Chris Pentico & The First Amendment

Chris Pentico & The First Amendment

I mentioned several weeks ago that an acquaintance had been convicted of trespassing for dropping off a letter complaining of what he considers unlawful activity by Boise State University with respect to funding of student clubs. I now have the transcripts of the trial and pre-trial hearings. The trial itself is astonishingly uninteresting, except for the March 25, 2008 incident in which Officer Pattis told Pentico that he was not welcome in state government buildings. If you believe Pattis, he was orally warned that he would be arrested for trespassing. If you believe Pentico, he was told that he wasn't welcome. There was no written warning to Pentico. From the cross-examination by Pentico's attorney of Officer Pattis, on p. 25:

BY MR. DERR:
Q You did not provide any written orders to Mr. Pentico on March 25, did you?
A No, sir. I did not.
Q Nor any other statements, except what you’ve testified to, I mean as far as trespassing and coming back, not welcome?
A Not to -- not that I remember, sir.

In a criminal case (as this is), there's a requirement for a guilt beyond a reasonable doubt--and whether Mr. Pentico was formally warned that he would subject to arrest if he returned to the state office buildings seems to be Officer Pattis's word versus Chris Pentico's word. While there was a recording of Pentico's arrest on April 2--the only recording of what happened March 25, when Pattis claims to have to told Pentico that he was subject to arrest if he returned, seems to have some problems. From p. 32 of the trial transcript, is this exchange between the prosecutor (Wallace) the defense attorney (Derr), and Judge Swain:

MR. DERR: Well I’m looking for a tape, a video, that I wanted to show of 3/25.

THE COURT: Does state have it?

MS. WALLACE: Well, Your Honor, we previously disclosed a tape from 3/25. There’s no audio on it and it’s an encrypted CD that doesn’t play, and that’s previously been disclosed. Mr. Derr called me about it yesterday and mentioned that it doesn’t play well, and it just doesn’t play well. That’s what we’ve disclosed and we gave what we had.

THE COURT: Alright. Well there we go. Ball’s in your court, Mr. Derr.

(Off-record colloquy of defendant’s counsel)

MR. DERR: I don’t know how to run this machine.

THE COURT: Well Mr. Derr, I’ll tell you what I tell all the young lawyers that come before me to practice. Presentation of evidence is the responsibility of the proponent of the evidence. We’ll give you a little time to figure it out and then we’ll -- do you if it -- will it even play?

It appears from the rest of the transcript that Derr never got it to play--and if this audio confirmed Officer Pattis's claim about the March 25th conversation, you would have expected the prosecution to have played it, because it would have demonstrated that Pentico had been warned not to return, at risk of arrest. Whether Pentico knowingly violated the law hinges entirely on whether he was warned that he was risking arrest for a crime if he returned--and all the state is Pattis's word vs. Pentico's word.

More troubling is that the judge had ruled in pretrial motions that no First Amendment challenge to the charge would be allowed. From the April 20 pretrial motion, pp. 4-6:

THE COURT: Well I’m concerned about the late disclosure, but I’m also concerned about the proffered testimony in your motion which states that Mr. Parker will be a character witness, and knows among other things, of his valuable and extensive activities in First Amendment matters, which is specifically not relevant to this trial, Mr. Derr. That’s a legal question, and I’ve already ruled. We’re not going to have testimony about Mr. Pentico’s actions were justified under the First Amendment.

MR. DERR: I see. And of course, the Court understands we’ve argued that before. We think that’s the basic element of this case.

THE COURT: Well Mr. Derr, I’m very concerned. You don’t have to agree with my ruling --

MR. DERR: I know.

THE COURT: -- but you do have to follow it. You can appeal, but we’re not going to have testimony about the First Amendment in this trial. There are only two issues here. One is whether Mr. Pentico was properly advised that he could not be present on certain specified locations, and number two, was he present, physically, on certain specified locations. The state is not going to be allowed to present testimony about why he was excluded. On the other hand, Mr. Pentico is not going to be allowed to present testimony regarding the content of his communication or assert that it’s protected by the First Amendment. That’s a legal question and I’ve ruled. I don’t see that based on your motion, Mr. Parker has character testimony of a pertinent nature to the trial, that in combination with the late disclosure, I’m going to grant the state’s objection. Mr. Parker will not be allowed to testify.

And yet being able to petition for redress of grievances is a fundamental human right, recognized by the First Amendment. The testimony of the Claudia Nally, under direct examination by the prosecutor, is pretty clear about Pentico's behavior at the time he dropped off the letter on April 2, pp. 27-29 of the trial transcript:

Q And do you recall -- well, you must get to know people pretty well working in that office. People coming and going. Are you familiar with a man by the name of Christopher Pentico?

