Attorney for Defendant Salt Lake Legal Defender Association

, Suite 300 Salt Lake City, UT 84111

IN THE JUSTICE COURT OF SALT LAKE CITY

SALT LAKE COUNTY, STATE OF UTAH

SALT LAKE CITY, MOTION TO DISMISS AND MEMORANDUM IN SUPPORT THEREOF

Plaintiff,

vs.

ET AL., CASE NOS. 08CR05034, 08CR04921, 08CR05037, 08CR05038, 08CR04919, 08CR05041, 08CR04918, 08CR05031, 08CR05039, 08CR05042, 08CR04922

Defendant. HONORABLE JUDGE BARRINGHAM

Defendants, ET AL., by and through counsel, R

and , hereby moves this Court to dismiss Count I as

charged in the individual Informations for the foregoing reasons.

FACTS'

It is alleged that on April 27, 2008, the Defendants in the above listed cases were

marching and chanting in the neighborhood of in Salt Lake City. The

1 The following statement of facts is taken primarily from police reports supplied to Defendant by Salt Lake City Police depa111nent. Defendant cites these facts strictly for purposes of this Motion to Suppress, and does not admit then1 for any other purpose.

probable cause statements2 provided by the peace officers further allege that on that date the

Defendants were within 100 feet of the address at for the purposes of

apprising the public vocally by standing and marching with signs and banners. This location is

alleged to be a residential area. As a result of the allegations, Salt Lake City has charged the

Defendants with Targeted Residential Picketing, a Class B Misdemeanor, under Salt Lake City

Code§ 11.12.120.

ARGUMENT

I. DEFENDANTS' CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THEY WERE ARRESTED WITHOUT PROBABLE CAUSE THAT THEY HAD COMMITTED AN OFFENSE

Article I, § 14 of the Utah Constitution and the Fourth Amendment of the United States

Constitution were created to protect "[t]he right of people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. "It is

axiomatic that 'the right to be free from unreasonable searches and seizures embodied in the

Utah and United States Constitutions is one of the most fundamental and cherished rights we

possess."' State v. Trane, 57 P.3d 1052, 1057 (Utal12002) (quoting State v. Thomas, 961 P.2d

299, 303 (Utah 1998)). Based upon the protections inherent within these well-known clauses,

the scope of an officer's authority to conduct an unreasonable seizure and search of an individual

is restricted. An arrest is a reasonable "seizure" where it is supported by probable cause to

believe that a crime has been or is being committed. U.S. v. Davis, 197 F.3d 1048 (10th Cir.

1999). When determining whether a peace officer has probable cause to arrest an individual,

2 The police repo11s included in Discovery to the Defendants include three (3) probable cause statements which are drafted by Officer Brandon Him le. These statements relate specifically to Defendants

and Because the actions of all Defendants are substantially equal for purposes of this motion, and due to the absence of any other Probable Cause statement, references to these statements will be used throughout this Memorandun1, and \viii be used in relation to all Defendants.

2

Sunshine Rd.

1

"we must ask whether the facts known to the officer, and the inferences which fairly might be

drawn therefrom, a reasonable and prudent person in his position would be justified in believing

that the suspect had committed the offense." Layton City v. Noon, 736 P.2d 1035, 1037 (Utah

App. 1987). A mere hunch or suspicion is not enough to reach the level of probable cause. State

v. Hechtle, 89 P.3d 185, 191 (Utah App. 2004).

On April 27, 2008, the Defendant's were arrested and cited, and subsequently charged

under S.L.C. Code § 11.12.120 (C) which reads: "It shall be unlawful for any person, acting

alone or in concert with others, to engage in targeted residential picketing in Salt Lake City."

Additionally, the statute gives the following definitions in Section (B):

1. "Picketing" means the stationing or posting of one or more persons to apprise the public, vocally or by standing or marching with signs, banners, sound amplification devices, or other means, of an opinion or a message.

2. "Residence" means any single-family, duplex, oor multi-family dwelling that is not used as a targeted occupant's sole place of business or as a place of public meeting.

3. "Targeted residential picketing" means picketing that: a) is specifically directed or focused towards a residence, or one or more occupants of a residence, and b) takes place within one hundred feet (100') of the property line of that residence.

In looking at the purpose of the statute, §11.12.120 reads:

111e protection of the home is of the highest importance. The public health and welfare and the good order of the community require that citizens enjoy in their homes and neighborhoods a feeling of well being, tranquility, and privacy, and enjoy freedom from being a captive audience to unwanted speech in their homes. The practice of targeted picketing in residential areas causes emotional disturbance and distress to residents, and has the potential to incite breaches of the peace. Full opportunity exists for individuals to exercise their rights of free speech without resorting to targeted residential picketing. The provisions of this section are enacted for the purpose of protecting the significant public interests stated above and not to suppress free speech rights or any particular viewpoint.

