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Edward F. Kinane, et al v. United States

January 20, 2011

EDWARD F. KINANE, ET AL., APPELLANTS,
v.
UNITED STATES, APPELLEE.



Appeals from the Superior Court of the District of Columbia (CMD1213-08, et al.) (Hon. Wendell P. Gardner, Jr., Trial Judge)

The opinion of the court was delivered by: Pryor, Senior Judge:

Argued November 19, 2010

Before REID and THOMPSON, Associate Judges, and PRYOR, Senior Judge.

Following a two-day bench trial, appellants, a group of thirty-four protestors, were convicted of one count of violating 40 U.S.C. § 6135 for unlawfully demonstrating on the Supreme Court plaza or in the Supreme Court building. On appeal appellants request this court to vacate their convictions, contending that: (1) the "display" clause of 40 U.S.C. § 6135 is an unconstitutional restriction on expression; (2) 40 U.S.C. § 6135 was not reasonably enforced because appellants were not informed they had the right to demonstrate on the sidewalk; and (3) a demonstration on the plaza did not violate the statute. This court has already resolved the issues raised in appellants' contentions in favor of the government, and we find no reason to deviate from our previous holdings. Most recently, in Lawler v. United States, Nos. 07 CM 803 (D.C. Dec. 16, 2010), this court resolved appellants' second and third contentions in favor of the government. Accordingly, we affirm appellants' convictions.

I.

On January 11, 2008, a large group of people gathered in front of the Supreme Court and demonstrated their opposition to the United States' prison facility in Guantanamo Bay, Cuba. Appellants congregated in front of the Supreme Court to "give voice to . . . all of those in Guantanamo[,]" and to protest "on behalf of the prisoners who are forced to kneel and do not have the right to stand up for themselves. . . ." In addition to protesting on behalf of the prisoners collectively, some appellants protested on behalf of particular prisoners detained at the facility.

Although the demonstration began on the public sidewalk abutting the Supreme Court, some demonstrators left the sidewalk and protested on the Supreme Court plaza (hereinafter "outside demonstrators") and others protested inside the Supreme Court building (hereinafter "inside demonstrators").

Outside Demonstrators

The protest began at approximately 1:00 p.m. Shortly thereafter, twenty-seven demonstrators left the sidewalk and entered the Supreme Court plaza.*fn1 The protestors walked across the plaza to the second set of steps leading to the main doors of the Supreme Court. There, on the command of someone in the group saying, "prisoners kneel," the group knelt down with their hands behind their backs. Some of the demonstrators were wearing orange jump suits, and others were carrying signs that stated, "Shut Down Guantanamo." The Supreme Court police chief gave this group three sets of warnings informing them that they were violating 40 U.S.C. § 6135, and that they would be arrested if they did not leave the plaza. The group did not leave the plaza, and was placed under arrest.

After the initial group kneeled at the steps of the Supreme Court, an individual left the public sidewalk and joined the group. At approximately 1:25 p.m., yet another lone individual walked onto the plaza with a sign that read "Shut Down Guantanamo" and knelt down at the base of the steps. These individuals were also warned, and were arrested after they failed to leave the plaza.

Almost immediately thereafter, another group of seven demonstrators walked up to the plaza carrying a banner that read, "[S]hut [D]own Guantanamo." Two of the people in the group stood, while the others knelt down. As with the other demonstrators, this group remained on the plaza despite being given three warnings, and was arrested.*fn2

Inside Demonstrators

At the same time, around 1:00 p.m. that afternoon, approximately forty-five individuals gathered in the Upper Great Hall of the first floor of the Supreme Court building. About fifteen to twenty individuals were chanting or singing, while kneeling shoulder to shoulder with their arms interlocked. Many of the people were wearing orange t-shirts that stated, "Shut Down Guantanamo," some were in the process of putting the t-shirts on over their regular clothing, and others were removing a layer of outer clothing revealing the orange t-shirts. Within this larger group, a smaller group was dressed in orange jump suits; a few also had black hoods. This group carried a black banner that read, "Close Guantanamo." Deputy Chief Dolan gave the protestors warnings that they would be arrested if they did not ...


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