret Service to provide temporary
protection for any of these individuals at any time if the
Secretary of Homeland Security or designee determines that
information or conditions warrant such protection.
(4) Children of a former President who are under 16 years of
age for a period not to exceed ten years or upon the child
becoming 16 years of age, whichever comes first.
(5) Visiting heads of foreign states or foreign governments.
(6) Other distinguished foreign visitors to the United States
and official representatives of the United States performing
special missions abroad when the President directs that such
protection be provided.
(7) Major Presidential and Vice Presidential candidates and,
within 120 days of the general Presidential election, the spouses
of such candidates. As used in this paragraph, the term “major
Presidential and Vice Presidential candidates” means those
individuals identified as such by the Secretary of Homeland
Security after consultation with an advisory committee consisting
of the Speaker of the House of Representatives, the minority
leader of the House of Representatives, the majority and minority
leaders of the Senate, and one additional member selected by the
other members of the committee.
The protection authorized in paragraphs (2) through (7) may be
declined.
(d) Whoever knowingly and willfully obstructs, resists, or
interferes with a Federal law enforcement agent engaged in the
performance of the protective functions authorized by this section
or by section 1752 of this title shall be fined not more than
$1,000 or imprisoned not more than one year, or both.” [emphasis added]
The root of the problem with this legislation lies in the omission of the word “willfully” to make the condition simply “knowingly” in conjunction with the phrase “or so that, such conduct, in fact”. The use of this conditional phrase effectively nullifies the intent component in the absence of “willfully” being explicitly stated. You may not have willfully or knowingly done anything other than exercise your free speech and free assembly rights, but if you “in fact” “[impede] or [disrupt] the orderly conduct of Government business or official functions”, you can be arrested and charged under this proposed revision of 18 U.S.C. § 1752 whether the impediment or disruption was willful or not. The reworded law as the bill is currently formulated effectively does away with intent as a requirement in addition to expanding the meaning of the term ‘restricted buildings or grounds’ to mean virtually any place in proximity to or place proper a government function or an “event of national interest” is taking place. This would allow for the arrest of protesters just about anywhere. Outside political rallies, near the hotels of visiting foreign dignitaries, outside sporting or other public events like the Super Bowl . . . you get the idea.
Is this an instance of vague/imprecise language creating the potential for civil rights abuses?
Or it this an instance of purposefully vague/imprecise language to allow the government to infringe upon your rights to free speech, assembly and petition?
What do you think?
Kudos: ekeyra
Source(s): Techdirt, Reason.com, H.R. 347, 18 U.S.C. § 3056, The Inquisitr
~Submitted by Gene Howington, Guest Blogger
mespo,
Perhaps. Then again, vagueness does invite discussion. To me, the phrase “proceeding from a conscious motion of will” points directly to mens rea as it addresses state of mind. How does the removal of the mens rea component from the law afford more (and not less) defense? I don’t think it does.
AY:
I’m quoting you on your second comment. That is pricelessly true.
The only thing uniform in the federal courts dredd is the judge’s salary…..
What mespo said….. There is a great difference in the use….
Also Gene, I rspectfully disagree with your distinction of “knowingly” versus “knowingly and willfully.”
Black’s Law Dictionary defines the word “knowingly” as “with knowledge; consciously; intelligently; willfully; intentionally. An individual acts ‘knowingly’ when he acts with awareness of the nature of his conduct.” BLACK’S LAW DICTIONARY 827 6TH ED.
Black’s Law Dictionary defines the term “willful” as “proceeding from a conscious motion of will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary.” BLACK’S LAW DICTIONARY 1599 6TH ED.
Willfully is when the unlawful act was done deliberately and with knowledge, but does not require proof of evil intent. Knowingly is when the defendant acted with knowledge of the evil nature of his volitional (i.e, willing) act. Removing the term “willfully” suggests that an awareness of a malicious or evil intent will have to be proven thus according the citizen more rather than fewer defenses.
Add to what Gene points out in his post, the study results about federal sentencing, and “uniform” is a word that is meaningless in federal courts now.
“I note that protesters at congressional committee meetings are not dissuaded by the terms or intent of this law.”
Although by its vague terms, they very well could be, mespo.
“I agree the law is vague but vagary is resolved in favor of the citizen constitutionally speaking.”
I agree, but since Citizens United where the court resolved against individual citizens by expanding corporate personality, I don’t think this is a given anymore. “[V]agary [should be] resolved in favor of the citizen constitutionally speaking”, but is it in practice anymore?
I’m neither trusting nor certain that it is.
Gene,
Vagueness has worked to the lower level prosecutors benefit for sometime now….. Unless you are the government…. You are screwed until the conviction is over turned…..