It is alleged that the Defendants targeted the residence located at in

Salt Lake City by marching and chanting on the sidewalk directly in front of that location, as

they marched and chanted through the neighborhood.

3

In Frisby v. Schultz, the United States Supreme Court held that a statute similar to S.L.C.

11.12.120 was not facially invalid under the First Amendment. The Court stated that "all public

streets are held in the public trust and are properly considered traditional public fora." 487 U.S.

474, 481 (1988). In analyzing the statute, the Court continued, "[t]he residential character of

those streets may well inform the application of the relevant test, but it does not lead to a

different test; the antipicketing ordinance must be judged against the stringent standards we have

established for restrictions on speech in traditional public fora." Id. As part of these stringent

standards, the ordinance must be "narrowly tailored to serve a significant government interest"

and it must "leave open ample alternative channels of communication." Id. at 482, citing Perry

Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, at 45.

The statute in question was carefully drafted in order to avoid the suppression of free

speech rights. One of the most important and carefully drafted sections of the statute is found in

I l.12.120(B)(3), which defines "Targeted Residential Picketing." In that definition it is

absolutely imperative that the "picketing" be "specifically directed or focused towards a

residence, or one or more occupants of a residence." Th~ officers did not have probable cause.Jo

believe that the Defendants were "specifically directed or focused_:Ynor did the officer allege

such focus or direction in the supplied Probable Cause statements. Rather, it is alleged in the

Probable Cause Statements that the "A/P's were within(] 100 feet

Picketing/Protesting." Such a generalization does not fit the narrow tailoring of the statute, as

being within I 00 feet of a residence is not enough. It must be specifically directed or focused

towards a residence. The officers did not have probable cause that such direction and focus was

taking place, and therefore the arrest was unconstitutional.

4

II. THE STATUTE, AS APPLIED, IS AN UNCONSTITUTIONAL VIOLATION OF THE DEFENDANTS' FIRST AMENDMENT RIGHTS TO FREE SPEECH

Assuming, arguendo, that S.L.C. 11.12.120 is content neutral, the Supreme Court has

held that the ordinance must be "narrowly tailored to serve a significant government interest"

and "leave open ample alternative channels of communication." Frisby, 487 U.S., at 482. In

Frisby, the Supreme Court held that a statute substantially similar to that in place in Salt Lake

City was not facially invalid under the First Amendment and under the application of the above

test. Given the similar nature of the statutes, the facial unconstitutionality under the 1'1

Amendment is not in question in this memorandum. Rather, the application of this statute in the

facts at hand are unconstitutional under the First Amendment.

In Frisby, the Court found that "the use of the singular form of the words 'residence' and

'dwelling' suggests that the ordinance is intended to prohibit only picketing focused on, and

taking place in front of, a particular residence." Id. Accordingly, the Court held that "[g]eneral

marching through residential neighborhoods, or even walking a route in front of an entire block

of houses, is not prohibited by this ordinance ... Accordingly, we construe the ban to be a limited

one; only focused picketing taking place solely in front of a particular residence is prohibited."

Id. at 483. The Court continued by holding that, "[s]o nanowed, the ordinance permits the more

general dissemation of a message ... the limited nature of the prohibition makes it virtually self-

evident that ample alternatives remain." Id. Additionally the Court found impo1iant ample

alternative channels of communication remain, as "[p ]rotestors have not been barred from the

residential neighborhoods." Id.

5

The facts in Frisby differ immensely from the facts before this Court. In Frisby, the

Defendants "subjected the doctor and his family to the presence of a relatively large group of

protesters on their doorstep in an attempt to force the doctor to cease performing abortions."

Frisby, 487 U.S., at 487. As the Court mentioned, the Frisby defendants could have marched

through the neighborhood (as the Defendants in our case did) without being in violation of this

statute, but they chose to picket the Doctor's doorstep instead. The Defendants in the case today

entered a neighborhood and marched a route in front of an entire block of houses. The Supreme

Court in Frisby specifically held that under the substantially similar Wisconsin statute at issue in

that case, "[g]eneral marching through residential neighborhoods, or even walking a route

in front of an entire block of houses, is not prohibited by this ordinance." Id. at 483

(emphasis added).

The City may argue that picketing is per se "targeting" when done within I 00 feet of a

property line of a residence. In this particular situation, in the neighborhood of

staying I 00 feet away from a residence would force a person off of the public sidewalk \ So v~

which runs directly in front of the homes on that street and either into the middle of the street, or (,.._~_

onto the sidewalk on the opposite side of the street. By forcing protestors into the middle of the ; ~ ~~.,_,,~

street, the protestors, as well as the public are placed in danger as the road is a thoroughfare used s~vb,>i<..ll.

