Jefferson Memorial Update

Monday, April 21st, 2008

Various voices on the D.C. libertarian scene tell me that a uniformed Park Police officer recently paid a visit to the home of Brooke Oberwetter, the Jefferson Memorial dancer arrested last weekend (there were several other people there at the time).

They’re apparently now adding a second charge of “demonstrating without a permit,” and they’re bumping her case from D.C. court to federal court. They’re also expunging the arrest from her record.

I sort of assumed the case would be in federal court anyway, given that the arrest took place on federal property. But I really have no idea if that’s the reason for the change. I’m also not sure why they would expunge the arrest. It isn’t as if they’re cutting her a break–they’re still pressing ahead with charges. It’s as if they’re pretending the handcuffs, escort to the police station, and five hours in police custody didn’t happen.

The second charge is ridiculous–the Memorial guidelines clearly say a permit is only necessary if there are more than 25 people in the group. This event didn’t break 25 people.

But it also makes sense why they’d include it. It isn’t exactly clear what “interfering with an agency function” means, but it sounds something like “refusal to follow a lawful order.” If that is indeed the gist of the charge, the police have to lay down a reason why the order to disperse was lawful in the first place. If the dancers had indeed been demonstrating without a permit, failure to disperse after being ordered to do so would probably amount to a crime. But if they weren’t breaking any laws in the first place, the order to disperse was unlawful, in which case Oberwetter’s arrest for not following it would be unlawful, too.

I am completely speculating, here. If someone with expertise in, er, national park law has any other ideas, please feel free to leave them in the comments.

More: Also looks like the Washington Post has corrected its error about Oberwetter repeatedly returning to the chamber after being asked to leave.

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29 Responses to “Jefferson Memorial Update”

  1. #1 |  aberrant | 

    Celebrating without a permit.

  2. #2 |  Jefferson 1 Update « Get Fixxed! | 

    […] update is via the agitator. Posted in Uncategorized […]

  3. #3 |  Ahcuah | 

    Just what is it with these people, and just what kind of power trip are they on? Any reasonable person, even afterwards, would think that the proper thing to do would be to apologize, and to take steps to make sure the police didn’t overstep their bounds again.

    But no, the authoritarian impulse is to pile on. And keep piling on. And to cover the governmental butt.

    Regarding changing the charge to “demonstrating without a permit,” there are a couple of interesting points, there. First, to be arrested, they are required to have had probable cause for the crime. When they keep changing the charge (between widely disparate crimes, too; disorderly conduct, interfering with an agency function, and demonstrating without a permit all have very different elements that have to be satisfied) it shows just how weak the arrest was.

    And second, if they think Brooke is guilty of demonstrating without a permit, all those others (but less than 25 people!) were also guilty. So, have they started an investigation to find out who they all were, and start rounding them up??????

  4. #4 |  Fred | 

    “Exercising a constitutional right without deference to the whims of a public official”

  5. #5 |  John | 

    Has anyone proposed a large group show up at the memorial and just freeze in place at the same time for a few minutes? I would love to see them try to arrest someone for standing still and not making a sound.

  6. #6 |  tde | 

    Is it just a tactical move? If they expunge the arrest and just prosecute her for lack of permit, then I would guess that all of the evidence of the arrest, what they were doing, etc. would be excluded since it isn’t relevant anymore.

    I’m just speculating, too – but my speculation is informed by the assumption that some higher ups at the Park Service looked at this and came up with the best way course of action to screw her and minimize the embarassment to themselves.

  7. #7 |  Below The Beltway » Blog Archive » The Jefferson One: The Insanity Continues | 

    […] Balko reports that the Park Police are apparently charging the woman arrested for dancing at the Jefferson Memorial with a second offen… Various voices on the D.C. libertarian scene tell me that a uniformed Park Police officer recently […]

  8. #8 |  doc tom | 

    showing up at a memorial to celebrate the man’s birthday is a demonstration?

    that hurts just to ask. i mean really, doesnt a demonstration have to have a bit more stringent criterion than showing up?


  9. #9 |  The Democratic Republican | 

    This reeks of pig buggery.