Gene:
As you note, restricted building is defined as:
‘‘(c) In this section—
9 ‘‘(1) the term ‘restricted buildings or grounds’
10 means any posted, cordoned off, or otherwise re
11 stricted area—
12 ‘‘(A) of the White House or its grounds, or
13 the Vice President’s official residence or its
14 grounds;
15 ‘‘(B) of a building or grounds where the
16 President or other person protected by the Se
17 cret Service is or will be temporarily visiting; or
18 ‘‘(C) of a building or grounds so restricted
19 in conjunction with an event designated as a
20 special event of national significance; and
This doesn’t seem particularly unreasonable to me in an era of terrorism by political assassination. Also, I am aware of no First Amendment protection for using a protest to disrupt a government function in such a “restricted” public building. I don’t think the law is read in contravention of the First Amendment but complementary with it. While you can certainly voice your protest in a “restricted” government building you have no right to disrupt the proceedings going on therein or injure or threaten to injure anyone else. I agree the law is vague but vagary is resolved in favor of the citizen constitutionally speaking. I note that protesters at congressional committee meetings are not dissuaded by the terms or intent of this law.
it’s time to eat, Grandma!
or is it
time to eat Grandma!
Gene,
What rafflaw said.
When Pres. Bush came to Fl for the WTO talks in Miami we first saw the cordoning off and placement of ‘free speech zones’ well removed from any places where they would be having the meetings…we also saw the Darth Vader garbed riot police and tanks even before there were anything even remotely like demonstrations.
So I guess NOW, that can be viewed as ‘Legal’?
Can’t wait for the signing statement….. Ya think since Marbury we could get an advisory opinion… Everything else has taken power grabs….. Now it’s time for the Sct……
What do I think?! It is hard to think clearly after reading this post. Fear, sadness, frustration, confusion and a sense that members of the US Congrss have lost all sense of their oath to protect the Constitution from all enemies foreign and domestic. There is no question the the vagueness was deliberate. The continued constriction of the freedom of flesh and blood people(but not corporations) is open obvious and supported by both parties. Apparently Foreign enemies of the Constitution are no longer necessary; we elect them.
It should be noted here that vague or precise the current crop of laws, practices and abuses of police power have already made the quiet peaceful petitioning of government officials a dangerous game. It is a shame.
Gene,
It is purposeful and intentionally designed to restrict our rights. Sad, but true.
Great article.
I would like to know, as a citizen, where the fuck I am living. Because it is obviously no longer the USA or Canada, but my behaviour is based on the law of the Land, U.S.A. (with Constitutional rights guaranteed and all……).
If I am in Fascist territory or some Potentate?
Another repressive republic like Chad or Burma?
That is what republic sans democratic process look like.
Should I buy a gun?
Being an early riser, + 6 hours exact, i’ll be first, if not the brightest.
Deliberate draconian opposition to OWS or any other using peaceful assembly and seeking redress by public appeal.
In our modern world, for that matter the ancient too, we seek to be seen at the relevant geographic point, where media is waiting for anything to liven up the all too slow pace of the event—-and what’s handier than a protest.
Fuck who later said what, when we’ve got police brutalizing (and shooting teargan canisters into peoples faces from close range is brutality so no hyperbole here) peaceful protesters. The point of the protest goes forth on a national basis, álthough seldom in intended form.
Now that is blocked on penalty of your very presence, NO INTENT IS REQUIRED—–that I can guess is often most diffcult to prove.
The order comes: Do your protesting where it won’t be noticed. Lots of luck with that.
There is a way, but that requires extremely large numbers, great effort (marches), great suffering (immolation), or frankly civil disobedienc; if such is not so specified already as being criminal, ie congregating in such numbers as to create a public danger, a disorder, etc.
Hopefully a drumroll of demonstrations will energize the non-voters to take action and vote with us. At least be glad it was only events of national importance which qualified. Not the CoC or the state legisature included.
Lead on, Blouise.
Gene,
Magnificent post, but since I’m going to bed, very chilling to try to sleep on. I’ll have much to say in the morning.
Deliberate. OWS scared the living shit out of every branch of the government and the wealthy. To quote OS: “Only scared people react like that.”
We’re going to have to do what women did to get the vote and what blacks did to get civil rights … go to jail, go to court, go to trial and go through the appeal process all the way up the line until the law is declared unconstitutional.
And those of us who aren’t sitting in a jail cell need to vote the bastards out of office.
As for your final question regarding whether the vagueness is deliberate or just the result of being poorly written. My first inclination is that is is deliberate. This is what they want–to stifle protests under color of law.
On the other hand, the drafter of the Resolution may just be a poor legal writer to boot. If drafting this piece of legal excrement had been assigned to a sharp legal eagle, it would still be residing in the “to do” basket for being prima facie unconstitutional.
Gene, I no longer recognize the Bill of Rights I learned about in eighth grade civics class. The First Amendment has been so badly assaulted, it needs a rape kit.
I read today of a group of women in Virginia, who were protesting some of the current anti-woman legislation, when they were rushed and some arrested by a huge squad of police in full riot gear. You know Virgina–according to their motto, “Virginia is for lovers.” Some of the pictures of what went down reminded me of newsreel film I saw as a kid. Another time, another place, another continent, but current and timely for the present political climate. Only scared people react like that. Those intellectual and moral midgets are truly frightened.
http://www.dailykos.com/story/2012/03/03/1070687/-BREAKING-Peaceful-Rally-for-Women-s-Health-Dispersed-by-SWAT-Team-in-Richmond-VA