Jr'\M- e1"e .,,,,,

by motor vehicles. By forcing them onto the opposite side of the street, the protestors are then i

11\,.,,0 I <' danger of targeting the homes on the other side of the street, if in fact, the City maintains that I! '

/,!./V'--l~N---i;'

marching through a residential neighborhood and chanting constitutes targeted protesting.

A person's First Amendment Right to Free Speech is an important right in our society

and in this country that we call '"free". Frisby held that a statute such as S.L.C. I 1.12.120 is not

6

facially invalid under the First Amendment so long as it is narrowly tailored to serve a significant

government interest and leaves open ample alternative channels of communication. As this

statute has been applied in this particular situation, the Officers have taken away alternative

channels of communication and have essentially closed residential areas to picketing or to the

exercise of free speech. Such a preemption of the exercise of free speech is improper and

unconstitutional. In this case, charging the Defendants with violation ofS.L.C. 11.12.120 would

constitute an unconstitutional application of the statute and a violation of their rights to free

speech.

II. SALT LAKE CITY ORDINANCE 11.12.120 IS IN VIOLATION OF BOTH THE EQUAL PROTECTION CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION, AND ART. I,§ 24 OF THE UTAH CONSTITUTION, AND IS INVALID AS UNCONSTITUTIONAL

Salt Lake City Ordinance 11.12.120 violates Article I, section 24 of the Utah Constitution

since the ordinance does not "have uniform operation" for all people to which it is applied. The

purpose of Article l, § 24 is to protect Utah's citizens from discrimination and/or disparate

treatment. To that end, a law must apply equally to all persons within a class. See State Tax

Commission v. Department of Finance, 576 P.2d 1297 (Utab, 1978); Dodge Town Inc. v.

Romney, 480 P.2d 461(Utah1971); Broadbent v. Gibson, 140 P.2d 939 (Utah 1943). The Utah

Supreme Court has held on numerous occasions that "a statute [or ordinance] is unconstitutional

because it did not operate uniformly on the members ofa class." Malan v. Lewis, 693 P.2d 661,

671(Utah1984). In the instant case, Salt Lake City Ordinance 11.12.120 does not operate

uniformly on the class of people who "apprise the public, vocally [] of an opinion or message."

In State v. Mohi, 901 P.2d 991 (Utah 1995), the Utah Supreme Court held that for a law to be

7

constitutional, it is "not enough that [the ordinance J be uniform on its face. What is critical is that

the operation of the law be uniform." Mahi, 90 I P .2d at 997 (emphasis in original).

Consequently, the ordinance is unconstitutional.

The class of people who "apprise the public, vocally [] of an opinion or message" are

treated differently by this statute since in the instant case, defendants were walking up and down

the streets of a neighborhood, vocally apprising the neighborhood of their message, and were

ticketed as a result, whereas other members of the class exhibiting the same behavior have not

yet been ticketed. Interestingly, a cursory inspection of Salt Lake City's Justice Court docket

revealed no tickets for violation of this ordinance during December of the year the ordinance

went into effect. During that month, there were many groups of one or more person apprising the

public vocally, going further than the defendants in this matter by actually going onto certain

properties of targeted residences to disseminate an opinion and message. These residential

picketers who targeted specific residences and neighborhoods vocalized certain messages of their

religions and Christianity though chants, song and verse. Although unlawful under this ordinance

for these persons, alone or in concert with others to apprise the public vocally of their opinions or

messages of Christianity, none of these defined picketers were cited under this ordinance. As the

Utah Supreme Court has stated about Article I, section 24, "'the settled concern of the law that

the legislature be restrained from the fundamentally unfair practice' of classifying persons in

such a manner that those who are similarly situated with respect to the purpose of a law are

treated differently by that law, to the detriment of some of those so classified." Blue Cross and

Blue Shield of Utah v. State, 779 P.2d 634, 641 (Utah 1989) (citations omitted). Where, as here,

the law does not apply, and has not been applied, uniformly among similarly situated persons

8

within this class of petitioners (ie: Christian Residential Carolers), it is thus, unconstitutional

under both Article I section 24 of the Utah Constitution, as well as the Equal Protection Clause

of the 14111 amendment to the United States Constitution. Consequently, Salt Lake City

Ordinance 11.12.120 is invalid, and its charge against the named defendants should be

dismissed.

