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Michael Levine, OSB 931421 LEVINE & MCHENRY LLC 1001 S.W. Fifth Avenue, Suite 1414 Portland, Oregon 97204 Phone: 503-546-3927 Fax: 503-224-3203 Email: michael@levinemchenry.com

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION UNITED STATES OF AMERICA, Plaintiff,

Case No. 3:17 CR-0008 JCC MOTION TO DISMISS ALL COUNTS Evidentiary Hearing Requested

v.

MARCUS MUMFORD, Defendant.

Defendant Marcus Mumford, through his attorney Michael Levine, respectfully moves for dismissal of all charges against the defendant for four distinct reasons. First, the charges should be dismissed in light of the outrageous government misconduct that precipitated the charges. An evidentiary hearing will show that U.S. Marshal Service personnel interfered with a judicial proceeding, accosting Mr. Mumford, an officer of the court as he addressed the court, and later precipitated a turn of events that resulted in USMS personnel grabbing, assaulting and tasing Mr.

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Mumford in the courtroom. As an exercise of this court’s supervisory powers, the charges should be dismissed.

Second, as a matter of law, the charges should be dismissed because the regulations on which they are based were promulgated in violation of the separation of powers clause, after Congress impermissibly delegated to the Executive Branch the power to enact and enforce a criminal code without sufficient constraints. “If the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce.” United States v.

Nichols, 784 F.3d 666, 670 (10th Cir. 2015) (Gorsuch, J., dissenting from denial of rehearing en banc). The delegated authority being unconstitutional, charges based on that authority must be dismissed.

Third, the charges should be dismissed because the regulations underlying them are facially void for vagueness. Last, the regulations as applied are void for vagueness because Mr. Mumford was not provided notice that his conduct was unlawful, requiring dismissal of all charges. If the charges are not dismissed on the law, the defense requests an evidentiary hearing on the facts.

FACTUAL BACKGROUND Attorney Marcus Mumford was admitted pro hac vice in the District of Oregon to represent Ammon Bundy in a high profile, criminal case in which 27 co-defendants challenged, in various ways, the legitimacy and authority of the federal government. (CR 665; 250; 920, 920, 1155). 1

1

CR refers to the clerk’s record of entries on the docket of United States v. Bundy et al, 3:16-cr-00051-BR. CR665 is the order granting pro hac vice admission to Attorney Mumford.

CR250 is the superseding indictment listing the 27 defendants. CR 950, 920, 1155 are representative examples of motions filed by the defendants that challenged the legitimacy of the federal government, based on theories of adverse possession, the illegitimacy of the oath taken by the presiding judge, and other factors.

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Mr. Bundy and many of the co-defendants were arrested in January of 2016 and later charged with impeding and interfering with government officials, among other charges (CR 22, 251). Seven codefendants eventually elected to go to trial in September, 2016. Of these, Mr. Bundy and two others were detained pretrial, while four were released. During the course of the case, the district court judge, the Honorable Anna Brown, issued written orders to enforce order in the courtroom and to assure orderly proceedings (Exhibits 1 & 2; CR 1112, 1113).

The court’s “Trial Observation Order” was directed to members of the public who would sit outside the well of the courtroom, in the public seating area (Ex. 1). The order described the limited public seating; prohibited use of recording devices; authorized the U.S. Marshals Service and designated agents (“USMS personnel”) to conduct secondary security screening outside the courtroom and to collect and hold all cellphones, and required observers to remain silent in the courtroom and to refrain from disruptions. The Court required public observers to comply with orders by USMS personnel and provided specific notice to the spectators of the consequence for disruption: 10. Observers in Courtroom 13A may not disrupt other observers or USMS or Court personnel, and they must follow all instructions of USMS and/or Court personnel regarding available seating and courtroomconduct. *** 13. Any person who violates any provision of this Order is subject to removal from the courtroom and the Courthouse by USMS personnel, and/or exclusion from the public observation spaces in both Courtroom 9A and Courtroom 13A for the remainder of the trial, and/or potential sanctions imposed by the Court.

Exhibit 1, p. 5.

The Court issued a separate “Trial Conduct Order” to “confirm for the parties the Court's requirements concerning their conduct at trial.” (Ex. 2). The order applied to both the “parties”

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and “counsel.� Parties were ordered, for example, to stand when addressing the court, but at all other times to remain seated at their designated tables. (Ex. 2, p.2). The court directed that parties and counsel be available for Friday proceedings outside the presence of the jury, and further directed: The parties and counsel must carefully follow all Court orders regarding the admissibility of evidence and permissibility of argument.

Exhibit 2, p. 2. The order concluded with notice to the defendants of the consequence for violating the order: Any defendant who engages in disruptive behavior that justifies removal from the courtroom will be given one warning that the defendant will be removed from the courtroom if the behavior persists. Pursuant to Federal Rule of Criminal Procedure 43(c)(1)(C), if a defendant persists with such disruptive behavior, he or she will be removed from the courtroom and will observe the proceedings from a remote location until further order of the Court.

Exhibit 2, pp. 2-3. In contrast with the rules governing observers and defendants, nowhere did the Court authorize the USMS personnel to remove counsel from the courtroom for impermissible argument or disruptive behavior.

