VOLUME VI TRIAL
IN THE CIRCUIT COURT IN AND FOR PINELLAS COUNTY, FLORIDA CASE NO. 99-7430-CI-08
: CHURCH OF SCIENTOLOGY FLAG SERVICE : ORGANIZATION, INC., a Florida : corporation, : : Petitioner, : : vs. : : ROBERT S. MINTON, JR., ET AL., : : Respondents. : ----------------------------------------x BEFORE: The Honorable THOMAS E. PENICK, JR. PLACE: Pinellas County Judicial Building 545 First Avenue North St. Petersburg, Florida DATE: February 13, 2001 TIME: Commencing at 9:00 A.M. REPORTED BY: JACKIE L. OSTROM Court Reporter --------------------------------------------------- ORDERS TO SHOW CAUSE -------------------------------------------------- Pages 664 - 795 Volume VI ROBERT A. DEMPSTER & ASSOCIATES P.O. BOX 35 CLEARWATER, FLORIDA (727) 443-0992 . APPEARANCES The Honorable THOMAS E. PENICK, JR. CIRCUIT COURT JUDGE F. WALLACE POPE, JR., ESQUIRE JOHNSON, BLAKELY, POPE ET AL 911 Chestnut Clearwater, Florida HELENA KOBRIN, ESQUIRE MOXON AND KOBRIN 3055 Whilshire Boulevard, Suite 900 Los Angeles, California 90010 Attorneys for Church of Scientology Flag Ship Organization JOHN MERRETT, ESQUIRE 2716 Herschel Street Jacksonville, Florida 32205 BRUCE G. HOWIE, ESQUIRE PIPER, LUDIN, HOWIE AND WERNER 5720 Central Avenue St. Petersburg, Florida 33707 Attorneys for Robert Minton and Lisa McPherson Trust, Inc. . 666 1 PROCEEDINGS 2 THE COURT: Mr. Howie, are your ready to 3 proceed? 4 MR. HOWIE: Yes, Your Honor, I am. 5 THE COURT: Okay. You're up. 6 MR. HOWIE: Thank you very much. Your 7 Honor, this is a judgment of acquittal 8 argument in a criminal matter under 3.840. 9 And as such I think we need to treat these 10 documents as analogous to documents that we 11 would have in a criminal proceeding. 12 The order to show cause quite obviously 13 is the charging document and the injunction 14 is the applicable law in the case. And both 15 of them set forth elements which the 16 prosecutor in this case, the petitioner, is 17 required to prove. 18 They have to establish at least some 19 evidence of a prime facie showing of guilt 20 as to each one of the elements and each one 21 of the allegations. 22 I'm going to, as far as Mr. Minton is 23 concerned, I'm going to treat each 24 allegation in the order to show cause as a 25 criminal count and I'm going to treat the . 667 1 injunction as defining the elements of each 2 offense and I want to utilize Mr. Merrett's 3 chart over here on the board to show the 4 court that basically there are five kinds of 5 criminal charges so to speak that are 6 applicable here. 7 Coming within ten feet of a member of 8 the Church of Scientology; second, blocking 9 the path of any member or church motor 10 vehicle; third, physically preventing 11 anyone, whether church member or a member of 12 the public, from entering or leaving Church 13 properties; fourth, acts of harassment or 14 violence against any member of Scientology. 15 Obviously, that excludes mere annoyance 16 in the exercise or caused by the exercise of 17 First Amendment rights and fifth, picketing 18 or protesting only in the designated areas 19 in this case, the so-called orange areas. 20 I would also note that there is an 21 intent obviously behind the injunction which 22 is the general purpose to keep both sides 23 away from each other and to allow for the 24 unobstructed flow of traffic and movement, 25 not only of the petitioners, not only of the . 668 1 respondents, but of members of the public. 2 Having said that, nothing else can be 3 considered outside of the injunction, just 4 as in criminal law nothing can be considered 5 outside the criminal laws which the court 6 knows under Chapter 736 much be strictly 7 construed in favor of the defendant. 8 I'm asking for the same approach in this 9 case in strictly construing the injunction 10 as the law of the case. 11 I would point out that the orders to 12 show cause, two orders to show cause in this 13 case issued by the court in January, state 14 in their preamble that we are here simply to 15 determine if the injunction was violated. 16 Not that criminal laws were violated, not if 17 some rule of decorum was violated or some 18 understanding was violated, but whether the 19 injunction itself in all its elements, in 20 all its prohibitions was violated. 21 Now, before I go into this I would also 22 point out that it has been the law in the 23 State of Florida for at least the past 45 24 years that equity, that is an injunctive 25 remedy, cannot be employed either to enjoin . 669 1 the commission of criminal offenses or to 2 enforce the criminal laws. 3 I've already supplied case law on that 4 to the petitioner and it's Winer v. Kelly at 5 82 So. 2d. 155. That is Florida Supreme 6 Court Case from 1955. If I may approach 7 I'll supply the court with that. 8 THE COURT: Okay. Thank you, sir. 9 MR. HOWIE: And I'm going to be raising 10 that case law repeatedly in this case because 11 what I find here is that the petitioner is 12 attempting to get this court to do what they 13 could not get the police of Clearwater to do, 14 which is to find that the respondents, 15 particularly Mr. Minton, were somehow 16 criminally liable and therefore are subject 17 to the injunction and the order to show cause 18 that by being guilty of criminal offense 19 somehow they should be punished for contempt 20 pursuant to the injunction. The law says you 21 can't do that. 22 The only remedy for a violation of the 23 law is to call a police officer, get someone 24 arrested, bring charges and ultimately get a 25 conviction all by due process of law. . 670 1 Now, in this case according to my own 2 count, there are a total of seven counts 3 against Mr. Minton. Most of them carefully 4 delineated in the orders to show cause, 5 however some of them are a little bit fudgy 6 and they have to be separated one from 7 another, but my count there are seven 8 separate instances the petitioner is citing 9 as grounds for the orders to show cause, as 10 grounds for finding he violated the 11 injunction. 12 We are going to allege here that in all 13 seven counts the evidence has not 14 established a prima facie case of guilt 15 against Mr. Minton. I will go through those 16 counts one at a time. 17 Before I do that I would advise the 18 court that if I failed to mention this with 19 each count, I would be adopting all 20 arguments made by Mr. Merrett yesterday in 21 support of this motion for judgment of 22 acquittal which do pertain to Robert Minton. 23 One point, I wish to adopt from 24 Mr. Merrett's argument from yesterday is the 25 lack of identification testimony in this . 671 1 case. Clearly if we were to go through a 2 criminal case in which the state attorney 3 failed to ask the witness in the case, the 4 eye-witness in the case, do you see the man 5 anywhere in this courtroom, I would have my 6 JOA for lack of identification from this 7 court. 8 In this case, not a single witness for 9 the petitioner took the stand and was asked 10 to point out Mr. Minton as the person who 11 committed each one of these seven alleged 12 offenses. 13 So, on the grounds of identification 14 alone, I move for a judgment of acquittal as 15 to all seven counts and in support of that I 16 would also adopt Mr. Merrett's arguments. 17 The failure to prove identification or 18 rather identification is an essential 19 element and the failure to prove 20 identification is fatal to all seven counts. 21 Now, let me go through the counts one at 22 a time and I'm calling them counts. I'm 23 trying to designate them specifically in 24 reference to the two orders to show cause. 25 THE COURT: Hold on just a minute. Let . 672 1 me catch up with you. 2 MR. HOWIE: Yes, sir. 3 (Whereupon, a pause in the proceedings took 4 place.) 5 THE COURT: Okay. Thank you, sir. 6 MR. HOWIE: There are two orders to show 7 cause, one dated January 4, and the other 8 January 10. There is only one count against 9 Mr. Minton in the January 4 order to show 10 cause and that is the incident alleged to 11 have occurred on December 4. 12 The allegation actually appears in 13 Paragraph Three, Sub A and Sub B which are 14 located on pages three and four of the 15 January 4 order to show cause. 16 Now, I refer to this in shorthand as the 17 spy camera incident. I understand someone 18 might take exception to me referring to this 19 as the spy camera. Quite frankly, I think 20 that two lipstick cameras tucked away in 21 what appears to be a junction box is meant 22 to be a surreptitious effort to surveillance 23 and that's why I refer to them as spy 24 cameras. 25 As the court is well aware under the . 673 1 military theory of deterrence, you deter 2 people by making it obvious what you are up 3 to and what the sanctions for a violation of 4 certain restrictions. 5 Here clearly that was not the intent of 6 the installer of these cameras. The intent 7 was to hide them away, tuck them away. This 8 is especially true when the court notes that 9 above and to the left of this spy camera 10 there was in fact a standard surveillance 11 camera, obviously meant to deter from doing 12 the immediate vicinity. 13 Now, a specific allegation against 14 Mr. Minton is that, and you it saw on the 15 videotape, after Mr. Merrett had climbed the 16 stepladder and looked and observed the spy 17 camera, he came off the ladder and 18 Mr. Minton climbed the ladder. 19 Mr. Minton moved the hidden camera a few 20 inches, got a good angle on it and proceeded 21 to take photographs from two different 22 angles, moving the ladder in between. 23 The allegations in Paragraph Three Sub A 24 and Sub B, there are basically four 25 allegations or elements alleged: One, . 674 1 Mr. Minton, along with Mr. Merrett, set up 2 the ladder; two, Mr. Minton twisted the box 3 the cameras were hidden in; three, 4 Mr. Minton stood lest than ten feet from 5 Church staff and four, Mr. Minton blocked 6 the ingress and egress from the delivery 7 entrance. 8 Now, turning from the allegations to the 9 actual evidence. The evidence through both 10 testimony and video show that yes, 11 Mr. Minton set up the ladder and yes, 12 Mr. Minton put his hand on the box and moved 13 it. 14 However, absolutely no evidence was 15 presented of any kind that he either moved 16 within ten feet of a Church member or 17 blocked any entrance to the Scientology 18 property. 19 I would point out that no one, including 20 Mr. Avila, who took the video can say that a 21 Scientologist came within ten feet of 22 Mr. Minton. If there was some inference 23 that a Scientology member wandered within 24 ten feet of Mr. Minton, I would submit to 25 the court that Minton, stationary on his ten . 675 1 foot ladder and unable to move quickly for 2 obvious reasons, would not have committed a 3 willful violation if a church member were to 4 step with ten feet of him. Quite the 5 contrary, I think the violator. would have 6 been that Church member. 7 Concerning the blocking of any entrance, 8 it is quite clear from the videotape that at 9 least one delivery man with a handcart 10 stacked up with plastic boxes, presumably 11 delivering bread, had absolutely no problem 12 moving quickly into and out of the door that 13 was several feet away from the ladder where 14 Mr. Minton was seated. 15 That's in the pictures. The court saw 16 that they were able to complete their 17 delivery, stack plastic boxes up in the back 18 of the truck and go on their way unimpeded 19 without any complaint. 20 I would also point out that setting up 21 the ladder itself was not a violation. 22 Mr. Merrett argued that very well yesterday. 23 And I would point out that there is nothing 24 wrong, there is certainly no violation of an 25 injunction for setting up a ladder on the . 676 1 sidewalk and then climbing up that ladder. 2 There is the allegation that Mr. Minton 3 moved the camera box by rotating it on its 4 conduit. It is clear from the video and 5 from the testimony that the court has heard 6 that in fact this spy camera or the spy 7 cameras I should say, inside the junction 8 box, were easily moved from the wall without 9 destroying or damaging anything; that the 10 conduit itself allowed the box to pivot 11 outward and in fact that's what they 12 succeeded in doing. 13 There was no competence evidence 14 presented to the court that Mr. Minton broke 15 anything by doing that. There is indirect 16 evidence, presumably hearsay or otherwise 17 incompetent evidence, to the extent, I would 18 say to the extent that is carries no weight 19 at all in the court, that the camera somehow 20 had to be refocussed. 21 Now, we didn't hear from the refocusser. 22 We didn't hear to what extent it needed to 23 be refocused or repositioned. But I want to 24 point out that the petitioners' own evidence 25 in this case suggests that what was really . 677 1 going on with this so-called refocussing, 2 was, in fact, a repositioning of the box for 3 the purpose of taking a self-serving 4 photograph of the location of the box 5 several hours later to intimate that at the 6 time of this incident with the ladder 7 occurred this box was entirely on 8 Scientology property. When in fact the 9 photographs taken by Mr. Minton from the 10 ladder as the court saw in the video clearly 11 show that this box was on the so-called 12 neutral business, the rat bait building, and 13 that if the allegation is that somehow he 14 was intruding on to Scientology property, 15 that allegation is not supported by the 16 evidence. 17 Let me also point of course that we 18 don't care where the box is, because 19 touching the side of the building or 20 touching that box would not constitute a 21 violation of the injunction. 22 Now, let's assume the worst. Let's 23 suggest the worst here. Let's say 24 Mr. Minton actually somehow damaged or broke 25 that camera. The court is well aware of the . 678 1 law concerning criminal mischief. 2 If you so much as let the air out of 3 someone's tire you have committed the act of 4 criminal mischief. 5 Let's say that Mr. Minton actually 6 committed the act of criminal mischief right 7 in front of the Clearwater police officer. 8 Criminal mischief under Section 806.13 is a 9 misdemeanor, a crime in the State of 10 Florida. 11 Again citing to Winer versus Kelly, the 12 criminal law cannot be enforced by 13 injunction nor can the commission of a crime 14 be enjoined by injunction. 15 So, if he committed the act of criminal 16 mischief, the act is not enforceable at this 17 hearing. I would also point out that the 18 Clearwater police officer scrutinizing the 19 event from just a few feet away did not see 20 probable cause to charge or allege an act of 21 criminal mischief. 22 For these reasons I ask the court find 23 that there is no prima facie showing of 24 guilt based on the evidence in this incident 25 and I ask that the court grant an acquittal . 679 1 of Minton as to the December 4 incident. 2 Turning next to the order to show 3 cause -- 4 THE COURT: Hold on just a minute. 5 MR. HOWIE: Yes, sir. 6 (Whereupon, a pause in the proceedings took 7 place.) 8 THE COURT: Okay. 9 MR. HOWIE: Turning next to the 10 injunction dated January 10, 2001, for the 11 other six counts alleged against Mr. Minton. 12 I wish to refer in chronological order 13 next to the incident occurring on 14 January 5, 2001 which is Paragraph 1B on 15 page two of this order to show cause. 16 The allegation there is that 17 Mr. Minton -- 18 THE COURT: Just a minute. Let me get 19 to that one, okay. 20 MR. HOWIE: Okay. 21 THE COURT: I've go the orders to show 22 cause here. 23 MR. HOWIE: Page two, Paragraph B. 24 THE COURT: Yeah, I've got it. That's 25 January 5, okay. I'm with you, sir. . 