Steve Bass to get his day in court, but he can’t say what he was doing or why, & above all he can’t mention “Occupy”

COLORADO SPRINGS, Colo.– Municipal Court Judge Spottswood W. F. Williams heard a final motion today before the AUGUST 10 trial of Occupier Steve Bass, charged with violating the city’s camping ban. The prosecution motioned to forbid from trial, “discussion of political, economic, or religious beliefs or ideology as a purported justification for the alleged acts”, and even “arguments related to the belief that the defendant’s conduct was constitutionally protected”, and in true Colorado Springs fashion, the judge GRANTED the city’s motion! YES THAT’S RIGHT, now if Bass wanted to say he wasn’t “camping,” he can’t say what else you would call it! In effect, Defendant Bass is prevented from explaining WHY he was occupying, or even THAT he was occupying, because saying “OCCUPY” is expressly forbidden. The judge will play it by ear whether to make an exception for himself during “voir dire” if selecting impartial jurors might require asking their opinion of “Occupy”. That’s IF BASS GETS A JURY AT ALL, because next, Judge Williams prompted the city prosecutor to research whether Bass was entitled to a jury of his peers for the infraction of camping…

The issue had already been resolved in an earlier hearing. Unable to find definitive wording on whether a camping ban violation invoked the right to a jury trial, the court ruled to proceed as if it did. But at today’s hearing Judge Williams related that in the interim over a casual dinner conversation, another judge informed him that the law read otherwise. So he put the question again to the prosecution. And again the citations came up inconclusive. This time however, with the clerk advised to continue the search, the decision stands at “pending”.

If Judge Williams opts to eliminate the jury, the forbidding of political or constitutional discussion is a moot point, actually two. There won’t be a jury to confuse, nor a judge either, because Judge Williams decided, by allowing the city’s motion, that the defendant has no arguments to make. Case closed. If the judge gets his way.

The point of today’s hearing was to hear not a judge’s motion but the city’s, a “motion in limine” used to reach agreement about what arguments can be excluded from the trial, often a defendant’s prior convictions which might prejudice a jury.

The core of the city’s motion was this:

…that the Defendant be ordered to refrain from raising the following issues at the Jury Trial…

1. Discussion of political, economic, or religious beliefs or ideology as a purported justification for the alleged acts, or as an issue to be evaluated by the jury;

2. Presentation of facts or arguments related to the belief that the defendant’s conduct was constitutionally protected expressive conduct;

3. Presentation of facts or arguments with the primary purpose or effect of proselytizing for the occupy movement, or otherwise using the Courtroom as a public forum;

4. Any reference to settlement negotiations with the Defendant prior to trial;

The city is guessing that because defendant Bass has passed on all opportunities to dismiss his case on technicalities, or plead for a deferred sentence, that he’s hanging on to get “his day in court.” Whatever that’s going to look like, the city doesn’t like it.

Points three and four were conceded by the defendant. No proselytizing was intended, and of course plea deals are confidential. But the discussion of #3 was amusing, because the city expanded it to mean absolutely NO MENTION of “Occupy.” Even though the defendant was cited in ACACIA PARK, in OCTOBER, under 24/7 media coverage, the prosecutor argued that mentioning OCCUPY “would be unfairly prejudicial to the City.” Further:

To admit evidence related to any political, economic, and religious debate concerning the “Occupy Movement” at trial in this matter would result in prejudice, confusion, and a waste of Court time. By allowing such testimony, the jury would be misled as to the elements of the charged offense which would result in confusion during jury deliberations. Furthermore, the prosecution would suffer unfair prejudice if the jury were allowed to consider the defendant’s private ideology…

Not only did the city fear it would lose a popularity contest with “Occupy”, it worried that the courtroom would be abused by public debate. The point was ceded by the defense because the “primary purpose” would always have been to present defending arguments, not proselytize.

The City’s request is that the Court be treated as a forum for resolving criminal disputes and not as a public forum for debate. Political, economic and religious debate should be restricted to appropriate public forums.

The prosecutor raises an incongruous irony: Steve Bass is on trial because the city doesn’t consider Acacia Park to be an appropriate forum either.

