Greg Muller Memo of Law

8/3/2019 Greg Muller Memo of Law

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Thomas R. ClarkCity Solicitor Peter R. ChiesaGregory T MullerJohn G . BlanchardJeremy A. Harmonhomas L Arnold, IIIDeputy City Solicitor

CITY OF MANCHESTEROffice of the City SolicitorNovember 10, 2011Mary Barton, Clerk

Ninth Circuit CourtManchester District Division35 Amherst StreetManchester, NH 03101

RE: STATE OF NEW HAMPSHIRE v. PETER EYRE456-20J1-CR-03796 (498200-1C)

Dear Clerk Barton:Pursuant to the order of Judge Lyons issued on or about October 24,2011, enclosed please find

the State's Memorandum of Law for filing in the above-captioned matter.Thank you for your courtesy and attention to this matter. Should you have any questions, pleasecontact me at your earliest convenience.

(0

Respectfully yours,

~u~~~ ~ T : f : 4 7 7City of ManchesterOffice of the City SolicitorOne City Hall PlazaManchester, NH 03101(603) 624-6523(603) 624-6528 (fax)

cc. Peter Eyre, Defendant appearing pro se, of 73 Leverett Street Keene, NH 03431.File

One City Hall Plaza Manchester, New Hampshire 03101 (603) 624-6523 FAX: (603) 624-6528TTY: 1-800-735-2964E-Mail: [email protected] Website: www.manchesternh.gov
mailto:[email protected]://www.manchesternh.gov/http://www.manchesternh.gov/mailto:[email protected]


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STATE OF NEW HAMPSIllREHILLSBOROUGH, SS. NINTH CIRCUIT COURT - _:\L-L~CHE TER

DISTRICT DIVISIO~November Term 2011

STAITOF ::\"I\Y R-\.SrP SHIREY.

PEITREYREDOCKIT : I ll-CR- 03 96 498200C-lq

STATE'S MEMORANDUM OF LAWNOW COMES the State of New Hampshire, by and through its counsel, Gregory T.

Muller, Esq. of the City of Manchester Office of the City Solicitor, with its Memorandum ofLaw and states as follows:

PROCEDURALBACKGRO~~

1. That on or about June 4,2011, the Defendant, Peter Eyre, was arrested byOfficer Thomas Gonzales of the Manchester Police Department and chargedwith two misdemeanors of Disorderly Conduct in violation ofR.S.A. 642:2(Docket No.s 11-CR-03796 (498200C-1C).

2. The complaints against the Defendant, Peter Eyre, allege as follows:That the Defendant did commit the offense of Disorderly Conduct - RefuseTo Move contrary to R.S.A. 644:2(II)(e) and the laws of New Hampshirefor which the defendant should be held to answer, in that the defendant didknowingly refuse to comply with the lawful order of Officer Gonzales tomove from any public place, to with: Peter Eyre did while amongst a grouprefuse to comply with repeated orders to move and not block the sidewalkarea in front of 351 Chestnut Street, the Manchester Police Department abuilding open to the public. (Docket No. 11-CR-03796 (498201C)

andThat the Defendant did commit the offense of Disorderly Conduct - RefuseTo Move contrary to R.S.A. 644:2(II)(d) and the laws of New Hampshirefor which the defendant should be held to answer, in that the defendant did

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knowingly refuse to comply with the lawful order of Officer Gonzales tomove from any public place, to with: Peter Eyre did while amongst a grouprefuse to comply with repeated orders to move and not block the sidev .alkarea in front of 351 Chestnut Street, a crime scene, in which policedetectives were conducting an investigation and he continued to interferewith their investigation by refusing to move. (Do ket );0. ':-CR _3 -9~(49LOOC)

3. Both complaints note clearly that e . e of War .en . Co uct :0=--_ -:t:R.S.A. 644:2(II) alleged in each complaint was ag . e peace d.the State.

4. Prior to trial, the Defendant filed two pleadings entitled Motion to Dismiss andRequestfor Full Findings of Fact and Conclusions of Law. In neither of thesepleadings did the Defendant assert any challenge under the First Amen en- ofthe Constitution of the United States of America to his prosecution under _illR.S.A. 644:2 (d) and/or Ce). See Motions to Dismiss and Request for FullFindings of Fact and Conclusions of Law.

5. On or about October 24, 2011 at approximately 1: 15 p.m., a trial was held in the

above-captioned matter in the Ninth Circuit Court - Manchester DistrictDivision. At said trial, the State presented the testimony of Sgt. John Patti, Sgt.Dana Langton, and Officer Thomas Gonzales. The Defendant did not call anywitnesses and did not testify himself. The sole exhibit submitted as evidence inthis matter was the police report of Officer Thomas Gonzales.

6. At the close of the trial, this Honorable Court ordered the parties to each submita memorandum of law on the issue of whether the Defendant's conduct wasprotected under the First Amendment of the United States Constitution andwhether the evidence offered by the State specifically, that the Defendant did

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not comply with the verbal order to move issued by Sgt. Patti, Sgt. Langton, an 'Officer Gonzales but did move after the police engaged ina "herding" ac '0was sufficient to convict the Defendant of Disorderl Conduct un er _-.H.R.S.A. 644:2(II).

7. On June 4,2011, Sgt. John Patti of the Manchester Police Department alongwith other officers exited the Manchester Police Department to continue with anongoing investigation regarding into a graffiti/ criminal mischief incident thathad just occurred at the police station.

8. Both Sgt. John Patti and Sgt. Dana Langton testified that when the returned tothe exterior of the Manchester Police Department they noted a group ofindividuals congregating on the sidewalk area immediately in front of the stationon the east side of Chestnut Street.

9. Sgt. Patti testified that a subject known to him looked at the group and thenproceeded to cross to the other side of Chestnut Street.

10. Both Sgt. Patti and Sgt. Langton testified that the group of individuals, whichcontained the Defendant, Peter Eyre, was asked to move from the sidewalk areain front of the Manchester Police Department as they were preventing thedetectives from photographing the evidence of in the graffiti/criminal mischiefinvestigation and they were blocking the sidewalk for regular pedestrian use.

The following recitation of facts is based on the police report of Officer Thomas Gonzales entered as an exhibitin the October 24, 2011 trial and this writers recollection of the testimony offered at said trial by the State'switnesses. The State understands that this Honorable Court will take its own recollection of the facts in thiscase and that there is an audio record of the testimony offered in this matter.

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Sgt. Langton described that a person would not be able to pas- the gro p -:-:'OEgoing into the roadway.

defen an -r oilier persons sum "Chestnut uee -0mow. The iefe -rrequested. The officers then form and line an 'egan 0" erd' the Defend T " : ; :and others away from the evidence and further down the sidewalk.

12. Once the officer stopped the herding action, the Defendant and others stoppedmoving and would not continue to move despite repeated commands to do so.The officers testified that the group including the Defendant woul only movewhen the officers would once again engage in the physical "herding" action.

13. Sgt. Patti estimated on direct examination that the Defendant and other personsbehavior of ignoring the verbal commands and only moving when physicallyherded continued for approximately a half and hour.

14. Finally, once the respective groups reached the north parking lot and afternumerous commands had been given to the Defendant and others to keepmoving, the officers began to arrest those persons still remaining on thesidewalk in violation of the repeated orders to move and keep moving.

15. Officer Gonzales report which was entered as a full exhibit in this mattercontains the following recitation of the situation:

At about 1800 hrs, 06-04-11, Ofc Joyal and I were assigned to the wagonand were at Head Quarters reference to a group of demonstrators whowere protesting outside the front of the Police Department. Several of theprotesters had been arrested for writing graffiti on the front of thebuilding, front retaining wall and sidewalk. A group of 15 to 30protesters continued to remain on the sidewalk in front of the PD

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blocking pedestrian traffic and standing on and in from of the evi en ethat was going to be photographed.Sgt Patti, Sgt Mucci, Sgt Langton along with several offi ers approaccedthe protesters from the south end of the sidewalk. g:Paai a l . : ; : : : : : 5 -Langton told the group that they had to move from e side .'.~ : = : :explained to them thatthey were impeding pedestrian traffic y blo L g the si =..... - < > : : aisowere in an area that was considered a crime s ene. evera. Officers toinclude m self formed a line and walked towards the _ oup whilerepeating over and over to them to move from the sidewalk and tocontinue moving and not block the sidewalk. Slowly the group movednorth up the sidewalk to until they were beyond the graffiti, however thegroup stopped and continued to question us. I told the group severaltimes that they had to keep moving and could not block the sidewalk. Irepeated this several times, however they refused to move. At this point,Sgt Patti told us to place the group under arrest. I then approached one ofthe protesters who I later identified as,Peter Erye06-22-8073 Levertt StKeeneNH03431I then placed him under arrest without incident. He was walked into thebooking area of the PD and process. He was then released on a whitesummons.