In addition to the written orders governing proceedings in the courtroom, the Court issued oral rulings during the course of the trial. 2 In particular, the evidence is expected to show that the Court directed persons in the well of the courtroom to remain seated after court was recessed in order to allow USMS personnel first to remove the three defendants in pretrial custody. Only then were the out-of-custody defendants, counsel, and all staff permitted to stand and leave the well of

2

The transcript of the trial has not been filed. If needed, witnesses at an evidentiary hearing would testify to the oral directions issued by the court for orderly removal of detained defendants during breaks in the trial and when trial recessed.

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the courtroom. The evidence will show that this order of events was consistently followed during the 30 days of trial without any incident, until October 27, 2016.

On October 27, 2016, the jury returned a verdict of not guilty on all charges as to all seven defendants, except as to one defendant on one count the jury could not reach a verdict (CR 1508).

The court proceedings after the verdict was announced were captured on video by the court’s security camera, and a court reporter recorded the events. The video shows that the courtroom remained calm while the jury exited after the verdicts were announced (Exhibit 3 at 15:47, video). 3 The court reporter’s transcript does not note any outburst or disturbance (Exhibit 4, transcript excerpt of October 27, 2016).

After the jury left the courtroom, attorney Per Olson stood to address the court and to request that his client, David Fry, be released that day rather than held overnight by the jail (Ex 3, at 15:48:31; Ex. 4, Tr. p. 27-28). The Court agreed to issue an order directing his release (Ex 4, Tr. p. 28).

Attorney Marcus Mumford then stood to address the court to argue for release of his client, Ammon Bundy (Ex. 3 at 15:49:35). Unlike Mr. Olson’s client, Mr. Mumford’s client also faced federal charges in Nevada. The effect of the Nevada case on the proceedings in Oregon had earlier been vigorously litigated, including whether the Oregon district court judge had authority to delay or quash a writ from Nevada purporting to order the transport of defendants there (CR 312, 313,

3

The defense will file the video conventionally rather than through ECF, after first determining the government’s position on the need to seal or for any restrictions on use. The time stamp in the upper right corner of the video is used for citation.

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334). 4 During a hearing on those proceedings on April 6, 2016, the district court had disclaimed any authority to control orders related to the Nevada proceedings (Exhibit 5, Transcript p. 24 (“The Court's authority over this prosecution does not extend to controlling the manner in which a coequal court in Nevada chooses to control a proceeding involving some of the same parties.”). In July, Mr. Mumford sought a joint hearing on the Nevada detention order and the Oregon order to review release of his client Ammon Bundy (CR892), which was denied (CR903).

In light of the court’s previous rulings, after the jury verdict of not guilty Mr. Mumford questioned on whose order his client should be held in custody. The following exchange occurred after the court order release of co-defendant David Fry: THE COURT:

Anything else on behalf of the parties?

MR. MUMFORD: Well, Your -- Your Honor, you’re not keeping Mr. Ammon Bundy in custody, though; right?

THE COURT:

I said he is released

MR. MUMFORD:

Okay. Thank you.

THE COURT: -- on this charge. But he still is subject to hold by the District of Nevada. So I imagine the District -- there is a hold from the District of Nevada.

MR. MUMFORD: I would say --

If they want to come, they know where to find him.

THE COURT: Or the government will ask for his transport. But right now he's released on this charge only. He's not leaving the jail, however, because of the hold.

MR. MUMFORD:

No, he’s leaving the jail. I don’t see any paper that

would 4

CR 312 is an emergency motion to quash the Nevada writ; CR 313 is the court’s interim order granting the motion; CR 334 is the hearing on March 22, 2016 regarding the writ and reversal of the court’s order.

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THE COURT: You can take that up with the United States Marshal and not with me. There’s not -- there is a hold in place, sir, and I’m MR. MUMFORD:

No, Your Honor. He is -- he is acquitted.

THE COURT:

On this charge. Yes.

MR. MUMFORD:

Yes.

THE COURT:

Right.

And – and that is -- that is why he is here.

MR. MUMFORD: Nevada doesn’t have jurisdiction. I tried -- Your Honor will recall I tried to get – Exhibit 4, Tr. pp. 29-30. At this point, Mr. Mumford has apparently begun to use a loud voice, and the Court admonished him and ordered him not to yell: THE COURT: Mr. Medenbach -- I'm sorry. Mr. Mumford, you really need to not yell at me now or ever again.

Now, please, he -- all the authority I have is to release him on this case, and I will do that.

Exhibit 4, Tr. p. 30.

During this entire exchange, Mr. Mumford can be seen on the video (Ex. 3, 15:49:36). He stands appropriately at counsel table with his client seated next to him and co-counsel to the right of the client. He gestures moderately to emphasize his points. There is no disruption. No one moves in the courtroom until a USMS agent steps into the well of the courtroom (Ex. 3, 15:50:55).

Mr. Mumford continues to make his point that his client should be free to leave after the acquittal since this judge is releasing him, and no one has shown him a valid arrest warrant for any other charges. The court responds that he should take the matter up on appeal (Ex. 4, Tr. p. 30).