CONCLUSION

An evidentiary hearing in this matter has been set for August 7, 2008. Following the

hearing, if the City is unable to present evidence demonstrating the constitutionality of the arrest,

constitutionality of the application of the statute, and constitutionality of the statute itself, under

both the Federal Constitution and the Utah Constitution, the Defendants will ask the Court to

dismiss all charges against them.

RESPECTFULLY SUBMITTED this __ day of August 2008.

9

Attorney for Defendant

Attorney for Defendant

DELIVERY

On the __ day of August, 2008, I mailed/delivered a true and correct copy of the foregoing MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS to the Salt Lake City Prosecutor's Office, 349 South 200 East, Suite 500 Salt Lake City, Utah 84111.

10

SALT LAKE CITY JUSTICE COURT COUNTY OF SALT LAKE, STATE OF UTAH

SALT LAKE CITY, In Re: Defendant's Motion to Dismiss for lack of Probable Cause A Municipal Corporation,

Plaintiff, vs.

ET AL.,

Defendant.

Case Nos. 08CR05034, 08CR0492!, 08CR05037, 08CR05038, 08CR04919, 08CR0504 l, 08CR04918, 08CR05031, 08CR05039, 08CR05042, 08CR04922, 08CR06367, 08CR06370, 08CR06366

Judge Holly Magi Barringham

This matter came before the Court this morning, December 15, 2008. All parties

were represented by counsel. Counsel presented evidence including: written briefs,

witness testimony, portions of two videos, and oral arguments.

After careful consideration of all the evidence presented, the Court denies

Defendant's Motion to Dismiss (lack of probable cause for arrest/citation) per the

rationale below.

Findings of Fact

The Court heard testimony from ten (10) witnesses. The first three (3) of the

witnesses are civilians, living the neighborhood near the alleged offense, all of whom

called 9-1-1. All three (3) indicated they were able to hear and observe the defendants

marching, holding signs, audible enough to draw their attention and concern. Ms.

testified that she understood their words, "a protest for animal rights." She diagrammed

and testified that the defendants were marching directly in front of Dr. home

making a clockwise circle, crossing the street, and crossing back to the front of the

Witness #3

(

She observed them for approximately twenty (20) minutes until the police

arrived. Ms. is seen in the video taken by the security company approaching and

sitting across the street from the residence watching the protest.

Ms. Ratbhofer called 9-1-1 when she heard a "disturbance" on She

testified that she could see the defendants from the window of her home and that vehicles

were coming to the intersection, observing the people, and not making left turns as

planned.

Ms. testified that she drove her vehicle to and actually stopped

to speak with the protestors. She could hear "screaming" and "chanting." When she

pulled up and told the group to "get out of here" two (2) of the defendants pulled down

their bandanas and specifically stated they were there because of "this doctor" (pointing

towards the residence) and then made statements which Ms. felt were

"very threatening." She indicated that the defendants did not appear to be protesting

while walking up towards they did not cover their faces, heads

were down, and the signs/banners were not yet open.

The Court heard from four ( 4) police officers involved with this case. Three out

of the four testified that they had specific briefings regarding potential problems with

protests, and that might be a possible target. Further, Sgt. Nash was

advised by officers coming off of the graveyard shift that they had been at the address the

previous evening. Officer Henley testified that he arrived on the scene, could see and

hear the protest and watched the defendants for approximately three minutes before

stopping them on the side of the street. Officer Hall arrived and observed the

security officer and a "large group of people protesting" for approximately thirty (30)

W #2

W #2

Sunshine Rd.

seconds to one minute. He indicated that the diagram drawn by witness was correct

as to where he saw the people walking. He primarily assisted with security at the scene,

watching as the other officers processed the defendants.

Three (3) of the defendants testified. For purposes of this hearing only, the Court

agrees that the testimony given is/was representative of the group.

Mr. told the Court that he was going up to the neighborhood

to inform the general public about vivisection and he knew that Dr. lived on

that street. He added that they protested at "several houses" on and that he

wanted the neighborhood to know about it (vivisection).

Ms. testified that this was a protest against vivisection. She

diagranrmed a larger circle encompassing more houses and more of than the

prior witnesses. She stated that the area was initially quiet, but then they drew a crowd,

which was their goal. She recalls marching about ten (1 O) minutes before the police

arrived, it was not a planned route and they only got around two to three times before

being stopped. She indicated that she was not familiar with the residential

address being listed as a "target" on the SLAAM website.

Ms. echoed that this was a planned protest against vivisection and that they

passed four to five houses on their route through the neighborhood, getting approximately

three to four circles before the police stopped them. When asked why she was protesting

in that particular location she responded; "because a vivisectionist lives in that

neighborhood."

Defendants offered portions of a video taken by one of the protestors at the time

of arrest; it shows Officer Henley stopping the protestors and asking them to take seat on

Sunshine Rd.

