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. (http://www.nps.gov/stli/prod02.htm). 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
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
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;
http://www.nps.gov/stli/prod01.htm#Public (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.).