As the court is addressing Mr. Mumford (Ex. 3, 15:51:11), seven USMS personnel suddenly pour into the courtroom and surround Mr. Mumford (Ex. 3, 15:51:25). Mr. Mumford

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stops in his presentation to the court and faces the nearest USMS agent. As the transcript demonstrates, the court had not asked the USMS personnel to interfere.

A USMS agent then apparently orders Mr. Mumford’s co-counsel to move away from counsel table even though court is in session, and he is seen on the video complying. (Ex. 3, 15:51:40). Mr. Bundy and all parties remained seated. The transcript captures the confusion that ensues after the USMS surround Mr. Mumford: one USMS agent accosts Mr. Mumford and tells him to “stand down” even though he is standing to present his argument to the court; a nearby defense attorney exclaims in shock to the USMS “what are you doing?” and the Court then orders the USMS to stop: “will you all just back up for a minute.” (Ex. 4, Tr. p. 31). The USMS personnel can be seen on the video complying and backing away. (Ex. 3, 15:51:43).

Mr. Mumford returns to his argument that because the court had declined to exercise jurisdiction over the Nevada hold earlier, when he filed a motion in July, and the court should not now enforce the hold. (Ex. 4, Tr. p. 31). The court repeats that she is releasing Mr. Bundy on the case in Oregon, but if the Marshals have a detainer they will enforce it. The judge orders the court in recess. Ordinarily, at that point everyone would remain seated and the USMS personnel would escort the detained defendants out of the courtroom.

The video indicates, however, the USMS personnel instead approach Mr. Mumford again, who continues to stand at counsel table. (Ex. 3, 15:52:36). One USMS agent, who has been standing behind the seated Ammon Bundy, speaks to Mr. Mumford, and he turns to address her.

The transcript captures their brief discussion about the arrest warrant (Ex. 4, Tr. p. 32) (“Come to the fourth floor, we’ll show it to you.”). As a second USMS agent comes up behind Mr. Mumford, the judge directs Mr. Mumford to “step back” (Ex. 4, Tr. p. 32). Within 10 seconds of the first USMS agent approaching Mr. Mumford, they have grabbed him. (Ex. 3, 15:52:46). Within 10 PAGE 8.

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more seconds he is on the floor (Ex. 3, 15:52:56). According to the transcript, the USMS agents give no warning or no direction to Mr. Mumford before he cries out “Whoa, whoa, whoa. Wait.

What are you guys doing?” (Ex. 4, Tr. p. 32). The evidence will show that once the USMS personnel dropped Mr. Mumford to the floor, they tased him, and he cries out in pain. As this is occurring, the USMS personnel remove the detained defendants from the room, the court orders everyone from the courtroom, and the court reporter stops recording. (Ex. 3, 15:52:56; Ex. 4, Tr. p. 32-33).

The government decides to prosecute Mr. Mumford. In the official probable cause statement to support prosecution of Mr. Mumford, the federal protective services officer makes assertions that appear inconsistent with the transcript and video evidence. The officer alleges that: As Marshals moved forward to escort BUNDY out of the courtroom, A/MUMFORD positioned his body so as to block the Marshals from taking BUNDY into custody and began yelling in protest Deputy Marshal HELSING, instructed A/MUMFORD to lower his voice and stand down, which A/MUMFORD-did not do. After several verbal attempts to calm A/MUMFORD failed and resulted in A/MUMFORD only becoming more agitated; flailing his arms and raising his voice even louder, Deputy Marshal GANGWISCH and ALFANO moved forward to escort MUMFORD out of the courtroom.

A/MUMFORD, who was yelling so loud that his voice could be heard outside the closed courtroom doors, lowered body weight, widened his stance and brought his shoulders up toward his head. Based on my training and experience as a police officer and a combat veteran, these physical responses are pre-assault indicators, consistent with an individual preparing for a combative and physical altercation. Deputy Marshall GANGWISCH moved forward and attempted to gain control of A/MUMFORD using a standard law enforcement grasp on A/MUMFORD’S upper arm. A/MUMFORD flailed his arm away, jerking free of Deputy GANGWISCH’s grasp. A/MUMFORD then squared his body off with Deputy GANGWISCH and raised his clenched fists in what appeared to be a boxer’s stance.

A brief struggle ensued and A/MUMFORD was taken into custody.

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Exhibit 6. The video and transcript contradict these statements. In the transcript, the order to “stand down” occurred while court was in session, earlier than this report indicates. On the video, Mr. Mumford is not seen flailing his arms or intentionally blocking the USMS agent, who had come up behind him as he talked. Mr. Mumford is not seen “to raise his clenched fists” in a boxer’s stance.

Mr. Mumford was charged him with three misdemeanor offenses relating to this incident: Count 1: On or about October 27, 2016, in the District of Oregon, in and on Federal Property, to wit: the Mark 0. Hatfield Federal Courthouse, the Defendant, MARCUS R. MUMFORD, exhibited disorderly conduct that impeded and disrupted the performance of official duties by Government employees by verbally and physically interfering with members of the United States Marshals Service in their transportation of a person in their custody, in violation of 41 C.F .R. § 10274.390( c ).