16. At trial, Officer Gonzales testified that the group including the Defendant wouldstop at the point the officers stopped moving towards them and would not movewhen commanded but rather would only move when the police began toadvance upon them again.

LEGAL ARGUMENT AND ANALYSISFIRST AMENDMENT - THE DEFENDANT'S CONDUCT IS NOT PROTECTED

17. The Defendant's alleged violation of both NH R.S.A. 644:2 (II)(d) and (e), inengaging in conduct that substantial interfered with a criminal investigation inpublic place and refusing to comply with a lawful order to move is not protected

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expression under the First Amendment of the Constitution of e Lnited - resof America (hereinafter referred to as the 'Constitution"). Even where ~Honorable Court to fmd that the Defendant' conduct was ex~Tes5~.J:;:0:-symbolic conduct under the First Amendment, R.S.A.facially valid and as applied to the Defendant are a reasona lemanner restrictions that are content neutral and a narrowly tailored to addresscompelling and substantial government interests that do not involve theregulation of speech or content.

Procedural Sufficiency of Defendant's Constitutional Claim18. The Defendant is this matter did not file a pre-trial motion to dismiss inthis

matter setting forth a claim that either R.S.A. 644:2(II)(d) and (e) were faciallyinvalid under the First Amendment of the United States Constitution or that theregulations as applied to his conduct and circumstances amounted to animproper infringement upon his right to "free expression'" under the FirstAmendment. See Defendant's Motions to Dismiss and Request for FullFindings of Fact and Conclusions of Law, filed September 21,2011.

19. While the fact that a claim of a violation of the First Amendment was not raisedin a pre-trial pleading is not necessarily dispositive of the issue, it is of notewhen this Honorable Court considers the sufficiency of what has been in factproper raised and asserted. See In Re Lussier,161 N.H. 153, 160 (N.H. 2010).

See Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); See The Constitution of the UnitedStates of America: Analysis and Interpretation. - Annotations to the First Amendment "Rights of Assembly andPetition", Johnny H. Killian and George A. Costello edited the 1992 Edition. Johnny H. Killian, George A.Costello and Kenneth R. Thomas edited the 1996 and 1998 Supplements. George A. Costello and Kenneth R.Thomas edited the 2000 Supplement. (noting that under the modern jurisprudence that the right to free speech,right to assemble, and right to petition under the First Amendment have been merged into a common notationunderstood as the right to "free expression").

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(Judicial review is not warranted for complaints regarding ad erse rulingswithout developed legal argument, and neither passing reference toconstitutional claims nor off-hand invocations of constitutional rig -- ",-:-1-support by legal argument or authority warrants exten ed onsi e

20. The first time that arguably any challenge to the ta e - enfor emen effortunder the First Amendment was raised was at trial in this matter duringargument regarding the admissibility of testimony. Upon information and belief,at no time did the Defendant elaborate as to the specific nature of his challenge

that his conduct in question is protected under the First Amendment of theConstitution or elaborate any basis for said claim.

21. The New Hampshire Supreme Court has clearly noted that mere invocation orpassing reference constitutional claim is not sufficient to warrant consideration.See State v. Lott, 152 N.H. 436, 443 (N.H. 2005) (because the defendant has notdeveloped his constitutional arguments the Court declines to address saidargument); See State v. Chick, 141 N.H. 503,504 (1996) (passing reference toconstitutional claim renders argument waived); See Keenan v. Fearon. 130 N.H.494,499 (1988) ("off-hand invocations" of constitutional rights supported byneither argument nor authority warrant no extended consideration).

22. While the State readily concedes that it was this Honorable Court that orderedthe parties to submit memorandum of law on the issue of whether theDefendant's conduct was protected under the First Amendment, the State wouldrespectfully assert that given the Defendant's mere off-hand invocation of the

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First Amendment of the Constitution this issue is not properly before -b:-Honorable Court for any extended consideration. See Chick. 141 ~.H. ar : =

consideration, this Honorable Court should under the ase law order that m eDefendant has failed to sufficiently raised the issue of protection under the FirstAmendment and deem this argument waived. See Lussier, 161 N.H. at 160; seeLott, 152 N.H. at 443; see Chick, 141 N.H. at 504; see Keanan. 130 .H. at 499.

24. Assuming arguendo, that this Honorable Court deems that the Defen - hassufficiently raised and argued a constitutional claim in this matter, the Stateinterprets based on the nature of the Court's question that the Defendant hasraised an as applied challenge to R.S.A. 644(2)(II)(d) and (e):'.

Freedom of Expression25. The First Amendment of the Constitution applicable to the States through the

Fourteenth Amendment states:Congress shall make no law respecting an establishment of religion, orprohibiting the free exercise thereof, or abridging the freedom of speech,or of the press, or the right of the people peaceably to assemble, and topetition the Government for a redress of grievances. 1st Amendment u.S.Constit.

26. The general understanding of this prohibition is that the " ... government has nopower to restrict expression because of its message, its ideas, its subject matter,or its content." See Ashcroft v. American Civil Liberties Union, 535 U.S. 564,

See Doe v. Reed, 130 S.Ct. 2811, 2817 (2010) - a claim is facial if it is not limited the particular case but morebroadly to all persons potential effected by the regulation in question.

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573 (2002) quoting Bolger v. Youngs Drug Products Corp., 463 FS. 60. 6:(1983).

27. In the matter before this Honorable Court, the Defendant, Peter E~Te.- till'~;;::with violating to provisions of i .H. R.S.A. 6++:_ (ill, spe iii a'lysubparagraphs (d) and (e). See Complaints Do ket _-0. 11-CR-Q3-961C). Specifically, the Defendant is alleged to have knowingly engaged inconduct in a public place which substantially interfered with a criminalinvestigation and refused to comply with a lawful order to move from a publicplace which had been communicated to him by law enforcement official. rd.

28. N.H. R.S.A. 644:2(II)(d) states in pertinent part that a person is guilty ofDisorderly Conduct if "he or she [knowingly] engages in conduct in a publicplace which substantially interferes with a criminal investigation ..." N.H. R.S.A.644:2(II)(d) (2005).

29. N.H. R.S.A. 644:2(II)(e) states that a person is guilty of Disorderly Conduct if"he or she knowingly refuses to comply with a lawful order of a peace officer tomove from or remain away from any public place." See N.H. R.S.A. 644:2(II)(e) (2005).

30. To resolve the Defendant's claim, this Honorable Court must proceed in threesteps: first, determining whether the conduct at issue is protected free expressionunder the First Amendment, then identifying the nature of the forum, and finallyassessing whether the State's justifications for restricting the defendant's speechsatisfies the requisite standard. See Cornelius v. NAACP Legal Def. & Educ.Fund, Inc., 473 U.S. 788, 797 (1985).


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Is the Conduct In Question Protected Speech Under the First Amendment31. The First Amendment ordinarily denies a State the authority ;...10 rohioit

dissemination of social, economic and political doctrine which a v majority 0:its citizens believes to be false and fraught with evil consequence." See "\\l1itne\'v. California, 274 U.S. 357, 374 (1927). The First Amendment affordsprotection to symbolic or expressive conduct as well as actual speech. SeeVirginia v. Black, 538 U.S. 343, 357 (2003 ) (cross burning is a symbol of hate);See R.A.V. v. City of St. PauL 505 U.S. 377,382 (1992); See Tinker y. DesMoines Independent Community School District, 393 U.S. 503,506 (1969)(wearing of arm bands symbolic speech); See Stromberg v. California, 283 U.S.359,368-369 (1931) (displaying of a red flag is speech); See Food Employees v.Logan Valley Plaza, Inc., 391 U.S. 308, 313-314 (1968) and United State v.Grace, 461 U.S. 171, 176 (1983) (both discussing picketing as speech).However, the First Amendment has no application when what is restricted is notprotected speech. Roth v. United States, 354 U.S. 476, 483 (1957) (holdingobscenity not protected speech).

