“Banning him from the District because he’s sitting in a tree or speaking out, I think is absurd,” said John Whitehead, president of the Rutherford Institute, a civil liberties group that is taking up Grogan’s case. “He’s strange, but do you know how many strange people enter D.C. every day who probably shouldn’t be here?”
Magistrate Judge Karen Howze signed the order Tuesday, telling Grogan to stay out of the city until a court hearing Feb. 25. The order is more sweeping than what prosecutors had sought. The U.S. attorney’s office had asked that Grogan be banned from the Capitol grounds, House and Senate office buildings, the Library of Congress and the U.S. Supreme Court.
But Howze broadened the request as a condition of releasing Grogan from jail until his trial.
Exiling someone from the District’s entire 68.3 square miles of roads, waterways and public spaces happens a few times a year but is still described as rare. The breadth of the order surprised First Amendment experts who have litigated or studied similar protest cases for liberal and conservative causes.
It is “a pristine example of an overbroad condition,” said David L. Hudson Jr., a law professor and First Amendment scholar at Vanderbilt University. “They need to go back and draft a more narrowly tailored restriction — meaning something that would comport with the First Amendment.”
Judges are not allowed to talk about pending cases, and Howze, through a spokeswoman, cited the restriction in declining to comment.
Grogan, 47, who calls himself “Pastor Rick” and runs a ministry and boarding house in Los Angeles, admits he’s an irritant, racking up about 10 arrests and a half-dozen convictions in two years in House and Senate buildings alone.
He said he patiently waits for the proceedings to be gaveled into recess before he stands and shouts — most recently in the Senate gallery when he screamed that legal abortions caused the massacre in Newtown, Conn.
“I preach, and I preach loudly on Capitol Hill,” said Grogan, who said he’s never spent more than a few days in jail. He’s been thrown out of a presidential debate, a Major League Baseball game attended by Mitt Romney and too many buildings to count.
“Most of the time, they arrest me, and then they let me go,” he said. But never, he said, had he been tossed from a city. He spoke by telephone from his red Ford Fiat as he drove home to California on Wednesday. By late morning, he was in Kentucky, a safe 550 miles from the District line.
“I don’t know why they would ban me from all of Washington,” he said. “I think they are totally suppressing my freedom of speech.”
Grogan said he obtained a ticket for the green section of the inauguration and hid a protest sign under his coat. Once past security, he said, he climbed the tree and began shouting. U.S. Capitol police officers used a bull horn to urge him down, then tried 35-foot ladders. But Grogan said he climbed higher and managed to stay 10 feet out of reach for five hours, getting a tree-top view of President Obama’s swearing-in.
“It was the best seat in the house,” he said.
Grogan climbed down after about five hours, after the ceremony had ended. His charges include violating laws that require authorities to “preserve the peace and secure the Capitol from defacement” and to protect the “public property, turf and grounds from destruction.”
Howze was not insensitive to Grogan’s free-speech rights but was weighing those against safety issues, according to a transcript of the proceedings. Grogan’s recurring arrests elevated her concerns, the transcript shows.
“While trying to exercise free speech, the more . . . these things happen, the more you put yourself in jeopardy because we have to determine if this is a danger to the community,” Howze said in the transcript. She reminded Grogan that he could have been held in jail because of his pending cases, rather than released with the restriction to stay out of the District.
Grogan, she said, “appears to endanger hundreds of people, disrupting the inaugurationthroughout.”
The police charging document filed in court accuses Grogan of breaking several tree branches. A spokesman for the Capitol police said authorities did not deem Grogan a threat to the president. But Grogan, who has at least three pending cases in the District, was “jeopardizing his life and the life of others” if the tree branch broke, the arrest report says.
James E. Felman, a Tampa defense attorney and co-chair of the American Bar Association’s sentencing committee, said that if the tree branch “is your public safety argument for the stay-out-of-town order, it is really dubious. If the tree branch is your argument, order him not to climb trees over the heads of people.”
The order was stunning because it came as a case was pending — before conviction or resolution, said Arthur Spitzer, legal director of the American Civil Liberties Union of the Nation’s Capital.
“An order like that arguably could make more sense after the person has been convicted, and I am not saying I would agree with that even then for an entire city,” Spitzer said.
Protesters previously have faced restrictions on their movements before their case was resolved, District court records show.
In 2007, a Code Pink antiwar protester accused of shouting “war criminal” and waving blood-colored hands in the face of then-Secretary of State Condoleeza Rice during a congressional hearing was ordered to stay away from Rice and also an area of the Capitol grounds, with boundaries defined in the order by specific street references, court records show.
Grogan said that he has no plans to violate his ban but that he was looking forward to the next sanctioned return to the District — his court hearing next month. He plans to arrive early.
“They can oppress my speech and keep me out of the city,” he said. “But what they can’t do when I am allowed back is to stop me from preaching on the steps of the courthouse.”