Count 2: On or about October 27, 2016, in the District of Oregon, in and on Federal Property, to wit: the Mark 0. Hatfield Federal Courthouse, the Defendant, MARCUS R. MUMFORD, failed to comply with signs of a prohibitory, regulatory, and directory nature, to-wit: signs prohibiting conduct that impedes or disrupts the performance of official duties by government employees, in violation of 41 C.F.R. § 102-74.385.

Count 3: On or about October 27, 2016, in the District of Oregon, in and on Federal Property, to wit: the Mark 0. Hatfield Federal Courthouse, the Defendant, MARCUS R. MUMFORD, failed to comply with lawful directions of Federal police officers and other authorized individuals by failing to comply with instructions provided by members of the United States Marshals Service and Federal Protective Service to stop resisting, stop kicking, and to place his hands behind his back, in violation of 41 C.F.R. § 102-74.385 .

For the reasons below, all three counts should be dismissed.

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ARGUMENT I.

THE COURT SHOULD DISMISS ALL CHARGES DUE TO OUTRAGEOUS GOVERNMENT MISCONDUCT. Outrageous government misconduct violates a defendant’s constitutional right to due

process under the Fifth Amendment when it exceeds the bounds of “fundamental fairness, shocking to the universal sense of justice.” United States v. Russell, 411 U.S. 423, 432 (1973).

The Ninth Circuit has expressly recognized the ability of courts to dismiss prosecutions under such circumstances—for example, when the government’s brutal conduct “shocks the conscience” through acts so outrageous as to offend common notions of fairness. Huguez v.

United States, 406 F.2d 366 (9th Cir. 1968); see also United States v. McClelland, 72 F.3d 717 (9th Cir. 1995); United States v. Restrepo, 930 F.2d 705 (9th Cir. 1991). Even where the government’s conduct does not rise to the level of a due process violation but is nevertheless reprehensible, this Court may dismiss a charge under its supervisory powers. United States v.

Barrera–Moreno, 951 F.2d 1089, 1092 (9th Cir. 1991). 5 Whatever the basis of a dismissal may be, the ultimate judicial goal is the same—“to protect the integrity of the judicial process.” United States v. Leibowitz, 420 F.2d 39, 42 (2d Cir. 1969). Here, the government’s misconduct supports dismissal under these standards.

First, Mr. Mumford had a right to be present in the courtroom in the district of Oregon, presenting his argument to the court. He was admitted by the district court, was the attorney of

5

A court may exercise its supervisory powers for three reasons: “to remedy a constitutional or statutory violation; to protect judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; or to deter future illegal conduct.” United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991).

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record, he was required to be present at trial, and court was in session when he started his advocacy. Not only did Mr. Mumford have a duty under the Sixth Amendment to provide zealous advocacy for his client, he had a right under the First Amendment to petition the court.

See, e.g., U.S. Const. amend. I (“Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”).

[T]he Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes. Nat’l Ass’n for the Advancement of Multijurisdiction Practice v. Berch, 773 F.3d 1037, 1048 (9th Cir. 2014) (quoting Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 387 (2011)). The Sixth Amendment and ethical rules both require an attorney to advocate for the full interests of a criminal defendant. Comment 1, ABA Model Rule 1.3 (“A lawyer must also act with commitment and dedication to the interests of a client and with zeal in advocacy upon a client’s behalf.”); see also Hawk v. Cardoza, 575 F.2d 732, 735 (9th Cir. 1978) (“Thus petitioner's first amendment and due process rights and the sixth amendment rights of his client must be balanced against the need for order in the trial process.”).

Second, Mr. Mumford followed the usual and ordinary procedures of the courtroom when presenting his arguments. He rose to present his argument after attorney Olson completed his presentation. He was acknowledged by the court. After being corrected by the court and ordered to lower his voice, he can be seen leaning into the microphone, complying. The Court did not hold Mr. Mumford in contempt for his tone. Yet the USM personnel entered the well of the courtroom and interrupted Mr. Mumford’s presentation to the court, telling him to “stand down.” The court had to order the USMS personnel to “back up.” This infringement on judicial authority by the executive branch alone requires correction. See, e.g., Sacher v. United States, PAGE 12.

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343 U.S. 1, 8 (1952) (noting the “interests of society in the preservation of courtroom control by the judges”). The limits of zealous advocacy are set by the court through its contempt power, and not by the executive through the power of its marshals.

When the district court judge ordered the court in recess, the USMS personnel did not follow the usual practice, established by court order, of taking the detained defendants into custody. Instead, the USMS approached and then grabbed Mr. Mumford. Because the district court had issued a directive on how the USMS and all others were to proceed when a recess was called, the USMS was required to follow it. See 28 U.S.C. § 566 (establishing role and mission of U.S. Marshals to obey orders of the court). It was the USMS, not Mr. Mumford, who violated the court order.