  10. #10 |  Two--Four | 

    […] looks like Brooke Oberwetter’s Jefferson Memorial Dance arrest record will be expunged, but at least the new charge will be pressed in federal court. So, […]

  11. #11 |  hangman | 

    Something I’ve done in the past is prepare a bill to submit to the court when she is found not guilty or the charges are dropped. Payment for her time, both during this false arrest and to appear in court. It puts a funny look on the judges face. And, he will not like paying out funds because of some Rambo on steroids showing off his (false) authority.

  12. #12 |  Alien | 

    Hangman: Do courts routinely pay bills if charges are dropped or a defendant is found not guilty? Or is that only in egregious cases? Or do you bill them but never get paid anything because of some sort of governmental immunity or something?

    And I wonder how the government will prove there were more than 25 people ‘demonstrating’… I wonder if they have surveillance and just count all visitors who weren’t standing absolutely still and claim they were all together.

  13. #13 |  AllenC | 

    My wife is a former National Park Service Ranger (law enforcement), and we’ve spoken at length about this. She, for the record, thinks the Park Police responded inappropriately, based on what we know at this time.

    It turns out that there is a section in the regulations (36 CFR 7.96) which states:

    (ii) Other park areas. No permits may
    be issued authorizing demonstrations
    or special events in the following other
    park areas:

    (C) The Jefferson Memorial, which
    means the circular portion of the Jefferson
    Memorial enclosed by the outermost
    series of columns, and all portions
    on the same levels or above the
    base of these columns, except for the
    official annual commemorative Jefferson
    birthday ceremony

    So, no permit can be issued for a demonstration at the Memorial, and it sounds like the Park Police are interpreting this as prohibiting demonstrations under 25 people as well. The “interfering with agency function” charge is basically failure to obey a lawful order. Oberwetter needs to take this to trial and argue that this was either not a demonstration, or that 36 CFR 7.96 doesn’t apply because the gathering was under 25 people.

    Now, it sounds to me like they are backing off a bit by expunging the arrest – people get cited in our National Parks all the time. For reasonable officers (like my wife), it’s no big deal if you resolve the matter. But an arrest associated with a citation might influence an officer’s decisions down the road (that’s just my opinion there).

    My wife also tells me that the Park Police do turn up the aggression after dark because it’s D.C., and when they aren’t aggressive after dark, the officers get assaulted much more often. Just something to keep in mind as we all dissect this.

    It still sounds like they responded inappropriately; at the very least, the officers should have been able to articulate a reason for their dispersal order in an attempt to gain compliance.

  14. #14 |  Securities Guy | 


    I’m not used to reading such insightful comments on internet message boards.

  15. #15 |  Danno49 | 

    “Interfering with Park Police nap time” and “Aggressive interrogative toward a public agent” and “Rolling eyes at a public agent”

    With any luck, she’ll be able to plea down to

    “Bad thoughts levied at a public agent” which is a misdemeanor, I think.

  16. #16 |  Mikestermike | 

    No, “Bad thoughts levied at a public agent” is a crime that emeny combatants commit and are subjected to repeated waterboarding.

  17. #17 |  Ahcuah | 

    Regardless of whether demonstrations are allowed in the Jefferson Memorial, I just don’t see how what occurred in the Memorial meets the CFR’s own definition of a “demonstration”:

    (i) The term “demonstrations” includes demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers. This term does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers.

    First, there is the whole issue of whether there was a propensity to draw a crowd or onlookers. (And I really don’t see how an intent could be shown, given the time.) It’s not as if a crowd suddenly showed up to watch the dancing.

    But the killer is the requirement that, to be a demonstration, it must “involve the communication or expression of views or grievances.” Exactly what view was being communicated? There wasn’t one (Happy Birthday????). Furthermore, under First Amendment law, for something to have First Amendment protection, and if that something is not specifically speech but symmbolic speech, that symbolic speech must “convey a particularized message” and “in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” See Spence v. Washington, 418 U.S. 405 (1974). No way does the dancing at the Memorial meet that test.

