Tuesday, January 5, 2016
Ninth Circuit Rules:
Woman Who Threatened to Kill Security Guard Created a ‘Nuisance’
By a MetNews Staff Writer
A woman who came onto the floor of an office building that houses U.S. immigration courtrooms and, while in the screening area, threw a hair clip at a security guard and threatened to kill her, was properly convicted of creating a nuisance in a federal building, the Ninth U.S. Circuit Court of Appeals has ruled.
The incident took place on the 17th floor of the City National Bank Building, at the southeast corner of 6th and Olive Streets in downtown Los Angeles.
The woman was Tatiana Zagorovskaya, convicted at a trial before U.S. Magistrate Judge Jay C. Gandhi of the Central District of California for violating Code of Federal Regulations §102-74.390, a misdemeanor. That section provides that “all persons entering in or on Federal properly are prohibited from loitering, exhibiting disorderly conduct or exhibiting other conduct on property that: [¶] (a) [c]reates…a nuisance….”
Gandhi suspended jail time and sentenced her to 100 hours of community service, placed her on six months of summary probation, and imposed a $480 fine.
Zagorovskaya’s conviction was affirmed by U.S. District Court Judge Percy Anderson of the Central District of California.
Security Guard’s Testimony
Anderson, in his order, provided this summary of testimony by the security guard, Felicitas Valadez:
“Officer Valadez testified that she asked Defendant to go through the metal detector three times because the metal detector repeatedly indicated the presence of metal. Defendant became agitated during this process, calling Officer Valadez ‘stupid’ and telling Officer Valadez that she ‘didn’t know what [she] was doing...and that [Officer Valadez] was going to remember [Defendant]. And that [Officer Valadez] didn’t know who [Defendant] was.’ After Defendant walked through the metal detector a third time. Officer Valadez noticed a metal clip in Defendant’s hair and asked her to remove it before going through again. According to Officer Valadez, Defendant was very agitated by this point and again told Officer Valadez that she was ‘stupid.’ Officer Valadez testified that Defendant then said, I’m going to kill you,’ twice, removed the hair clip, and threw the hair clip at Officer Valadez, hitting her on the shoulder.”
Two government witnesses corroborated Valdez’s account, and the defendant’s own witness testified that Zagorovskaya did utter two threats to kill Valdez.
While denying in testimony that she uttered the words, “I’m going to kill you,” Zagorovskaya insisted that if she did say that, it was a criticism of Valdez’s conduct, not actually a threat, and was protected by the First Amendment. Anderson responded:
“Given the context in which Defendant made this statement the Court determines that Defendant’s statement was a true threat, and therefore not entitled to First Amendment protection.”
Affirming Anderson, the Ninth Circuit, in a brief unpublished per curiam order, declared that the evidence showed “that Zagorovskaya subjectively intended her speech as threats.”
The panel—comprised of Ninth Circuit Judges Stephen Reinhardt and Jacqueline Nguyen, joined by Tenth U.S. Circuit Court of Appeals Chief Judge Carlos Lucero, sitting on assignment—also said:
“To the extent Zagorovskaya argues that she cannot be convicted because she did not know that throwing her hair clip or threatening to kill a security officer actually constituted a ‘nuisance’ prohibited by regulation, she is wrong.”
The court quoted the “familiar maxim” that “ignorance of the law is no excuse.”
It rejected Zagorovskaya’s contention that the regulation is vague and overly broad.
The panel did not respond to the major contention put forth at oral argument by San Fernando attorney Vitaly B. Sigal. He asserted that an “essential element” of the crime—that the conduct “occurred on federal land”—was unproven.
There was no testimony by anyone, with personal knowledge, that the area of the building where the misdemeanor is said to have been committed is “property controlled by the General Services Administration,” he argued, pointing out:
From left, Tenth U.S. Circuit Court of Appeals Chief Judge Carlos Lucero, sitting on assignment, and Ninth Circuit Judges Stephen Reinhardt and Jacqueline Nguyen hear arguments on Dec. 10 in the case of Tatiana Zagorovskaya. On Thursday, they upheld her conviction of creating a “nuisance” in a federal building.
“This happened in what is colloquially called the ‘Immigration Court.’ It’s an administrative hearing body that is located within a private office building.
“The entrance used by persons attending court is the same entrance used by people who maintain offices in that same building.”
Sigal suggested that a government official could have been called to testify, armed with a copy of the lease, that the federal government had a possessory interest in the space where the confrontation took place.
The lawyer added that Zagorovskaya was under considerable stress because it was to be decided, at a hearing she was headed to attend, “where she would live for the rest of her life.” His client, he noted, was seeking political asylum.
That, Reinhardt said, would have been a valid consideration in deciding whether to prosecute her, but was not a valid basis for a reversal.
Upon questioning, Sigal said that the hearing was not held that day and that Zagorovskaya is in “immigration limbo”—the government is not actively seeking her deportation, but she has not been granted asylum.
He said the conviction would not impede her application for asylum.
Government Attorney Responds
Assistant United States Attorney Elana Shavit Artson countered:
“There is more than enough evidence to determine that this conduct occurred on federal property.”
She noted that there are two signs “posted conspicuously in the lobby” on the 17th Floor, “next to the elevator,” telling of the rules that “govern conduct” in a federal facility.
After she spoke a short time, Reinhardt cut her off—signaling that Sigal had been unpersuasive in arguing that the government had failed to show the conduct took place on federal property—and suggested she address the other point he raised, briefly, at oral argument: that the word “nuisance” is unconstitutionally vague.
She declared that it is well established that a defendant whose conduct clearly falls under a statute’s prohibition cannot raise an “as-applied” argument.
Artson said of Zagorovskaya’s actions:
“In this case, it cannot seriously be disputed that her conduct created a nuisance. It caused the checkpoint to have to be shut down, temporarily, while the security guard called for back-up.”
The lawyer told the judges:
“It’s not clear that this court even has to address the First Amendment issue because Ms. Zagorovskaya was not charged with making threats—she was only charged with creating a nuisance. And even if you took out the statement, ‘I’m going to kill you,’ I would submit that the conduct clearly created a nuisance.”
The case is U.S.A. v. Zagorovskaya, 14-50464.
Copyright 2016, Metropolitan News Company