United States of America v Shabazz
Filing
12
OPINION and ORDER affirming 6 Magistrate Opinion & Order and denying deft/appellant's appeal. Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Case No. 15-51502
Plaintiff-Appellee,
Honorable Nancy G. Edmunds
v.
KHADIJA SHABAZZ,
Defendant-Appellant.
/
OPINION AND ORDER AFFIRMING MAGISTRATE JUDGE'S OPINION AND ORDER
AND DENYING DEFENDANT/APPELLANT'S APPEAL [6]
This matter is before the Court on Defendant Khadija Shabazz's appeal (docket 6) of
her conviction during a bench trial before Magistrate Judge David R. Grand, in which
Defendant was found guilty of the misdemeanor offense of exhibiting disorderly or other
conduct which: (a) created a loud or unusual noise or nuisance; (b) impeded or disrupted
the performance of official duties by government employees; and (c) prevented the general
public from obtaining the administrative services provided on the property in a timely
manner in violation of 41 C.F.R. § 102-74.390. (Sept. 30, 2015 Op. and Order, dkt. 6-1.)
The Magistrate Judge ordered the Defendant to pay a fine of $200. For the reasons stated
below, Defendant's appeal is DENIED and the Court AFFIRMS the conviction.
I.
STANDARD OF REVIEW
"In all cases of conviction by a United States magistrate an appeal of right shall lie
from the judgment of the magistrate judge to a judge of the district court of the district in
which the offense was committed." 18 U.S.C. § 3402. In reviewing a magistrate judge's
order or judgment, "[t]he defendant is not entitled to a trial de novo by a district judge," but
"[t]he scope of the appeal is the same as in an appeal to the court of appeals from a
judgment entered by a district judge." Fed. R. Crim. P. 58(g)(2)(D). "[O]n an appeal from
a judgment entered after a bench trial, we review the district court's findings of fact for clear
error and its conclusions of law de novo." Beaven v. U.S. Dept. of Justice, 622 F.3d 540,
547 (6th Cir. 2010) (citing Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir.
2005)). The district court may rely on the evidentiary record developed before the
magistrate judge and does not need to conduct a de novo hearing. See U.S. v. Raddatz,
447 U.S. 667, 673-77 (1980) (case arising in context of a dispositive decision for which the
magistrate does not have the authority to make a final and binding disposition; there is no
requirement that the district judge conduct a new hearing). The Magistrate Judge's findings
of fact are thorough and contain specific citations to the evidence of record, including the
trial transcripts, and the Court cites to them herein.
II.
BACKGROUND AND FACTS
This case arises from an incident which occurred on October 7, 2014, when
Defendant Khadija Shabazz and her sister entered a Social Security Administration ("SSA")
Office. The SSA office contains both an initial screening area where bags are searched and
a secondary screening area with a metal detector; there were three security guards on duty
at the time the sisters arrived. (Sept. 30, 2015 Op. and Order ¶ 3, dkt. 6-1.) While the
sisters were in the initial screening area, they engaged in conversation with each other
regarding the security procedures. At that point, one of the security guards made a
comment to the sisters related to their conversation, noting that the SSA office had long
had security procedures in place. (Op. and Order ¶ 8.) Defendant criticized the security
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guard, apparently for participating in their conversation, stating that he was "'just a security
guard' who couldn't make it through the Police Academy.'" (Op. and Order ¶ 9.)
Engagement between Defendant and the security officer continued as Defendant moved
from the initial screening area to the secondary screening area. (Op. and Order ¶¶ 9, 10.)
The Magistrate Judge characterized Defendant's comments at this time as "negative" yet
also found that at this point in time, while Defendant's conduct "was perhaps disrespectful
and discourteous," it "had not risen to the level of a 'disturbance.'" (Op. and Order ¶¶ 10,
11.) The Magistrate Judge found that as Defendant completed the secondary screening
procedures, her sister was still able to be processed at the initial screening area and no
other business of the SSA office had yet been interrupted. (Op. and Order ¶ 11.)
It was as Defendant left the second screening area and headed toward the waiting
area that the "disturbance" began. (Op. and Order ¶ 12.) Defendant further verbally
engaged with the security guard at the secondary screening post, which engagement was
"loud" or "very loud", and "belligerent," as the Magistrate Judge found based on testimony
and video which showed body language consistent with the testimony. (Op. and Order ¶
12.) The exchange drew the security guard from his post and toward Defendant. The
security guard asked Defendant to leave and Defendant challenged his authority to do so.
At one point Defendant called 9-1-1, while two security guards advised her to make such
a call from the vestibule area. (Op. and Order ¶ 15.) During these exchanges, two of the
security guards had left their posts and "a number of customers had built up in the vestibule
area and were unable to proceed through security." (Op. and Order ¶ 17.) One of the
security guard's physical attempt to detain Defendant resulted in a "short struggle" after
which the guard was able to handcuff Defendant. (Op. and Order ¶ 20.) During this
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disturbance, "business essentially ceased at the SSA office, and customers were escorted
out," resulting in an interruption of service of approximately 15 to 30 minutes. (Op. and
Order ¶ 21.) The SSA Office notified Federal Protective Services ("FPA") of the incident
and the FIA inspector arrived shortly thereafter. (Op. and Order ¶ 22.) The inspector
interviewed witnesses including Defendant, reviewed the surveillance video of the incident
and issued Defendant a citation for violating 41 C.F.R. § 102-74.390. (Op. and Order ¶ 22.)