    Not only that, but it has been ruled that, while dancing as part of a play, or erotic dancing is protected under the First Amendment, recreational dancing is not. “We think the activity of these dance-hall patrons – coming together to engage in recreational dancing – is not protected by the First Amendment.” See Dallas v. Stanglin, 490 U.S. 19 (1989). Although Stanglin was more for 1st Amendment associational than expressive activities, a number of Circuit courts have applied that distinction to symbolic speech. See D.G. Restaurant Corp. v. City of Myrtle Beach, 953 F.2d 140, 144 (4th Cir. 1991); Jarman v. Williams, 753 F.2d 76, 78 (8th Cir. 1985); Willis v. Town of Marshall, 426 F.3d 251 (4th Cir. 2005).

    On the other hand, I wouldn’t be surprised to see them argue a double standard. That it’s not symbolic speech when it screws the people trying to invoke it to protect themselves, but it is symbolic speech when the government is trying to put somebody in jail. It’s kind of like Rehnquist’s definition of a strict constructionist:

    A judge who is a “strict constructionist” in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs.

    In other words, the government is always right.

  18. #18 |  matt | 

    Jury nullification. ‘nough said.

  19. #19 |  Shane | 

    Clearly, expunging the arrest is an attempt to protect the officer: The only explanation for arresting someone for dancing at the Memorial on Jefferson’s birthday is that he was intentionally giving aid & comfort to our enemies — The park police don’t want him arrested for sedition!


  20. #20 |  Danno49 | 

    Mikestermike –

    My bad – but isn’t waterboarding an activity you do at the beach? I mean, to hear some folks talk about it, it’s supposed to be fun or at least no big deal. When I read a federal judge had outlawed it, I was like, OMG, there they go again! Then I realized they were talking about this:

    Oops. My bad again.

  21. #21 |  Danno49 | 

    Um, should read:

    “Then I realized they weren’t talking about this:”

  22. #22 |  AllenC | 

    Securities Guy – Thanks; I shoot my mouth off enough in person, so I try pretty hard not to do it in print. :)

    Ahcuah – Your quote from the CFR is pretty damning. What is the full cite for it (part and section)?

    Shane – I disagre. In national parks, if the officer can cite, the officer can arrest, at his sole discretion. Expunging the arrest buys no protection for the officer, because all of the misconduct claims go to the citation, and the arrest is (legally) irrelevant. Ms. Oberwetter will have no additional claim against the Park Police for the arrest if the citation is thrown out as improper. The arrest might influence the amount of the judgement, of course, but expunging the record wouldn’t prevent that.

    The only reason I can see to expunge the arrest would be if some higher-up in the agency was trying to make things better (by reducing the baggage on her record) without actually admitting that their officers acted improperly. This, of course, is just speculation on my part.

  23. #23 |  Kukulkan | 


    Look to 36 C.F.R. § 7.96

  24. #24 |  Free the Jefferson 1! update at Punditry by the Pint | 

    […] has a court date for dance moves so smooth they were evidently criminal. (Background here.) Radley has an update on the case, noting that the case has been moved to federal court and a charge of “demonstrating without […]

  25. #25 |  Ahcuah | 

    More specifically, 36 C.F.R. § 7.96(g)(1)(i).

  26. #26 |  Another cavalcade of links « Free the Jefferson 1 | 

    […] The Agitator: Jefferson Memorial Update […]

  27. #27 |  Random outrage of the day: Free the Jefferson 1 « | 

    […] only haven’t they dropped the charges; they’ve added a new one, “demonstrating without a permit”, even though the gathering clearly does not meet park […]

  28. #28 |  LarryH | 

    The gov’t has gone insane. Recently, our CHURCH was harrassed and threatened with closure because we had the audacity to feed the poor and care for the needy. Shame on us! The only reason they seem to have temporarily backed off was that Supervisor Bob Buster is up for reelection, and fears that bad press at this time might hurt him.

    Ya think???

  29. #29 |  bailout buster | 

    why no updates on this, if a misdemeanor, the statute of limitations will be expiring soon.