32. The United State Supreme Court in Texas v Johnson, 491 U.S. 397 (1989)discussed the expressive conduct as protected speech under the FirstAmendment stating.

The First Amendment literally forbids the abridgment only of "speech,"but we have long recognized that is protection does not end at the spokenor written word. While we have rejected the view that an apparentlylimitless variety of conduct can be labeled "speech" whenever the person

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I II II'I Ii II 'II'I II II I' II II II III, IIII IIIIII II !I I, II i

engaging in the conduct intends thereby to express an idea, [ .~ ~OIiomitted], we have acknowledged that conduct may be "sufficierz'yimbued with elements of communication to fall within the sco; " J = - - ; .~First and Fourteenth Amendments. See Texas Y. Johnson. ~9: c .= . ~~ -.404 (1989) citing to United State Y. O'Brien. 391 C.S. 36;. -'-:-6-~--1968)andSpencev. Washinzton. ..n8U.S.40-, 9""';':1 :9--.

33. The Johnson Court announced the test that is to be use 'in e ermining ,:,,-~~~~conduct in a particular matter is sufficiently expressive or sym oli can II-soas to afford it protection as protected speech under the First Amendment stating:

[i]n deciding whether particular conduct possess sufficientcommunicative elements to bring the First Amendment into play, wehave asked whether an intent to convey a particularize message waspresent, and whether the likelihood was great that the message would beunderstood by those who viewed it. Id.

34. In the matter presently before this Honorable Court, the Defendant is chargedengaging in conduct that violates subparagraphs (d) or (e) of I.H. R.S.A.644:2(II) defining the crime of Disorderly Conduct. See (Docket No. 11-CR-03796 (498200C-1C). Neither subparagraph (d) or (e) on its face regulatesspeech nor do the respective sections implicate the content of speech by definingthe expressive content of speech as the relevant harm. See O'Brien, 391 U.S. at375 (noting at the outset that law prohibiting the destruction of Selective Serviceregistration cards on its face does not abridge speech and on its face deals withconduct having no connection to speech); See also Mahoney v. Doe, 642 F.3d1112, 1116 (D.C. Cir. 2011) (noting the usual nature of asserting a free speechclaim to a facially neutral defacement statute). Thus, the question turns towhether the Defendant's conduct amounts to symbolic or expressive conduct asdefined by the Johnson Court. See Johnson, 491 U.S. at 404.

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35.~At trial the evidence adduced showed that on June 4,2011, the Defendant alonzwith others had been engaged in a protest outside the Manchester PoliceDepartment located on Chestnut Street in the City of ~lanchester. Some O=-h~protest involved individuals writing graffiti on the from of m e _ IanchesierPolice Department, the retaining .,YaHn from of the building an the portion 0:the sidewalk located eastside Chestnut Street in front of the l\1anche::.--reroliceDepartment. That this action of writing graffiti led to members of thedemonstration being arrested. Officers notes that a group of about 15 to 30

members of the original demonstration remained on the sidewalk: directly infront of the Manchester Police Department impeding pedestrian traffic andstanding on or in front of graffiti that was going to be photographed as evidence.Officers including at least at some point Sgt. John Patti, Sgt. Dana Langton, andOfficer Thomas Gonzales made contact with the group which included theDefendant. Initial contact was made at front of the Manchester PoliceDepartment steps. Sgt. Patti and Sgt. Langton ordered the group not to movefrom the sidewalk as they were impeding pedestrian traffic and standing on andin front of what was being now treated as a crime scene. The group membersincluding the Defendant did not move upon the verbal request. Officer

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Gonzales along with other officers proceeded to form a line and began to in thewords of Sgt. Patti "herd" the Defendant and other ~?roupmembers away fromthe area. Officer Gonzales along with other members of this herding group gaverepeated instructions for the group including to move and keep moving from thesidewalk. The group including the Defendant however, ignored the commands

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Defendant had been herded to the area of the north parking iot, A- -t,;, 1 :' ~ ~

.of the officers and would only move" rhen forced to by the herdinz action, -~~, -what approximated at trial to be thirty minutes, the group in Iudiag the

commands were given again to move from the si ev, t , - the grot r\,,


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to protest segregation. See Brown, 383 U.S. 141-142. Equally clear is e ase c:a man burning an American flag at the Republican ational Convention : C ' -:"cwhis displeasure with the nomination of Ronald Reagan. See Johnso "T9 :"-.5. z;399-406. Also clear the case of person dressing in Americanfor a dramatic presentation criticizing America's involvement inVie .5Schacht v. United States, 398 U. S. 58 (1970}. What is truly unclear is what ifany particularized message the Defendant is alleged to have intended to conveyby his conduct and how there is any likelihood that it would be understood bythe casual objective observer. See Johnson, 491 U.S. at 404. (rejecting theapplication of free speech to an unlimited variety of conduct).

38. Here, the Defendant's conduct in refusing to move merely discloses that theDefendant did not wish to comply with the order to move clearly issued to himand does not convey any particularized message that is readily understood. SeeNevada Commission on Ethics v. Carrigan, 131 S.Ct. 2343, 2351 (2011)(holding that the act of voting by a legislator symbolizes nothing but rathermerely discloses for whatever reason that the legislator wishes the propositionon the floor to be adopted, just as a physical assault discloses that the attackerdislikes the victim and that both actions are not acts of communication.)

39. As noted by Justice Scalia in Carrigan, "the fact that a nonsymbolic act is theproduct of a deeply held personal belief - even if the actor would like to conveyhis deeply held personal belief - does not transform action into FirstAmendment speech. "rd. Thus, while the Defendant in this matter may hold adeep personal belief regarding the Manchester Police Department and the New

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Hampshire Criminal Justice system and even a desire to convey this belief, hisconduct in question of standing on evidence and refusing to move is no moresymbolic and readily understood as being symbolic than the actions of anonlooker at an accident scene who refuses to move so as 0 afford . self orherself a quick look at the carnage. Id.

40. The conclusion that the Defendant's conduct in this matter does not rise to thelevel of protected speech is especially true, when this Honorable Court considersthe Defendant's conduct in light of the facts and holding of the United StatesSupreme Court in Colten v. Kentucky, 407 U.S. 104 (1970). See CoIten v.Kentucky, 407 U.S. 104 (1970).

41. The Court in Colten found the following:Appellant CoIten and 15 to 20 other college students gathered at the BlueGrass Airport outside Lexington, Kentucky, to show their support for astate gubernatorial candidate and to demonstrate their lack of regard forMrs: Richard Nixon, then about to leave Lexington from the airport aftera public appearance in the city. When the demonstration had ended, thestudents got into their automobiles and formed a procession of six to 10cars along the airport access road to the main highway. A statepoliceman, observing that one of the first cars in the entourage carried anexpired Louisiana license plate, directed the driver, one Mendez, to pulloff the road. He complied. Appellant CoIten, followed by other motoristsin the procession, also pulled off the highway, and CoIten approachedthe officer to find out what was the matter. The policeman explained thatthe Mendez car bore an expired plate and that a traffic summons wouldbe issued. CoIten made some effort to enter into a conversation about thesummons. His theory was that Mendez may have received an extensionof time in which to obtain new plates. In order to avoid CoIten and tocomplete the issuance of the summons, the policeman took Mendez tothe patrol car. Meanwhile, other students had left their cars andadditional policemen, having completed their duties at the airport andhaving noticed the roadside scene, stopped their cars in the traffic laneabreast of the students' vehicles. At least one officer took responsibilityfor directing traffic, although testimony differed as to the need for doingso. Testimony also differed as to the number of policemen and studentspresent, how many students left their cars and how many were at one