680 1 MR. HOWIE: Thank you. That's where 2 Mr. Minton saw the process server coming at 3 him with the papers hidden behind her left 4 leg, that he made the statement you come 5 within ten feet of me and you guys are going 6 to get killed. He turned and ran from the 7 woman. She chased him. She threw the paper 8 at him through the closing door of the Lisa 9 McPherson Trust and it's alleged that he 10 threw the papers back at her. 11 Now, the specific allegations are that 12 he specifically said you come within ten 13 feet of me and you guys are going to get 14 killed, I would first ask the court to note 15 that this is stated in the plural, you guys, 16 referring presumably not only to the process 17 server but also to the cameraman Mr. Colton 18 who stood behind her doing the filming. 19 I would also note that even though she 20 approached him, despite this deadly fatal 21 threat that she was going to get killed if 22 she approached him, she none the less did 23 so, and I would also notice that rather than 24 kill her, Mr. Minton turned and ran away. 25 And even went so far as to seek refuge in . 681 1 the Lisa McPherson Trust. 2 Now, clearly Mr. Minton's actions 3 coupled by his words indicate that he was 4 engaging in a bit of hyperbole there or 5 exaggeration to turn a phrase, so to speak, 6 just as a mother admonishes a child you 7 know, do what I say or I'll kill you. 8 Clearly, his actions, combined with his 9 words, did not amount to a threat and as the 10 court well knows in criminal law, to 11 determine intent we look at actions as well 12 as words. 13 He was hardly effective in killing her 14 by turning, running and barricading himself. 15 The evidence further shows that she 16 dropped the papers inside the door. That's 17 the way she puts it. Whether she threw them 18 at Mr. Minton or dropped the papers inside 19 the door hardly matters and then it's 20 alleged that he threw the papers back at 21 her. 22 Now, I am baffled by thi count. I don't 23 even know why it is alleged here. Because 24 clearly on its face these allegations, even 25 if all of them are true in the light most . 682 1 favorable to the petitioner and to 2 Ms. Colton who testified to these incidents, 3 clearly on its face does not constitute a 4 violation of the injunction. 5 I don't even know why they bothered to 6 put it into the order to show cause because 7 this was a process server and the petitioner 8 insists ad infinitum that a process server 9 is not a member of the Church of 10 Scientology, that a process server works 11 only for the court, that a process server is 12 not the agent of Scientology, a process 13 server is not an employee of the Church of 14 Scientology, the process server has nothing 15 to do with the Church of Scientology. He or 16 she is merely an agent of the court involved 17 in court's business and no one else's 18 business. 19 That's why I say I'm baffled that we 20 even have this count in all these 21 allegations. This was certainly not an 22 action against a member of the Church of 23 Scientology unless for some reason the 24 petitioner wants to change their tune and 25 say, okay, all process servers are now . 683 1 members of the Church of Scientology or 2 agents and employees and therefore covered 3 by the injunction. 4 She is clearly not covered by the 5 injunction anymore than any given number of 6 the public is covered by this injunction. 7 The video further shows and I've seen 8 some clipped versions of the video on this 9 point, but I think the video that was 10 actually put into evidence clearly shows 11 this. 12 THE COURT: Wait a minute. Mr. Howie, 13 you've seen what, sir? 14 MR. HOWIE: I saying that the video 15 provided to me in discovery did not clearly 16 show what I'm about to relate, but the video 17 offered in evidence to the court did. 18 That video shows that Mr. Minton, far 19 from throwing the papers at the process 20 server whistling by her ear as she fled his 21 intent to kill her, in fact these papers 22 wound up in a heap on the sidewalk right 23 next to a car parked directly in front of 24 the front door of Lisa McPherson Trust. 25 In short, the papers went east as she . 684 1 went south. And the papers came nowhere 2 near her. The video will clearly show that. 3 I ask the court to pay special attention 4 to the last one or two seconds where the 5 camera pans down to show all these papers in 6 a heap, perhaps six, seven feet from 7 Mr. Minton's feet, east of him while she s 8 clearly 20, perhaps even 30 feet south of 9 him. 10 Finally, Ms. Colton, by her own 11 testimony indicated that she was not 12 battered, harmed or physically touched in 13 any way during this entire incident. 14 Now, again, this is not a violation of 15 the injunction in any way. She's not a 16 Church of Scientology member, and no amount 17 of harassment or threats of death against a 18 process server would ever violate this 19 injunction. 20 During this entire incident Mr. Minton 21 did not get within ten feet of a member of 22 the Church of Scientology. He did not walk 23 in anybody's path. He did not inhibit any 24 entrance or exit from Church property. He 25 did not harass or commit violence against a . 685 1 member of the Church of Scientology and he 2 certainly wasn't picketing or protesting in 3 a prohibited zone. 4 So for all those reasons, that's why I 5 say again I'm baffled why we are even 6 looking at this allegation. 7 Now, there is a suggestion made that the 8 process server momentarily became an agent 9 of the Church of Scientology and there is 10 the suggestion made that Mr. Minton's 11 believing that the process server was an 12 agent of the Church of Scientology is itself 13 some sort of provocation on Mr. Minton's 14 part which results in a violation of the 15 injunction. 16 That is to say that repeatedly in these 17 orders to show cause the petitioner seems 18 upset every time one of the respondents made 19 some statement that they say is a 20 misinterpretation of the injunction. I 21 point for example to the incident involving 22 Tory Bezazian where she tells Antonio behind 23 the camera that he is in violation of 24 injunction. 25 The petitioner says not only is this or . 686 1 suggests that not only is this a 2 misinterpretation of the injunction, it is a 3 perversion so severe of the injunction that 4 it itself amounts to a violation of the 5 injunction. 6 That is simply not the case. If 7 Mr. Minton in an abundance of caution 8 misinterprets the injunction as opined to 9 process servers and even Clearwater police 10 officers, he is allowed to do so, so long as 11 he's not actually violating the injunction. 12 And I would suggest that it's better for 13 Mr. Minton to be overly cautious in obeying 14 the injunction rather than to violate the 15 injunction. 16 Any suggestion that here he somehow 17 violated the injunction by insisting the 18 process server should not come within ten 19 feet of him is simply not a basis for a 20 violation of the injunction. 21 Now, they've also argued using 22 Thompson v. State previously cited in the 23 court, 398 So. 2d. 914, the court already 24 has the case law on that, that this is an 25 obstruction under Thompson v, State which is . 687 1 punishable and equitable and that argument 2 is totally off. It's totally off as that 3 whole allegation is. 4 First of all, Thompson v. State involved 5 an attorney failing to appear for the call 6 of the trial calendar in front of the 7 circuit court. And it was alleged in that 8 case that that amounted to an obstruction. 9 The petitioner has presented absolutely 10 no legal theory by which the process server 11 can be obstructed in violation of this 12 injunction. 13 Now, I know that they have cited a 14 provision of Chapter of 843 which says that 15 obstruction, either misdemeanor or felony 16 obstruction, can occur against law 17 enforcement officer, parole agent, probation 18 officer, members of Department of Children 19 and Families, Florida Highway Patrolmen and 20 people who are authorized to serve process. 21 Well, that's fine. If they think that 22 the crime of obstruction occurred, then they 23 should pick up the phone, call the 24 Clearwater Police Department and do their a 25 civic duty and report a crime. . 688 1 If this is a crime, it is enforceable in 2 equity again citing Winer versus Kelly. 3 There is nothing in this list of admonitions 4 in the injunction that says if you run away 5 from a process server I'm going to hold you 6 in contempt of court. 7 Nor, is there anything that says that 8 this court can hold a person who runs away 9 from a process server in contempt of court 10 because that amounts to a criminal offense 11 by their own theory. And if it's a criminal 12 offense, then charge the person with 13 obstruction, but I would also point out that 14 in 22 years of practicing criminal law in 15 this county, not once have I heard either 16 Jimmy Russell or Bernie McCabe or any member 17 of their office ever even suggest that 18 avoiding service of process amount to the 19 misdemeanor of obstruction or opposing an 20 officer under Chapter 843. And if it did, 21 believe me, I'd be many times more busy than 22 I am already given the number of clients 23 that I've had who have deliberately avoided 24 that despite the admonitions of their own 25 attorney. . 689 1 I would also point out that Thompson v. 2 State says that intent is an essential 3 element of contempt. If they are suggesting 4 that the court should find Mr. Minton in 5 contempt of court for avoiding the process 6 server, I again ask the court to review the 7 video to see what Mr. Minton's intent was. 8 It is clear repeatedly throughout all of 9 these videos, whether it be dealings with 10 the Clearwater police of process servers or 11 anybody else whether he has his Threep in 12 hand or not, he is intent, Mr. Minton is 13 intent on keeping people ten feet away from 14 him that he believes are covered by the 15 injunction. 16 Is his interpretation correct? Maybe it 17 is, maybe it isn't, but the point is that 18 the court should look at his intent in doing 19 what he did and his intent was to avoid a 20 violation of this injunction by a person 21 that he felt was covered by those provisions 22 of the injunction that prevent members of 23 the Church of Scientology from getting 24 within ten feet of Mr. Minton. 25 His intent is appropriate and his intent . 690 1 does not show an effort to violate the 2 injunction. Quite the contrary, it shows an 3 effort on Mr. Minton's part to enforce the 4 injunction. Yet, they are trying to use 5 these actions to suggest that this is a 6 violation of the injunction. 7 I ask the court to consider the facts 8 that Ms. Colton in fact hid the process from 9 Mr. Minton behind her left leg as she 10 approached as consideration of Mr. Minton's 11 intent. 12 If they deliberately tried to hide their 13 own intent in approaching him, he in turn 14 cannot be held to blame for trying to avoid 15 her. 16 I would point out that the court can 17 take notice that in evidence previously 18 presented to the court, Ms. Colton was a 19 familiar face to all parties in this case 20 since her face appeared prominently in 21 videotapes previously submitted in evidence 22 to the court in response. 23 Now, it's the petitioner's argument that 24 every time they hire either directly or 25 indirectly, a process server to serve . 691 1 anything on one of the respondents, 2 Mr. Minton or anybody else, they have the 3 absolute right to do that. And woe be to 4 the respondent that fails to stand fast and 5 extend their hand and accept the papers 6 being given to them by a process server. 7 The petitioner takes offense at the 8 respondents who fail to obey their process 9 server and to cooperate with process 10 servers. 11 I ask the court to consider the 12 petitioner's position. If Mr. Minton were 13 to go out and hire say half-a-dozen process 14 servers, hand them each 20 copies of the 15 injunction and said go into that hotel on 16 Ft. Harrison and serve everybody you see, I 17 would really be interested in knowing what 18 the petitioner's reactions would be. We 19 know what the petitioner's reaction would 20 be. 21 You can't do that. This is harassment. 22 This is a violation of the injunction. 23 Would they be right? Perhaps they would be 24 right. But you can bet that if the shoe 25 were on the other foot in this instance they . 692 1 would be claiming that it was the 2 respondent, that is was Mr. Minton, who was 3 violating the injunction. 4 They would be baffled if we, in response 5 to that are to say you're in violation of 6 the injunction, you won't let our process 7 servers walk right up to every member of the 8 Church of Scientology and hand them a copy 9 of the injunction regardless of where they 10 stand. 11 These are just process servers. We 12 didn't send them. They're not our agents. 13 They're not our employees. They are 14 authorized representatives of the court and 15 by running away from our process servers you 16 are in violation of the injunction. They 17 would tell me I'm being ridiculous. 18 I want to move next to the allegation in 19 Paragraph 1C on page two of the same order 20 to show cause. This is an incident or 21 allegation alleged to have occurred on 22 January 6, 2001 and that is the hanging the 23 Threep, a ten foot pole, so that the end of 24 it intruded over the property line of church 25 property. . 693 1 Now, again, I will point out the five 2 ways in which the respondents, including 3 Mr. Minton can violate the injunction. 4 Nowhere on that list is there anything that 5 talks about extending a ten foot pole on 6 property or even generally about a trespass 7 on church property. 8 The allegation is that Mr. Minton had 9 the Threep, the ten foot pole with a Nerf 10 ball at the end, in his hands, and although 11 Mr. Minton never stood on Church property 12 himself, it is alleged that the end of the 13 pole broke the close of Church property. 14 Specifically, it's alleged that this 15 occurred either along Park Street or along 16 Ft. Harrison in the vicinity of the parking 17 lot south of the Coachman Building. And the 18 allegation is that the Nerf ball on the end 19 of the pole manstrated over the plane of 20 their property line while he was actually 21 standing in a permitted orange area on Park 22 or Ft. Harrison. 23 Now I rely on Mr. Merrett's argument 24 concerning Trespass Quare Clausum Friget. 25 Trespass again, as he argued is not . 694 1 encompassed by this injunction and, if in 2 fact a trespass on property other than a 3 structure or conveyance occurred, it would 4 constitute a first degree misdemeanor under 5 Chapter 810 and as a criminal charge would 6 not be enforceable by injunction. 7 There is no competent evidence, there 8 was no competent evidence presented to the 9 court either by testimony or by video that 10 in fact the end of the Threep, the Nerf ball 11 on the end of the pole, actually went across 12 the plane of a property line either along 13 Park Street or Ft. Harrison and on that 14 point alone I would request a judgment of 15 acquittal. 16 There is also the allegation that he 17 honked a loud horn. The horn is now in 18 evidence with the court. 19 Clearly, the court is able to honk the 20 horn itself to test the loudness. There is 21 no showing that any Scientology member was 22 harassed by the honking of this horn. There 23 is no showing of disorderly conduct, which 24 itself would be a violation of criminal law, 25 which is not enforceable in equity. And . 695 1 there is insufficient evidence to support 2 this allegation that somehow he broke the 3 close with the end of the pole. 4 Because there is no specific provision 5 of the injunction that was violated, because 6 there was no competent evidence of breaking 7 the close with the pole, we would move for a 8 judgment acquittal as to that count. 9 (Whereupon, a pause in the proceedings took 10 place.) 