Naturally the defense objected to points one and two, though on the three particular defense strategies the city wanted to preempt, “Choice of Evils Defense”, “Defense of Others”, and “Duress”, the defense ceded as irrelevant. Judge Williams then granted points one and two with the proviso that Steve Bass be permitted to draft his own defense argument, to be presented to the court no later than the Wednesday before trial. Did you know that a defendant must have his arguments approved by his accusers before he’s allowed to make them in court?

I’m not sure it’s accurate to say that Steve Bass is going to get his day in court if he’s going to spend it gagged.

Was Steve Bass arrested for “camping” or was the city trying to curtail “Occupy”? Let’s remember that Jack Semple and Amber Hagan were arrested for taping themselves to a tent, and Nic Galetka was arrested for setting his things on the ground.

But Steve Bass won’t be allowed to mention those details.

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FOR REFERENCE: The city’s full motion is reprinted below:

MUNICIPAL COURT, CITY OF COLORADO SPRINGS, COLORADO

PEOPLE OF THE CITY OF COLORADO SPRINGS, Plaintiff
v.
Steven Bass, Defendant

Case Number: 11M32022

MOTION IN LIMINE

COMES NOW the Office of the City Attorney, by and through Jamie V. Smith, Prosecuting Attorney, and submits this “Motion in Limine,” moving that the Defendant be ordered to refrain from raising the following issues at the Jury Trial in the above-captioned matter:

1. Discussion of political, economic, or religious beliefs or ideology as a purported justification for the alleged acts, or as an issue to be evaluated by the jury;

2. Presentation of facts or arguments related to the belief that the defendant’s conduct was constitutionally protected expressive conduct;

3. Presentation of facts or arguments with the primary purpose or effect of proselytizing for the occupy movement, or otherwise using the Courtroom as a public forum;

4. Any reference to settlement negotiations with the Defendant prior to trial;

ARGUMENTS IN SUPPORT OF MOTION

1. Discussion of political, economic, or religious beliefs or ideology as a purported justification for the alleged acts, or as an issue to be evaluated by the jury.

The Defendant is charges with violating Section 9.6.110 of the Code of the City of Colorado Springs, 2001, as amended (“the City Code”), entitled “Camping on Public Property.” Political, economic, or religious beliefs or ideology are not relevant to any of the elements of an alleged violation of City Code Section 9.6.110, nor are they relevant to any potential defense to that City Code Section.

City Code Section 9.6.110 makes it “unlawful for any person to camp on public property, except as may be specifically authorized by the appropriate governmental authority.” Testimony or arguments irrelevant to the elements contained in that language should be exclude from trial. C.R.E. Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probably than it would be without the evidence.” Evidence and argument regarding political, economic or religious beliefs of ideology have no bearing on the offense charged and do not meet the definition of relevant evidence.

Even if some discussion of these issues could be found to be of limited relevance, such discussion would only serve to confuse the issues and waste the court’s and jurors’ time, and would be unfairly prejudicial to the City. C.R.E. Rule 403 allows relevant evidence to be excluded when its admission would cause prejudice, confusion, or waste of time. To admit evidence related to any political, economic, and religious debate concerning the “Occupy Movement” at trial in this matter would result in prejudice, confusion, and a waste of Court time. By allowing such testimony, the jury would be misled as to the elements of the charged offense which would result in confusion during jury deliberations. Furthermore, the prosecution would suffer unfair prejudice if the jury were allowed to consider the defendant’s private ideology, as it is not an element that the prosecution must prove. Time and resources of the Court would also be wasted by allowing such testimony.

Furthermore, this Court denied the defendant’s “Motion to Dismiss-First Amendment,” on June 7, 2012, holding that City Code Section 9.6.110 is content-neutral, and that the defendant did not have a Constitutionally protected right to express his views in the manner that he chose on the date of the violation. Therefore, the sole issue before the jury is whether or not Mr. bass was camping on public property without appropriate governmental authority. Any evidence concerning political, economic or religious views that he was attempting to express through his conduct has no relevance whatsoever to any of the elements of the offense.