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42. The United States Supreme Court in Colten upheld the conviction for disorderly

time or another standing in the roadway. A tare P02 ~ '"tain as ze d onfour or five occasions that the group disperse. _ - \ . 1 Ieas; = ~ . - ctimes p ~ casked Colten to leave. A state trooper rna e two recueszs, :::-e~criL.g -=least once: " TOW, this is none of your affair ... ge; : " ' 2 . ; : : 1 ; : 1= ycur ~..:::.::::'please move on and clear the road." Inre nse ro - : ~ c : . 5 :cr;e o=-:te5"~requests Colten replied that he wished a te a transtxmaacr;arrangement for his friend Xlendez and the 0 upants c=:::.~_.:e::iez car.which he understood was to be towed away ...Anot e'" o=::cr asked :=eC3times that Colten depart and when Cohen f .e "Comove 3 C \ - a : . - 2.e vasarrested for violating Kentucky's disorderly on u r st nne, ~. -.Rev.Stat. 437.016 (Supp. 1968). The arresting officer testifie T that Cohen'sresponse to the order had been to say that he intended to stay and seewhat might happen. Colten disputed this. He testified that he expressed awillingness to leave but wanted first to make a transportationarrangement. At trial he added that he feared violence on the part of thepolice. See Colten, 407 U.S. at 106-107

conduct for refusing to move finding:...when arrested, appellant was not engaged in activity protected b theFirst Amendment. Colten insists that, in seeking to arrange transportationfor Mendez and in observing the issuance of a traffic citation, he wasdisseminating and receiving information. But this is a strained, near-frivolous contention, and we have little doubt that Colten's conduct inrefusing to move on after being directed to do so was not, without more,protected by the First Amendment. Nor can we believe that Colten,although he was not trespassing or disobeying any traffic regulationhimself, could not be required to move on. He had no constitutional rightto observe the issuance of a traffic ticket or to engage the issuing officerin conversation at that time. The State has a legitimate interest inenforcing its traffic laws, and its officers were entitled to enforce themfree from possible interference or interruption from bystanders, eventhose claiming a third-party interest in the transaction. See Id., at 109.

43. Viewing the Defendant's conduct in the present matter in light of Colten, theconduct appears to be virtually the identical to the conduct of the Defendant. Seerd. at 106-107. Like the Defendant in Colten, the Defendant did not heed thenumerous requests to move from the sidewalk but rather seemed more intent onposing questions to the officers who like those in Colten were trying to manage

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move on after being directed to do so was not, without more. expressive ora crime scene. See Id. Thus, like Colten the Defendant's action of refusing 0

symbolic conduct under the First Amendment. See Id. a: 09. As ~-isexpressive conduct, the First Amendment has no ais restricted was not protected speech, Rom. ~.:~"C .. a: - c .

44, Thus, the Defendant's conduct is not protected under the First Amen em anthe analysis need not to go any farther.

Forum45. Assuming arguendo that this Honorable Court determines that the Defen rs

conduct amounted to expressive or symbolic conduct under the protection of meFirst Amendment, the next consideration is the forum in which the conductoccurred. See Cornelius., 473 U.S. at 797.

46. The State concedes that the conduct occurred in a traditional public forum mostnotably the east sidewalk on Chestnut Street in the City of Manchester, NH. SeeHague v. CIO, 307 U.S. 496, 515 (1939) (recognizing that streets and parks,which have been held in trust for the use of the public and, time out of min, havebeen used for purposes of assembly, communicating thoughts between citizens,and discussing public questions.)

47. Thus, the crux of the analysis turns on the whether the appropriate standard to beemployed by this Honorable Court.

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Applicable Standard - Nature of the Regulation48. Assuming arguendo, that this Honorable Court finds that the Defen t's

conduct in this matter amounts to expressive conduct then . ewhether the State's regulation is related to the suppres ion of free expression : : : : . . ithe appropriate standard that is to be utilized.

49. Expression, whether oral or written or s mbolized by conduct, is ubject toreasonable time, place, or manner restrictions. Clark v. Community for CreativeNonviolence, 468 U.S. 288,293 (1984). The Supreme Court has often noted thatrestrictions ofthis kind are valid, provided that they are justified withoutreference to the content of the regulated speech, that they are narrowly tailoredto serve a significant governmental interest, and that they leave open amplealternative channels for communication of the information. City Council of LosAngeles v. Taxpayers for Vincent, 466 U.S. 789 (1984); United States v. Grace,461 U.S. 171 (1983); Perry Education Assn. v. Perr-yLocal Educators' Assn.,460 U.S. 37,45-46 (1983); Heffron v. International Society for KrishnaConsciousness, Inc. 452 U.S. 640, 647-648 (1981).

50. If the however, the regulation in question is not content neutral and related to thesuppression of free expression, then the Court is to analyze the State'sregulations and determine whether the State has shown that the regulation isnecessary to serve a compelling state interest and that it is narrowly tailored toachieve that end. See Perry Education Assn., 460 U.S. at 45.

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Comem:\"e

51. Inthe matter presently before the Defen 15 bargesubparagraphs (d) or (e of:\".H. R.S.A. 6 efining - e crime \ 1 : -Disorderly Conduct. See (Docket :\"0. ll-CR-03N.H. R.S.A. 644:2(II)(d) and (e) (2005). As previously noted neithersubparagraph at issue in this matter, on its face regulates speech nor do therespective sections implicate the content of speech by defining the expressivecontent of speech as the relevant harm. See Mahonev. 642 F.3d at 1116

52. The conduct prohibited by the provisions in this matter is the purely non-communicative conduct of substantially interfering with a criminal investigationand refusing to comply with a lawful order to move from a public place. SeeN.H. R.S.A. 644:2(II)(d) and (e); See also Colten, 407 at 109. (noconstitutionally protected right to engage in a traffic investigation involving athird party in questioning). It is clear that these regulations do not on their faceabridge free speech or regulate expression in any manner and are thus content-neutral regulations. See O'Brien, 391 U.S. at 375 (noting that a law prohibitingthe destruction of Selective Service certificates no more abridges free speechthan a motor vehicle law prohibiting the destruction of a driver's license or taxlaw prohibiting the destruction of books and records.); See also Mahoney, 642F.3d at 1118 (finding that the D.C. Defacement statute was content neutral as itprohibits certain conduct including expressive conduct without reference to the

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1 -message the speaker may convey); See also State v. Nickerson, 120 N.H. 821, I823-824 (striking down the prior version ofR.S.A. 644:2(II)(e) as law order as- used in the statute was undefined and gave rise to the likelihood that the sta ecould be used to chill a broad spectrum of constitutionally protected siincluding peaceful orderly protests)

53. Furthermore, there is absolutely no evidence that the State is aware of that eitherR.S.A. 644:2(II)(d) or (e) was adopted by the New Hampshire General Courtbecause of an agreement or disagreement with the message a speaker mayconvey. See Ward v. Rock Against Racism, 491 U.S. 781,791(1989).

54. To the extent the Defendant attempts to assert some sort of incidentalimpediment upon the exercise of protected expression, the State wouldrespectfully counter that it has been held that the fact that the conduct based

v regulation has some incidental impediment upon free speech does not transformthe regulation in one the abridges free speech. See O'Brien, 391 U.S. at 376.

55. As the Court in O'Brien clearly noted in discussing the validity of the assertionthat the conduct of burning a Selective Service certificate amounted to symbolicexpression for purpose -of First Amendment protection:

We cannot accept the view that an apparently limitless variety of conductcan be labeled "speech" whenever the person engaging in the conductintends thereby to express an idea. However, even on the assumption thatthe alleged communicative element in O'Brien's conduct is sufficient tobring into play the First Amendment, it does not necessarily follow thatthe destruction of a registration certificate is constitutionally protectedactivity. This Court has held that, when "speech" and "nonspeech"elements are combined in the same course of conduct, a sufficientlyimportant government interest in regulation the nonspeech element canjustify incidental limitations on the First Amendment freedoms. rd.

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56. Thus, even should this Court find that there is an incidental impediment tospeech by content neutral non-speech regulations, the standard announcedO'Brien is clearly the controlling standard un er the ir 1.II.Ils-:.3llC~S o=~ case.

difference between the analysis set forth in 0 'Brien d the reasonab Ie, :i=-~.place and manner restriction of s inbolic conduct).

Sufficient Government Interest/ Sufficiently Important Government Interest57. The Court in a 'Brien discussed in detail is meant by a "sufficiently important

government interest" holding:To characterize the quality of the governmental interest which mustappear, the Court has employed a variety of descripti e terms:compelling; substantial; subordinating; paramount; cogent; strong.Whatever imprecision inheres in these terms, we think: it clear that agovernment regulation is sufficiently justified if it is within theconstitutional power of the Government; if it furthers an important orsubstantial governmental interest; if the governmental interest isunrelated to the suppression of free expression, and if the incidentalrestriction on alleged First Amendment freedoms is no greater than isessential to the furtherance of that interest. See O'Brien, 391 U.S. at 376-377.