11 THE COURT: Okay. 12 MR. HOWIE: Mr. Merrett has just 13 indicated to me that there is a sign on the 14 outside of the doors indicating the courtroom 15 continued to be sealed and it's resulting in 16 some confusing. 17 THE COURT: Okay. I'll take care of it. 18 We can correct the problem. Let's do this, 19 too. Mr. Bailiff, that front door is 20 unlocked, isn't it? 21 THE BAILIFF: It's still locked. 22 THE COURT: It's still locked? 23 THE BAILIFF: Right. Yes, sir. 24 THE COURT: Yeah, we did that yesterday 25 so we wouldn't have a needless flow -- we . 696 1 were at limits and I didn't want a lot of 2 banging on the doors and interruptions and 3 curiosity seekers. I mean the side doors 4 were open. They weren't prohibited from 5 coming in, but today the numbers of 6 prospective jurors are down and the halls are 7 relatively empty so we open that. Let's go 8 ahead. 9 THE BAILIFF: Yes, sir. 10 MR. HOWIE: May I, Your Honor? 11 THE COURT: Yeah, proceed. 12 MR. HOWIE: The first count in this 13 matter is the use of megaphones is permitted 14 orange areas. I am limiting my comments to 15 the allegation made in Paragraphs D 1D and 1E 16 on pages two and three of the January 10 17 order to show cause. 18 THE COURT: I'm sorry. 19 MR. HOWIE: Paragraphs 1D and 1E, pages 20 two and three. 21 THE COURT: I got you, sir. 22 MR. HOWIE: This is an allegation again 23 alleged on January 6, 2001 and the allegation 24 is that Mr. Minton used a megaphone to 25 repeatedly yell at parishioners and staff of . 697 1 Scientology, both along Park Street and 2 Ft. Harrison and again I'm limiting my 3 comments to those instances where Mr. Minton 4 is standing in orange zones. 5 Now, the evidence shows clearly from the 6 videotapes and there is no evidence to the 7 contrary that during these times they were 8 in fact in the permitted orange areas. 9 There was no showing, there was no evidence 10 presented to the court to show that any 11 member of the Church of Scientology was 12 either harassed, obstructed, or barricaded 13 or blocked or inhibited in any way as a 14 result of the use of the megaphones. 15 I would point out that the evidence also 16 shows that Mr. Minton was not merely 17 addressing members of the Church, but he was 18 addressing the general public as they drove 19 by on Ft. Harrison. 20 Now, there was absolutely no evidence 21 that any of the admonitions and prohibitions 22 in the injunction were violated. If 23 anything occurred through the use of this 24 megaphone and incidentally I would point out 25 for the record that when we refer to a . 698 1 megaphone we're not talking about a bullhorn 2 or an amp or any kind of electronic 3 amplification. We're talking about a 4 cheerleader style megaphone made out of 5 cardboard. That if, in fact, the use of 6 megaphone constituted disorderly conduct of 7 any kind, it wouldn't be a violation of the 8 injunction, nor would it be enforceable in 9 equity because again it would constitute a 10 violation of the criminal statute on 11 disorderly conduct. 12 The petitioner is suggesting that an act 13 of disorderly conduct is a violation of the 14 injunction and cannot be enforced as such 15 and for that reason and I would point out as 16 well that during this time Mr. Minton was in 17 a zone where he was permitted to 18 demonstrate. Demonstration is not merely 19 the silent walking back and forth with a 20 picket sign. Mr. Minton is allowed to 21 address people in such a way that does not 22 violate either the injunction or the law. 23 For those reasons I would request a 24 judgment of acquittal as to that allegation 25 as well. . 699 1 Next, again on January 6 there is the 2 allegation of demonstrating, of Mr. Minton 3 demonstrating while walking across the 4 driveway of the Coachman parking lot. I 5 believe this again is at either Sub D or 6 Sub E or both of paragraph one of this 7 particular order to show cause. 8 The allegation is that Mr. Minton, while 9 walking from one orange area on Ft. Harrison 10 south of the driveway to another orange area 11 just north of the driveway along the east 12 side of Ft. Harrison, that Mr. Minton 13 continued his demonstration activities while 14 crossing the driveway. 15 Now, the court has a video of this 16 incident and the video is our best evidence 17 that shows that in fact this did not happen. 18 I believe it was shown to the court with 19 the sound off. I would ask the court to 20 turn the sound up in viewing this particular 21 segment of the video, because what will be 22 shown on that video is that the so-called 23 demonstration. The so-called demonstration 24 by Mr. Minton is actually Mr. Minton taking 25 the Threep, the ten foot pole, pointing it . 700 1 directly at Mr. Avila who was operating the 2 video camera, who was known instantly to 3 Mr. Minton as a member of the Church of 4 Scientology and warning Mr. Avila at the 5 point of an injunction that the injunction 6 require Mr. Avila to stay ten feet away. 7 Mr. Minton simultaneously has the 8 megaphone raised to his lips and you will 9 hear Mr. Minton say, stay ten feet away, 10 buddy. He refers to the injunction and 11 admonishes Mr. Avila to obey the law. 12 He continues in that vein as he takes a 13 few steps across the driveway to the orange 14 area north of the driveway. Although the 15 court needs to be conscious of content 16 neutrality in restricting the First 17 Amendment right of anybody, I would point 18 out that in this particular instance the 19 allegation that Mr. Minton was continuing 20 his demonstration across the driveway is 21 simply not supported by the evidence. 22 Mr. Minton's words were addressed solely 23 to Mr. Avila to obey the injunction. It did 24 not constitute a demonstration, a picketing 25 or a protest. . 701 1 If Mr. Minton had been silent in all 2 respects until he got to the driveway and 3 Mr. Avila had approached him or come close 4 to him and he had admonished Mr. Avila to 5 stay ten feet away as Mr. Minton crossed the 6 driveway, it clearly would not be a 7 violation of the injunction. It's not a 8 violation of the injunction here. 9 I point out and again I would cite to 10 Mr. Merrett's argument yesterday in support 11 of this, there was nothing in the injunction 12 to prevent Mr. Minton from being in the 13 driveway as long as he was not blocking any 14 traffic. 15 Clearly he was walking across the 16 driveway at a reasonable speed. There is no 17 evidence or inclination that he blocked 18 anybody or any motor vehicle while doing so 19 and it is clear that there is nothing wrong 20 with Mr. Minton passing across that 21 driveway. He is allowed to do so even under 22 the injunction. 23 I would also point out and I suppose I 24 should have pointed this repeatedly in all 25 of this that Mr. Minton takes pains to make . 702 1 sure that everybody that he believes to be a 2 member or an agent or employee of the Church 3 stay ten feet away from him and that he 4 informs others of the injunction and that 5 asked people to obey the injunction while 6 interestingly enough, none of the evidence 7 presented to the court shows that members if 8 the Church of Scientology are equally 9 sincere about enforcing the ten foot rule. 10 Not once did you hear any member of the 11 Church of Scientology on any videotape or 12 from the witness stand say to any of the 13 respondents, hey, stay ten feet away from 14 me. Hey, don't come any closer. Hey, 15 you're violating the ten foot rule. 16 I think that's very telling. And I 17 think it's telling because it shows that the 18 respondents who are being accused here of 19 violation of the injunction have a more 20 sincere and emphatic desire to have this 21 court's injunction upheld, particularly as 22 to the ten foot rule than any member of the 23 Church of Scientology, especially when 24 wholesale they hire process servers to walk 25 straight up to people and either hand them . 703 1 or hurl down copies of your injunction. 2 I think that's a very telling point and 3 I think it's ironic that here we have 4 Mr. Minton trying to enforce the injunction 5 by instruction others on it, only to be 6 accused of a violation of the injunction 7 when does so. 8 We have not done that to their process 9 servers or any member of the petitioner's 10 church. And I question their legal right to 11 do so in this case. 12 For that reason, for all those reasons 13 I'm asking this court grant a judgement of 14 acquittal as to this count concerning 15 walking across the driveway. 16 THE COURT: Hold on. 17 (Whereupon, a pause in the proceedings took 18 place.) 19 MR. HOWIE: Yes, sir. 20 THE COURT: Okay. 21 MR. HOWIE: So number six, Your Honor, 22 again occurring on January 6, 2001, the 23 allegation made in Paragraph 1F on page three 24 of the order to show cause, that Mr. Minton 25 walked past the east side of the Clearwater . 704 1 Bank Building -- 2 THE COURT: Hold on just a minute. 3 That's paragraph -- 4 MR. HOWIE: 1F. 5 THE COURT: 1F? 6 MR. HOWIE: Yes, sir. 7 THE COURT: Page three and is of the 8 January 10 order to show cause. 9 MR. HOWIE: Yes, sir. 10 THE COURT: Okay. This alleged event 11 happened when? I don't see it in 12 Paragraph F. What's the date of that? 13 MR. HOWIE: Well, it doesn't state the 14 date but it says shortly afterward, later 15 afternoon. 16 THE COURT: I see. 17 MR. HOWIE: The court may recall that. 18 THE COURT: That says on the afternoon 19 of January 6? 20 MR. HOWIE: Yes, sir. The court may 21 recall Mr. Avila testified that after the 22 incident with the Threep around the Coachman 23 parking lot property and then the 24 demonstration down across the street from the 25 Ft. Harrison, the group then walked back to . 705 1 the Lisa McPherson Trust and at the end of 2 their walk this incident is alleged to have 3 occurred and it appears on videotape and the 4 allegation is that Mr. Minton was in a 5 permitted orange zone along the east side of 6 Watterson Street as he approached the Lisa 7 McPherson Trust Building, he had a megaphone 8 in his hand and in his other hand he had the 9 Threep with the injunction at the end of the 10 pole. 11 The video would show that Watterson was 12 nearly empty except for the respondents or 13 people with the respondents. The video 14 shows Mr. Minton speaking through the 15 megaphone, the cardboard megaphone. 16 Although the video pans away briefly at 17 the this moment, Mr. Minton handed the 18 megaphone off to Arnie Lerma, at least 19 that's who I identified on the videotape, 20 but another individual and when the camera 21 pans back on them the court will notice in 22 reviewing the tape that Mr. Minton no longer 23 has the megaphone in his hand, but Arnie 24 Lerma who did not have a megaphone now has a 25 megaphone in his hand. . 706 1 I believe the inference is clear. In 2 any event the video then shows Mr. Minton 3 walking diagonally across Watterson as he 4 proceeds north from the east side of 5 Watterson to the west side of Watterson, 6 clearly in a direct line to the door of the 7 Lisa McPherson Trust Building, but he gets 8 to the east sidewalk short of the Lisa 9 McPherson Trust Building at which time he is 10 holding the pole straight up in the air and 11 the pole being ten feet tall permits him to 12 pass the injunction along the line of the 13 second floor windows of the Clearwater Bank 14 Building and that is the allegation and the 15 evidence that has been presented to the 16 court. 17 However, I would point out that no 18 evidence has been presented to the court 19 either by Mr. Avila, who was there, or by 20 anybody else, that any member of the Church 21 of Scientology felt themselves to be 22 violated through a breaking of the ten foot 23 rule, walking in anybody's path, inhibiting 24 entry or exit from the building, harassing 25 or offering violence to any members, or . 707 1 finally picketing or protesting. 2 And let me address myself to the last 3 point. If the court carefully reviews the 4 video, although you may hear voices or even 5 shouting on the video, none those are 6 ascribed to Mr. Minton. 7 The actions by Mr. Minton at that point 8 is that he does not have a picket sign in 9 his hand, he does not have a megaphone in 10 his hand. All he has is a Threep with the 11 copy of this court's injunction on the end 12 of it. The court is well aware of the 13 contents of that injunction. 14 By walking in a non-orange zone next to 15 the Clearwater Bank Building, the petitioner 16 alleges that merely by being in possession 17 of the injunction and flailing it in the air 18 at the end of a ten foot pole constitutes a 19 violation of the injunction; that it 20 constitutes an act of demonstrating in a 21 non-permitted zone. 22 I would point out that Mr. Minton is 23 guilty of no more than what a member of the 24 Church of Scientology would be guilty of if 25 they held a copy of your injunction in their . 708 1 hand and happened to walk through an orange 2 zone silently and it's the old show on the 3 other foot kind of argument. 4 If we were -- 5 THE COURT: Hold on just a minute and 6 I'll let you make that shoe in the wrong hand 7 argument in just a minute. Let me catch up 8 with you. 9 MR. HOWIE: Okay. 10 (Whereupon, a pause in the proceedings took 11 place.) 12 THE COURT: Mr. Howie, we've been going 13 over an hour. Let's take ten minutes. 14 MR. HOWIE: Thank you. 15 (A short recess took place after which the 16 proceedings continued.) 17 THE COURT: Mr. Howie, ready to proceed? 18 MR. HOWIE: Your Honor, before 19 proceeding with my argument where I left off, 20 in support of my argument for the first count 21 concerning the December 4 incident involving 22 the camera, I am reminded that I referred to 23 photographs taken by Mr. Minton of the spy 24 camera itself in its box while he was up on 25 the ladder. . 709 1 For the court's information, those 2 photographs were filed that same day, 3 December 4, as exhibit attachments to 4 Mr. Merrett's motion for order to show cause 5 which is in the court file for that date, 6 Volume Eight I believe, for December 4. 7 THE COURT: I'm not following you. Say 8 that again. 9 MR. HOWIE: The photographs that 10 Mr. Minton took while sitting on top of the 11 ladder of the spy camera were attached as 12 exhibits to Mr. Merrett's order to show cause 13 which was filed that same day, December 4, 14 2000, so if the court wanted to refer to the 15 photographs that I was referring to in my 16 argument showing that the box was on the side 17 of the rat bait building, the court can look 18 at the photographs in the court file which is 19 marked with a rubber band and which is 20 presently on the bench. 21 I would point out that the court can 22 take notice of the filings, the clerk's 23 filing stamp showing that it was filed that 24 same day the photographs were taken, 25 December 4, 2000. As opposed to . 710 1 exhibits -- 2 MR. POPE: Your Honor, I would point out 3 that that has not been introduced as evidence 4 in this proceeding, however it is a part of 5 the court file and it is my belief that you 6 can refer to any matter that's in the court 7 file. 8 THE COURT: Okay. Hold on just a 9 minute. 10 MR. MERRETT: If I may make it clear, 11 Your Honor, on the behalf of that parties 12 that I'm representing that I do not believe 13 that you are entitled as the trier of fact to 14 make reference to anything in the court file 15 for evidentiary purposes. In other words, 16 I'm not stipulating to that principle. 17 MR. HOWIE: It's just that I made 18 reference to the photographs that Mr. Minton 19 took and those were the ones that were in the 20 court file filed December 4. 21 THE COURT: Okay. Hold on. 22 MR. HOWIE: Amending what it was that I 23 said. 24 THE COURT: Hold on. 25 . 711 1 (Whereupon, a pause in the proceedings took 2 place.) 