It is well settled that Mr. Mumford had a right under the Fourth Amendment not to be physically attacked and subjected to unreasonable force in response to his exercise of his legal rights. A claim that law enforcement officials have used excessive force in course of arrest, investigatory stop or other “seizure” of a person is analyzed under the Fourth Amendment's “objective reasonableness” standard. Graham v. Connor, 490 U.S. 386 (1989). Here, it was objectively unreasonable for officers to seize Mr. Mumford by his arms, attempt to handcuff him, tackle him to the ground, and tase him. He neither threatened the officers nor blocked their access to his detained client, who remained seated throughout. He had a right to be in the courtroom, and the court’s order regarding conduct during the trial did not authorize the USM to remove disorderly or disruptive counsel – as opposed to spectators and defendants -- from the courtroom.

When evaluating a Fourth Amendment claim of excessive force, the issue is “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting PAGE 13.

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them.” Graham v. Connor, 490 U.S. 386, 397 (1989). This inquiry “requires a careful balancing of ‘the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake.” Id. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)). The strength of the government's interest in the force used is evaluated by examining three primary factors: (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether [s]he is actively resisting arrest or attempting to evade arrest by flight.” Hughes v. Kisela, 841 F.3d 1081, 1084–85 (9th Cir. 2016) (citing Graham, 490 U.S. at 396, and Garner, 471 U.S. at 8–9).

The most important factor under Graham is whether the suspect posed an immediate threat to the safety of officers or third parties. George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013).13 See also Bryan v. MacPherson, 630 F.3d 805, 832 (9th Cir. 2010) (use of taser against driver stopped for nonviolent misdemeanors violated constitutional right to be free from excessive force, but officer was entitled to qualified immunity because law regarding use of tasers was not sufficiently clearly established yet in 2005).

Here, the Graham factors all weigh against the government. The video of the incident makes clear that Mr. Mumford had not committed a crime of any kind. He exhibited no immediate threat to the safety of officers or others. He had no weapon. He was neither actively nor passively resisting the efforts of law enforcement to remove his client from the room, and indeed, law enforcement made no effort to remove his client until after they had tackled Mr. Mumford. Cf., Bryan, 630 F.3d at 832 (suspect did not pose immediate threat to officer or bystanders despite his “unusual behavior”). Any chaos in the courtroom resulted from USMS personnel accosting Mr. Mumford without cause; that chaos cannot be used as grounds to support his arrest. Kentucky v.

King, 563 U.S. 452, 462 (2011) (ruling that police cannot “create the exigency by engaging or PAGE 14.

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threatening to engage in conduct that violates the Fourth Amendment”); United States v. Lundin, 817 F.3d 1151, 1158 (9th Cir. 2016) (same).

Mr. Mumford stood in the well of the courtroom and protested that his client should not be held without lawful authority – an argument made frequently and with vehemence by defense attorneys. In response, he was physically and outrageously attacked and subjected to potentially lethal force. 6 “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously.” United States v.

6

The manufacturer of tasers, TASER International, Inc., has warned that shocks from a taser can lead to serious injury or death. Marquez v. City of Phoenix, 693 F.3d 1167, 1172 (9th Cir. 2012). According to a 2015 Washington Post article, 48 people died in the United States from January to November 2015 — about one death a week — in incidents in which police used tasers.

Cheryl Thompson and Mark Berman, “Improper Techniques, Increased Risks: Deaths Have Raised Questions About The Risk Of Excessive Or Improper Deployment Of Tasers,” Washington Post (November 26, 2015), at http://www.washingtonpost.com/sf/investigative/2015/11/26/ improper-techniques-increased- risks/. The Ninth Circuit, in Bryan, observed that “the physiological effects, the high levels of pain, and foreseeable risk of physical injury lead us to conclude that [tasers] are a greater intrusion than other non-lethal methods of force”: We similarly reject any contention that, because the taser results only in the “temporary” infliction of pain, it constitutes a nonintrusive level of force. The pain is intense, is felt throughout the body, and is administered by effectively commandeering the victim's muscles and nerves. Beyond the experience of pain, tasers result in “immobilization, disorientation, loss of balance, and weakness,” even after the electrical current has ended. Matta–Ballesteros v. Henman, 896 F.2d 255, 256 n. 2 (7th Cir.1990); see also Beaver v. City of Federal Way, 507 F.Supp.2d 1137, 1144 (W.D.Wash. 2007) (“[A]fter being tased, a suspect may be dazed, disoriented, and experience vertigo.”). Moreover, tasering a person may result in serious injuries when intense pain and loss of muscle control cause a sudden and uncontrolled fall.

Bryan, 630 F.3d at 825.

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Toscanino, 500 F.2d 267, 274 (2d Cir. 1974) (quoting Olmstead v. United States, 277 U.S. 438, 485 (1928)(Brandeis, J., dissenting)) (abrogated in part on other grounds). “[T]o sanction the brutal conduct” of government “would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.” Rochin v.

California, 342 U.S. 165, 173 (1952). This court has the authority and the obligation to hold the executive branch accountable for the violation of court orders, interference with judicial proceedings, and unreasonable invasions on liberty and abusive use of force that occurred here.