Following a two-day bench trial on July 13 and 14, 2015, the Magistrate Judge found
Defendant guilty of violating 41 C.F.R. § 102-74.390. The Magistrate Judge concluded that
the government had "demonstrated beyond a reasonable doubt that [Defendant] Shabazz
exhibited disorderly or other conduct which: a) created a loud or unusual noise or nuisance;
(b) impeded or disrupted the performance of official duties by government employees; and
(c) prevented the general public from obtaining the administrative services provided on the
property in a timely manner." The magistrate also found that the government has
demonstrated beyond a reasonable doubt that the offense occurred on public property, that
the Defendant failed to comply with an official sign conspicuously posted at the SSA office,
and that Defendant acted in an unlawful, willful, and knowing manner. (Op. and Order ¶¶
30-33.)
Defendant now appeals the Magistrate Judge's decision, arguing that her conviction
was obtained in violation of her First Amendment rights. (Def.'s Br. on Direct Appeal, dkt.
6.)
III.
ANALYSIS
The Magistrate Judge convicted Defendant of violating 41 C.F.R. § 102-74.390 which
provides:
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All persons entering in or on Federal property are prohibited from loitering,
exhibiting disorderly conduct or exhibiting other conduct on property that—
(a) Creates loud or unusual noise or a nuisance;
(b) Unreasonably obstructs the usual use of entrances, foyers,
lobbies, corridors, offices, elevators, stairways, or parking lots;
(c) Otherwise impedes or disrupts the performance of official duties
by Government employees; or
(d) Prevents the general public from obtaining the administrative
services provided on the property in a timely manner.
41 C.F.R. § 102-74.390. Defendant argues that her conviction must be reversed because
it violates her First Amendment rights.
The transcript shows that Defendant's counsel argued at the first trial that her First
Amendment rights were violated. The Magistrate Judge concluded that Defendant violated
41 C.F.R. § 102-74.390, and thus did not believe that Defendant was subjected to a
violation of her First Amendment Rights, a finding necessary to the Magistrate Judge's
conviction. The Court reviews the Magistrate Judge's decision for clear error and reviews
the conclusions of law de novo.
To the extent that Defendant argues that this conviction violates her First Amendment
rights, the Court disagrees. In a similar case, the First Circuit stated, "It is well established
that the need to safeguard the normal functioning of public facilities is a 'substantial
government interest' sufficient to warrant reasonable restrictions on even 'pure speech,' let
alone symbolic conduct." U.S. v. Bader, 698 F.2d 553, 555 (1st Cir. 1983) (citing Adderley
v. State of Florida, 385 U.S. 39 (1966)). In U.S. v. Bader, the defendants engaged in a sit-in
inside a federal building and in the doorway leading to the draft registration room. Id. at
555. The defendants were convicted under two different federal regulations for failing to
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obey "the direction of Federal protective officers" and creating disturbances in federal
buildings. Id. Specifically, 41 C.F.R. § 101-20.305 prohibited
Any unwarranted loitering, disorderly conduct, or other conduct on property
which creates loud or unusual noise or a nuisance; which unreasonably
obstructs the usual use of entrances . . .; which otherwise impedes or disrupts
the performance of official duties by Government employees; or which
prevents the general public from obtaining the administrative services provided
on the property in a timely manner . . . .
Id. at 554 (citing 41 C.F.R. § 101-20.305). Defendants were tried by a United States
magistrate judge, and convicted. The district court upheld their convictions. Like here, they
argued that the First Amendment barred their conviction. Id. The Bader court recognized
that "[e]ven were 'pure speech' at issue, the government can restrict '[t]he right to use a
public place for expressive activity' through 'reasonable 'time, place and manner'
regulations [which] may be necessary to further significant government interests . . . . '" Id.
at 555 (citing Grayned v. City of Rockford, 408 U.S. 104, 115 (1972)). The court cited a list
of cases in which other courts have held that the government could punish those who had
engaged in an orderly demonstration on jailhouse grounds, a peaceful picket near a
courthouse, a speech in a library reading room, and an interference with traffic on a public
way, and concluded that the government "surely can punish those who physically obstruct
a doorway, and make it more difficult for the public to conduct its business-- especially
since, unlike a street or sidewalk, a post office and courthouse building is not customarily
open for use for demonstrations or similar speech-related purposes." Id. at 555-56
(citations omitted).