58. Here, the regulations in question, R.S.A. 644:2 (II)(d) and (e)4, involves actionsin a public place which "substantially interfere with a criminal investigation"and refusing "to comply when given a lawful order of a peace officer to movefrom [...]a public place." See N.H. R.S.A. 644:2(II)(d) - (e), (2005).

4 644:2 Disorderly Conduct. - A person is guilty of disorderly conduct if:II. He or she:(d) Engages in conduct in a public place which substantially interferes with a criminal investigation, afirefighting operation to which RSA 154:17 is applicable, the provision of emergency medical treatment, or theprovision of other emergency services when traffic or pedestrian management is required; or

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59. As the present matters deals with two different regulations and it is unclear fromthe Defendant argument if his as applied challenge is to his conduct under bothprovisions, the State will analyze each independently regarding the issue 0 = c .sufficiently important government interest.

R.SA. 644:2(J1)(e) - Refusal to obey a lawful command of apeace officer TO moveor remain away from a public place

60. R.S.A. 644:2(II)(e) reflects the recognized and sufficiently importantgovernment interest in maintaining order in public places from the chaosassociated with imminent and ongoing crimes and disasters. See i\.H. R.S.A.644:2(II)(e). This is clear when one reviews the definition of "lawful order' setout by R.S.A. 644:2(V)(a). See N.H. R.S.A. 644:2(V)(a) (2005).

61. R.S.A 644:2 (V)(a) defines the terms "lawful order" in part as:(1) A command issued to any person for the purpose of preventing saidperson from committing any offense set forth in this section, or in anysection of Title LXII or Title XXI, when the officer has reasonablegrounds to believe that said person is about to commit any such offense,or when said person is engaged in a course of conduct which makes hiscommission of such an offense imminent;(2) A command issued to any person to stop him from continuing tocommit any offense set forth in this section, or in any section of TitleLXII or Title XXI, when the officer has reasonable grounds to believethat said person is presently engaged in conduct which constitutes anysuch offense; or(3) A command not to enter or a command to leave an area closedpursuant to paragraph IV [areas closed due when an officer has probablecause to believe that the is a serious threat to public health and safety duea disaster issue or ongoing criminal activity], provided that a person maynot lawfully be ordered to leave his or her own home or business. See Id.

(e) Knowingly refuses to comply with a lawful order of a peace officer to move from or remain away from anypublic place;

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I I62. This notion is buttressed by the New Hampshire Supreme Court discussion in

State v. Albers 113 N.H. 132 (N.H. 1973) regarding the constitutional validityunder the First Amendment of statute dealing with riots where it re ognized "asubstantial interest" in maintaining public order through ena ring laws

II

I II

prevent concerted unlawful activity stating:[h]owever laudatory, protests have often created problems for offi ialsand have prompted the development of certain state interests that may beinvoked to regulate them. These interests are the prevention of riots,disorder, interference with traffic, blockage of sidewalks or entrances tobuildings, and disruption of the normal functions of the public facility.See State v. Albers. 113 N.H. 132, 137-138 (N.H. 1973).

63. The New Hampshire Supreme Court, in Albers went on to find that based on evalid and substantial state interest the statute in question was constitutional in itsincidental infringement on protected expression, holding:

We have construed RSA 609-A: 1 II (Supp. 1973) [the law at the timegoverning mob actions and riots] to prohibit only gatherings assembledfor the specific purpose of imminently committing a crime [EmphasisAdded] in concert. As thus interpreted, the statute "aims merely topunish the abuse of right ... and subjects the speaker to no restraint ofindispensable right.. ..Itaims at abuses. Itevidences some care inbalancing community order with the right to free discussion of matters ofpublic concern." [Citation Omitted] The statute does not, as construed,sweep within is ambit an appreciable amount of constitutionallyprotected conduct. Since RSA 609-A: 1 II (Supp. 1973) rests firmly uponthe valid and substantial state interest in protecting against riots andother unlawful, concerted activity, and since at most it restricts lawfulprotest demonstrations and other assemblies only incidentally andperipherally, the statute is [valid]. See Albers, 113 N.H. at 138-139;citing Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Devine v.Wood, 286 F. Supp. 102 (M.D. Ala 1968); State v. Dixon, 479 P.2d 931(1971); and In Re Bacon, 240 Cal. App. 2D 34 (1966).

64. Reviewing the language in R.S.A 644:2(V)(a) defining what is meant by a"lawful order" in light of the holding as to the valid and substantial governmentinterest found by the New Hampshire Supreme Court in Albers, it is clear and

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beyond reasonable dispute that both provisions have essentially the same endswith the only real difference being the application to concerted activity WISUSindividual activity. See N.H. R.S.A. 644:2ay) and CV) (defining "laworder."); see .H. R.S.A. 664:2(II)(e); see Albers. 1l.J :\.H. at 1r -:3 : see a,'50State v. Nickerson, 120 N.H. 821,823-82:+ (1980)( though theinvalidated on over breadth grounds the Court did note that the government hasa substantial and valid concern the provision was originally in dealing withtraffic hazards)

65. Thus like the regulation at issue in Albers, R.S.A. 644:2(II)(e) is based on theState's substantial interest in protecting community order from imminentcriminal acts, ongoing criminal acts, and other imminent and ongoing hazards.See Erie v. Pap's AM, 529 U.S. 277, 297-98 (2000) (holding that thegovernment has a valid and substantial interest in maintaining public safety andhealth.); See Albers, 113 N.H. at 137-138; see also Nickerson, 120 N.H. 823-4.An interest that is in fact recognized by Part II, article 5 of the New HampshireConstitution, which provides that the General Court is to: ~

to make, ordain, and establish, all manner of wholesome and reasonableorders, laws, statutes, ordinances, directions, and instructions, either withpenalties, or without, so as the same be not repugnant or contrary to thisconstitution, as they may judge for the benefit and welfare of this state,and for the governing and ordering thereof, and of the subjects of thesame. N.H. Constitution Pt. II, art. 5

66. Thus, it is clear that the R.S.A. 644:2(II)(e) furthers a recognized governmentinterest that is both valid and substantial and unrelated to the regulation ofspeech. See O'Brien, 391 U.S. at 376-377,

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R.SA. 644:2(d)- Conduct That Substantially Interferes With A CriminalInvestigation

67. Subparagraph (d) ofR.S.A. 644:2(II) provides:A person is guilty of disorderlv conduct ifhe or she:(d) Engages inconduct in a public place which substantially interfereswith a criminal investigation, a firefighting operation to whi RS~-\.154: 17 is applicable, the provision of emergency medica: treatment, 0:-the provision of other emergency sen ices when traffic or pedestrianmanagement is required. See N.H. R.S.A. 644:2 (II)(d) (2005)

68. Given the plain language ofR.S.A. 644:2(II)(d), it is clear that this regulationseeks to further the legitimate government interest in public safety and ability ofemergency service personnel to engage in their duties free from interferencefrom third parties. See O'Brien, 391 U.S. at 375; See also Colten. 407 at 109. (The State has a legitimate interest in enforcing its traffic laws, and its officerswere entitled to enforce them free from possible interference or interruptionfrom bystanders, even those claiming a third-party interest in the transaction.)

69. Based on the plain language of the statute it clearly limits in applicability toconduct and only that conduct that substantially interferes with saidcircumstances. See N.H. R.S.A. 644:2 (II)(d) (2005); See also Colten, 407 at109. Thus any infringement upon a protected expression is at best merelyincidental. See O'Brien, 391 U.S. at 375

70. While the Court in Colten recognize a legitimate state interest in enforcingtraffic laws free from interference, the Court in Erie v. Pap's AM, 529 U.S. 277(2000) recognized in upholding a city ordinance banning nude dancing held thatpublic health, safety and welfare are compelling and substantial governmentinterests. See Pap's AM, 529 U.S. at 297-98; See also Colten, 407 at 109.

