Boertje v. U.S.

• Decision Date: 31 October 1989
• Docket Number: No. 85-1408.,85-1408.
• Citation: 569 A.2d 586
• Parties: Gregory I. BOERTJE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 586

569 A.2d 586

Gregory I. BOERTJE, Appellant, v. UNITED STATES, Appellee.

No. 85-1408.

District of Columbia Court of Appeals.

Argued February 16, 1989.

Decided October 31, 1989.

Nina Kraut, Washington, D.C., appointed by this court, for appellant.

Kathleen A. Brandon, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell, Asst. U.S. Atty. at the time the brief was filed, and Mary Ellen Abrecht, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before BELSON and TERRY, Associate Judges, and MACK, Associate Judge, Retired.^*

TERRY, Associate Judge:

Appellant was convicted of unlawful entry¹ for having refused to leave the White House grounds when directed to do so by a person in lawful authority. On appeal he argues that he was engaging in symbolic speech at the White House and that the government failed to prove an additional specific factor establishing his lack of a legal right to remain there. He also contends that the trial court denied him the right to make an opening statement and to present an effective defense, and that the court erred in refusing to ask certain questions of the venire during the voir dire.

Appellant's first argument is unsupported by the evidence. His voir dire argument, although it has some merit with respect to one question, does not warrant reversal. His other contentions are totally without merit and are, in any event, affirmatively refuted by the record.

I

On December 29, 1984, the day after the feast of the Holy Innocents,² appellant Boertje and a companion, along with a group of tourists, entered the grounds of the White House through the visitors' center on East Executive Avenue. As appellant entered the visitors' center, he walked past a posted sign containing this message:

The White House and grounds are protected by the United States Secret Service and the United States Secret Service Uniform Division, pursuant to 18 U.S. Code 3056 and 3 U.S. Code 22. To assure your enjoyment of your tour and to assist in the protection of the properties, all persons entering this property are advised that any activity that disrupts the tour or impedes the flow of pedestrian traffic is prohibited. Thank you for your cooperation, and please enjoy your visit to the White House.

To ensure an orderly flow of pedestrian traffic through the White House grounds, the paved tour route is bordered along its entire length by a line of metal stanchions connected by metal chains. Tour guides are also stationed along the route to remind visitors that they must keep the line moving.

Sergeant Roland Mayclin of the Secret Service was the senior uniformed officer on duty that morning on the north grounds of the White House. As such, he had the authority to ask any person who was disrupting a tour or impeding pedestrian traffic to leave the grounds. Thus, when Mayclin saw Boertje and his companion stop along the tour route, he asked them to keep pace with the normal flow of pedestrian traffic. Boertje replied, "I'm not going to leave. You'll have to arrest me." As he spoke these words, Boertje knelt down on the paved walkway. Sergeant Mayclin repeated his request, this time telling Boertje that he would be subject to arrest for unlawful entry if he refused to get up and leave. Boertje did not respond. Mayclin made the same request of Boertje's companion, who thereupon walked out the gate "in the normal manner." Boertje, however, remained kneeling and gave no response when Mayclin asked him for the third time to get up and move along. Consequently, on the orders of Sergeant Mayclin, Boertje was arrested by Secret Service Officer Michael Redwine, who had walked over to assist Mayclin.

At trial Boertje did not refute the government's version of the facts as they were recounted by Mayclin and Redwine. He admitted seeing the posted warning sign at the visitors' center, admitted entering the White House grounds "with the intent of risking arrest," admitted being asked several times by Sergeant Mayclin to get up off his knees and move along the tour line or risk arrest, and admitted refusing to do so. He defended his actions by telling the court that he was acting on his belief that the "first strike" nuclear capability of the United States was contrary to the teachings of God and an international crime against peace as defined by the Nürnberg tribunal.³ According to Boertje, he chose the White House grounds for his protest because in his view the President was primarily responsible for this country's nuclear weapons policy.

