United States v. Parisi

• Citation: 564 F. Supp. 855
• Decision Date: 20 April 1981
• Docket Number: No. 81 M 017.,81 M 017.
• Parties: UNITED STATES of America, Plaintiff, v. Charles PARISI, Defendant.
• Court: U.S. District Court — Northern District of Illinois

564 F. Supp. 855

UNITED STATES of America, Plaintiff, v. Charles PARISI, Defendant.

No. 81 M 017.

United States District Court, N.D. Illinois, E.D.

April 20, 1981.

Mary A. Thomas, Asst. U.S. Atty., Chicago, Ill., for plaintiff.

Edward A. Voci, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ROSZKOWSKI, District Judge.

Before the court are the motions of defendant, Charles Parisi, to dismiss the charges against him; to suppress evidence; for discovery; for notice of the government's intention regarding the use of evidence at trial; and for a ruling on the trial held April 6, 1981.

On January 5, 1981, in response to a call received from a post office official at the United States Postal Service facility located at 211 South Clark Street, Chicago, eight officers of the Federal Protective Service ("FPS"), including officer, Raymond Pawlowski, arrested defendant, Parisi, at approximately 4:00 p.m. and charged him with violations of 41 C.F.R. §§ 101-20.304 and 101-20.305.

Defendant, and somewhere between ten to sixteen individuals, were allegedly protesting, handing out literature, picketing, singing songs, and giving out legal advice inside the Post Office.

The FPS officers asked defendant, and the others, to stop singing and to leave the premises. The group refused.

Thereafter, the FPS officers issued citations to the group and requested identification. Upon his refusal to produce identification, the officers arrested, searched, and then locked up defendant, Parisi. After being locked up, defendant then produced identification and received a mandatory citation charging him with the above violations.

On March 16, 1981, defendant pled not guilty to the charges against him and challenged the constitutionality of the regulations.

The motions now before the court followed.

We consider first defendant's motion to dismiss.

Count I of the citation issued against defendant charges him with violations of 41 C.F.R. § 101-20.304 ("304"). That regulation provides,

Persons in and on property shall at all times comply with official signs of a prohibitory, regulatory, or directory nature and with the direction of Federal protection officers and other authorized individuals.

Defendant contends that this regulation is unconstitutional on its face in that it "does not adequately notify a person of ordinary intelligence as to what specific conduct is proscribed;" and, therefore, the regulation is vague and overbroad. Defendant also challenges the regulation on the grounds that it gives the Federal Protective Service and "other authorized individuals" unfettered discretion to exercise police powers because no standards are provided to govern the exercise of discretion.

The government disagrees.

Count II charges defendant with violations of 41 C.F.R. § 101-20.305 ("305"). That regulation provides,

Any unwarranted loitering, disorderly conduct, or other conduct on property which creates loud or unusual noise or a nuisance which unreasonably obstructs the usual use of entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots, which otherwise impedes or disrupts the performance of official duties by Government employees, or which prevents the general public from obtaining the administrative services provided on the property in a timely manner, is prohibited.

Defendant challenges this regulation on the grounds that it is unconstitutionally vague and overbroad on its face because it does not give a reasonable person notice of what conduct is proscribed and gives unfettered discretion to the authorities enforcing this regulation to curb lawful, First Amendment, activities.

The government disagrees.

MOTION TO SUPPRESS

We consider first defendant's motion to suppress all oral statements obtained by the government subsequent to charging him with violations of §§ 304 and 305, and during the officers interrogation of defendant at the Marshal's lock-up, on the grounds that the officers did not advise defendant of his Fifth Amendment Miranda rights.

The government has stated that it has no intention of using such statements in its case in chief, but it does seek to reserve the right to use any such statements in rebuttal pursuant to Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). In Harris, the Supreme Court held that,

Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.

Harris, 401 U.S. at 224, 91 S.Ct. at 645; See also, Walder v. U.S., 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503 (1954).