3 MR. HOWIE: Your Honor, resuming my 4 argument as to Count Six, I was using the 5 phrase that if the shoe were on the other 6 foot, what I meant by that was if we had a 7 situation where a member, agent or employee 8 of the Church of Scientology were to walk 9 within an orange zone or a neutral zone with 10 a copy of the court's injunction suspended 11 from the end of the a, whether the pole was 12 two feet ten feet in length, and there as no 13 evidence that in so doing this member of the 14 Church harassed or blocked anybody or 15 inhibited any entrance or egress or in fact 16 committed any kind of act of picketing or 17 protesting against the Lisa McPherson Trust 18 or any of the respondents, and if further we 19 came running to this court with a motion for 20 order show cause alleging that this action by 21 the Church of Scientology constituted a 22 violation of this injunction, I can guarantee 23 you that the petitioner would hoot us out of 24 court and perhaps alleged that we were being 25 frivolous in or efforts to enforce the . 712 1 injunction. 2 Likewise, when Mr. Minton enters into a 3 nondesignated area with a copy of the 4 injunction suspended from a ten foot pole 5 and there is no allegation that he violated 6 the ten foot rule, blocked the paths of 7 anybody, inhibited entry or egress, harassed 8 or committed violence or picketed or 9 protested in that area. 10 I think that the allegation made by the 11 petitioner is equally without support in the 12 evidence and we would ask for a judgment of 13 acquittal as to that count. 14 Finally, Your Honor, as to the last 15 count I'll refer to as Count Seven, this is 16 the incident alleged to occur on the evening 17 of January 7, 2001 as delineated in 18 paragraph 1H of the January 10 order to show 19 cause on page four that document. 20 This is the argument with police on 21 Watterson Avenue. The allegation 22 specifically is that Mr. Minton walked into 23 Watterson Street and was told by the police 24 to get back on the sidewalk, that Mr. Minton 25 then yelled and cursed at the officers. . 713 1 Now the evidence that was presented to 2 the court in fact shows on the video that 3 Mr. Minton was on the east side sidewalk of 4 Watterson Avenue walking south along 5 Watterson Avenue as he approached two 6 officers, Officer Harbert and Officer 7 Correa, on the east sidewalk. 8 As he approached them again in an effort 9 to abide by the terms and conditions of the 10 injunction as he so cautiously held them to 11 be, Mr. Minton perceiving these off duty 12 Clearwater police officers as agents of 13 employees of the Church of Scientology, 14 quite deliberately walked away from them in 15 a semicircular path in order to stay ten 16 feet away from these two officers. 17 At the same time he admonished the 18 officers and you hear on the videotape that 19 by standing there in the orange zone he felt 20 that they were in violation of the 21 injunction whereas he was making every 22 either to avoid violation of the injunction 23 by changing his path. 24 Now, the allegation apparently against 25 Mr. Minton is that at that point by changing . 714 1 his path and by walking out into Watterson 2 he was in violation of the injunction. 3 Again, there is no evidence that he 4 violated the ten foot rule, that he blocked 5 any paths, that he inhibited entry or exit 6 from any building, that he harassed or 7 caused violence to any member of the Church 8 or that he was exercising First Amendment 9 rights in area that he was not allowed to. 10 The officers then approached Mr. Minton 11 and if Mr. Minton's interpretation of the 12 injunction is correct, in violation of the 13 injunction they approaching him. 14 The petitioner holds that this was not a 15 violation. 16 THE COURT: Whoa. Wait a minute. 17 What's the interpretation there? 18 MR. HOWIE: Your Honor, I'm not saying 19 the interpretation is correct. 20 THE COURT: I didn't even understand the 21 interpretation. What is it you're saying? 22 Where is the confusion? 23 MR. HOWIE: The confusion, if there is 24 such, is by Mr. Minton in holding to the 25 cautious position that even members of the . 715 1 Clearwater Police Department who were off 2 duty and in the employ of the Church of 3 Scientology through a subcontracting 4 arrangement could conceivably be under the 5 injunction. 6 That is not the position I'm taking 7 today with the court. I'm merely speaking 8 of Mr. Minton's intent at the time of the 9 cause to be out in the street. 10 THE COURT: Let me see if I understand 11 that. You're not taking that position, but 12 your client took that position? 13 MR. HOWIE: It's apparent from the video 14 that he did take that position. Now, again 15 this is an example where the petitioner is 16 insisting that Mr. Minton's taking that 17 position is somehow a violation of the 18 injunction. That is a perversion of the 19 injunction and the spirit behind the 20 injunction. 21 If Mr. Minton is being doubly cautious 22 to avoid any violation of the injunction by 23 regarding members of the Clearwater Police 24 Department as covered by the injunction, he 25 has every right to do so. He has a right to . 716 1 that misinterpretation if a 2 misinterpretation it is. And I find it 3 ironic, even perverse, that the petitioner 4 takes the position that this interpretation 5 is itself a violation of your injunction. 6 It's not. 7 There is nothing in these admonitions 8 and prohibitions that says, oh, by the way, 9 Mr. Minton, if you mistakenly interpret this 10 injunction to say that it includes people 11 that it doesn't include, I'm going to find 12 you in contempt of court. It doesn't say 13 that. The petitioner is suggesting that it 14 does say that or should say that. It does 15 not. 16 Mr. Minton found himself in Watterson 17 Street because he was trying to avoid these 18 police officers. And clearly this did not 19 amount to a willful intent to violate the 20 terms of the injunction, but contrary it 21 shows willful intent to obey them. 22 The officers as you see on the video 23 approached Mr. Minton in Watterson. They 24 asked Mr. Minton to resume the east sidewalk 25 on Watterson, resume his position on the . 717 1 east sidewalk of Watterson and Mr. Minton 2 promptly did so. 3 He was not pleasant about it. The 4 cursing clearly comes across on the video, 5 but I do not see anything in the injunction, 6 the court's injunction that suggests that 7 Mr. Minton in cursing the police officers 8 violated this injunction. Unless, of 9 course, the petitioner wishes to change 10 tunes in mid stream and say now these 11 officers re employees and agents and now 12 these officers are covered by the 13 injunction. 14 They are implying two different things 15 here, that there are times when the officers 16 employed by the Church are in fact the 17 agents or the employees of the Church. 18 That's an unattainable position and they 19 should not be allowed to take it even by 20 some inference. 21 Therefore, if these officers were not 22 agents of the Church of Scientology, 23 themselves subject to the injunction, then 24 this was not harassment of Scientology 25 members and there is no evidence that any . 718 1 members of the Church or members of the 2 public were harassed or obstructed or 3 blocked in any way. 4 Now, if the petitioner somehow by some 5 sort of inference of implication is 6 suggesting that the language used by 7 Mr. Minton against the police officers is 8 some sort of obstruction or violation of 9 Chapter 843 of the Florida Statutes, then 10 again under Whiner versus Kelly this is a 11 violation of the come. 12 THE COURT: Hold on. Have you cited 13 that earlier? 14 MR. HOWIE: Yes, sir, which I have 15 provided to the court. 16 THE COURT: Okay. Yes, you did, let the 17 record reflect. 18 MR. HOWIE: That under Whiner versus 19 Kelly the injunction doesn't reach the 20 enforcement of criminal laws of the State of 21 Florida, nor does it prohibit violation of 22 the criminal laws of the State of Florida. 23 The same would be true if this was 24 alleged to be some form of disorderly 25 conduct. If the officers thought that they . 719 1 were being subjected to obstruction or that 2 an act of disorderly conduct was taking 3 place before them, they could have acted 4 accordingly under the powers of Chapter 901 5 and they could have arrested Mr. Minton. 6 They did not do so, nor are any of his 7 actions enforceable by the court's 8 injunction. 9 Once again, Mr. Minton's actions in this 10 case show a deliberate effort by Mr. Minton 11 to see that the injunction is upheld. It 12 shows that Mr. Minton, as well as the other 13 respondents, take the injunction very 14 seriously and in fact the evidence taken as 15 a whole shows that the respondents in this 16 case were far more serious about upholding 17 provisions of this injunction than any 18 member of the Church was as depicted on 19 videos. 20 For that reason, Your Honor, I ask for a 21 judgment of acquittal as to this Count Seven 22 and I ask for a judgment of acquittal as to 23 all seven counts. Thank you. 24 THE COURT: Okay. Hold on. 25 . 720 1 (Whereupon, a pause in the proceedings took 2 place.) 3 All right. Thank you, Mr. Howie. 4 MR. HOWIE: Thank you, Your Honor. 5 THE COURT: Mr. Pope. 6 MR. POPE: Your Honor, may it please the 7 court, we have now had about five hours of 8 argument on the motions for judgment of 9 acquittal. I am, I believe that I can give 10 my response in 20 minutes, maybe a couple 11 minutes beyond that, so, if the court is 12 ready I'll begin. 13 THE COURT: I'm ready, sir. 14 MR. POPE: Your Honor, we're dealing 15 here with a claim of contempt based upon a 16 couple of different things. One is violation 17 of provisions of your injunction and the 18 other is dealing with the standards set out 19 in Thompson versus State, copies of which I 20 have already provided to the court and 21 counsel and I have more, which defines 22 contempt as an act which is calculated to 23 embarrass, hinder or obstruct a court in the 24 administration of justice or which is 25 calculated to lessen its authority or . 721 1 dignity. That's what constitutes a contempt 2 in addition to violation of a provision of 3 the injunction. 4 And on the question of obstruction of 5 service process, it is such black letter law 6 that this statement appears in Fla. Jur. 7 Contempt, Section Ten. 11 Fla. Jur. says 8 generally the intentional hinderance of 9 service of process constitutes contempt 10 regardless of the means by which the 11 hinderance is accomplished. 12 Now, yesterday Mr. Merrett went on for 13 three hours and 25 minutes and I don't 14 believe he cited to you a single case. He 15 purported to try out some legal principles 16 but he didn't try out a single case. 17 Mr. Howie has cited a couple cases to 18 you, but I can assure you we're not trying 19 to use the court's injunctive power to 20 restrain criminal acts. We are in here on a 21 criminal proceeding under the criminal rule, 22 although it is indirect criminal contempt 23 and it does arise out of a civil proceeding, 24 which makes it a little bit different from 25 your run of the mill criminal prosecution. . 722 1 Now, on the question of an attorney's 2 duty, Your Honor, the case Kleinfeld versus 3 State, 270 So. 2d. 22, Third District 1972 4 says that this is the duty on the lawyer. 5 Any breach of an attorney's duty to maintain 6 the respect due by him to the court is a 7 contempt of court. That is an additional 8 duty on a lawyer, an addition to the 9 standard set forth in Thompson versus State. 10 Now, Your Honor, in addition to the 11 court's inherent power to punish for 12 contempt for violating a term or for doing 13 these other things in derogation of the 14 court's authority, the Florida legislature 15 has deemed it important enough to pass two 16 laws dealing with obstruction of service and 17 obstruction of an officer in trying to 18 perform his legal duties and we are not 19 contending, Your Honor, that these statutes 20 are what has been violated that is before 21 the court today. That's not the point, but 22 these statutes basically set out for the 23 State of Florida the same kind of rule, the 24 same kind of standard that this court 25 inherently has to punish certain criminal . 723 1 acts or criminal contempt. 2 In each case, Your Honor, this statute 3 says whoever knowingly and willfully 4 resists, obstructs or opposes any officer 5 and then it goes on to say in the execution 6 of legal process or in the lawful execution 7 of any legal duty by offering or doing 8 violence to the person, it's guilty of a 9 third degree felony. 10 THE COURT: What are you citing? 11 MR. POPE: 843.01. 12 THE COURT: 843.01? 13 MR. POPE: Right. 14 THE COURT: Yes, sir. 15 MR. POPE: And 843.02 says the very same 16 thing except that it has to do with 17 resistance by means other than violence. And 18 I'm going to -- if I can get the bailiff's 19 assistance, I'll ask him to pass copies of 20 these out to both the court and to counsel. 21 (Whispered conversation between Mr. Pope 22 and the bailiff took place.) 23 Excuse me. The bailiff tells me he 24 can't do it, so I'll do it, Your Honor. 25 First time I ever heard that the bailiff . 724 1 couldn't do that, Your Honor. 2 Now, let me point out one other thing, 3 Your Honor, with respect to standards of an 4 attorney. You know when we all take the 5 oath of office as lawyers to be admitted to 6 the Bar, the first thing we do is pledge our 7 fealty to the constitutions of Florida and 8 United States. The very next thing we say 9 and that is I will maintain the respect due 10 to courts of justice and judicial officers. 11 Now, let's focus on one of the phrases 12 in the court's injunction. It's says that 13 defendants are enjoined from committing any 14 acts of harassment against any member of the 15 Church. What is harassment? Let's start 16 with the dictionary definition. 17 Harass means to irritate or torment 18 persistently. The synonyms for harassment 19 are harass, harry, hound, badger, pester, 20 play and bait. 21 Now, there is a definition of harassment 22 in Black's Law Dictionary, Your Honor. This 23 says harassment: Used in a variety of legal 24 contexts to describe words, gestures and 25 actions which tend to annoy, alarm and abuse . 725 1 verbally another person. A person commits a 2 petty misdemeanor, and this is from the 3 model penal code which defines harassment: 4 If the purpose to harass another he makes a 5 telephone call without purpose of legitimate 6 communication, insults, taunts or challenges 7 another in a manner likely to provoke 8 violent or disorderly response, makes 9 repeated communications anonymously or at 10 extremely inconvenient hours or in 11 offensively course language, subjects 12 another to an offense of touching, 13 engaging -- 14 THE COURT: Whoa, whoa, whoa. Sorry. 15 MR. POPE: I'm going to give you a copy. 16 THE COURT: And I'm sure she's doing a 17 good job and she prides herself that she 18 probably had every word down, but give me a 19 break. 20 MR. POPE: All right. 21 THE COURT: Slow down. 22 MR. POPE: I will. May I give you a 23 copy? 24 THE COURT: Yeah. Ian, come up here, 25 please. Let me see the bailiffs. I want a . 726 1 break. Let me see my bailiffs. 2 (A short recess took place after which the 3 proceedings continued.) 4 THE COURT: I've asked my legal 5 assistant to take care of passing papers back 6 and forth to the attorneys and all. Due to 7 the nature of this case and you know we had 8 to relax the ten foot rule as to attorneys 9 and we've had to sort of work our way through 10 this. 11 I'm going to have my assistant do that, 12 my staff attorney, and I want the record 13 absolutely crystal clear that due to a 14 misunderstanding by a substitute bailiff 15 that had come into the courtroom and not 16 gotten a briefing on what was really go on 17 was asking some of the defendants who -- we 18 have so many defendants that can't all crowd 19 around two attorneys and certainly from the 20 very beginning I had allowed defendants to 21 come communicate with their lawyers or pass 22 papers or somehow so that they certainly had 23 a right and access to their attorneys 24 throughout this proceeding. And I want it 25 absolutely clear on the record that any . 