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Based upon the plain language ofR.S.A. 644:2(II)(d), it is clear that statute a imsto address interference with these well recognized and valid substantialgovernment interests and to avoid the problems that arise with interferen e witstate agents performing their respective duties in furtheran e of these interests.See Id.; See also In Re Juvenile 2006-406, 156 ~.H. 33; _36 _007 (-' -"[ljaw enforcement officers are responsible for the investigation of criminalmatters and the maintenance of public order.") See In Re Juvenile 2006-406,156 N.H. 233,236 (N.H. 2007); See also United States v. Sczubelek, 402 F.3d175, 185 (3rd Cir. 2005) (noting a compelling government interest in accuratecriminal investigations and prosecutions); see also Berger v. United States. 29-U.S. 78, 88 (1935) (holding that the compelling interest of a criminalprosecution is not winning the case but that justice shall be done).

71. Thus, it is clear that prohibition set forth in R.S.A. 644:2(II)(d) regarding certainconduct that may at best incidentally infringe upon protected expression, if atall, is clearly in furtherance of well recognized and substantial governmentinterests of public safety, proper investigation, and public health. Id.

Narrowly Tailored72. As it is clear and not subject to reasonable dispute, the both R.S.A. 644:2(II)(d)

and (e), are designed to further well recognized and substantial governmentinterests umelated to the suppression of free expression, such as public order,public safety, public health and accurate performance of law enforcement, thequestion becomes whether this regulation is sufficiently narrow as to achieve

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this interest without unnecessarily infringing incidentally on the right to freeexpression. See O'Brien, 391 U.S. at 376-377.

73. In reviewing the regulations set forth inR.S.A 644:2(II)(d) and (e), it is clear aswas the case in Albers, that these regulations do not seek to infringe upon theright to free expression but rather aims only to punish the abuse of rig -- or eimminent abuse ofrights. See Albers, 113 .H. at 137-138. R.S.A.64.4:_(II)(e). A speaker under either RS.A. 644:2(II)(e) or subparagraph (d) suffers noinfringement upon his right to protected free expression and the statute does not

on its face sweep within its prohibited conduct any appreciable amount ofprotected speech, if any at all. See Id.; See O'Brien, 391 U.S. at 375. At most,any restriction upon protected expression is merely incidental and peripheral andcertainly no greater than to achieve the well recognized and legitimategovernment interests. Id.

74. Certainly looking at the application ofRS.A. 644:2(II)(e), to the Defendant'scase shows this to be true. The protest had been allowed to happen. At the timeof the Defendant was given lawful orders to move, he was standing on and infront of graffiti that had been deemed evidence: See Colten, 407 at 106-107.(noting that the Defendant conduct occurred during a-traffic investigation). Therequests to move were not attempts to preclude or suppress any attempt at freeexpression by the Defendant nor did they. Rather these orders were issued allowthe police to photograph the evidence without hindrance, to free up use of thesidewalk for pedestrian traffic, and to prevent the Defendant from continuingwith conduct that officer reasonably believed would rise to a violation under

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II

I IR.S.A. 644:2. See Cox v. New Hampshire, 312 US. 569,573-575 19'71 ~ Seealso Colten, 407 at 109. Arguendo, to the extent that the enforcement ofregulations by asking the Defendant to move from that one particular side '.-imposed an -restriction the Defendant's exer ise of free expression, su :_,_infringement was so minute and incidental that the it learly w -nc: g:' rer --"'~was essential to further the well recognized, valid, substantial governmentinterest of said regulations. See O'Brien, 391 US. at 376-377; See also Colten,407 at 109; See Albers, 113 N.H. at 137-138.

Alternative, Open and Ample Means of Delivering75. Though arguably a facet of the narrowly tailored portion of the 0 'Brien test, an

additional factor in as applied challenges of this nature is that the restriction leftopen ample alternative means to convey the information. See Heffron, 452 US.at 655. (holding that a prohibition against distribution on fair grounds of printedmaterial did no violation the First Amendment as the religious sect was still ableto deliver is message by speaking on the fairgrounds).

76. Here, assuming arguendo, that there was some restriction on the Defendant'sright to exercise free expression, the Defendant was afforded numerous openand ample alternative channels to convey his message, whatever that might havebeen. rd. The evidence at trial was that the Defendant was asked to leave theimmediate sidewalk due to the need to photograph evidence and to allow travelupon the sidewalk. The Defendant could have gone to the other side of thestreet and delivered his message orally or via placards. He could have heldbanners on the various street comers or handed out literature on the parts of the

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sidewalk not being treated as a crime. The fact that the defendant may havewant to remain in close proximity observe the officers and question the officersdoes not mean that his message could not have been conveyed in through someopen and ample alternative means. Id; See Colten. 07 at 109 no onstiright to observe officers in performance of a traffic stop or to question ::l""::l :See also Adderley v. Florida, 385 U.S. 39,48 (1966) (people who want topropagandize protests or views do not have a constitutional right to do sowhenever and however and wherever they please.); See Mahoney, 642 F.3d at1119 (discussing alternative open channels to the defendant faced withprosecution for chalking as part of a demonstration.)

Conclusion77. As the regulations in question are content neutral, the restriction, if any,

narrowly tailored to support well recognized significant and valid governmentinterest to such an extent as to infringe upon the Defendant's right to freeexpression on to the degree necessary to further these interests, and enforcementof the regulations left the Defendant with open and ample alternative means toconvey his message, his as applied challenge must fail.

Free Expression - Conclusion: The Defendant's Conduct Is Not Protected Under the FirstAmendment and Any Infringement Was Justified

78. Thus, to the first question of whether the Defendant's conduct was justifiedunder the First Amendment the answer must be no.

79. First, the Defendant's conduct in this matter is was not symbolic speech orexpressive conduct but at best a mere disclosure of some unknown belief and is

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tantamount to the situation presented to the United States Supreme Court inColten. See Colten, 407 at 107-109.

80. Assuming arguendo, that his conduct was conducted with the intent to deliver aparticularized message and said message was readil ' understandable by thoseviewing it, any infringement upon said expressive conduct was the result ofcontent neutral regulations which serve well established and substantialgovernment interests and any infringement on the Defendant's protectedexpression rights was incidental and peripheral and only to the degree necessary

to further the well established and substantial government interests. See O'Brien.391 U.S. at 376-377.

81. Finally, assuming arguendo, that the Defendant's conduct was determined torise to the level of expressive conduct and the enforcement ofR.S.A.644:2(II)(d) and (e), somehow restricts said protected free expression, theDefendant was left with numerous open alternative channels by which he coulddeliver his message including but not limited to singing, chanting, holding signs,banners, handing out leaflet, standing on the western sidewalk of ChestnutStreet, and handing out promotional DVDs. Thus, there was no absoluteforeclosure of his ability to deliver his message.

82. Given the validity of the regulation and the alternative means of the Defendant'smessage his as applied challenge would fail as well.

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SUFFICIENCY OF EVIDENCE - EFFECT OF HERDING83. The second and final issue raised by this Honorable Court was with regards TO

the sufficiency of the evidence and whether under the facts the Defendant'srefusal of the verbal commands of the various officers to move-bill subsequentmovement due to the officers' physical "herding" of the Defento find that the Defendant violated R.S.A. 644:2(e).

Statutory Interpretation

II I84. R.S.A. 644:2(II)(e) provides that a person is guilty of disorderly conduct ifhe or

she knowing refuses to comply with a lawful order to move from or remainaway from any public place. See N.H. R.S.A. 644:2(e) (2005).

85. R.S.A 644:2 (V)(a) defines the terms "lawful order" inpart as:(1) A command issued to any person for the purpose of preventing saidperson from committing any offense set forth in this section, or inanysection of Title LXII or Title XXI, when the officer has reasonablegrounds to believe that said person is about to commit any such offense,or when said person is engaged in a course of conduct which makes hiscommission of such an offense imminent;(2) A command issued to any person to stop him from continuing tocommit any offense set forth in this section, or in any section of TitleLXII or Title XXI, when the officer has reasonable grounds to believethat said person is presently engaged in conduct which constitutes anysuch offense; or(3) A command not to enter or a command to leave an area closedpursuant to paragraph IV [areas closed due when an officer has probablecause to believe that the is a serious threat to public health and safety duea disaster issue or ongoing criminal activity], provided that a person maynot lawfully be ordered to leave his or her own home or business. SeeN.H. R.S.A. 644:2(V)(a) (2005).