W #5

Sunshine Rd.

Witness #6

Sunshine Rd.

Witness #5

W #7

#3

the curb, indicating they are being stopped because they were protesting in a residential

neighborhood. More demonstrative is the video taken by the security guard from the

residence. It shows several minutes of the chants and follows the

protestor's circular route in front of the home. The camera pans from side to side

following the main group of protestors. The circuitous path is tight, only veering away

from what appears to be the edge of the property to cross the street,

walk the length of the property on the sidewalk there, and return, coming back to the

property, repeating several times. Of note, the camera catches one protestor lagging

behind; pointing what appears to be a camera at the residence and the security guard at

least twice. His(?) focus and attention are clearly on the address.

Conclusions of Law

It is well settled in the law that Probable Cause ("P.C.") must exist in order for

law enforcement to effectuate an arrest. In this particular situation, the defendants are

charged with Class B misdemeanors, making the issuance of a criminal citation

substantially equal with an arrest. With one exception, all defendants were issued tickets

on April 27, 2008 in lieu of physical arrest and booking at the jail.

Probable Cause is thoroughly examined in Utah case law, the Court assumes

Counsel is familiar with the cases and so will not elaborate here. As a reminder, the

burden for P .C. is that a reasonably prudent person would believe that a crime had been

committed.

Here, the responding officers had been specifically briefed prior to their shift that

the might be a target residence as prohibited by the statute. Sgt. Hatch

was even personally informed about a call to the address just the night before. Two of

Witness #5

Witness #5

Sunshine Rd.

Sunshine Rd.

them observed the actions of the protest, including the route in front of the

residence and heard the chants. Given the defendants proximity to the alleged target

residence and the fact three of them were dispatched on an issue for which they were

recently briefed, it was reasonable the officers would stop the defendant-protestors and

issue citations. Additionally, even without the officer's testimony, the civilian witnesses'

testimony is sufficient to demonstrate probable cause (that a crime occurred) in this

particular case.

Accordingly, the defendant's Motion is denied.

s/shmb

Holl ·agi Barringharn, Judge Salt Lake City Justice Court

Witness #5

SIMARJIT S. GILL, #6389 SALT LAKE CITY PROSECUTOR'S OFFICE MICHELLE L. DIAMOND, # 10924 Assistant City Prosecutor MITCHELL PARK, # 11944 Associate City Prosecutor 349 South 200 East, Suite 500 Salt Lake City, Utah 84111 Telephone: (801) 535-7767 Facsimile: (801) 535-7253

IN THE SALT LAKE CITY JUSTICE COURT COUNTY OF SALT LAKE, STATE OF UTAH

SALT LAKE CITY, A MUNICIPAL CORPORATION,

PLAINTIFF, vs.

AND

DEFENDANTS.

PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE

ARGUMENT AND EVIDENCE SUGGESTING JURY

NULLIFICATION

CASE Nos. 08CR05038, 08CR05041, 08CR06370

JUDGE SIDNEY MAGID

COMES NOW Salt Lake City ("the City"), by and through its attorneys of record and

hereby moves this Court pursuant to Rule 12 of the Utah Rules of Criminal Procedure for an

Order excluding all evidence, arguments, inquiries, and lines of questioning which would elicit

jury nullification from the criminal prosecution and proceedings regarding the defendants.

This motion is supported by the following memorandum of support and authorities.

I. INTRODUCTION

The City respectfully moves this Court to preclude the defendants from presenting

evidence, pursuing lines of inquiry, or other argument which is designed to, or may elicit, jury

nullification. The defendants may attempt to convince the jury to render a verdict

notwithstanding the law and evidence presented at trial. The defendants may accomplish this

Arrestee #3, Arrestee #11, Arrestee #7

goal in the following ways, inter alia: (1) challenging the propriety, wisdom, fairness, or

necessity of City ordinances, in particular, Salt Lake City Ordinance 11.12.120; (2) challenging

or alluding to any inconsistency in the prosecution of violations of the aforementioned ordinance

or other ordinances; (3) asserting or referencing the ordinance as unconstitutional, violative of

the United States First Amendment, repressing an individual's right to free speech, or any other

. similar suggestion; or ( 4) arguing or alluding to any punishment which may result for the

violation of such ordinance. Any such evidence or argument is.irrelevant, improper and should

be excluded from being admitted or otherwise presented at trial.