The USM personnel interfered with the legal presentation being made by an attorney, and then tackled and tased this attorney, who had been asserting constitutional rights of his client in a courtroom. Disregarding a court order, infringing on judicial authority, interrupting and tackling an attorney, and then employing a taser, all amounted to outrageous and shocking conduct. This court should dismiss the charges.

II.

THE COURT SHOULD DISMISS ALL CHARGES BECAUSE THEY ARE BASED ON REGULATIONS THAT WERE PROMULGATED IN VIOLATION OF THE SEPARATION OF POWERS DOCTRINE. Congress delegated authority to the Department of Homeland Security to promulgate

regulations for the protection and administration of federal property and to impose “reasonable” sanctions of up to 30 days in jail for violations of the regulations. The regulations under which Mr. Mumford is charged purport to be based on this delegation of authority. The regulations are void because Congress’s delegation of authority lacked the limiting principles required under the nondelegation doctrine to avoid violation of separation of powers.

A.

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The Separation of Powers Doctrine Protects Against Aggrandizement Of Power Within One Branch Of Government.

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Article one of the Constitution vests all legislative powers in the Congress. U.S. Const., Art. I, § 1. From this language, the Supreme Court has derived the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another branch of Government.

Touby v. United States, 500 U.S. 160, 165 (1991). This nondelegation doctrine is “rooted in the principle of separation of powers that underlies our tripartite system of Government.” Mistretta v.

United States, 488 U.S. 361, 371 (1989). The separation of powers prevents the aggrandizement of power within any single branch. See I.N.S. v. Chadha, 462 U.S. 919, 998 (1983)(noting “the purpose of separating the authority of government is to prevent unnecessary and dangerous concentration of power in one branch”).

Despite the nondelegation doctrine, Congress may seek assistance, “within proper limits,” from the other branches of government when legislating. Touby, 500 U.S. at 165. That is, broadly worded directives to executive agencies are permissible if they provide sufficient guidance: Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors.

So long as Congress “lay [s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.”

Id., quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928); see also Mistretta, 488 U.S. at 372-73 (noting it will be “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority”).

When Congress seeks to delegate its power to enact criminal rules, even greater specificity in the delegation may be required. See, e.g., Touby, 500 U.S. at 166) (questioning but not deciding whether greater specificity in delegation is required in the context of criminal sanctions); United States v. Amirnazmi, 645 F.3d 564, 576-577 (3d. Cir. 2011) (upholding a statute that delegated to PAGE 17.

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the President authority to create criminal sanctions for certain exports because the delegation restricted the scope of exports covered, imposed a mens rea requirement, and otherwise “meaningfully constrain[ed]” the President’s discretion); United States v. Dhafir, 461 F.3d 211, 216-217 (2d. Cir. 2006) (same).

The Tenth Circuit has questioned whether the very regulations at issue here violate the separation of powers doctrine because they were promulgated based on a flawed delegation of authority. United States v. Baldwin, 745 F.3d 1027, 1030 (10th Cir. 2014) (“Can Congress so freely delegate the core legislative business of writing criminal offenses to unelected property managers at GSA?”). Because the party below had not raised this issue, however, Judge Gorsuch noted the importance but did not decide this issue. Mr. Mumford now raises this challenge. As argued below, the delegation lacks the specificity required to avoid violation of separation of powers.

B.

The Regulations Are Invalid Because Congress Delegated Authority To Promulgate Them Without Providing Meaningful, Limiting Guidance To The Executive Branch.

By statute, Congress authorized the Department of Homeland Security to establish regulations with criminal penalties relating to protection of federal property. 40 U.S.C. § 1315(c) (formerly found at 40 U.S.C. §§ 318(a) and 318(c)). The title of the statute is “Law enforcement authority of Secretary of Homeland Security for protection of public property.” Id. The delegated authority to promulgate regulations reads in full: (c) REGULATIONS.— (1) IN GENERAL.—The Secretary, in consultation with the Administrator of General Services, may prescribe regulations necessary for the protection and administration of property owned or occupied by the Federal Government and persons on the property. The regulations may include reasonable penalties, within the limits prescribed in paragraph (2), for violations of the regulations. The regulations shall be posted and remain posted in a conspicuous place on the property.

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(2) PENALTIES.—A person violating a regulation prescribed under this subsection shall be fined under title 18, United States Code, imprisoned for not more than 30 days, or both.

40 U.S.C. § 1315(c) (Exhibit 7).

The regulations under which Mr. Mumford is charged, 41 C.F.R §§ 102-74.390(c) and 10274.385 (Exhibit 8), were promulgated pursuant to this statutory authority. See, e.g., Baldwin, 754 F.3d at 1030 (tracing “congressional pedigree” of these regulations). They are criminal offenses that carry the potential for 30 days in jail. 41 C.F.R § 102-74.450. Although misdemeanors, they become part of a person’s record and could affect employment.

