United States District Court, Northern District of Illinois, E.D
April 20, 1981
UNITED STATES OF AMERICA, PLAINTIFF,
CHARLES PARISI, DEFENDANT.
The opinion of the court was delivered by: Roszkowski, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
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
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,
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
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
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
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
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),
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
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);
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
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 "[t]he 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.*fn1
The nature of the place, the pattern of its
normal activities, dictate the kinds of
regulations of time, place, and manner that are
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 vigil in a public library was held
not to unduly interfere with the library's normal activities,
although, as the Grayned Court noted, making a speech in the
reading room almost certainly would, even though that same
speech would be perfectly appropriate in a public park.
In assessing the reasonableness of a regulation, therefore,
. . we must heavily weigh the fact that
communication is involved; the regulation must be
narrowly tailored to further the states'
408 U.S. at 116-117, 92 S.Ct. at 2303-2304.
An enactment is void for vagueness if its prohibitions are
not clearly defined. Grayned, 408 U.S. at 108, 92 S.Ct. at
2298. In general, the Supreme Court has delineated three basic
values which collide with, and, therefore, require proscription
of, enactments which are vague.
First, because we assume that man is free to
steer between lawful and unlawful conduct, we
insist that laws give the person of ordinary
intelligence a reasonable opportunity to know
what is prohibited, so that he may act
accordingly. Vague laws may trap the innocent by
not giving fair warning. Second, if arbitrary and
discriminatory enforcement is to be prevented,
laws must provide explicit standards for those
who apply them. A vague law impermissibly
delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc
and subjective basis, with the attendant dangers
of arbitrary and discriminatory application.
Third, but related, where a vague statute "abuts
upon sensitive areas of basic First Amendment
freedoms" it "operates to inhibit the exercise of
[those] freedoms." Uncertain meanings inevitably
lead citizens to "steer far wider of the unlawful
zone . . . than if the boundaries of the
forbidden areas were clearly marked."
408 U.S. at 108-109, 92 S.Ct. at 2298-2299.
A clear and precise enactment, one which is not vague, may
nevertheless be "overbroad" if in its reach it prohibits
constitutionally protected conduct. See, Zwickler v. Koota,
389 U.S. 241, 249-250, 88 S.Ct. 391, 396-397, 19 L.Ed.2d 444 (1967)
and cases cited therein. The crucial question is whether the
ordinance sweeps within its prohibitions what may not be
punished under the First and Fourteenth Amendments. 408 U.S.
at 114, 92 S.Ct. at 2302.
We turn now to a consideration of the two regulations at
First, it is noteworthy that at least one court has recently
declared 41 C.F.R. § 101-20.304 unconstitutionally vague and
overbroad. In Townsend v. Carmel, 494 F. Supp. 30, 35 (D.C.D.C.
1980), the district court held 304 to be unconstitutional, and,
in addition, held further that:
While defendants correctly assert that statutes
apparently overbroad may be upheld by imposing a
limiting construction upon them, Broadrick v.
Oklahoma, 413 U.S. 601, 613 [93 S.Ct. 2908,
2916-2917, 37 L.Ed.2d 830] (1973), they have not
presented such construction to the Court. The Court
understands defendants' failure to offer a narrow
construction of the regulation —
41 C.F.R. § 101-20.304 is simply not conducive to limitation.
Rather, as is apparent from both the plain meaning
of the regulation and its application in the
instant case, 41 C.F.R. § 101-20.304 affords the
FPS and "other authorized officials" unfettered
discretion to exercise limitless police powers.
Individuals can be (and in the instant case have
been) arrested merely for disobeying a FPS
directive that the officer had no right to give.
In Townsend, defendants were arrested because they failed to
leave the steps and areas adjacent to pillars at the Mall and
River entrances to the Pentagon. The defendants were members of
a group who, the Court noted, periodically exercised their
First Amendment rights to demonstrate and distribute leaflets
in an orderly fashion without disrupting the operations at the
Pentagon and without blocking the ingress or egress to that
building. Despite the fact that plaintiffs had not been acting
in a disorderly fashion at any time, they were arrested for
violating an FPS "policy" prohibiting more than two
demonstrators at the Mall and River entrances to the Pentagon
at any one time.
In the instant case, defendant, Parisi, was arrested for
failing to produce identification upon the officer's demand.
After defendant and the other anti-draft protestors left the
Post Office at the order of the FPS officers, Parisi was
arrested for not producing identification. Like the protestors
in Townsend, defendant Parisi was arrested for violating an FPS
officer's directive that it is not clear that the officer had a
right to give where, as here, defendant had not been acting in
a disorderly fashion.
The government here urges this court to follow the Fourth
Circuit's decision in United States v. Shiel, 611 F.2d 526, 527
(4th Cir. 1979). In Shiel, however, the court refused to decide
whether 304 was deficient on its face as overbroad and vague.
The Court found it unnecessary to address the regulation's
constitutionality under the particular circumstances of that
case. The defendant had conceded that his behavior in blocking
Concourse 10 at the Pentagon while protesting against nuclear
arms might properly have been prohibited. Defendant further
agreed that prosecution of him would have been proper under
another regulation prohibiting the "blocking of entrances,
driveways, walks, loading platforms or fire hydrants."
