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U.S. v. SUED

May 10, 2001


The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.


This case involves one of the relatively few petty offense proceedings prosecuted in this District each year. Even more unusual is the fact that the defendant, Gasir Sued, seeks to challenge the constitutionality of two of the three provisions under which he has been charged. Sued alleges that both of these provisions are facially invalid. For the reasons set forth below, Sued's motion to dismiss those charges is denied.


Introduction The Statue of Liberty, designed by Frederic Auguste Bartholdi, was given to the people of this country by the people of France in the late 1800s. ( The Statue and the island on which it was erected together constitute a national monument which has been administered by the National Park Service for many decades. See 16 U.S.C. § 431 (granting the President the authority to declare structures and objects on land owned or controlled by the United States as national monuments); Presidential Proclamation Nos. 1713, 43 Stat. 1968 (Oct. 15, 1924) (declaring the Statue a national monument), 2250, 51 Stat. 393 (Sept. 7, 1937) (expanding the Park Service's jurisdiction to the entire island), and 3656, 79 Stat. 1490 (May 11, 1965) (incorporating Ellis Island into the Statue of Liberty national monument).

As a symbol of freedom from persecution, the Statue has been the site of numerous protests over the years. For example, in 1988, five Cubans seeking the ouster of Fidel Castro handcuffed themselves to a railing inside the Statue's crown, disrupting visitors. (See 5 Cubans State Protest in Statute of Liberty, NEW YORK TIMES, Aug. 28, 1988, at 38). Similarly, in 1981, four Iranian students, who were part of a larger group protesting the Khomeni regime, were arrested after they chained themselves to a balcony railing at the Statue's pedestal; the incident stopped ferry service to Liberty Island for more than two hours. (See 4 Khomeni Foes Held on Liberty Island, NEW YORK TIMES, July 24, 1981, at B3).

This case arises out of a recent protest at the Statue. According to the Government, on November 5, 2000, a group of protesters hung banners and a Puerto Rican flag from the top of the Statue of Liberty and distributed literature to protest the use of Vieques Island, Puerto Rico, for naval bombing exercises. They also distributed literature in support of their cause inside the Statue. (See March 4, 2001 letter to the Court from AUSA Robin A. Linsenmayer ("Linsenmayer II")). Prior to their demonstration at the Statue, the protesters, including Sued, did not apply for either a "public assembly" or a "printed matter" permit from the Superintendent of Liberty Island. (See Feb. 27, 2001 letter from AUSA Linsenmayer to the Court ("Linsenmayer I")).

One of the protesters, Alberto DeJesus Mercado, is alleged by the Government to have climbed through a window in the Status's crown to hang the banners and flags. The United States Attorney charged Mercado in an information with Criminal Trespass in the Third Degree under the federal Assimilative Crimes Act, 18 U.S.C. § 13(a), and his case was assigned to Magistrate Judge Dolinger. (See Linsenmayer II).

The Mercado case was tried on April 3, 2001; I am advised that Judge Dolinger later found the defendant guilty in a decision rendered from the bench on April 30, 2001. Sued is alleged to have participated in the November 5th protest by distributing literature in, and refusing the directives of the Park Police to descend from, the Statue's crown. (Id.). As a consequence of his actions, and those of his fellow protesters, visits to the Statue were apparently disrupted for several hours. (See William Neuman, Vieques-Bomb Protesters Shut Down Statue of Liberty, N.Y. POST, Nov. 6, 2000, available at 2000 WL 30248212).

Charges Against Sued Sued's alleged conduct resulted in his being served with three separate citations, charging him with violations of 36 C.F.R. § 2.51(h)(unlawful demonstration/ assembly), 2.52(h) (unlawful distribution of printed matter), and 2.32(a)(2) (disobeying a lawful order). All three of the citations contain similar recitations of the relevant facts.

The most expansive statement, in the citation for disobeying a lawful order, summarizes the events giving rise to that charge as follows:

On 11/5/00 at approx. 1020 hrs. a report of a man climbing out of the crown window was broacasted on the radio. Upon arriving, Def. was part of a group of 6 people in the crown of the Statue. I directed Def. his group to go down the steps of the crown so that I could clear the area. Def. refused to go down and he continued to hand out flyers. At this time (when additional Police Officers arrived) Def. was arrested. Note: the area of the crown needed to be cleared out because a man was standing on the outside of the crown. Def. was part of a demonstration held in the crown involved w/ man on crown.(See Linsenmayer I).

Permit Procedures

The National Park Service web site indicates that any person or group wishing to "conduct a demonstration, display a banner, . . . [or] have a meeting" at the Statue of Liberty must apply for a permit on an approved form "a minimum of 72 hours in advance" unless this period is "waived by the Superintendent or designee." (See March 9, 2001 letter to the Court from AUSA Linsenmayer ("Linsenmayer III") at Ex. D; (last visited Apr. 30, 2001)). Persons or groups seeking to distribute printed matter at the Statue similarly are instructed to apply for a permit at least 72 hours before their planned activities, and there is no mention on the web site of this period being waived. (Id.). Only two public assembly and two printed matter permits are issued on a "first come, first served basis" for any given day. Furthermore, the permitees must restrict their activities to a two-hour period in a designated portion of the flagpole area at Liberty Island. (Id.). Even in that area, the permitees may not "interfere with normal public use or pedestrian flow." (Id.).

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