Congress’s delegation of this rule-making authority to the Executive Branch violated the Constitution because the delegation lacked specificity and failed to provide meaningful constraint on the Department of Homeland Security’s exercise of discretion. Authorizing an agency to promulgate criminal regulations for the “protection and administration” of property and persons, without more, invites abuse of power. Cf. Nichols, 784 F.3d at 673 (“[T]he framers’ attention to the separation of powers was driven by a particular concern about individual liberty and even more especially by a fear of endowing one set of hands with the power to create and enforce criminal sanctions.”) (Gorsuch, J., dissenting) . There is no limit on the scope of actions on federal property that can be regulated under this delegation, no required mens rea for any violation, and no requirement for consultation with Congress. 7 The broad delegation violates the non-delegation doctrine because it fails to establish meaningful constraints on the Executive’s discretion.

7

Indeed, the regulations cover a broad scope of activity – breastfeeding, conducting a lottery or pool, soliciting alms -- that might not be expected under a Congressional delegation to protect and administer federal property. 41 C.F.R. §§ 102-74.426, 102-74.395, 102-74.410.

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As an example of a delegation of criminal rule-making authority that passes constitutional muster, consider 21 U.S.C. § 201(h), the statute at issue in Touby v. United States. Congress delegated to the Attorney General the authority to temporarily place drugs on the controlled substances schedule -- thereby creating criminal offenses for possession of these substances – if doing so were “necessary to avoid an imminent hazard to public safety.” Touby, 500 U.S. at 160– 161 (citing statutory delegation). This direction from Congress by itself is more specific than that provided to the Department of Homeland Security for the GSA regulations at issue in this case.

And the direction from Congress did not stop there.

Among other directions, Congress also

required that in order to schedule a drug pursuant to the delegation of authority, the Attorney General must consider “the drug’s ‘history and current pattern of abuse’; ‘[t]he scope, duration, and significance of abuse’; and ‘[w]hat, if any, risk there is to the public health.’” Id. In addition, Congress required the consideration of numerous other specified factors and criteria for scheduling drugs and defining criminal conduct. In light of the specificity of the directions that accompanied the delegation of criminal regulatory authority, the Supreme Court found that § 201(h) did not violate the nondelegation doctrine or separation of powers. Touby, 500 U.S. at 166 (finding that “§ 201(h) meaningfully constrains the Attorney General's discretion to define criminal conduct”).

One noted jurist has distilled from Touby three limiting principles for congressional delegation of criminal authority: (1) Congress must set forth a clear and generally applicable rule (unauthorized persons may not possess the drug) that (2) hinges on a factual determination by the Executive (does the drug pose an imminent hazard?) and (3) the statute provides criteria the Executive must employ when making its finding (does the drug in question currently have an accepted medical use?).

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Nichols, 784 F.3d at 673 (Gorsuch, J., dissenting). The court noted that these “three criteria could easily be applied to most any delegation challenge in the criminal context .” Id. Congress’s delegation of authority to the Department of Homeland Security that resulted in the challenged regulations in this case falls far short of the specificity required by Touby. The delegation can be construed to set out a generally applicable rule (federal property and persons on it must be protected), but Congress offered no limiting principles to guide the discretion. The delegation requires no fact-finding and suggests no criteria that the Executive must use.

The principle that Congress may not delegate legislative power to the President is “universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892); see also Amirnazmi, 645 F.3d at 574 (quoting this principle). Although cumbersome, the separation of powers serves important goals: Without a doubt, the framers’ concerns about the delegation of legislative power had a great deal to do with the criminal law. The framers worried that placing the power to legislate, prosecute, and jail in the hands of the Executive would invite the sort of tyranny they experienced at the hands of a whimsical king. Their endorsement of the separation of powers was predicated on the view that ‘‘[t]he inefficiency associated with [it] serves a valuable’’ liberty-preserving ‘‘function, and, in the context of criminal law, no other mechanism provides a substitute.’’

Nichols, 784 F.3d at 670 (Gorsuch, J., dissenting) (internal citation omitted).

The delegation resulting in the criminal regulations in this case failed to provide the guidance and limits on executive discretion required by the Supreme Court in Touby. This Court should find the regulations unconstitutional and dismiss the charges.

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THE COURT SHOULD DISMISS ALL CHARGES BECAUSE FACIALLY AND AS APPLIED, THE REGULATIONS ARE VOID FOR VAGUENESS IN VIOLATION OF DUE PROCESS BECAUSE THEY FAIL TO PROVIDE NOTICE THAT SPECIFIC CONDUCT IS UNLAWFUL AND INVITE ARBITRARY ENFORCEMENT. The regulations under which Mr. Mumford is charged are void because they lack the clarity

required by the Due Process clause for criminal statutes. “[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 337 (1983). This prohibition on vagueness in criminal statutes “is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law, and a statute that flouts it violates the first essential of due process.” Johnson v. United States, 135 S. Ct. 2551, 2556–57 (2015) (internal quotation omitted); see also Desertrain v. City of Los Angeles, 754 F.3d 1147, 1155 (9th Cir. 2014) (finding ordinance unconstitutionally vague).

Facially, one regulation fails to adequately define the scope of the “official duties” of government employees which a person could be accused of impeding or disrupting. 41 C.F.R. 10274.390(c); the other fails to define the limits on “lawful direction” that may issue from “other authorized individuals.” 41 C.F.R. 102-74.385. As the Tenth Circuit noted in Baldwin, the swath of potential actions covered by such broad regulations raises constitutional concerns: If, on the one hand, it’s a crime for anyone on federal property to ‘‘impede or disrupt’’ a government employee’s ‘‘performance of official duties,’’ what public servant among us couldn’t be brought up on charges on a prosecutorial whim?