In anticipation of his defense, Boertje who served as his own attorney at trial,⁴ proposed a lengthy set of voir dire questions, all but two of which the trial court rejected as irrelevant. Boertje claims that the trial court erred in refusing to ask the remaining two voir dire questions in the form requested. Additionally, he argues that the unlawful entry statute as applied to him violated his free speech rights under the First Amendment, and that he was denied an opportunity to make an opening statement and to put on the defense he wanted.⁵

The White House differs from all other properties owned by the United States government because it is the official residence of the President. Because of its unique nature, the exercise of citizens' First Amendment right of free speech on the White House grounds may be regulated in a "more stringent [manner] . . . than would be tolerated on most other government properties." Smith v. United States, 445 A.2d 961, 965 (D.C. 1982) (en banc); accord, Leiss v. United States, 364 A.2d 803, 808 (D.C. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1654, 52 L.Ed.2d 362 (1977). Of course, any restriction on the exercise of First Amendment rights, at the White House or elsewhere, must be content-neutral, non-discriminatory, and no broader than "reasonably necessary . . . [to serve] significant government interests." Smith v. United States, supra, 445 A.2d at 964-965 (citing cases). Boertje contends that by kneeling down on the tourist path he was engaging in symbolic speech, and that it was unreasonable for the Secret Service officers to arrest him rather than to permit him to stay on the grounds at least until visiting hours were over, as was done in Leiss v. United States, supra. We reject his argument because there are significant factual differences between Leiss and this case.

In Leiss two protesters entered the White House grounds with a tour group, stationed themselves near the entrance gate, and began to read a statement in opposition to United States foreign policy. They were told by an Executive Protective Service officer that they could stand there and continue to read their statement until the noon closing hour, but that if they remained on the grounds after that time, they would be subject to arrest. When the visiting hours were over and the gates were about to be closed, Leiss refused to leave and was arrested.

Here, on the other hand, Boertje simply knelt down without saying a word. When Sergeant Mayclin asked him to get up and proceed along the tour route, all that Boertje said was "I'm not going to leave. You'll have to arrest me." These were the only words he spoke before he was arrested. Even though Mayclin asked him twice more to get up and move along and told him that he would be subject to arrest for unlawful entry if he refused to do so, Boertje said nothing further. According to the evidence, Boertje never told Sergeant Mayclin, Officer Redwine, or anyone else at the White House that he was protesting against United States nuclear weapons policy. Unlike the officers in Leiss, who were informed of the protesters' intentions, Sergeant Mayclin and Officer Redwine had no way of knowing what Boertje's intentions were or what his message was.

The Supreme Court has made it quite clear that a person cannot claim the protection of the First Amendment without engaging or attempting to engage in some kind of communication, either by speech or by conduct. "[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. To hold otherwise would be to create a rule that all conduct is presumptively expressive." Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n. 5, 104 S.Ct. 3065, 3069 n. 5, 82 L.Ed.2d 221 (1984). We are unpersuaded by Boertje's argument that the mere act of kneeling, without more, is symbolic speech protected by the First Amendment. When compared with acts found to have a communicative element, there was no reasonable likelihood that Boertje's act conveyed to those who saw it any message at all, let alone a message that he was expressing his dissatisfaction with United States nuclear weapons policy. Compare Spence v. Washington, 418 U.S. 405, 410-411, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974) (display of an American flag bearing a peace symbol and hung upside down during a time of political turmoil); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing of black armbands to protest continuing American involvement in Vietnam); United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (burning a draft card on the courthouse steps at a time when hostilities in Vietnam were escalating).⁶

Sergeant Mayclin had no way of knowing why Boertje suddenly fell to his knees in front of the White House. Since Boertje's conduct failed to "convey a particularized message," Spence v. Washington, supra, 418 U.S. at 411, 94 S.Ct. at 2730, it necessarily follows that his arrest could not have been content-based⁷ and that his First Amendment rights were not violated. Given the complex security problems involved in protecting the President and his residence, we cannot find fault with the police response to Boertje's uncommunicative conduct. See Smith v. United States, supra, 445 A.2d at 966-967.

Along these same...