Discussion of the “Occupy Movement” as a political, economic or religious issue is also irrelevant to any potential defense which could be raised in this matter. Economic, political and religious beliefs or ideology are irrelevant to the following defenses that the Defendant might attempt to raise:

a. Choice of Evils Defense. C.R.S. Section 18-1-702(1) provides, in pertinent part, that “conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur… .” The statute goes on the state in subsection (2) that “the necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.” (Emphasis added.) Subsection (2) also states that:

[w]hen evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.

The choose of evils defense “does not arise from a ‘choice’ of several courses of action, but rather is based on a real emergency involving specific and imminent grave injury that presents the defendant with no alternatives other that the one take.” People v. Strock, 623 P.2d 42, 44 (Colo.1981). in order to invoke the “choice of evils” defense, the Defendant must show that his conduct was necessitated by a specific and imminent threat of public or private injury under circumstances which left him no reasonable and viable alternative other than the violation of law for which he stand charged. Andrews v. People, 800 P.2d 607 (Colo. 1990).

There has been no allegation by the defense, and no facts in the police reports previously submitted to this Court, that allege a specific and imminent public or private injury would occur if Mr. Bass had not erected a tent on public property. Furthermore, reasonable and potentially viable alternatives were available to Mr. Bass to achieve his goal, such as picketing and handing out literature, on the date of violation. This was accepted as true and ruled upon by this Court at the motions hearing on June 7, 2012. it should also be noted that no state “has enacted legislation that makes the choice of evils defense available as a justification for behavior that attempts to bring about social and political change outside the democratic governmental process.” Id. at 609; see also United States v. Dorrell, 758 F.2d 427, 431 (9th Cir. 1985) (mere impatience with the political process does not constitute necessity).

b. Defense of Others. C.R.S. Section 18-1-704 describes the circumstance under which the use of physical force in defense of a person constitutes a justification for a criminal offense. Subsection (1) of that statute states, in part, that “a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person…”. The defense does not apply considering the allegation in this case. There is no allegation that the Defendant was using physical force to protect himself from unlawful force by another at any time during the violation. Furthermore, no unlawful force was used or imminently threatened against any third party that would allow the Defendant to raise the defense.

c. Duress. C.R.S. Section 18-1-708 defines duress as conduct in which a defendant engages in at the direction of another person because use or threatened use of unlawful force upon him or another person. Duress does not apply in this case. There is no evidence that anyone was using or threatening to use unlawful force against Defendant or any third party to cause the Defendant to commit a violation.

2. Presentation of facts or arguments related to the belief that the defendant’s conduct was constitutionally protected expressive conduct.

Any claim by the Defendant that his conduct was protected by the First Amendment of the United States Constitution is not a proper issue to be raised before the jury in this case. This is a constitutional defense that was already raised by the Defendant in his “motion to Dismiss-First Amendment,” and which was denied by this Court on June 7, 2012. The Court ruled as a matter of law that the Defendant’s alleged conduct was not a constitutionally protected form of expression.

3. Presentation of facts or arguments with the primary purpose or effect of proselytizing for the occupy movement, or otherwise using the Courtroom as a public forum.

It is anticipated that the Defendant will attempt to use this trial as a public forum to assert his political, economic, and religious views on the “Occupy Movement.” Courtrooms are not public forums. People v. Aleem, 149 P.3d 765 (Colo. 2007). This Court has the authority to restrict political speech within the courtroom and preserve its purpose as a forum for adjudication of criminal disputes,m so long as the restriction is reasonable and viewpoint neutral. Id. The restriction requested by the City is both reasonable and viewpoint neutral. The purpose of this Motion is to limit the evidence presented in this matter to the offense charged and potential defenses thereto. The Motion is also viewpoint neutral as the City is not taking a stance on political, economic, or religious issues and would not request that the Court do so either. The City’s request is that the Court be treated as a forum for resolving criminal disputes and not as a public forum for debate. Political, economic and religious debate should be restricted to appropriate public forums. To allow Defendant to raise thee issues would be contrary to legal precedent and the rules of evidence.

4. Any reference to settlement negotiations with the Defendant prior to trial.

C.R.E. 408 excludes from permissible evidence compromise or offers to compromise. Plea negotiations fall under this rule and may not be discussed in the presence of the Judge or Jury.