Pressing a prosaic conversation with a co-worker about ski conditions in the high country might seem enough to make criminals of us all. If, on the other hand, the regulations don’t proscribe so much, then what exactly do they proscribe?

Baldwin, 745 F.3d at 1031.

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Because the vague regulations create the possibility of arbitrary enforcement and fail to provide clear notice of what conduct is proscribed, they violate due process. Charges based on the regulations should be dismissed.

Moreover, as applied, the vague regulations violate Mr. Mumford’s right to due process of law. Count 2 charges that Mr. Mumford “failed to comply with signs … prohibiting conduct that impedes or disrupts the performance of official duties by government employees.” A personal of ordinary intelligence would not understand that Mr. Mumford’s arguments in the courtroom would run afoul of this regulation. Which government employees did he disrupt in their duties? The court reporter? The judge who had to pause to order him to lower his voice? The U.S. Marshal personnel who were required to be present for his argument? The regulation does not require the government employee to provide notice or warning that an interruption will be deemed criminal, and therefore is too vague to support a criminal prosecution. Mr. Mumford was given notice only by the judge that he was required “to carefully follow all Court orders regarding the admissibility of evidence and permissibility of argument.” (Ex. 2). The judge had the contempt power to enforce this order. United States v. Marshall, 451 F.2d 372, 373 (9th Cir. 1971) (noting power to punish as direct contempt any “misbehavior having the effect of interfering with the orderly conduct” of proceedings in the judge’s presence). When the judge chose not to invoke the contempt power, Mr. Mumford had no notice that the U.S. Marshals had authority to arrest him.

Similarly, Count 3 alleges that Mr. Mumford failed to comply with lawful directions “to stop resisting, stop kicking, and to place his hands behind his back.” As above, Mr. Mumford had no notice that the U.S. Marshals had authority to issue lawful orders to him. The judge had already delineated the authority of the USMS personnel in the courtroom, indicating power over the spectators and over the defendants. (Ex.1, 2). Because she had not ordered that the USMS PAGE 23.

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personnel had authority over counsel while in the courtroom, Mr. Mumford could reasonably believe that the USMS personnel had no authority to order him to “stand down” while he was making an argument to the court, or to grab his arm when court ended. In addition, these statements attributed to the USMS to “stop resisting, stop kicking” occurred after the USMS had interrupted and grabbed Mr. Mumford without lawful authority. Cf. Storey v. Taylor, 696 F.3d 987, 994 (10th Cir. 2012) (noting that because officer’s order was not lawful, arrestee’s refusal to obey could not justify his arrest).

Finally, Count 1 alleges that Mr. Mumford “exhibited disorderly conduct that impeded and disrupted the performance of official duties by Government employees by verbally and physically interfering with … the United States Marshals Service in their transportation of a person in their custody.” This vague allegation risks violation of the First Amendment in that it seeks to prosecute unspecified verbal statements, made in the courtroom to law enforcement. City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”); United States v. Sherer, No. 3:12-CR-00003CMK, 2012 WL 1815598, at *4 (E.D. Cal. May 17, 2012) (finding defendant not guilty of violation of similar regulation and noting that the “freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state”).

Given the evidence in the case, including the video that demonstrates the USMS personnel laid hold of Mr. Mumford before they ever attempted to transport his client, Mr. Mumford’s alleged verbal interference must have been the triggering action that caused officers to take Mr. Mumford into their custody. Ten seconds earlier, Mr. Mumford had been engaged in presenting his legal argument to the court. He could have had no notice that continuing his comments – as the PAGE 24.

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USMS personnel spoke to him – would subject him to arrest. Unlike the attorney in Baldwin who drove off after a federal officer ordered him to stop his vehicle, Mr. Mumford made no arguments and took no actions that a reasonable person would clearly understand were unlawful. Cf. Baldwin, 745 F.3d at 1032 (noting “it’s clear enough from the terms of regulations before us that, whatever else they do or don’t proscribe, driving off while a uniformed officer is busy issuing a warning, and doing so over the officer’s instructions to stop, counts as disobeying that person’s directions and disrupting performance of his official duties”).

As applied to Mr. Mumford, the regulations are impermissibly vague and application of them to Mr. Mumford would violate his right to due process. The charges should be dismissed.

CONCLUSION As a matter of law, the charges against Mr. Mumford should be dismissed because they are based on regulations promulgated in violation of the nondelegation clause and violate separation of powers. Alternatively, the charges should be dismissed because facially, the regulations are void for vagueness. After an evidentiary hearing, the court should exercise its power to dismiss the charges in light of the outrageous government conduct that underlies the charges. In the alternative, as applied to Mr. Mumford, the regulations are void for vagueness and charges must be dismissed.

Respectfully submitted, /s/ Michael R. Levine __________________________ Michael R. Levine, Attorney for Mr. Mumford PAGE 25.

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