More recently, the Supreme Court reaffirmed the Harris holding stating:

Similarly, in Harris v. New York citation omitted and Oregon v. Hass, 420 U.S. 714 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), statements taken in violation of Miranda, and unusable by the prosecution as part of its own case, were held admissable to impeach statements made by the defendant in the course of his direct testimony. Harris also made clear that the permitted impeachment by otherwise inadmissable evidence is not limited to collateral matters. 401 U.S. at 225, 91 S.Ct. at 645.

U.S. v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 1915, 64 L.Ed.2d 559 (1980). See also, New Jersey v. Portash, 440 U.S. 450, 99 S.Ct. 1292, 1297, 59 L.Ed.2d 501 (1979), where the Supreme Court refused to extend the Harris principle to permit impeachment, by otherwise inadmissable evidence, in circumstances where the testimony was obtained in response to a grant of immunity. The basis of the Court's holding was its finding that such testimony is the essence of coerced testimony and that in Harris and Hass the Court expressly noted that defendant made "no claim that the statements made to the police were coerced or involuntary." Harris, supra, 401 U.S. at 224, 91 S.Ct. at 645; Oregon, supra, 420 U.S. at 722-723, 95 S.Ct. at 1220-1221.

Accordingly, since the government does not intend to use these statements in its case in chief, defendant's motion to suppress is denied. The court will permit the use of these statements by the government for impeachment purposes on rebuttal.

DISCOVERY

Defendant's motion for discovery is hereby denied as moot as the government has complied with all of defendant's requests.

THE VALIDITY OF THE REGULATIONS

The facts of the instant case raise issues which require a reconciliation between what, defendant concedes, is a legitimate governmental interest, the protection of its property, and the defendant's, and others, exercise of First Amendment activities.

As the Supreme Court stated in Greer v. Spock, 424 U.S. 828, 836-837, 96 S.Ct. 1211, 1216-1217, 47 L.Ed.2d 505 (1976),

The Court of Appeals was mistaken ... in thinking that Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 stands for the principle that whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a "public forum" for purposes of the First Amendment.... The guarantees of the First Amendment have never meant "that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please." citations omitted. The state, no less than a private owner of property, has the power to preserve property under its control for the use to which it is lawfully dedicated. citation omitted.

Additionally, the Greer Court, quoting from Hague v. CIO, 307 U.S. 496, 515-516, 59 S.Ct. 954, 963-964, 83 L.Ed. 1423 (1938), noted,

The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comport and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Greer, 424 U.S. at 835-836, 96 S.Ct. at 1216.

Consequently, while it is clear on the one hand that First Amendment activity can be circumscribed when necessary to further a sufficiently strong public interest (See, Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1976); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), it is equally clear that any significant restriction of First Amendment freedoms carries a heavy burden of justification. See e.g. Buckley v. Valeo, 424 U.S. 1, 64-65, 96 S.Ct. 612, 656-657, 46 L.Ed.2d 659 (1976); Grayned v. City of Rockford, 408 U.S. 104, 116-117, 92 S.Ct. 2294, 2303-2304, 33 L.Ed.2d 222 (1972).

In Grayned v. City of Rockford, the Supreme Court defined the crucial inquiry as "whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time." 408 U.S. at 116, 92 S.Ct. at 2303.

In the instant case, the government does not appear to contest the fact that defendant was exercising his First Amendment rights at the time of his arrest. Nor is it disputed that a Post Office is a public place.

Although the Grayned Court stated that "the right to use a public place for expressive activity may be restricted only for weighty reasons" (408 U.S. at 115, 92 S.Ct. at 2303), that Court likewise recognized that the particular public place involved must be considered in determining whether regulations, where the demonstration is peaceful, are reasonable. 408 U.S. at 116, 92 S.Ct. at 2303.¹

The nature of the place, the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.

408 U.S. 116 and fn. 33, 92 S.Ct. 2303.

Thus, in Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), a silent...