II. THE JURY'S SCOPE IS FACT-FINDING, WHILE DECISIONS OF LAW REMAINS THE PROVINCE OF THE JUDGE.

The jury has no right to nullify the law, as instructed by a judge, and to so act is

wrongful. Spar/ & Hansen v. United States, 156 U.S. 51, 101-02 (1895). The United States

Supreme Court reasoned that, "[w]e must hold firmly to the doctrine that in the courts of the

United States it is the duty of juries in criminal cases to take the law from the court, and apply

that law to the facts as they find them to be from the evidence." Id at 102. Further, the Court

declared, "[u]pon the court rests the responsibility of declaring the law; upon the jury, the

responsibility of applying the law so declared to the facts as they, upon their conscience, believe

them to be." Id Ignoring such separation, "[p]ublic and private safety alike would be in peril if

the principle be established that juries in criminal cases may, of right, disregard the law as

expounded to them by the court, and become a law unto themselves." Id at 105-06. Thus, it is

improper for the Defendant to suggest in any way that the jury should disregard the application

of the law, as instructed by the Court.

Utah constitutionally recognizes the separate roles of judge and jury. See Utah Const. Art

1, Sec. 12, 15. The State of Utah statutorily separates the Court's and jury's duties. Utah Code

§ 77-17-10. The legislature clearly states that in criminal trials, "questions of law are to be

determined by the court, questions of fact by the jury." Utah Code § 77-17-10. The Court has

consistently affirmed this separation of duties. See Id; State v. Lopes, 980 P .2d 191, 194 (Utah

1999); State v. Leleae, 993 P.2d 232, 243 (Ut. App. 1999). The Utah State Supreme Court

further affirms that it is the jury's exclusive province in criminal cases to determine strength of

state's evidence or whether it is conflicting or uncontroverted. State v. Green, 78 Utah 580, 6

P.2d 177 (1931). The Court should not deviate from the clear statutory delegation of duties.

The importance of a correctly instructed the jury, as to the law, is underscored by Utah

Rule of Evidence 704. Opinion testimony advancing a legal conclusion is barred by Rule 704.

State v. Davis, 155 P.3d 909, 914 (Utah 2007). The rationale for this exclusion includes:

First, "[ o ]pinion testimony is not helpful to the fact finder when it is couched as a legal conclusion." Steffensen v. Smith's Mgmt. Corp., 862 P.2d 1342, 1347 (Utah 1993); see also Specht v. Jensen, 853 F.2d 805, 807 (10th Cir. 1998) (en bane) ("[I]t would be a waste of time if witnesses or counsel should duplicate the judge's statement of the law, and it would intolerably confound the jury to have it stated differently." (Quotations and citation omitted)). Second, testimony that renders a legal conclusion tend[ s] to blur the separate and distinct responsibilities of the judge, jury, and witness." Steffensen, 862 P.2d at 1347-48; see also State v. Hansen, 734 P.2d 421, 428 (Utah 1986) (plurality) ("It is the duty of the judge to instruct the jury on relevant law."). Finally, there is "a danger that a juror may tum to the [witness's legal conclusion] rather than the judge for guidance on the applicable law." Steffensen, 862 P.2d at 1348.

Davis, 155 P.3d at 914-15. The Court has specifically identified that such evidence may confuse

the jury, blur the responsibilities of judge and jury, waste judicial resources, and may lead the

jury to disregard jury instructions on applicable law.

The City respectfully requests that the Court uphold the traditionally, constitutionally,

and statutorily delineation of judge and jury. The City desires that the jury be properly

instructed, by the Court, regarding the application of Salt Lake City Ordinance 11.12.120. In

(

order to ensure a properly instructed jury, the Court should exclude any argument or evidence

which would elicit a jury to disregard the application of properly enacted laws and ordinances.

III. THERE IS NO RIGHT TO JURY NULLFICIATION.

In all criminal prosecutions an "accused shall enjoy the right to a ... trial, by an impartial

jury." U.S. Const. amend. VI, see also Utah Const. Art. I, Sect. 12. The touchstone of an

impartial jury is a ''.jury capable and willing to decide case solely on the evidence before it."

McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984). Further, jurors who

maintain beliefs which "prevent or substantially impair the performance of his [or her] duties as

a juror in accordance with his [or her] instructions and his [or her] oath" should be excused for

cause. Wainwright v. Witt, 469 U.S. 412, 424 (1985), see also United States v. Simmons, 961

F.2d 183, 184 (11th Cir. 1992) ("The constitutional standard for juror impartiality is whether the

juror 'can lay aside his opinion and render a verdict based on the evidence presented in court.'")

(quoting Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984)). Utah Courts affirmed the

importance of an impartial jury, which will perform the required duties in accordance with the

Court's instructions by adoption of Utah Rules of Criminal Procedure, Rule 18.

The defendants' right to an impartial jury does not include the right to a jury composed of

persons who will disregard the Court's instructions. "[T]here is no right to jury nullification."

Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir.1999) (citing United States v. 116

F .3d 606, 615 (2d Cir. 1997) (starting that "the power of juries to 'nullify' or exercise a power of

lenity is just that - a power; it is by no means a right or something that a judge should encourage

or permit if it is within his authority to prevent"); United States v. Powell, 955 F.2d 1206, 1213

(9th Cir. 1992) (A defendant is not entitled to a jury nullification instruction)). Even though a

jury "has the practical power to render a verdict at odds with the evidence or the law, a jury does

not have the lawful power to reject stipulated facts." United States v. Mason, 85 F.3d 471, 473

(10th Cir. 1996). Further, if the jury exercised such a nullification power, the jury's conduct

"would conflict with the juror's sworn duty to apply the law to the facts, regardless of outcome."

Id.

Many other States and federal courts have rejected the right to nullification. See e.g.,

People v. Cruz, 93 Cal.App. 69, 113 Cal. Rptr.2d 86 (2 Dist. 2001) ("In this State, it is so well

settled as no longer to be open to debate that it is the duty of the jury in a criminal case to take

the law from the Court."); People v. Moore, 662 N.E.2d 1215, 171 Ill. 2d 74 (Ill. 1996); State v.

Willis, 218 N.W.2d 921 (Iowa 1974); State v. Bonacorsi, 648 A.2d 469, 139 N.H. 28 (N.H.

1994); State v. Bjerkaas, 472 N.W.2d 615, 163 Wis.2d 949 (Wis. Ct.App. 1991); Henderson v.

State, 976 P.2d 203 (Wyo. 1999) ("The potential of harm to an accused ifthe court were not to

instruct the jury to follow the law is significant."); Nol/sch v. City of Rock Springs, 724 P.2d 447

(Wyo. 1986); State v. Hatori, 990 P.2d 115, 119, 92 Hawaii 217, 221 (Hawaii App. 1999);

United States v. Kerley, 838 F.2d 932, (7th Cir. 1988) ("[the jury] has the power to acquit on bad

grounds, because the government is not allowed to appeal from an acquittal by a jury. But a jury

nullification is just a power, not also a right"); United States v. Dougherty, 473 F.2d 1113, 1137

(D.C.Cir. 1972).

Here, the City respectfully requests that the Court grant the Motion in Limine Excluding

Jury Nullification Argument and Evidence. The grant of the Motion will ensure that the

defendants receive their federal and state constitutional protected right to an impartial jury, while

protecting the City's interest in public safety and enforcement of its properly enacted municipal

ordinances. Further, the grant ohhis Motion will uphold the federal and state jury nullification

jurisprudence and affirm the constitutional and statutory separation of judicial and jury trial

duties.

IV. ALLOWING JURY NULLIFICATION ARGUMENT OR EVIDENCE WILL IMPAIR THE JUDICIAL PROCESS AND THE CITY'S PUBLIC HEALTH, SAFETY, AND GENERAL WELFARE INTERESTS.

The jury is to ensure that the govermnent proves each and every element beyond a

reasonable doubt, and act as "an inestimable safeguard against the corrupt or overzealous

prosecutor and against the compliant, biased, or eccentric judge. Duncan v. State of Louisiana,

391 U.S. 145, 156 (1968). The jury was "never designed ... to protect the defendant from the

law of from the legislature. It will not do for defendant to recite the acknowledged virtues of

jury independence when what is really approved is the dark side of jury nullification." State v.

Ragland, 519 A.2d 1361, 1373, 105 N.J. 189, 212 (N.J.1986). Moreover, the Court has stated

that where a juror refuses to perform his or her duties in accordance with the instructions and

oath, that juror should be excused for cause. Wainwright v. Witt, 469 U.S. 412 424 (185).

Allowing arguments that jurors circumvent the constitutional provisions and nullify the acts of

the legislative govermnent will disrupt "the stability of public justice, as well as the security of

private and personal rights." Spar/, 156 U.S. at 106.

In adopting ordinances, the City sought to protect "[t]he public health and welfare and the

good order of the community". Salt Lake City Ordinance l l.12.120(A). Further, elected

officials adopted Salt Lake City Ordinance 1 l.12.120(D), which sets forth the applicable

penalties for violations of the ordinance. The Utah State Supreme Court and the Utah

Legislature both recognize that, "[t]he municipal legislative body may pass all ordinances and

rules, and make all regulations ... necessary and proper to provide for safety and preserve the

health, and promote the prosperity, improve the morals, peace and good order, comfort, and

convenience of the city and its inhabitants ... " Utah Code 10-8-84; see also Dairy Product

Services, Inc. v. City of Wellsville, 13 P.3d 581, 589-90 (Utah 2000). Moreover, Salt Lake City

Ordinance 11.12.120 incorporated the time, place, and manner restrictions over Frisby v. Schultz,

487 U.S. 474 (1988). There, the Court said "[t]he First Amendment permits the government to

prohibit offensive speech as intrusive when the 'captive' audience cannot avoid the objectionable

speech. The target of the focused picketing banned by the ... ordinance is just such a 'captive'.

