Why HR 347 Could Lead to Enormous Federal Abuse of Protesters

In the past day or so, since we first published our alarm concerning the Senate’s unanimous (and the House’s near-unanimous) support of HR 347, officially known as The Federal Restricted Buildings and Grounds Improvement Act of 2011, there has been tremendous uncertainty, confusion, and exaggeration circulating the web regarding the intent and consequence of this amendment (and we’ve even revamped our own original position).

It seems the legal dispute boils down to HR 347 amending “willfully and knowingly” in the original legislation to merely “knowingly,” which, at first glance, seems like a negligible shift in language. But, as is so often the case in American constitutional law, a simple lexical change can make a titanic difference.

In this instance, the precedent under consideration was set by US v. Bursey, decided in 2005 by the US 4th Circuit Court of Appeals. As Reason.com summed up the case:

Bursey visited a South Carolina airbase with the intention of protesting the then-imminent Iraq war. He remained in an area that the Secret Service had coordinated off for 20 or so minutes, arguing his right to stay there. His state trespassing charges were dismissed, but he was then charged under Section 1752 of title 18 above.

Bursey contested that the instructions given to him by the officers were inadequate “to supply the necessary knowledge that his conduct was unlawful under the Statute.” But the 4th Circuit Court found that Bursey had “willfully and knowingly” entered “restricted” premises, was informed by the Secret Service that he had done so, and was told what the ramifications of such a violation would be.

So how does this affect the legal burden for a citizen who “willfully and knowingly” violates the statute and enters a “restricted area”? According to the Bursey decision, to “willfully” violate is to have:

…knowledge of conduct’s general unlawfulness, rather than knowledge of particular criminal statute and regulations… for a defendant to have acted willfully, he must merely have “acted with knowledge that his conduct was unlawful.”

HR 347 overrules this standard, and leaves in its place the substantially more capacious “knowingly.” Knowingly, according to US jurisprudence, is a degree of what is called ‘mens rea,’ or a component of what is necessary to prove “the guilty mind.” In the United States, according to ignorantia juris non excusat (latin for “ignorance of the law excuses no one”), the accused cannot feign ignorance to escape guilt. What precisely counts as “knowingly” is up to the discretion of the federal government and the courts; but what we do in fact know is that “[m]ore is required” with conduct done willfully than conduct done knowingly. As the court writes, ‘willfully’ requires “more culpable” mens rea.

All in all, HR 347 could have extremely severe implications for future protests. In means that the Secret Service, the federal courts, and/or the Department of Homeland Security have the potential ability to arrest, detain, fine, and/or incarcerate an individual for up to 1 year (10 years if a weapon is involved or damage is inflicted) whether he or she knowingly or unknowingly came within just the “proximity” of these so-called “restricted” areas, which include “event[s] designated as a special event of national significance” — like a summit, or national convention, or even a sporting event — as well as buildings or grounds where any one under Secret Service protection is or “will be temporarily visiting.”

Again, what constitutes a restricted area remains ill-defined (if at all). And if an Occupy protester or an upset gov’t worker happens to be exercising their First Amendment rights, and steps too close to this “restricted” area, or as the law spells out, falls within a “proximity” of the area, even if the person HAD NO INTENTION of doing so, he or she could possibly be thrown in jail for up to a year.

Given this Administration’s lack of hesitancy in skirting around (or barreling through) the US Constitution, H.R. 347′s alterations to an already worrisome statute should incite to action even the most comatose political observer. This is serious business.