Ya think???

Look to 36 C.F.R. § 7.96

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.

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

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:

http://img169.imageshack.us/img169/1146/skimboardingxd8.jpg

Oops. My bad again.

;)

(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.

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

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

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

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.

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.