727 1 action that was taken by that bailiff to 2 tell one of you defendants to stay seated 3 was wrong. You have a right to communicate. 4 You have a right to communicate. We will 5 proceed like we've always done and if you 6 need to come and talk to your client, do it. 7 I want the record clear I wasn't aware 8 that was happening until I caught it there 9 at the time end. That was now from this 10 judge. I want my record. 11 MR. MERRETT: Your Honor, may I 12 supplement the Court's remarks simply by 13 pointing that no one was actually precluded 14 from communicating with me and the bailiff 15 was at all times courteous and professional 16 in dealing with us. 17 THE COURT: Okay, but that shouldn't 18 have even happened without talking do me. 19 MR. MERRETT: I understand, Your Honor. 20 THE COURT: And from the Judge, I 21 apologize to any of you if you felt you were 22 denied a right to communicate. 23 Mr. Pope, I apologize to you, sir. 24 MR. POPE: No apology needed, Your 25 Honor. Are you ready for me to resume? . 728 1 THE COURT: Yes, please. 2 MR. POPE: Your Honor, I had just, was 3 in the process of passing out the dictionary 4 and Black's Law Dictionary definition of 5 harass and harassment and I would like to ask 6 your aide to hand that up to you for your 7 reference. 8 THE COURT: Okay, thank you. 9 MR. POPE: Now, the first thing I wanted 10 to do was define harassment, because that's a 11 key word in your injunction. 12 The second thing I want to do is there 13 is a key phrase in your injunction that's 14 called in active concert or participation 15 with them and you know that that comes right 16 out of Rule 1.610 that says that an 17 injunction is binding on the parties and all 18 persons in active concert or participation 19 with them, so the question arises what does 20 that mean, in active concert or 21 participation with them. 22 Well, we do have a little help on that 23 and there is a difference between concert 24 and participation. Concert is defined in 25 Black's Law Dictionary as a person is deemed . 729 1 to act in concert when he acts with another 2 to bring about some preconceived result. So 3 concert seems to suggest preplanning, 4 getting together, planning a course of 5 action and going out and carrying it out. 6 Participation, on the other hand, or 7 participate, is defined both Black's and on 8 the dictionary. The dictionary definition 9 of participate is to take part in something 10 or to share in something. It lacks the 11 preplanning, that part that in concert does. 12 And in Black's Law Dictionary it says 13 participate is to receive or have a part or 14 share of, to partake of, experience in 15 common with others. 16 So that if somebody, so if somebody 17 organizes a parade and someone decides that 18 they would like to march in it and just 19 jumps in from the side and walks, they 20 weren't acting in concert with the planners 21 of it, but they were participating with it. 22 There is a bit of a difference between 23 acting in concert or in participation with 24 and I would like to give the court these 25 definitions as well as counsel. Here's the . 730 1 dictionary and these or the two Black's. 2 You can just give them one of each and 3 if there is one left over, bring it back to 4 me. 5 Now, Your Honor -- 6 THE COURT: Just a minute. Let him get 7 them distributed. 8 MR. POPE: I agreed with Mr. Howie's 9 delineation of the various provisions that 10 are in the text of the injunction that 11 contained the prohibitory language, however 12 he left something out. 13 You also had some commands on the 14 exhibits and particularly on the Coachman 15 Building exhibit and others, the command 16 written in your own hand is stay ten feet 17 back from entranceways. That's just as big 18 a command as the text of it and it doesn't 19 say stay ten feet back from entranceways 20 when you're picketing. 21 It says stay ten fee back and that 22 connects with your desire, your clear intent 23 to keep these entranceways free of 24 obstruction. So there is a clear command 25 with respect to that parking entrance there, . 731 1 stay ten feet back from entranceways. 2 Now, Your Honor, you remember when the 3 court entered the injunction in the first 4 instance you relied on a lot of these, what 5 we call the abortion cases that have gone 6 all the way up to the U.S. Supreme Court and 7 you also relied in part upon a Cornell Law 8 Review article dealing with injunctions and 9 religions and one of the things that you 10 learned from looking at the abortion cases 11 is that when you've got two constitutional 12 rights in collision, some of them have to 13 bend, and what the U.S. Supreme Court did 14 was it tried to reach a compromise between a 15 person's first amendment right to protest 16 and picket and express herself and the 17 constitutional right to abortion. 18 Well, in this case we've got two 19 competing constitutional rights. We've got 20 the right of religious freedom. We're 21 dealing with a church here. And we've got 22 the right of free speech to protest and all 23 that and so as a consequence, you carefully 24 crafted an injunction that does in fact 25 legitimately impinge to some extent on their . 732 1 First Amendment rights because it restricts 2 them to certain areas and it also tells them 3 they can't engage in conduct that would be 4 defined as harassment. That is a 5 restriction to some extent on their First 6 Amendment rights and it has been upheld by 7 the U.S. Supreme Court. 8 Now, let's take a look also while I'm 9 laying what I hope to be the legal ground 10 work for my argument, at the case of 11 Doe versus Watson. Doe versus Watson is at 12 507 So. 2d. 1164, Fifth District case, 1987. 13 Under headnote one in the text this was 14 a case in which I'll quote: Petitioners 15 argued that the court lacks jurisdiction to 16 hold them in contempt because they are not 17 parties to the proceeding below. We reject 18 this position since clearly a court has 19 inherent contempt power to punish persons 20 other than parties for violating a valid 21 order citing a case. 22 One who is not a party to an action but 23 who has knowingly interfered with a court 24 order may be held in contempt. 25 That is a court holding that really . 733 1 parallels Rule 1.610 that basically says 2 that all persons acting in concert or 3 participation with them, including their 4 officers, agents and attorneys, are bound by 5 the terms of the court's injunction. 6 THE COURT: Hold on and just let me look 7 at this. 8 (Whereupon, a pause in the proceedings took 9 place.) 10 Okay. 11 MR. POPE: The next case, Your Honor, 12 that I wish to bring to the court's attention 13 is the case of Persoff versus Persoff and 14 while he's passing that out, this is a case 15 from the Fourth District Court of Appeal from 16 1991, 589 So. 2d. 1007. 17 This case deals with the subject of what 18 the defendants have termed as in-court 19 identification. 20 I've got a couple of cases for you on 21 this subject, but this is the first one. 22 They contend that there no in court 23 identification and therefore all this must 24 fail. 25 This is an indirect criminal contempt . 734 1 matter, Your Honor, and the courts do not 2 treat this quite the same way as they do 3 where you haul a stranger off the street or 4 you arrest somebody and you have some 5 stranger trying to identify them in court as 6 a traditional criminal proceeding. 7 In the Persoff case and I would point 8 out that neither Mr. Howie nor Mr. Merrett 9 cited a single case for this principle that 10 there had been a failure of identification 11 in this case. 12 In the Persoff case a wife was, a former 13 wife was found in contempt for violating a 14 court order. Contrary to the order she 15 stated a derogatory matter about her former 16 husband at a cocktail party and he was a 17 physician and she spread all sorts of stuff 18 about medical malpractice suits, his sexual 19 habits and the ex-husband's new wife, 20 clearly contrary to a court order. 21 No order to show cause was entered. The 22 parties even waived an order to show cause 23 under criminal rule 3.840. 24 This was an indirect criminal contempt 25 proceeding. She argued on appeal that . 735 1 identification was lacking. She had not 2 been identified in the court held on appeal 3 she argue that identification was lacking at 4 the hearing. The trial court found that it 5 was indeed the former wife who made the 6 statements about her former husband and we 7 will not substitute our judgement or that of 8 the trial court. 9 The next case on this same -- 10 THE COURT: Hold on just a minute. Let 11 me look at that. 12 (Whereupon, a pause in the proceedings took 13 place.) 14 Okay. 15 MR. POPE: The next case, Your Honor, is 16 Barbarosa Fernandez versus the State. It's 17 Third District Court of Appeal case at 18 585 So. 2d. 1134. It's decided in 1991. 19 In this case an order was entered 20 prohibiting someone from making harassing 21 phone calls. The person apparently made 22 harassing phone calls, an indirect criminal 23 contempt proceeding was instituted and the 24 sole basis of identification in this matter 25 was that she recognized the voice. It was a . 736 1 voice identification and the court upheld 2 the conviction based upon a voice 3 identification. 4 Now, let's take a look a what we have in 5 this case relative to identification. Every 6 single witness on this side of the table 7 identified the parties by name and by image 8 on the videos and every single one of the 9 defendants stood up, stated their name and 10 entered a plea. 11 There is absolutely no question about 12 identification in this case. These people 13 have also been completely identified. 14 Mr. Antonio Avila identified every 15 single one of them. Mr. Bussard said he 16 knew them on a first name basis. Lindsey 17 Colton had served enough of them to know 18 them on a first name basis. 19 Through all of these witnesses, every 20 single one of these people has been 21 appropriately identified and, Your Honor, 22 all of parties to this action as 23 distinguished from the people who are 24 nonparties who are subject to an order to 25 show cause have been in that case from the . 737 1 get go and are well known to the court and 2 to everybody involved in the case. So this 3 identification thing is simply a red herring 4 that the court should deny. 5 There has been no case cited saying that 6 the method of identification used in case is 7 faulty or inappropriate. 8 In fact, the rule, Your Honor, of 9 criminal, indirect criminal contempt, allows 10 you, as the judge, to initiate the matter 11 and prosecute it yourself. You can just do 12 it on your own. 13 You don't have to have a prosecutor. I 14 mean we do in this case because all this 15 stuff occurred outside of the hearing of the 16 court. 17 Now, having laid down this sort of law, 18 Your Honor, and the legal framework, let me 19 talk just a little bit about each set of 20 facts. 21 With regard to Ms. Bezazian, Officer 22 Butterfield testified -- 23 THE COURT: Mr. Pope, hold on a minute. 24 You all are talking so fast that I'm running 25 out of ink. I've already burned up two pens . 738 1 today. They were the tail end from the past 2 couple days. Hold on. I'll be right back. 3 (Whereupon, a pause in the proceedings took 4 place.) 5 THE COURT: Okay. Let's go. 6 MR. POPE: All right, sir. Your Honor, 7 I had just started on the -- 8 THE COURT: Indirect criminal contempt, 9 the court on it's own can prosecute. 10 MR. POPE: Absolutely, and I had 11 finished that and I was moving to 12 Ms. Bezazian. 13 We called Officer Butterfield who 14 testified that he had spoken to her on the 15 at least five different occasions and that 16 they had gone over a copy of the injunction 17 together. Remember he said in effect, we're 18 going to learn this together. Neither one 19 of us know much about this to begin with. 20 We're going to learn this thing together and 21 so they did. 22 And he told her when she had a picket on 23 her, all she had to do to avoid violating 24 the injunction was put it down and stop 25 picketing. Instead of carrying it up in the . 739 1 air, just put it down. 2 That's the whole answer to Mr. Merrett's 3 argument about how are they suppose to get 4 around, levitate? No, they just put the 5 picket down and walk. She didn't do that. 6 She wouldn't do that. 7 In fact, the first video we showed that 8 ever showed her walking, picketing with two 9 pickets way up in the air coming right down 10 the Ft. Harrison side of the Bank of 11 Clearwater Building, all the way down to a 12 zone that she's not supposed to picket in. 13 The next video of her was of blocking 14 the parking lot of the entranceway to the 15 Coachman Building parking lot. Now, that 16 violated two of the provisions. 17 One provision, in the text of the 18 injunction says don't block the driveway. 19 She stopped a car there blocking the 20 driveway and one of the vans came up behind 21 it and it was way out in the road until the 22 car got by. Any way you cut it, she blocked 23 the driveway. 24 Furthermore, she didn't do what the 25 clear command was, stay ten feet back from . 740 1 the entranceway, so she violated two 2 provisions of the injunction, not one. 3 She then went and this is the one about 4 the Santa Claus chair. She went up -- 5 THE COURT: Hold on just a minute. I'm 6 trying to think the best way for me to -- I'm 7 trying to figure how to merit up your 8 arguments with the way they presented theirs. 9 MR. POPE: I'm going down the same way, 10 I think, Judge, that they did it. 11 THE COURT: All right. Let me go back 12 here just a minute. Let's back up. The 13 first injunction was on -- 14 MR. POPE: First order to show cause? 15 THE COURT: Yeah. 16 MR. POPE: Amended and consolidated 17 order to show cause. 18 THE COURT: Okay, that was 4, January. 19 MR. POPE: Yes, sir. 20 THE COURT: It starts out -- 21 MR. POPE: With B. 22 THE COURT: Okay, so you're at 1A? 23 MR. POPE: I'm at 1A. 24 THE COURT: All right. We'll go that 25 way and let's go. . 741 1 MR. POPE: All right. The last event 2 with respect to Ms. Bezazian is that she went 3 up into the entranceway of the Bank of 4 Clearwater Building. 5 The officer went up and told her that he 6 thought she might be violating the 7 injunction and asked her to move, which I 8 think she ultimately did. But on this 9 subject I think it's important to note at 10 this point Paragraph 11 of your order. 11 Paragraph 11 of your order says -- 12 THE COURT: Now, you talking about the 13 Santa Claus thing? 14 MR. POPE: I'm talking about your 15 injunction and I'm still on the entranceway 16 of the Bank of Clearwater episode, sitting in 17 the Santa Claus chair at the entranceway at 18 the Bank of Clearwater Building. 19 THE COURT: Okay. Yes, sir. 20 MR. POPE: What I'm pointing out, Your 21 Honor, is Paragraph 11 of your injunction, 22 the last paragraph and it says: Any sworn 23 law enforcement officer may assist in the 24 execution or service of this injunction. 25 The evidence from the law enforcement . 742 1 officers and the videotape shows that when 2 they are on duty out there, they are in 3 uniform, they are performing the role of 4 police officer and they are authorized by 5 your order to be your agent in enforcing 6 this injunction. You clothed them with that 7 authority in your injunction. 