A Yes. I am.

Q And how do you know that person?

A He has been in the office, to the best of my recollection, five or six different times, not necessarily at this location, but at the Capitol building also.

Q Okay. And back in -- in March and April of 2008, did you receive information that he wasn’t welcome anymore?

A I did, actually.

Q And after you received that information, did you see him again?

A I did, actually. He came in on April 2nd and dropped off a letter.

Q Okay. And when you say April 2nd, was that April 2nd of 2008?

A 2008. Mm-hmm.

Q And tell us about when he came in.

A He -- he just came through the front door and I was actually kind of surprised to see him, and he came in and said he had a letter he’d like to drop off. And I said I’d take the letter. And he left it on my desk and then he went out the door.

Oddly enough, even though there seems to have been some claim that Pentico was harassing people working there--there was no testimony at trial about this, and it seems that the judge had decided not to allow it--and yet this would seem to be the only legitimate basis for denying Pentico his First Amendment right to go into government buildings, and leave a letter complaining about improper governmental actions.

Now, Mr. Pentico is a somewhat intense person--but no more intense than I am. He's not someone that anyone would have much reason to fear--he's not 6'4" with bulging muscles. He's fairly slight of build. To deny someone their First Amendment rights should require some pretty strong evidence--but the judge seems to have decided that it was irrelevant to the question. It's unfortunate that the ACLU here isn't interested in First Amendment questions.

Mr. Pentico is supposed to be sentenced on Monday; I guess that I will go to see what happens.

UPDATE: Wayne Hoffman at Idaho Freedom Foundation interviewed some of the players in this matter, and has some interesting reporting:

On March 25, 2008, two Capitol security officers blocked Pentico's entry to the Legislative Annex and told Pentico not to enter the annex, the third and fourth floors of the Borah Post Office (the temporary home of the governor's suite of offices), and the state Department of Education.
"I was asked not to have (Pentico) come back, and I relayed that information to him," Idaho State Police Corporal Jens Pattis told me Wednesday. Pattis said he consulted with Otter adviser Clete Edmunson and House Sergeant-At-Arms Judy Christensen on how to handle Pentico.
Edmunson said Pentico wanted Otter to inject himself in Pentico's dispute involving Boise State University and the State Board of Education, and persisted even after being told Otter would have no part of it.
"He just kept coming back to us," Edmunson complained.
Was Pentico belligerent? I asked Edmunson.
"I wouldn't say belligerent," Edmunson answered. "Obstinate might be the right word for it."
"He wouldn't take no for an answer," added Mark Warbis, the governor's communications director.
...
Equally troubling is that a very small number of government employees proclaimed three public buildings off-limits and then compelled Pentico to obey - not because they were afraid of him, but because they were tired of dealing with him. They alone determined the point at which a diligent constituent became an obstinate one. And they alone determined that Pentico's obstinance had crossed an imaginary line requiring their action.
For such a severe action, there seems to be little or no real record of the events leading up to the decision to bar Pentico from state offices, as evidenced by several competing stories. Edmunson and Pattis said the House of Representatives' Judy Christensen was included in a chat about barring Pentico, but Christensen said she doesn't know who Pentico is and doesn't recall having a discussion about him.
"He's not barred from the building by any means," Christensen said unsuspectingly last week.
At the Department of Education, officials were under the impression Pentico was banned because he had threatened State Board of Education members. He had not. And while Pentico was banned from the Department of Education, he was not forbidden from going to the State Board offices one floor up. Yet the Board is an original source of the conflict that soured the relationship between Otter's aides and Pentico.

There are at least two cases in which the Idaho courts have attempted to define the limits of the trespassing statute under which Pentico was convicted with respect to public property. The Idaho Supreme Court decided State v. Korsen (2003) and an Idaho district court decided State v. Stonecalf WarriorWoman (2008). Neither is exactly on point, but Korsen in particular should have given Judge Swain some guidance.

In the WarriorWoman case, a New Ager announced that she was

planning on attending a concert at NIC, on February 27, 2007, for the purpose of making a political statement. NIC learned of this through a posting placed on the internet by Warriorwoman. Tr. p. 2, Ll. 16-25; p. 2, Ll. 8-11. NIC also received a telephone call from Warriorwoman saying she was going to be at the Raining Jane concert that night, and she was going to bring a “Tomahawk with a 30-million-year-old part to it, that she planned to dance and would be wearing too tight of clothing, and she wanted a black student and a yellow student to dance with her.” Tr. p. 5, Ll. 1-8. The stated reason was “She was holding the four corners of the earth to save the evil American.” Id., Ll. 24-25.