86. The New Hampshire Supreme Court has held that in questions of statutoryinterpretation they are the final arbiter legislative intent as expressed in thewords of the statute considered as a whole. See State v. Lamy, 158 N.H. 511,515 (NH 2009) The Court is to examine the language of the statute, and, if

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possible, ascribe the plaint and ordinary meaning to the words used. See State v.Kousounadis, 159 N.H. 413,423 (N.H. 2009) The Court shall interpret thelegislative intent from the statute as written and will neither consider what thelegislature might have said nor add language that the legislature e li ' not see : : : 1 t toinclude. See Lamy, 158 N.H. at 515. Statutes are to be interpreted in the- on-extof the overall statutory scheme and not in isolation. See Id. If a statute isambiguous, however, then the Court can consider the legislative history to aid itsanalysis. See Id. The court's goal should be apply statutes in light of the

legislature's intent in enacting them, and in light of the policy sought to beadvanced by the entire statutory. See !sl_ By statute, the provisions of theCriminal Code are to be construed according to the fair import of their terms andto promote justice. See N.H. R.S.A. 625:3 (2007)

87. In the present matter, it is clear that "lawful order" issued to the Defendant wasnot under R.S.A 644:2(V)(a)(3), thus the State will limits its discussion of theconcept of a "lawful order" under R.S.A. 644:2(V)(a)(I) and (2). See N.H.R.S.A. 644:2(V)(a) (2005)

88. A lawful order as a pertains to this matter is a command issued to a person:for the purpose of preventing said person from committing any offenseset forth in this section, or in any section of Title LXII or Title XXI,when the officer has reasonable grounds to believe that said person isabout to commit any such offense, or when said person is engaged in acourse of conduct which makes his commission of such an offenseimminent; [or]to stop him from continuing to commit any offense set forth in thissection, or in any section of Title LXII or Title XXI, when the officer hasreasonable grounds to believe that said person is presently engaged inconduct which constitutes any such offense; See N.H. R.S.A.644:2(V)(a)(1)-(2) (2005).

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89. Here the facts adduced at trial through the testimony ofSgt. John Patti, Sgt.Dana Langton, and Officer Thomas Gonzales were that that on June 4, 2011, ator around 6:00 p.m., officers were returning outside to collect evidence as aprotest that had been occurring earlier in the day outside of the.immedi evicinity of the Manchester Police Department had ended with the arrests 0-'" =DIIlemembers of the group of demonstrators for writing graffiti on the building, fromretaining walls and east sidewalk of Chestnut Street in the area in front of theManchester Police Department. Upon arriving outside, the officers noted that agroup of 15 to 30 persons including the Defendant were stand on or infront ofthe evidence that the officers were now seeking to collect. Additionally, it wasnoted that due to the size of the group and their congested positioning that theeast side walk was rendered impassable for pedestrian seeking its use. Sgt. Pattinoted that he observed a citizen known to him to look at the group and the crossto the other side of Chestnut Street.

90. All witnesses agree that these commands were issued by uniformed recognizablepeace officers to the group including the Defendant to move and it wasexplained to the group including the Defendant that they were preventingofficers from accessing and collecting the graffiti evidence and their actions ofremaining standing on the east sidewalk of Chestnut street was rendering thatportion of the sidewalk impassable. All witnesses agree that despite theserepeated commands and explanation that the group including the Defendant didnot move. Only when the officers engaged in what was described as a physicalherding action did that the Defendant's move and only to the point when the

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officers stopped this herding action. At that point the verbal commands wouldbe given again and this cycle of conduct involving ignoring the verbalcommands and only moving when physically forced to by the hearing action.This cycle of conduct continued for approximately thirty minutes according 0Sgt. Patti and at which point the group had moved from its initial position at thenear the stairway on Chestnut Street leading to the Manchester PoliceDepartment to the along the north parking lot approximately half a block. At thistime orders to move were issued yet again to the Defendant personally byOfficer Gonzales and again the Defendant did not comply with the verbalcommand and he was arrested.

91. To the extent that the Defendant asserts any argument regarding the videospresented to the State's witnesses, the State would note that these videos werenot submitted as exhibits, nor authenticated, nor was testimony offered that theaccurately depicted the events in question at any point.

92. It is clear that based upon the facts of this matter, the numerous commandsissued were "lawful orders" within the definition set out in R.S.A.

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644:2(V)(a)(1)-(2). See N.H. R.S.A. 644:2(V)(a)(l)-(2) (2005). The evidenceshows that the orders were issued to prevent the Defendant continued hisongoing conduct of obstructing pedestrian traffic in violation ofR.S.A.644:2(II)(c). See N.H. R.S.A. 644:2(II)(c) (2005) (providing that a personcommits disorderly conduct ifhe knowingly obstructs pedestrian traffic on anysidewalk). The evidence also bears out the officers had a reasonable basis tothat the order was lawful to prevent the Defendant from committing imminent


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violations ofR.S.A.644:2(II)(c). See Id The evidence also bear out that theorder was lawful to prevent the ongoing and imminent threat of the Defendaa;violating RS.A. 644:2(II)(d) by continuing his behavior whi hhalf an hour to deal with and clearly based on the distance rra".~.eLe;i~;:_ "::::eimpeded the criminal investigation by locking up officers to ieal , ; " i L " eDefendant and substantially delaying the availability of evidence to the officersfor preservation. See N.H. RS.A. 644:2(II)(d) (2005). Finally, the orders werelawful to prevent the Defendant from committing an imminent violation ofRS.A. 642:1(1), in that his knowingly unlawful conduct as described hadalready hindered public servants in the performance of their duties. See );".H.R.S.A. 642: 1 (I); see also Colten, 407 U.S. at 109 (noting that at the time of thedefendant's arrest for refusing to comply with a lawful order to move, thedefendant was not engage in any exercise of constitutionally protected freedombut rather had no other purpose but to cause inconvenience and annoyance byhis actions.)

93. The question turns to whether the Defendant was action of compliance with theherding actions is sufficient under the statute.

94. To the extent, the Defendant asserts that his eventual compliance was sufficientas the plain language ofR.S.A.644:2(II)(e) does not contain the adjective"immediately" or similar adjective or phrase conveyingthe notion that haste ofcompliance is required such a reading would be incorrect in light of the purposeof the statute and the remaining body of the R.S.A. 644:2. See Lamy, 158N.H.at 515; See also N.H. R.S.A. 644:2(II), (IV), and (V) (2005).

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I iI95. While immediacy of compliance may not be conveyed in plain language of

subparagraph (e), it is clearly conveyed when one reads the language ofI'I subparagraph (3) in conjunction with the definition of "lawful order" as se: =::_'~l-

in paragraph (V)(a). See rd.96. RS.A. 644:2(V)(a)(1) states a lawful order is a command issued 0 y person

to (1) preventing "".said person from committing any offense set forth in thissection, or in any section of Title LXII or Title XXI" when the officer hasreasonable grounds to believe that the persons conduct "make the commission ofsaid offense imminent."(Emphasis Added) See R.S.A. 644:2CV)(a)(l) (2005).A reading ofR.S.A. 644:2(V)(a)(2) and (3), buttresses this notion as one talksabout a command "to stop said person from continuing to commit an ongoingoffense" while the other talks about a command "not to enter or leave an areaclosed" either due to ongoing criminal activity or a disaster-type event that theofficer reasonable believe poses a serious risk to public health andlor safety tothe public. See RS.A. 644:2(V)(a)(2)(3) (2005); see also RS.A. 644:2(IV)(2005) It is clear upon reading of the RS.A. 644:2, that immediate compliancewith "a lawful order" issued under paragraph II(e) is required as the clearpurpose of this provision is the prevention of imminent criminal acts, thesafeguarding of the public from serious risk of injury and to health, and thecessation of ongoing criminal acts. See Lamy, 158 N.H. at 515; See also N.H.R.S.A. 644:2(II), (IV), and (V)(a) (2005). Logic dictates that were immediatecompliance with a lawful order issued under R.S.A. 644:2(II)(e) not requiredand the defendant was allowed eventual compliance that the very purpose of the

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statutory provision would be frustrated to the point of absurdity. See StateEmployee's Ass'n of New Hampshire v. State, 161 N.H. 730, 738 (N.H. _011(the Court construes all parts of a statute together to effectuate its overallpurpose and avoid an absurd or unjust result).