8 Now, let me move on to Mr. Henson, if I 9 may. Mr. Henson was served with an 10 injunction by both Lindsey Colton and Steve 11 Bellavigna. Lindsey Colton served him in 12 the morning of December 1, Mr. Bellavigna in 13 the afternoon. Of course, he refused to 14 accept it, but it was left at his feet, but 15 he was served. 16 Now, why was he served? Because he is a 17 nonparty, Your Honor. But he is bound by 18 the injunction as one acting in concert or 19 participation with the other defendants. 20 When Ms. Colton -- I think this is 21 pretty telling, when Ms. Colton went to him 22 on the December 1, that morning, to give him 23 a copy of the injunction so he would have 24 fair notice of the terms, he said in 25 substance don't come close to me. You're . 743 1 violating the ten foot rule. So Mr. Henson 2 was invoking the benefit of the court's ten 3 foot rule. 4 If he's going to invoke the benefit of 5 it, Your Honor, it seems to me like he has 6 to invoke the obligations of it as well. 7 You can't just have the benefit of the ten 8 foot rule without having the obligation that 9 the injunction imposes on all the picketers. 10 It's almost as if some estoppel ought to be 11 at work there to estop him from denying that 12 he's bound by the injunction. 13 In his letter to the court which is 14 admitted into evidence, Mr. Henson says in 15 the middle of the letter, I made my choices 16 of where and when to picket over the 17 objection of Mr. Merrett who was at the LMT 18 at that time and suggested that I abide by 19 the terms of the injunction. It was pretty 20 clear from Mr. Henson's own words had he 21 understood that there was an injunction out 22 there and that at least Mr. Merrett had told 23 him that he should abide by those terms and 24 that there is a clear implication in that he 25 decided he wasn't going to. . 744 1 So, what Mr. Henson did was he 2 repeatedly picketed for 45 minutes-plus at a 3 time on numerous occasions directly in front 4 of the Ft. Harrison. He came to town and 5 was picketing along with all of the other 6 protesters. 7 I can't honestly say that we've got any 8 evidence that he planned with these people 9 in advance to do this, however he certainly 10 was acting in participation with them. 11 There is no question about that at all and 12 we do have that photograph that they want to 13 pass off as a joke of Mr. Minton handing 14 Mr. Henson money on the day before, on 15 November 30. 16 Pretty clearly, Your Honor, Mr. Henson 17 had notice of the injunction. He was acting 18 at least in participation with the other 19 defendants. He pretty clearly violated its 20 terms. He's bound by it. 21 The next episode, Your Honor, is the 22 camera tampering episode which is the third 23 one on that order. 24 Your order enjoins the defendants and 25 those acting in concert or participation . 745 1 with them, from committing any acts of 2 harassment against any member of the Church. 3 THE COURT: Hold just a minute. Let me 4 go up here. You're talking about now this is 5 paragraph three that's on pages three and 6 four and you're talking about Paragraph 3A; 7 is that correct? 8 MR. POPE: Yes, sir, the camera 9 tampering episode. 10 THE COURT: Okay. Slow down just a 11 minute. 12 (Whereupon, a pause in the proceedings took 13 place.) 14 Okay. Go ahead. 15 MR. POPE: I was pointing out that the 16 court enjoined acts of harassment. That 17 security camera was put there for the 18 protection of the Church members. It was 19 being monitored by a Church member security 20 guard. 21 Using self-help, coming be out of the 22 LMT Building and using self-help to tamper 23 with it, was, I suggest to court, an act of 24 harassment against the person monitoring it 25 and an act of harassment against every . 746 1 Church member that it was designed to 2 protect and it was basically a part of a 3 fairly broad pattern of harassing activities 4 which has been laid before the court. 5 Mr. Merrett and Mr. Minton were the 6 principle movers and they wound up leaving 7 the camera out of focus and it had to be 8 repositioned, so the tampering with it had a 9 consequence. 10 The others were in active concert or 11 participation with them helping support the 12 ladder and hanging around and offering 13 whatever encouragement they were offering, 14 the other names in that paragraph were 15 clearly part of this activity. And the 16 existing record in the case is replete with 17 evidence of the relationship between these 18 individuals and the LMT Corporation. 19 Now let's talk about the fourth item. 20 THE COURT: Okay. Just a minute. Let 21 me get this one up to date. 22 (Whereupon, a pause in the proceedings took 23 place.) 24 Go ahead, sir. 25 MR. POPE: The fourth item is . 747 1 Mr. Merrett's obstruction of the service of 2 process. Mr. Bussard, a process server, 3 testified that Mr. Merrett physically blocked 4 him from serving process in the Steak and Ale 5 Restaurant. This is unrefuted. 6 THE COURT: Hold on just a minute. Now, 7 you passed over Rod Keller? 8 MR. POPE: I did, Your Honor. I did not 9 offer evidence. 10 THE COURT: I think that's out. 11 MR. POPE: It's out. 12 THE COURT: Now, let me -- 13 (Whereupon, a pause in the proceedings took 14 place.) 15 Okay, Paragraph, this would be 3D on 16 page five. 17 MR. POPE: Dealing with Mr. Merrett's 18 obstruction of process. 19 THE COURT: Okay. 20 MR. POPE: Mr. Bussard testified that 21 Mr. Merrett physically blocked him from 22 serving process in the Steak and Ale 23 Restaurant in Clearwater. This is unrefuted. 24 Derrick Kronschnabl, a process server -- 25 Mr. Bussard is also a process server, . 748 1 testified that Mr. Merrett shoved him three 2 times and shoved him out of the LMT Building. 3 This is unrefuted. 4 The Thompson case says that an act 5 calculated to hinder or obstruct a court in 6 the administration of justice is contempt. 7 The court has ruled that these process 8 servers are agents of the court. An act 9 directed against a process server an 10 obstruction of service process as stated is 11 contemptuous as the black letter law in Fla. 12 Jur. said and is a separate criminal offense 13 against the state as 843.01 and .02 say. 14 Where is the law? Mr. Merrett said he 15 had no right to be there in this business 16 that had its door open. Where is the law 17 that says this process server had no right 18 to be there? If he had no right to be 19 there, where is the law that says 20 Mr. Merrett has the right to shove him out 21 in the street? 22 Let me share with the court the case of 23 Francis versus state. 24 THE COURT: Just a minute. 25 (Whereupon, a pause in the proceedings took . 749 1 place.) 2 All right, sir. 3 MR. POPE: I have presented to the court 4 the case of Francis versus State. Francis 5 versus State is not a contempt -- 6 THE COURT: Hold on just a minute. 7 Cite. 8 MR. POPE: Francis versus State is at 9 736 So. 2d. 97. It's Fourth District Court, 10 1999. 11 THE COURT: Proceed. 12 MR. POPE: In this case, this is not a 13 contempt case, but it is under the analogous 14 criminal statute dealing with obstruction of 15 an officer trying to perform a landlord duty. 16 In this case a Broward sheriff's deputy 17 was called to the house of Nelly Francis who 18 happened also to be a Broward sheriff's 19 deputy. 20 The deputy was called there because of a 21 call to 911 claiming that or maybe it wasn't 22 to 911. Yeah, it was to 911, claiming that 23 the stepfather was beating the stuffing out 24 of a kid. 25 The deputy arrives and Nelly, the other . 750 1 deputy, Francis, blocks his path, identifies 2 herself as a sheriff's deputy and asks him 3 not to go further into the investigation. 4 He saw that there was a problem with the 5 child and he finally got around her and got 6 in and gave the child some assistance. 7 She was prosecuted for resisting an 8 officer trying to do his duty without 9 violence. She was convicted for a momentary 10 obstruction of the officer. 11 She claimed it didn't matter because he 12 finally got around me. But this is an 13 example of resisting without violence, Your 14 Honor, without touching and I think it's 15 pertinent to the case because it should give 16 you some guidance about the whole notion of 17 obstruction. 18 Your Honor, once you finish with that 19 I'm ready to move over to the second motion. 20 (Whereupon, a pause in the proceedings took 21 place.) 22 THE COURT: All right. 23 MR. POPE: The first person on the 24 second motion is Mr. Enerson. 25 THE COURT: Let me get to there just a . 751 1 minute. Okay, sir. 2 MR. POPE: Mr. Enerson, the evidence 3 shows, the he was picketing in front of the 4 Bank of Clearwater Building which is not one 5 of the allowed areas. All he had to do was 6 lower his picket sign and he could move 7 through. That's all he had the do. 8 The next item in that area is -- 9 THE COURT: Just a minute, Mr. Pope. 10 I'm sorry. 11 MR. POPE: All right. 12 (Whereupon, a pause in the proceedings took 13 place.) 14 THE COURT: We've go so many defendants 15 and we've got so many different instances, we 16 got two different documents, I'm just trying 17 to keep all this straight so someone doesn't 18 get blamed for something somebody else did or 19 somebody got blamed for something they didn't 20 do, so be patient with me. 21 MR. POPE: I'm patient. 22 THE COURT: Okay. Otherwise the 23 simplest way to do it is just sit back, put 24 my feet up on the bench and ask you all to 25 pay for an expedited transcript and I'm . 752 1 trying to save you a little money here. I 2 know that some of you don't think so, but 3 these are things we take into consideration. 4 MR. POPE: I'm with you, Judge. 5 THE COURT: Okay. I'll do the work 6 myself. 7 MR. POPE: All right. Tell me what you 8 want me to move to the next one. 9 (Whereupon, a pause in the proceedings took 10 place.) 11 THE COURT: All right. Now, I'm ready 12 to go to Paragraph 1B. 13 MR. POPE: That is the episode involving 14 Mr. Minton and an obstruction of a duly 15 appointed process server. As I have already 16 pointed out, this conduct constitutes a 17 contempt of court and it can constitute a 18 violation of the criminal statute. The 19 violation of the criminal statute is not 20 before the court today but it would seem to 21 me that the standard is about the same. 22 Essentially, the court made it clear 23 that process servers were agents of the 24 court in carrying out the court's business. 25 You can't do business, Your Honor, as a . 753 1 judicial system without process servers. 2 That's how the writs get served. That's how 3 fair notice is given to everybody. 4 That's why it's so important that these 5 process servers are protected by criminal 6 statutes saying that you can't fool with 7 them. 8 That's why the court its own inherent 9 power to deal with as a contempt an 10 interference with a process server. That is 11 what and it violated that part of the 12 injunction that said the ten foot rule 13 doesn't apply to process servers. 14 It was an act calculated to obstruct a 15 court in the administration of justice. 16 Mrs. Colton was a court's agent during the 17 court's business on January 5, 2001 when she 18 tried to serve Mr. Minton and he swore at 19 her, charged back at and balled the process 20 and threw it. They say threw it on the 21 sidewalk. She said he threw it at her. I 22 suggest you look at the video and decide 23 yourself, Your Honor. 24 The next item is Paragraphs 3C and D. 25 THE COURT: Just a minute. . 754 1 2 (Whereupon, a pause in the proceedings took 3 place.) 4 THE COURT: C and D? 5 MR. POPE: Yes, sir. I believe that's 6 it. 7 THE COURT: Okay. 8 MR. POPE: This one involved Mr. Minton, 9 Mr. Enerson and Mr. Lerma. It involves a lot 10 of honking and yelling with megaphones. 11 I will suggest to you, Your Honor, that 12 that honking and yelling towards the Church 13 members and the Church buildings with the 14 members in them can only constitute 15 harassment within the meaning of your 16 injunction. 17 Furthermore, when they were doing this 18 south of the Coachman Building they 19 disregarded that part of your injunction 20 that says stay ten feet back from 21 entranceways. 22 THE COURT: Okay. 23 MR. POPE: I would point out, Your 24 Honor, that Anita Gogolla was also involved 25 in that and I omitted her name. . 755 1 THE COURT: Well, wait a minute. 2 (Whereupon, a pause in the proceedings took 3 place.) 4 I see, it's over here on page -- oh, 5 okay. 6 MR. POPE: The next one is 7 Subparagraph E, Your Honor, which involves 8 Minton, Enerson and Lerma. They were across 9 the street, I believe, in front of the 10 Ft. Harrison. They were in an orange zone. 11 We're not complaining that they didn't 12 have a right to peacefully picket there. 13 They weren't peacefully picketing. They 14 were harassing. They were harassing with 15 what we now know as the Penick Picket Pole 16 that has a loud horn on it which they were 17 directing over toward the Ft. Harrison 18 Church Building and they had megaphones in 19 which they were yelling and screaming across 20 the street over there and I would suggest to 21 you that although they had a right to 22 peacefully picket there, they did not have a 23 right to harass and exactly what they were 24 doing. 25 THE COURT: Now, you're saying that they . 756 1 were in the orange zone, but the noise and 2 all, you're coming in under the sentence on 3 harassment. 4 MR. POPE: Harassment, excessive noise. 5 THE COURT: Now, just a minute now, 6 please. 7 (Whereupon, a pause in the proceedings took 8 place.) 9 Okay. 10 MR. POPE: Your Honor, let me share with 11 you Black's Law Dictionary definition of 12 peaceable picketing. 13 THE COURT: Whose dictionary? 14 MR. POPE: Black's Law Dictionary, Sixth 15 Edition. 16 THE COURT: Okay. 17 MR. POPE: Peaceable picketing in which 18 laboring men and woman have right to 19 participate during labor dispute means 20 tranquil conduct, conduct devoid of noise or 21 tumult, the absence of a quarrelsome demeanor 22 and a course of conduct that does not violate 23 or disturb the public peace. 24 THE COURT: Just a minute now. 25 (Whereupon, a pause in the proceedings took . 757 1 place.) 2 THE COURT: Okay. 3 MR. POPE: Let me, before I make my next 4 point, refresh the court's memory on the 5 Thompson standard of contempt. A 6 contemptuous act is one which is calculated 7 to embarrass the court, to lessen its 8 authority or dignity. Embarrass, lessen its 9 authority or dignity. 10 THE COURT: Hold on just a minute. When 11 you say Thompson, you're talking about -- 12 MR. POPE: The first case I gave you. 13 THE COURT: Yeah, 398 So. 2d. 514, 14 Second DCA, 81. 15 MR. POPE: Yes, sir. 16 THE COURT: Okay. 17 MR. POPE: I can't conceive of any 18 purpose of the Penick Picket Pole other than 19 to embarrass, make a mockery of the authority 20 of the court and the dignity of the court. 21 That's what it does. 22 MR. MERRETT: I'm going to have to 23 object. Is there a charge relating to 24 possession or operation of the Threep? 25 MR. POPE: Your Honor, the so-called . 758 1 Threep is named in our order to show cause 2 and is a part of our case. 3 THE COURT: Proceed. 4 MR. POPE: Yesterday, Your Honor, when 5 the Penick Picket Pole was presented to you 6 and came into evidence there was pretty 7 substantial laughter over here on this side 8 and I think that just tells it all. That 9 tells us how seriously these folks take this 10 court and this court's injunction. 11 Somehow they've been lulled into 12 believing that the court really doesn't mean 13 it. 14 I'm ready to go to Subparagraph F when 15 you are, Your Honor. 16 THE COURT: Just a second. 17 (Whereupon, a pause in the proceedings took 18 place.) 19 MR. POPE: Your Honor, before I move to 20 that. 21 THE COURT: Before you what? 22 MR. POPE: Move to Subparagraph F, I 23 would like to point out one other matter. 24 THE COURT: Hold on just a second. 