Friday, January 14, 2005
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Ninth Circuit Upholds Conviction of Priest Who Chained Self to Courthouse in Iraq Protest
By a MetNews Staff Writer
Actual notice from an officer that he would arrest a Jesuit priest if he did not unchain himself from the courthouse doors met the statutory requirement for “conspicuous notice” needed to support the priest’s arrest for failure to comply with a lawful order of a federal police officer, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
“The actual notice exception fulfills the rationale behind the conspicuous posting requirement because actual notice is the best notice,” and can suffice where there is no conspicuous posting, Judge Michael Daly Hawkins wrote, explaining the court’s adoption of the reasoning in other circuit courts.
“An actual notice exception to the conspicuous posting requirement is in lock step with fair notice and common sense.”
The court affirmed the conviction of William James Bichsel at trial before U.S. Magistrate Judge Karen Strombom of the Western District of Washington, in the opinion written by Hawkins, and concurred in by Justices Sidney R. Thomas and M. Margaret McKeown.
Bichsel chained himself to a door at the federal courthouse in Tacoma, Wash. on the morning of March 19, 2003 at about 6:30 a.m., in protest of the impending war in Iraq. Federal Protective Services officer Richard Reilley approached Bichsel, determined that Bichsel was blocking an emergency exit and creating a safety hazard, and told the priest to unchain himself.
Bichsel refused. Reilley told Bichsel that he had five minutes to unchain himself or the officer would arrest him.
When Reilley returned with bolt cutters, he again ordered Bichsel to unchain himself and Bichsel again refused. The officer then cut the chains and arrested Bichsel for failing to comply with a lawful order pursuant to 41 C.F.R. Sec. 102-74.385.
The guards normally placed a sandwich board listing the rules and regulations outside the door at 7 a.m., but this board had not been posted at the time Bichsel was arrested. Permanent signs regarding federal rules and regulations were posted inside the building but were not visible to the priest outside the door. However, Bichsel did not dispute that he knew he was at a federal courthouse, that Reilly was a police officer, and that he knew he would be arrested if he did not unchain himself from the door.
Bichsel was sentenced to five days in jail by Strombom.
The Court of Appeals held that the required rules were posted in a conspicuous location, there was sufficient evidence that Bichsel failed to comply with a lawful order, and the officer’s warning provided adequate notice to Bichsel.
Hawkins explained that both the Code of Federal Regulations and 40 U.S.C. Sec. 1315 require that federal agencies have to post notice of the rules and regulations, while Sec. 1315 requires that regulations are posted in a “conspicuous place.”
The court adopted the Black’s Law Dictionary definition of “conspicuous place” as “reasonably calculated to impart the information in question.”
Because Bichsel had no way to see the notice posted inside the courthouse and the sandwich board was not yet placed outdoors, the regulations at the Tacoma courthouse were not posted in a “conspicuous place” reasonably calculated to impart notice, Hawkins wrote.
However, fair notice and common sense came into play in Bichsel’s case because Bichsel knew he was at a federal courthouse, knew Reilley was a police officer, and knew he would be arrested if he did not unchain himself, thus Bichsel had actual notice of the regulations and consequences, and was lawfully arrested, Hawkins said.
The case is United States v. Bichsel, 04-30126.
Copyright 2005, Metropolitan News Company