97. Thus, under the plain language ofR.S.A. 644:2 read in conjunction witi therules for statutory interpretation as set forth by the 1 ew Hampshire SupremeCourt, it is clear that immediate compliance with an order issued under R.S.A.644:2(II)(e) is required. See Lamy, 158 N.H. at 515; See N.H. R.S.A. 644:2

(2005).98. This reading is supported the New Hampshire Supreme Court in Nickerson, in

discussing compliance with a lawful order under the prior incarnation of thislaw:

the statute "is designed to deal with such situations as where anindividual is disturbing a public gathering and refuses to remove himselfafter having been ordered to do so by the police." RSA 644:2 Commentsto 1969 Report. See Nickerson, 120 N.H. at 824.

99. The Court in Nickerson goes on in its discussion regarding the concern about thevague nature of the undefined term "lawful order" as contained in the priorversion of the disorderly statute, states:

Calm and lengthy deliberations, however, are not often a viableprocedure for the policeman on the street who is faced with a perceivedsafety hazard. His immediate concern is the swift and safe resolution ofthe hazard according to the statutory powers available to him. For thatreason, when constitutional rights of the people are involved, a broadlydrawn and vague statute provides as little guidance to the police officeras it does to the public. See Id. at 825.

100. Thus, it is clear that the New Hampshire Supreme Court when reading avirtually identical provision to the one that is before this Honorable Court

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interprets that immediate compliance with the order is rlengthy deliberations are not a viable procedure for a poli ern ~ on ~1-~ = ~ =who concern is a swift resolution. See rd. at 8_+-8_ -.

101. Beyond the case law and the plain sta ory lang ge.Jogi ~:.'J::I'es:::es::::;:State's interpretation of the plain language ofR .A. 6-;4:_requirement for immediate compliance. See Lam)". 1-8:l\.H. at 51 -; See alsoN.H. R.S.A. 644:2(II), (IV), and (V) (a) (2005).

102. One need only consider the situation of a building on fire to drive this pointhome. Officer issues an order to defendant to leave the vicinity of the burningbuilding. Defendant under the non-immediate compliance interpretationcontinues to wait in the vicinity of the burning building as the fire rages and heis at risk of serious bodily injury. Must the officer wait for the defendant todecide that compliance with the officer's request is now convenient fordefendant before the officer places the defendant under arrest for not complyingwith his lawful order and thus eliminates the risk that the defendant is seriouslyinjured by the raging fire?

103. Likewise, officer comes upon a group of individuals engaging in a fight in thestreet. It is unclear that the defendant has actually engaged in fighting but hisfists are now clenched and he is engaged in a heated conversation with anothermember of the group. The officer tells the defendant to leave the area in an Ieffort to stop what he reasonably believes is about to be a fight. Must the officer Iwait until the defendant decides that he no longer wishes to remain or worseengages in the fight before he can arrest him for failure to comply?


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104. Under both of these scenarios which are encompassed by the prohibitioncontained in R.S.A. 644:2(II)(e), the lack of immediate compliance leads to anabsurd and clearl -unintended result under the statute. See Employee's _ - \ . s S T " O n:__lL 161 N.H. at 738.

105. Finally, the State would respectfully points this Honora' le COl.lIT::0 _, eUnited States Supreme Courts discussion in Bachellar v. Maryland, 397 C.S.564 (1970). Of importance to the issue before this Honorable Court is a briefdiscussion the court has reading the conduct of some protesters amounting to aconstitutionally valid conviction for refusing to move. See Bachellar vMaryland, 397 U.S. 564,567-571 (1970).

106. The Bachellar Court notes the following pertinent facts:The prosecution's witnesses testified that the marshals and the policeofficers "escorted" the petitioners outside, and that the petitionersthereupon sat or lay down, "blocking free passage of the sidewalk." Thepolice lieutenant in charge stated that he then took over and three timesordered the petitioners to get up and leave. He testified that when theyremained sitting or lying down, he had each of them picked up bodilyand removed to a patrol wagon. See Bachellar, 397 U.S. at 568.

107. The Supreme Court goes on to note that:[... ]if the jury believed the State's evidence, petitioners' convictionscould constitutionally have rested on a finding that they sat or lay acrossa public sidewalk with the intent of fully blocking passage along it, Q!:that they refused to obey police commands to stop obstructing thesidewalk in this manner and move on. (Emphasis Added) See rd. at571.

108. Thus, it is clear that the subsequent physical action of the officers ofphysically picking up the petitioners and moving them did not negate in theCourt's mind the validity of a conviction of the petitioners for refusing to obey


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the officers' commands to move on and stop blocking the sidewalk. See Id. at568-571. As well it should not here.

109. The State would note that the same argument and analysis would be assertedwith the respect to the conviction under R S.A, : : - c m ( for subsranti .;-interfering with a criminal investization v failing to rno .e - 0 0 -C I Q_:'~ u '" _ .....evidence. The State would add that the notion of failing to move as interferingwith a criminal investigation is clearly supported by the holding in Colten. SeeColten, 407 U.S. at 109 (noting that an officer has right to order a person toleave the scene of traffic violation so as to be free from interference andinterruption. ).

Conclusion110. Thus, based upon a reading ofthe plain language of the statute in light of the

entire statutory scheme and its clear purpose; the New Hampshire SupremeCourt's discussion in Nickerson of the virtually identical prior version of thisregulation in question; the U.S. Supreme Court's discussion in Bachellarregarding the validity of a conviction for refusing a lawful order to move in acase where the officers subsequently took physical action to achieve theirrequested result; the holding of the U.S Supreme Court in Colten recognizingthat an officer has a right to investigate matter and may order a defendant tomove on so as to investigate free from any interference and interruption, theDefendant's conduct of knowingly refusing to obey the command issued by theofficers in this matter to move from the east sidewalk of Chestnut Street both to

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prevent the Defendant ongoing obstruction of pedestrian traffic on the si iew - -and to allow the graffiti evidence to be preserved and collected, which ':\-CT'"issued on repeated and numerous occasions and only moving whe - e officerstook physical action to attempt to gain result commanded of the Deren - ~: illthe first place is a clear violation ofR.S.A. 644:2(II)(e) an (d). 11 s, ; : . -Defendant should be found guilty and as this conduct occurred after repeatedrequest the Defendant should be found guilty of the misdemeanor offense.

SUMMATION111. That as to the Court's first issue of whether the Defendant's conduct is

protected under the First Amendment of the United States Constitution madeapplicable to the State's through the Fourteenth Amendment, the answer is no.For the reasons state herein, the Defendant's conduct does not rise to the level ofsymbolic or expressive conduct subject to protection under the free expressionprovisions of the First Amendment. Even if determined to be symbolic conductsubject to protection under the First Amendment, the regulations in questions asapplied to the Defendant are constitutionally valid content neutral narrowlytailored regulations in furtherance of sufficiently compelling governmentinterests who restriction upon the Defendant left ample and open alternativesmeans for the Defendant to broadcast his message.

112. That as to the Court's second issue, whether the evidence put forth by theState at trial, in light of the fact that the Defendant subsequently'rnoved whenthe officers engaged in the physical action of herding to achieve the result

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commanded of the Defendant, was sufficient to find that the Defendan: ref secto obey the lawful commands issued to him by police to move from the eastsidewalk of Chestnut Street in the area of the Manchester Police Departmer.; 3 . : 1 : : ' :as his conduct of refusing to move was obstructing pedestrian t r a m on SIDsidewalk and was substantially interfering with efforts to collect an preservegraffiti evidence under R.S.A. 644:2(II(d) and/or (e), the answer is yes under theplain language of the statute read in conjunction with the statue as a whole andin light statutory scheme and New Hampshire and federal case law.

WHEREFORE the State respectfully requests a fmding of guilty to both charges.Respectfully submitted,The State of New Hampshire,By and through its Attorney,CITY OF MANCHESTER, NHOFFICE OF THE CITY SOLICITOR

November 10,2011

City Solicitor's OfficeOne City Hall PlazaManchester, NH 03101603-624-6523

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CERTIFICATE OF SERVICEI, Gregory T. Muller, do hereby certify that a copy of the within MOTIO was

forwarded on this the io " day of November 2011 to Peter Eyre, pro se Defendant, of 73Leverett Street, Keene, NH 03431

-T. ;\fuller, Esquire .

Greg Muller Memo of Law

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Transcript of Greg Muller Memo of Law