25 (Whereupon, a pause in the proceedings took . 759 1 place.) 2 THE COURT: I'm trying to get as much 3 into these notes because when you're looking 4 at them at in one, two o'clock in the 5 morning, you sort of forget what has been 6 said. Been there and done that and it's not 7 fun. Okay, sir. 8 MR. POPE: I do want to point out to the 9 court and give copies to counsel. 10 THE COURT: Well, Mr. Brewster will do 11 that. 12 MR. POPE: Yes, sir. The City of 13 Clearwater in its community development code 14 does have a noise ordinance and I'm not 15 contending and we're not here today 16 prosecuting the noise ordinance, but I'm 17 giving you this for guidance of the court 18 because we do claim that the noise level 19 constitutes harassment. Prohibited generally 20 it says, it shall be unlawful for any person 21 to willfully make, continue or cause to be 22 made or continue be a loud and raucous noise 23 which term shall mean any sound which because 24 of the volume level, duration and character, 25 a noise disturbs injures or endangers the . 760 1 comfort, health, peace or safety of 2 reasonable persons of ordinary sensibilities 3 within the limits of the city. 4 And it goes on to deal with a whole host 5 of specific items including noises heard 6 within schools, public buildings, churches, 7 hospitals and prohibits that. 8 Again, we're not contending or this 9 isn't a prosecution of the noise ordinance, 10 but it does relate to the noise as 11 harassment issue. 12 (Whereupon, a pause in the proceedings took 13 place.) 14 THE COURT: All right. Go ahead, 15 Mr. Pope. 16 MR. POPE: Subparagraph F, Your Honor, 17 this as to do with Mr. Minton and 18 Mr. Merrett. They were walking down the east 19 side of the Watterson where they were allowed 20 to walk and Mr. Minton had the Penick Picket 21 Pole in his hand and as they got down just 22 past the white line they decided to cross 23 over, gets right next to the Bank of 24 Clearwater Building and Mr. Minton held up 25 this pole so that the injunction on the top . 761 1 of it -- 2 THE COURT: Just a minute. For the 3 purposes of the record, I believe I 4 understand what you're talking about and I 5 did see videos and I have been out there at 6 the agreement of all the parties, when I say 7 out there previously under the prior 8 injunction, temporary injunction, to the 9 unloading where they go in to eat at the Bank 10 of Clearwater Building. When you say the 11 white line, the City of Clearwater police 12 department painted a zone or an area in the 13 road where they could load and unload and 14 sort of stay out of zone if I'm not mistaken. 15 MR. POPE: Right. 16 THE COURT: That's the white line you're 17 talking about? 18 MR. POPE: That would be it, just for 19 point of reference as to where they crossed 20 over from the east side to the west side. 21 THE COURT: Now, the first white line or 22 the second one. 23 MR. POPE: I think it was past both 24 white lines. 25 THE COURT: So that would be the . 762 1 northern, one then? 2 MR. POPE: I was just using that as a 3 point of reference, not that there was 4 anything wrong with that aspect of it. 5 THE COURT: Okay. 6 MR. POPE: When they got past the white 7 lines they crossed over and got right next to 8 the Bank of Clearwater Building, Mr. Minton 9 has his Penick Picket Pole all the way 10 extended with the injunction on the tip of it 11 and sort of dangling it in front of the 12 windows of the second story of the building 13 and I believe that if you listen to the video 14 you can hear him shouting things like no OTs 15 here. Render, stick your head out the 16 window. Render, no OTs there, no OTs there. 17 Walk tech works, things of that nature. So 18 they were pretty clearly conducting some form 19 of protest again, an area in which the court 20 had told them not to do it. 21 THE COURT: Okay. 22 MR. POPE: And again, as far as I'm 23 concerned and we'll just leave that up to the 24 court, use of the Penick Picket Pole was 25 making a mockery of the court, its authority . 763 1 and its injunction. 2 Subparagraph G -- 3 THE COURT: Are you contending there was 4 harassment? 5 MR. POPE: On this last one? 6 THE COURT: Picketing and mockery. 7 MR. POPE: Picketing and protesting and 8 making a mockery of the court. Protesting in 9 a zone they weren't allowed in for that 10 purpose and making a mockery of the court. 11 THE COURT: Okay. 12 MR. POPE: Subparagraph G deals with 13 Lerma, Bezazian and Enerson. This is where 14 they were in an authorized zone on Pierce 15 Street right next to the north edge of the 16 Ft. Harrison Hotel. They had megaphones and 17 they were yelling. They had their megaphones 18 elevated so that they were yelling and making 19 a lot of racket right into the Ft. Harrison 20 area there. The enclosed areas of 21 Ft. Harrison in a loud and raucous fashion. 22 And Ms. Bezazian, if you look at the video on 23 this, mocked the authority and dignity of the 24 court by yelling through the mega phone that 25 the injunction was stupid. . 764 1 (Whereupon, a pause in the proceedings took 2 place.) 3 THE COURT: Are you alleging or are you 4 saying this was harassment? 5 MR. POPE: I'm saying it's harassment 6 and mocking the court. 7 THE COURT: Okay. 8 MR. POPE: Subparagraph H has to do with 9 Mr. Minton he was going along Watterson on 10 the proper side, yelling through a megaphone. 11 Of course, this is one of the times when 12 he claims that the police officers on duty 13 out there are bound by the ten foot rule, so 14 he's hollering at them about their violation 15 of the ten foot rule. 16 He goes on to Watterson Street at a time 17 when the buses are coming in and unloading 18 people for the evening dinner hour. 19 The police order him off the street. 20 The police, in addition to having their 21 general powers, were clothed with the power 22 to assist in the execution of your 23 injunction by Paragraph 11. 24 In doing so they are this court's 25 agents. Mr. Minton resisted them profanely; . 765 1 called them some pretty nasty names. In 2 fact they were supremely restrained in not 3 doing something to him. They didn't. They 4 exercised restraint. He didn't. But they 5 circulate, resisted the officers, he 6 resisted an officer of this court. 7 It was an obstruction of justice either 8 under this court's contempt power which is 9 all we have before you at this moment and 10 it's certainly an obstruction of justice 11 under the Florida criminal statute. They 12 were carrying out the court's business when 13 they ordered him off the street. 14 THE COURT: Okay. 15 MR. POPE: Your Honor, I wish to 16 conclude with this general observation. 17 Mr. Howie used a phrase that I liked. He 18 used it against us. 19 He said that we had engaged in a 20 perversion of the spirit behind the 21 injunction. I couldn't have dreamed up a 22 better phrase to describe the conduct of the 23 defendants and those acting in concert and 24 participation with them. 25 Here is how they have complied with the . 766 1 spirit of the injunction. They have twisted 2 the meaning of the ten foot rule around to 3 use it as an offensive game playing weapon 4 against process servers and police officers 5 and they were insisting on here in the 6 courtroom, as well. 7 They have mocked the court's authority 8 with the Penick Picket Pole. They have 9 obstructed process servers who were acting 10 as agents of this court. They have harassed 11 these people with excessive yelling and 12 noise and horn honking and obscene comments. 13 They have blocked and cursed police 14 officers. 15 I would say, Your Honor, that that's a 16 perversion of the spirt behind the 17 injunction. I would suggest to you that 18 there has been absolutely no good faith 19 effort and compliance with this injunction 20 by the defendants. 21 What there has been instead is game 22 playing, having a wonderful time. This is 23 just a piece of paper, it really doesn't 24 mean anything. 25 Your Honor, I think it means something . 767 1 and I would conclude this with my favorite 2 quotation from Felix Frankfurter: Fragile 3 as reason is and limited as law is as the 4 institutionalized medium of reason, that's 5 all we have standing between us and the 6 tyranny of mere will and the cruelty of 7 unbridled, undisciplined feeling. The law 8 is all we have, Judge. We either have the 9 law or we have the mob. 10 I'd like us to have the law in this 11 community. And I would like you to tell 12 these folks they need to tow the line on 13 your injunction. Thank you. 14 THE COURT: Thank you, Mr. Pope. All 15 right. Let's do this. Let me see the 16 attorneys in my chambers please, Madam Court 17 Reporter. 18 (Thereupon, the following proceedings were 19 had out of the presence of the audience:) 20 MR. POPE: Your Honor, I failed 21 miserably this morning to introduce Helena 22 Kobrin who is a member of Florida Bar. 23 Mr. Hertzberg had to go to New York on a 24 matter he couldn't avoid yesterday and she 25 has come to be with me and give me a hand in . 768 1 this matter. 2 THE COURT: Okay. Do you have a card? 3 MR. POPE: She filed her notice of 4 appearance about a week ago, I believe, in 5 this case. 6 THE COURT: Okay. 7 MS. KOBRIN: I have a card in the 8 courtroom. 9 THE COURT: Okay. Give me your name 10 again. 11 MS. KOBRIN: Helena, H-E-L-E-N-A. 12 THE COURT: Uh-huh. 13 MS. KOBRIN: Kobrin, K-O-B-R-I-N. 14 THE COURT: Okay. 15 MR. POPE: I have a request if I could 16 make it, Your Honor. My daughter is in town. 17 I haven't seen her in two years. 18 THE COURT: Here's what I'm going to do 19 so you all know. That's why I brought you 20 all in here. 21 MR. POPE: All right. 22 THE COURT: I want this off the record 23 just a minute. 24 (Discussion was had off the record.) 25 . 769 1 (Thereupon, the sidebar conference was 2 concluded and a short recess took place after 3 which the proceedings continued.) 4 THE COURT: All right. At this time we 5 will go to rebuttal on the judgment of 6 acquittal argument. Mr. Merrett, sir, I will 7 allow you to go first, please. 8 MR. MERRETT: Thank you, Your Honor. 9 Your Honor, you closed with a quote from 10 Felix Frankfurter. 11 THE COURT: I did? 12 MR. MERRETT: You didn't, we did. 13 THE COURT: Okay. 14 MR. MERRETT: And I will open rebuttal 15 with a quote from Felix Unger from the Odd 16 Couple to wit, I can't believe you're going 17 to eat that. 18 The argument that has been presented to 19 you is simply why, why, why? 20 THE COURT: I'm sorry, Felix who? 21 MR. MERRETT: Felix Unger, the character 22 from the Odd Couple. The fussy one. 23 THE COURT: Okay. 24 MR. MERRETT: The argument is wide of 25 the mark, very wide of the mark and I . 770 1 promised the court that I would be brief in 2 responding and I will do that. 3 First off, analytically at least, 4 Mr. Pope claims that we are before the court 5 on any generalized allegation of contempt of 6 court however framed or founded. 7 In your amended and consolidated order 8 to show cause, that's the longer one, I 9 think what has been dealt with first in all 10 of these? 11 THE COURT: Would that be the January 4 12 one? 13 MR. MERRETT: Yes, sir. In the initial 14 paragraph you make it clear that all you're 15 doing is reissuing the prior orders to show 16 cause and you say all of which orders 17 concerned allege violations of this court's 18 injunction of November 30 as clarified and 19 corrected, etcetera, etcetera, etcetera and 20 then commands reappearance, so that one is 21 concerned solely with violations of the 22 injunction as for the antecedent orders to 23 show cause that were rolled into it. 24 Secondly, the other order to show cause, 25 the January 10 order specifically commands . 771 1 Mr. Minton, Mr. Lerma, Mr. Enerson, 2 Ms. Bezazian, and Ms. Gogolla to show cause 3 why they should not be held in contempt for 4 having violated the court's injunction of 5 November 30, 2000. So the issue before the 6 court is whether or not the conduct charged 7 represents a violation of the injunction, 8 not whether it is generically contempt of 9 court. 10 Now, the first point that I want to 11 touch beyond that is the argument regarding 12 the authority of police officers to enforce 13 and execute your injunction. 14 In the first place, and I guess I'm 15 working backwards chronologically on the 16 January 7 incident when Mr. Minton was in 17 the street, it is very clear that there was 18 absolutely no evidence that there was 19 anybody there other than Mr. Minton and his 20 companions, the police officers and 21 Mr. Avila who was also standing in the 22 street at the time. 23 The testimony of Mr. Avila was that this 24 occurred during the hours at which people or 25 rather buses normally come and go. There is . 772 1 no traffic shown on the videotape. There 2 was no testimony of any traffic. There are 3 no people on the videotape other than the 4 police officers, Mr. Minton and Mr. Minton's 5 companions and by inference, Mr. Avila 6 standing behind the camera so there is 7 absolutely no way at all there is any 8 evidence that ordering Mr. Minton out of 9 street could have been in furtherance of any 10 enforcement of your injunction assuming that 11 that's what that provision means. 12 If that revision actually meant that 13 they were entitled to enforce your civil 14 injunction, that would mean that they were 15 entitled to arrest people for violations of 16 it and they're not. 17 Now, an interesting, just the position 18 between the conduct of Scientology and the 19 conduct that they're claiming is criminal on 20 the part of persons critical of Scientology 21 is this. 22 Mr. Henson, they argued to you that 23 handling the camera that was hanging next to 24 the rat bait building or on the rait bait 25 building constituted harassment in a . 773 1 genuinely absurd light of rhetoric, 2 harassment of every member of the Church it 3 is suppose to protect and as Mr. Elkamel who 4 was sitting 500 yards away somewhere in a 5 bunker in the Ft. Harrison Hotel. 6 Now, the first point is this. If that 7 was harassment, then clearly, clearly 8 Antonio Avila walking into the orange area 9 on Pierce Street north of the Ft. Harrison 10 Hotel for the purpose of using the camera 11 was harassment, but he's not here charged 12 with that because that's ridiculous. 13 Now, secondly, in that connection I want 14 to look at the legal definition of 15 harassment and I suspect that the principle 16 reason that we were favored with Black's Law 17 Dictionary and Webster's Dictionary rather 18 than statutes or case law was that statutes 19 or case law make it clear that what happened 20 there was not harassment. 21 May I approach the court? 22 THE COURT: All right. 23 MR. MERRETT: I'll go through these 24 briefly. What I have prepared for the court 25 is a number of statutory and judicial . 774 1 definitions of harassment in various 2 contexts. 3 The first one that you have before you 4 is Section 784.048 Florida Statutes in 5 paragraph 1A defines harassment saying to 6 harass means to engage in a course of 7 conduct directed at a specific person to 8 cause it substantial emotional distress in 9 such person and serve no legitimate purpose. 10 Moving into the next document that you 11 have, that is a copy of Section 817.568 12 Florida Statute and in Paragraph 1C it 13 defines harass this way. It means to engage 14 in conduct directed at a specific person 15 that is intended to cause substantial 16 emotional distress to such persons and serve 17 no legitimate purpose. Harass does not mean 18 to use personal identification, etcetera. 19 The term does not include constitutionally 20 protected conduct such as organized 21 protests. 22 The next document, Section 914.24 23 Florida Statutes on the third page of 24 the -- 25 THE COURT: Hold on. Just stop. Just a . 775 1 minute. I'm getting too far behind. 