The Shiel Court reasoned that:
To the extent appellant's conduct, prior to his
simulated death in the Concourse, enjoyed First
Amendment protection as "symbolic speech," that
protection dissipated when appellant went beyond
expression, and refused to obey a reasonable and
legitimate order to cease blocking the passage of
others. Appellant's unjustified refusal was not
protected by the First Amendment, and he lacks
standing to raise First Amendment facial
invalidity contentions not concerned with
invocation of the regulation with respect to his
611 F.2d at 527-528.
Despite its refusal to address the issue of the regulation's
facial invalidity, the Shiel Court, in dicta, went on to state,
On the instant record we are of the view that the
risk of danger to First Amendment rights under
this regulation is at best de minimus. . . .
Where an improper order is issued under an
adequately drawn statute, or regulation a
successful defense can be based on the order's
611 F.2d at 528, fn. 3.
Nevertheless, despite the Fourth Circuit's hypothetical
analysis, this court knows of no saving rule which provides
that an order issued under a regulation, otherwise possibly
overbroad or vague, can be interpreted so as to cure
constitutional defects by applying the regulation only to
"proper" orders. Rather, as the Supreme Court made clear in
. . any enforcement of a statute thus placed at
issue is totally forbidden until and unless a
limiting construction or partial invalidation so
narrows it as to remove the seeming threat or
deterrence to constitutionally protected
413 U.S. at 613, 93 S.Ct. at 2916. Nevertheless, this court
doubts that 304's broad sweep and grant of unfettered
discretion to the Federal Protective Service Officers can be
saved by a limiting construction that it be applied only when
"proper" orders are issued under its provisions. As the
Townsend Court noted, even if one adopted an interpretation of
the regulation which allowed enforcement only for "proper"
orders, the regulation, nevertheless, grants FPS officers
limitless police powers and the authority to arrest individuals
merely for disobeying a FPS directive that the officer may have
no right to give.
Consequently, this court agrees with defendant's contentions
that § 304 is facially invalid for overbreadth.
However, this court does not find § 305 to be facially
overbroad. Section 305 is directed at specific types of conduct
which, among other things, "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." The Supreme Court
has repeatedly addressed vagueness and overbreadth challenges
to statutes and regulations governing conduct and has routinely
found that, although these statutes may be capable of some
unconstitutional applications, they need not fall in toto.
Rather, the Court has stated that,
. . overbreadth scrutiny has generally been
somewhat less rigid in the context of statutes
regulating conduct in the shadow of the First
Amendment, but doing so in a neutral,
See, Broadrick, 413 U.S. at 614-615, 93 S.Ct. at 2917 and cases
cited therein. The Broadrick Court reasoned that:
Although such laws, if too broadly worded, may
deter protected speech to some unknown extent,
there comes a point where that effect — at best a
prediction — cannot, with confidence, justify
invalidating a statute on its face and so
prohibiting a state from enforcing the statute
against conduct that is admittedly within its power
413 U.S. at 615, 93 S.Ct. at 2917-2918. As has been previously
noted, the government, as any private citizen, has a
legitimate interest in preserving "property under its control
for the use to which it is lawfully dedicated." Section 305
specifically provides for the regulation of conduct on federal
property which in some fashion obstructs or impedes the use
for which the property was intended.
Consequently, it is this court's view that regulation 305 is
not facially vague or overbroad, and that it is capable of a
narrowing application through a case by case analysis to which
its sanctions, assertedly, may not be applied.
The Eighth Circuit has specifically addressed a challenge
that Section 305 had been improperly applied to regulate
defendant's speech. In finding that the defendant's reliance
on cases concerning speech was inapposite, the Court stated:
The statute in question is directed primarily at
specific types of conduct. While the prohibited
conduct may include speech, it does so only where
of expression is itself unreasonable. Reasonable
time, place and manner regulation may be applied
to speech irrespective of content.
U.S. v. Occhino, 629 F.2d 561
, 563 (8th Cir. 1980); Accord,
Greer v. Spok, supra, 424 U.S. at 835-836, 96 S.Ct. at
1216-1217; quoting from Hague v. CIO, supra, 307 U.S. at
515-516, 59 S.Ct. at 963-964.
Accordingly, this court rejects defendant's contention that
§ 305 is facially unconstitutional.
However, having held a trial on the merits as to § 305 on
April 6, 1981, this court now concludes that § 305 has been
unconstitutionally applied as to defendant Parisi.
Section 305 permits the FPS to regulate, among other things,
"disorderly conduct or other conduct which creates loud or
unusual noise or a nuisance" or which "unreasonably obstructs
the usual use of entrances, foyers, lobbies,
corridors,. . . ." or which "impedes or disrupts the
performance of official duties by Government employees."
The testimony offered at trial by the arresting officer,
Pawlowski, however, does not support a conviction under this
The officer testified that Parisi was arrested for his
failure to produce identification whereas the other 15 or so
anti-draft demonstrators were not arrested because they
produced identification. This court, however, does not find
this conduct to be of the type covered under § 305.
Nevertheless, at trial, the government attempted to show
that the arrest and prosecution were justified on the grounds
that these demonstrators were "impeding or disrupting the
performance of official duties by Government postal
employees." However, the proof offered at trial was
insufficient to demonstrate that the demonstrators interfered
with the Post Office employees duties. Moreover, this court
had the benefit of hearing the anti-draft songs being sung by
the defendant and other demonstrators and cannot see, how, if
at all, these songs could be said to be disruptive.
Additionally, the singing was at all times taking place at a
distance sufficiently removed from the work areas of the
government employees. Moreover, the fact that defendant Parisi
alone was arrested is inconsistent with a claim that the
arrest was due to the conduct proscribed by § 305.
Accordingly, it is ordered that this case be dismissed, the
government having failed to establish by sufficient proof that
defendant Parisi's conduct fell within the scope of regulation