The resident is figuratively, and perhaps literally, trapped within the home." Id at 487. More

specifically, the Court stated that "a special benefit of the privacy all citizens enjoy within their

own walls, which the State may legislate to protect, is an ability to avoid intrusions." Id at 485.

(emphasis added). As such, the Court upheld a municipal ordinance which banned picketers who

"generally do not seek to disseminate a message to the general public, but to intrude upon the

targeted resident, and to do so in an especially offensive way." Id. at 486. Last, the Court

recognized "[t]he devastating effect of targeted picketing on the quiet enjoyment of the is beyond

doubt: 'To those inside ... the home becomes something less than a home when and while the

picketing ... continues ... the tensions and pressures may be psychological, not physical, but

they are not, for that reason, less inimical to family privacy and truly domestic tranquility."' Id.

(quoting Wauwatosa v. King,_49 Wis. 2d 398, 411-12 (1971)).

While the defendants alleged that the ordinance is in violation of the Utah or federal

Constitutions, as applied, this Court has already ruled on the issue. If the defendants intend to

make any other argument that the ordinance is unlawful, that argument is a question of law.

State v. Green, 99 P.3d 820, 830 (Utah 2004); State v. Lopes, 980P.2d 191, 193 (Utah 1999). As

a question of law, any argument regarding the constitutionality or legality of the ordinance

should be decided by the Court and not the jury. Id Therefore, the Court should prevent the

confusion of the jury and exclude the admittance of evidence or argument regarding the propriety

or constitutionality of the ordinance.

V. ARGUMENT OR EVIDENCE REGARDING POSSIBLE PUNISHMENT OR PENALTY OF THE ORDINANCE SHOULD NOT BE ADMITTED.

The ultimate question for a jury is the innocence or guilt of the accused, not the penalty.

State v. Cude, 784 P.2d 1197. 1202 (1989). The possible penalties or punishments which may be

imposed are not proper for jury consideration. Id. The jury should be instructed to determine

only guilt or innocence. Id. As such, "determination of innocence or guilt should not be swayed

by a jury's sympathetic or antipathetic feelings ... because of an anticipated sentence." Id. at

1203. Therefore, the Court should prevent admittance of argument or evidence regarding the

possible penalties or punishments for the violation of the ordinance.

In State v. Cude, the trial court instructed the jury that:

In arriving at a verdict in this case, you shall not discuss nor consider the subject of penalty or punishment, as that is a matter which lies with the Court and other governmental agencies, and must not in any way affect your decision as to the innocence or guilt of a defendant.

Id. at 1203. The defendant objected to the instruction claiming that it misled the jury to belief

that the court could impose a light sentence, when the court was required to impose minimum

mandatory sentence. Id. However, the Court determined that the court did not err in instructing

the jury to disregard penalty or punishment. Id. Further, the Court decided that the instruction

correctly stated the law.

Salt Lake City Ordinance l 1.12.120(D) provides that, "[a]ny violation of this section is a

class B misdemeanor." The decision to impose a monetary penalty, and its amount, or term of

imprisonment, is irrelevant to question of the defendants' innocence or guilt. Rather, inclusion

of argument or evidence regarding the penalty provision would waste judicial resources and may

confuse the jury, regarding their duties. Therefore, the Court should limit the Defendant's

argument and evidence to only the facts of the violation in question and exclude any comment,

argument, or evidence designed to, or otherwise, elicit jury nullification.

VI. CONCLUSION

Pursuant to Rule 12 to the Utah Rules of Criminal Procedure and the aforementioned

reasons, the City respectfully requests that the Court issue an Order to exclude jury nullification

argument and evidence, including, but not limited to: (I) challenging the propriety, wisdom,

fairness, or necessity of City ordinances, in particular, Salt Lake City Ordinance 11.12.120; (2)

challenging or alluding to any inconsistency in the prosecution of violations of the

aforementioned ordinance or other ordinances; (3) asserting or referencing the ordinance as

unconstitutional, violative of the United States First Amendment, repressing an individual's right

to free speech, or any other similar suggestion; or ( 4) arguing or alluding to any punishment

which may result for the violation of such ordinance.

Respectfully submitted this 11th day of March, 2010

SIMARJIT S. GILL

Salt Lake City Prosecutor

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Assistant City Prosecutor Mitchell Park Assistant City Prosecutor