The Seventh Circuit looked to Bader nearly 15 years later when it too had an appeal
of a conviction under 41 C.F.R. § 101-20.305, following a magistrate judge's proceeding
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and an appeal to the district court. See U.S. v. Rixleben, No. 96-1804, 1997 WL 312268,
116 F.3d 1483 (7th Cir. 1997). Like Plaintiff and Baden, Rixleben argued that "his
conviction should be reversed because his conduct is protected speech under the First
Amendment." Id. at *2. The Rixleben court concluded that the defendant's actions were
"appropriately subject to 41 C.F.R. § 101-20.305," he was "not free to express his
frustration with a postal worker by yelling at her and other postal employees and slapping
a security guard," and his conduct was not protected speech under the First Amendment.1
Like the courthouse building and post office mentioned in Bader, the Social Security
office "is not customarily open for use for demonstrations or similar speech-related
purposes." Bader, 698 F.2d at 556. The Magistrate Judge's findings about Defendant's
actions show that they were "'basically incompatible with the normal activity of [that]
particular place at [that] particular time.'" Bader, 698 F.2d at 556 (quoting Grayned v. City
of Rockford, 408 U.S. 104, 116 (1972)). The Court finds that Defendant's conviction does
not violate her First Amendment rights.
Defendant further argues that "an arrest undertaken at least in part as retaliation for
a constitutionally protected insult to [an] officer's dignity would be impermissible unless it
could be shown that the officer would have made the arrest even in the absence of any
retaliatory motive." Greene v. Barber, 310 F.3d 889, 897-98 (6th Cir. 2002). The inquiry is
"fact-intensive". Id. at 898. To the extent Defendant argues that the officers had a
retaliatory motive for arresting her, the Magistrate Judge found to the contrary and cited
1
It is worth noting that the prior 41 C.F.R. chapter 101 regulation at issue in Bader now
cross references to 41 C.F.R. chapter 102; the regulation in Bader and Rixleben contains
similar language to that of 41 C.F.R. § 102-74.390.
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sufficient evidence in support of his related findings. The Magistrate Judge explicitly found
that the security guards acted professionally, based on testimony of the guards and other
witnesses, as well as the video evidence, which did not include audio, but from which the
Magistrate Judge was able to consider body language, gestures and action regarding the
incident, and finally, the Magistrate Judge's finding that Defendant's sister's testimony was
not as credible on this issue as both the video evidence and other testimony. (Op. and
Order ¶ 28.) The Magistrate Judge also found that the actual disturbance did not
commence until Defendant left the secondary screening area and became "very loud" and
"belligerent." (Op. and Order ¶¶ 11, 12.) Defendant's initial comments at the first screening
area, calling the first guard a "security guard" who could not make it through the police
academy, had not been enough to motivate an arrest. (Op. and Order ¶ 9.) The Magistrate
Judge noted that the security guard at that point had "acted professionally" and shown
"restraint" in not responding to Defendant's accusations, when he had "in fact been a police
officer for more than 25 years." (Op. and Order ¶ 9.)
Finally, Defendant argues that United States v. Lucinda Darrah, No. 15-1116, 630
Fed. Appx. 390 (6th Cir. Oct. 30, 2015), provides that if the delay to the public from
obtaining services provided on the property was due to a voluntary decision of the officer,
here, for example, the security guard stepping away from the screening post, then the
individual should not be considered the cause for the delay. (Def.'s Br. 17.) The Court
agrees with the distinctions argued by the government with regard to the Darrah case.
Darrah was distributing campaign literature outside a post office after business hours, she
was the sole person near the post office entrance at that time of night, and postal officers
could have easily ignored her by walking around here, therefore, she was not impeding
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their entry into the building. Id. at 392. The only issue on appeal was "whether the
defendant blocked the employee entrance to the building so that she temporarily prevented
[an officer's] entry" and the evidence did not show that she impeded it in "any meaningful
way." Id. at 392.
Here, the Magistrate Judge's factual findings show that the incident at issue occurred
during business hours with patrons present. Despite Defendant's argument that the security
officers could have easily ignored Defendant , but chose to leave their posts, the Magistrate
Judge's findings are precise as to when the disturbance began, and show that for a portion
of time, until Defendant became "very loud" and "belligerent", the security guards had
indeed remained at their posts despite negative comments directed toward one of them.
As Defendant left the second screening area she loudly engaged with the security guard
at the screening post. (Op. and Order ¶ 12.) It was this point at which the Magistrate Judge
found that the interactions became a disturbance, which included Defendant's refusal to
leave and her refusal move to the vestibule to use her cell phone, both pursuant to posted
signs pertaining to personal electronic devices and warning that persons "who become loud
or disruptive will be asked to leave the office." (Op. and Order ¶¶ 5, 13, 15.) It was this
disturbance that caused the build up of customers unable to proceed through the security
screening areas. (Op. and Order ¶ 17.)
The Magistrate Judge's decision was not in error and is supported by the evidence of
record. For the reasons set forth above, the Court AFFIRMS the Magistrate Judge's opinion
and order.
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IV.
CONCLUSION
The Magistrate Judge's Opinion and Order finding Defendant Shabazz guilty of
violating 41 C.F.R. § 102-74.390 is AFFIRMED.
So ordered.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: October 20, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record
and Plaintiff Angela Nails on October 20, 2016, by electronic and/or ordinary mail.
s/Carol J. Bethel
Case Manager
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