WarriorWoman was arrested at the gate for refusing to allow for a search of her backpack, and was told that she was trespassing. The decision decided that while she might have a right to free speech, the tomahawk crossed the line from speech to conduct. It's not a terribly good decision, in my opinion, because it fails to answer the question of whether WarriorWoman could have been denied entry if she had said that she was going to show up and hold up a sign expressing her opinion.

The Korsen decision is again not exactly on point, but closer. The defendant, Korsen:

David Korsen appeared at the office of the Idaho Department of Health and Welfare in Boise to discuss his child support obligations. He informed personnel at the office that he might get loud and that he was not going to leave until he obtained some relief regarding his support requirements. He learned from the social worker that only the court could grant the relief he was seeking through making adjustments to child support payments he owed. The discussion grew louder and louder and, although Korsen did not use profanities or make any threats, he refused to leave the offices. The police were called, and Korsen was arrested at the scene on a charge of trespass under I.C. § 18-7008(8), because he refused to leave after being asked by the regional director of the department, who was in charge of the offices, to vacate
the premises.

At trial:

The magistrate concluded that the statute violated the Constitution because it was void for vagueness as applied to public property and because the statute failed to properly inform a person on public property about the specific conduct prohibited by the statute.

The Idaho Supreme Court overturned this ruling. With respect to vagueness:

Neither the magistrate nor the district court examined the constitutionality of I.C. § 18-7008(8) as it applied to Korsen’s specific conduct in this case. Nor did they examine the statute in toto. Rather, they applied a hybridized form of the facial test, which ordinarily is used to determine if a statute is void in all its applications, by considering the statute only in its application to public property. By finding the statute vague, not as applied to Korsen’s conduct, but as to all applications on public property alone, the magistrate and the district court used an improper standard for determining whether the statute was facially vague. It was improper to conclude that the statute is invalid on its face as applied to public property, because the standard to sustain a facial challenge requires that a statute be held impermissibly vague in all of its applications. See Hoffman Estates, 455 U.S. at 497. Furthermore, because the magistrate failed to examine the individual conduct of Korsen, consideration of the “as applied” standard with respect to only public property was in error.

This argues that Judge Swain should have considered evidence of whether Pentico's conduct constituted constitutionally protected activity or not. He apparently did not allow it. The Idaho Supreme Court also found that the lower court had erred because they had concluded that any free speech was protected on public property from such a trespassing charge, rather than looking at the specific conduct of Korsen. And this paragraph seems to fit Pentico's case rather well:

As an example of the statute’s reaching constitutionally protected speech, the district court pointed out the situation of people entering the Capitol to meet with legislators, asserting that, because the threat of prosecution under the trespass statute “potentially chills such clearly protected activity, the Court finds that the statute is unconstitutional in a substantial portion of the cases to which it applies.” This conclusion, however, illustrates the district court’s erroneous application of the facial overbreadth doctrine. A statute will not be invalidated for overbreadth merely because it is possible to come up with a hypothetical situation in which the statute is
unconstitutional as applied. Taxpayers for Vincent, 466 U.S. at 800. Rather, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court. . . .” Id., at 801-02.

Okay, Pentico's situation isn't hypothetical. The following paragraphs indicate that Korsen's conduct ceased to be free speech when he was informed that he was barking up the wrong tree:

The facts in Korsen’s case do not provide a situation where the exercise of free speech was impinged. Rather, Korsen showed up at the Health and Welfare office to conduct legitimate business, i.e., to discuss his child support obligation with the agency charged with overseeing collection of child support. When it appeared that his desire to obtain modification of the obligation could not be obtained at that office but, as he was informed, was a matter that properly should be addressed to the court where the obligation was established, the purpose of his visit to the Health and Welfare office came to an end.

Assuming that a criminal trespass prosecution is filed pursuant to I.C. § 18-7008(8) against a person on public property who is exercising his or her free speech rights, the statute could be attacked as applied to that constitutionally-protected conduct. This does not render the statute substantially overbroad. A reasonable reading of I.C. § 18-7008(8) shows that the statute does not reach a substantial amount of constitutionally protected conduct. The district court therefore committed reversible error in determining that the statutory language is overbroad.

There seems to be no claim that Pentico was doing anything but freedom of speech and petition of public officials for redress of grievances. Persistent, yes. The governor may not have wanted to involve himself in the dispute that Pentico was raising. But it was within the governor's power to do so. Banning Pentico seems a pretty clear violation of the First Amendment.