2 MR. MERRETT: Okay. 3 (Whereupon, a pause in the proceedings took 4 place.) 5 THE COURT: I'm sorry, which document 6 are you at now? 7 MR. MERRETT: We're now on the third one 8 which is Section 914.24 and the last page of 9 that copy that you have. 10 THE COURT: I've got it, sir. 11 MR. MERRETT: Subparagraph 3A. 12 THE COURT: Yes, sir. 13 MR. MERRETT: Contains the same 14 definition of harassment directed to the 15 specific person causing emotional distress 16 and serving no legitimate purpose. 17 THE COURT: Okay. 18 MR. MERRETT: The next document that you 19 have is a case out of the Second District 20 Court of Appeal Rouse verses Rouse, 595 So. 21 2d. 1013, Second District, 1992. And at the 22 third and last page of that opinion the court 23 adopts Webster's New World Dictionary 24 definition of harassment saying that harass 25 is to trouble, worry, or torment as with . 776 1 cares, death, repeated questions, etcetera. 2 And then in the next document that you 3 have which is State versus Miranda, another 4 Second District case, 644 So. 2d. 342, that 5 involved a violation of injunction for 6 protection which prohibited, among other 7 things, harassment of the petitioner. 8 On the second page of that opinion you 9 see at footnote three which because this 10 came off the computer instead of out of a 11 book it's in the middle of the page, 12 footnote three tells you what the language 13 of the injunction was and then footnote four 14 refers to the definition found in section 15 784.048 defining harassment as the same way 16 that it occurred and specifically excluding 17 picketing and other organized protests. 18 The most compelling flaw, however in 19 Mr. Pope's argument is this. He says they 20 were in an area where they had a right to 21 picket these various occasions and they were 22 picketing, however, they were being loud, 23 they were being annoying. 24 Harassment according to the definition 25 he presented to you included annoyance, . 777 1 therefore your injunction prohibits people 2 from doing anything annoying even in the 3 context of protected First Amendment 4 activity. 5 Now, again as I mentioned yesterday the 6 court is aware because the case came out of 7 St. Petersburg that speech is never a breach 8 of the peace unless it is fighting words or 9 involves a false warning of physical danger. 10 Jumping next to the issues involving the 11 process servers. 12 THE COURT: Yes, sir. 13 MR. MERRETT: I would simply remind the 14 court, number one, as of November 30 your 15 injunction had not been modified at all and 16 prima facie prohibited anybody working for 17 Scientology which presumably includes anybody 18 getting intelligence information from Judy 19 Ross about where people are going to dinner 20 when they walk out their back door from 21 coming within ten feet of any of the 22 respondents in the injunction. 23 Additionally, there is no evidence that 24 the modification was entered or served prior 25 to the time of the incident with . 778 1 Mr. Kronschnabl. 2 In other words the injunction that was 3 in place at that time prima facie prohibited 4 anybody who was an agent from coming within 5 ten feet. 6 The other thing that you have to 7 remember is this. To the extent that it is 8 true and of course as to the extent the 9 process server they come out of executive 10 department, not the judiciary, but to the 11 extent that it is true that these process 12 servers are agents of any branch of 13 government, the Fourth Amendment applies to 14 all of their activities. 15 That is an indisputable constitutional 16 fact which means that absent a recognized 17 exception, a warrant is required to enter or 18 remain on private property in furtherance of 19 public business. 20 You don't have to let the police in your 21 house unless they got a warrant. You don't 22 have to let anybody in your house unless it 23 is an officer carrying a warrant that 24 authorizes entry. 25 Mr. Pope asked you specifically and I'll . 779 1 just give you the citations and a real brief 2 synopsis of what it says. What the law that 3 says Mr. Kronschnabl can't be there? It's 4 Section 810.08. 5 THE COURT: Section what, sir? 6 MR. MERRETT: 810.08 Florida Statute. 7 THE COURT: Yes, sir. 8 MR. MERRETT: Which says anybody that 9 enters a structure or dwelling without being 10 authorized or remains after being instructed 11 to leave is guilty of the crime of trespass. 12 That's the one that says he didn't have a 13 right to be there. 14 Then it says any person. The statute 15 that authorized me to put my hands on him is 16 section 776.03, you believe it's 031. It 17 may be 039. 18 THE COURT: 776. 19 MR. MERRETT: 03, I think it -- it may 20 just be 03. I don't know look. 21 THE COURT: All right. 22 MR. MERRETT: Anyway, it's use of force 23 in defense of self or others and it 24 specifically provides that a person who has a 25 right to occupy property is entitled to use . 780 1 any force short of deadly force to terminate 2 the trespass of another person on that 3 property. 4 Lastly, I would direct the court's 5 attention to section 901.19, which 6 provides -- 7 THE COURT: 901.09? 8 MR. MERRETT: Yes, sir. 9 THE COURT: Okay. 10 MR. MERRETT: Which provides specific 11 authority for an officer, for a police 12 officer or deputy sheriff, a law enforcement 13 officer who carries a warrant to break into a 14 building or container or home if he is armed 15 with a warrant and denied entry. 16 What I'm actually referring the court to 17 is the doctrine Expressio Unius Es Exclusio 18 which means to say one thing is to exclude 19 all others. There is no corollary statute 20 giving a process server the right to enter 21 or remain over the objection of the property 22 holder. If there was, Judge, you would have 23 seen it. 24 I mean we have heard Mr. Kronshnabl say 25 that, but there is no law that allows them . 781 1 again, gynecologist office, proctologist 2 office, church, dinner, anywhere. 3 Now, if Mr. Pope is right about 4 Mr. Minton running from the process server 5 being -- forget it's clearly not a violation 6 of the injunction but largely because she 7 told you she was serving papers other than 8 papers for this court and the exception 9 applied only to agents, to process servers 10 serving process of your court is what it 11 says. 12 She told him that she had a bunch of 13 paper, so many she couldn't remember them 14 and she admitted that some of them were from 15 another case and this is only case you've 16 got involving Mr. Minton. 17 But beyond that, Mr. Pope is right in 18 anybody who refuses to go -- 19 THE COURT: Hold on a minute. I was 20 having trouble hearing you. I'm sorry. 21 MR. MERRETT: If Mr. Pope is correct and 22 Mr. Minton running away from the process 23 server is a violation of the injunction or if 24 it were cognizable in this proceeding to 25 stand alone contempt of court that anybody . 782 1 that refuses to come to the door when a 2 process server is on the porch is guilty of a 3 crime. 4 Take a look, if you would, Judge, at the 5 diagram of the Coachman Building. You will 6 see there is not a driveway on the south 7 side that's covered by your injunction. 8 The driveway is on the east of the 9 building. There is an alley, but the 10 driveway is off of the alley. The sidewalk 11 extends all the way down the property line 12 on the south side of the Coachman Building, 13 which means that they couldn't have been 14 walking back and forth across the driveway 15 in the parking lot, because he said that at 16 all times they were side of the Coachman 17 Building. They were on that sidewalk on the 18 south side. 19 That sidewalk stops, picks up again on 20 the other side of alley and the entrance is 21 around the corner. 22 Lastly, coming into the home stretch, 23 Your Honor, Mr. Pope seems to have failed to 24 check the legal definition of embarrassment. 25 It's not things that make the court blush. . 783 1 It means to hinder or to prohibit in the 2 carrying out of duty. And this is the real 3 end of it. 4 Mr. Pope has described for you the 5 civilization that Scientology is trying to 6 build and it's not one that any American 7 government or any American law has ever 8 permitted. 9 He wants you to find people in contempt. 10 Assume it's true that people are making fun 11 of the judge. I'll be direct. Assume that 12 people are making fun of you. 13 People have a right to do that, Judge. 14 People have a right to criticize judges just 15 like they have a right to criticize the 16 President and I realize that under 17 Scientology's rules that's punishable as a 18 crime, but that's not punishable in the 19 United States of America. 20 Embarrassing a judge by criticizing his 21 decision is not a violation of anything. It 22 is an absolute constitutional right. 23 Mr. Pope talks about the spirit of the 24 injunction. This is a criminal proceeding. 25 People cannot be convicted for violating the . 784 1 spirit of anything. 2 As for Ms. Bezazian, if you will listen 3 to the tape she is talking to the OSA 4 operatives, to Mr. Avila and to whoever 5 Mr. Shaw, Mr. Render, whoever is going to 6 end up viewing the tape and saying this is 7 your doing. This is your stupid injunction 8 and it says we have a right to be here. 9 OSA, you did it again. You make your own 10 enemies. 11 But in any event, Judge, the bottom line 12 is and I know the court knows this because 13 you've dealt with the press before and with 14 First Amendment issues and in prominent ways 15 people have a right to criticize the 16 judiciary just like any other. 17 Now, nobody has the right to stand in 18 here and criticize you, but people have the 19 right to stand on the courthouse steps. I 20 mean you see them all time in different 21 parts of the country saying that, you know, 22 that the judiciary as a whole is this, that 23 and the other. People have a right to do 24 it. 25 The bottom line is this. The reason . 785 1 that we're here is because Mr. Pope, 2 Mr. Shaw, Mr. Miscavige, Mr. Render are 3 upset that you didn't prohibit picketing; 4 that you followed the law. 5 That's why we're here because you 6 followed the law and because these people 7 are following your injunction. Thank you. 8 Judge, I apologize. I stole five 9 minutes of Mr. Howie's time. 10 THE COURT: I'll give to him. I'll just 11 take it off your next time. I'm kidding. Go 12 ahead. 13 MR. HOWIE: Thank you. May it please 14 the court, in the interest of time I will 15 adopt Mr. Merrett's arguments as to 16 Mr. Minton but I would like to make a couple 17 of other observations. 18 Mr. Pope, again argued in the camera 19 incident that this constituted harassment 20 because the camera was being used by a 21 Church member monitoring it and therefore 22 that member was harassed. Not withstanding 23 whether that member would have been within 24 five thousand feet of the incident, I would 25 point out that in my cross-examination of . 786 1 Mr. Avila he provided absolutely no evidence 2 whatsoever that the camera was even in use 3 at the time. He certainly indicated that he 4 was not aware of any video through that 5 camera at the time. 6 I submit there is absolutely no evidence 7 that that camera was even operable or was in 8 use at that time. There is no evidentiary 9 basis for Mr. Pope's argument on that point. 10 Next, I would point out that Mr. Pope is 11 relying very heavily on this court's order 12 of December 1, 2000 in which you modify the 13 injunction by saying it doesn't extend to 14 process servers, but what the court really 15 said in that case in the last paragraph of 16 that order, such process server would be an 17 agent of this court for the purpose of 18 serving process. And we know what the 19 definition of serving process is. 20 Mr. Minton had already been served 21 process in this matter some time before. 22 What was in the process server's hands taken 23 in the light most favorable to the 24 petitioner in this matter are pleadings that 25 should have been served properly through the . 787 1 rules of civil procedure, on the attorney 2 who had filed his notice of appearance in 3 this case, namely me, by mail. And there 4 was no purpose served in sending that 5 process server out. 6 And if he is suggesting that somehow 7 it's a contempt of this court's December 1 8 order, I would submit that that order was 9 issued by this court without benefit of 10 hearing of prior notice to Mr. Minton. 11 So, I hardly think that the petitioner 12 can rely on this court's December 1 order 13 for purposes the finding Mr. Minton in 14 contempt for turning and running from a 15 process server. 16 Your Honor, I would also point out that 17 in the course of the last 22 years I've 18 probably represented between 50 and 100 19 people charged with obstruction or opposing, 20 either a felony or misdemeanor level and I 21 have yet to hear a judge say by the way, not 22 only am I going to find you guilty of 23 obstructing and opposing, I'm going to hold 24 you in contempt of court. That is not what 25 we use that law for. . 788 1 Again, it's an attempt to enforce the 2 criminal law through the use of an 3 injunction. 4 I would rely on Mr. Merrett's arguments 5 concerning harassment. I would only take it 6 one step further and say with all the 7 honking, all the yelling, all the 8 megaphoning that went on here, not once did 9 they present any competent evidence that a 10 member of the Church as indicated here in 11 admonition number four, harassment of 12 violence against members of the Church, that 13 any member of the Church was in fact 14 harassed by the noise as harassment is 15 defined under the law as Mr. Merrett 16 presented it. So it was a complete failure 17 of any evidence to show harassment. That 18 is, the causing of emotional distress 19 without any legitimate purpose. 20 And again, I would point out that such 21 an interpretation would result in the court 22 stating that Mr. Minton and others were not 23 allowed to exercise their First Amendment 24 rights in a place where they have a right to 25 do so. . 789 1 I would also point out that your 2 injunction does not specify the noise level. 3 It only says again you are not to harass 4 members of the Church Scientology. 5 Unless they present evidence that there 6 was actually harassment, all the evidence in 7 the world about noise levels does not 8 constitute a violation of the injunction. 9 It was suggested that the Threep is a 10 mockery of the court's order. Apart from 11 the argument that this is a total misuse of 12 the term "embarrass" which means to impede 13 or hinder the court as Mr. Merrett pointed 14 out, it is clear that the purpose of the 15 Threep being a ten foot pole is in 16 conjunction with the court's ten foot rule 17 that people stand ten feet away. 18 The purpose of the Threep is clear. It 19 serves two purposes; keep members of the 20 Church subject to the injunction and 21 obedience to the injunction while at the 22 same time informing them that there is an 23 injunction in existence in case they hadn't 24 heard. 25 Now, it's been argued that this is . 790 1 somehow a mockery of the injunction. It is 2 not. It is an enforcement of the 3 injunction. And I would point out that 4 notwithstanding their arguments at least 5 Mr. Minton and others didn't hurl this 6 court's injunction at the feet of the 7 opposing side in an effort to get compliance 8 with the injunction. 9 Concerning the incident at the 10 Clearwater Bank, the petitioner argues that 11 Mr. Minton was the one shouting no OTs there 12 and stick your head out the window. I would 13 point out that if the court listens closely 14 to the tape you will see which individual 15 had the megaphone that day and the person 16 with the megaphone was standing in the 17 orange area which allowed him to make 18 whatever legitimate demonstration he wanted 19 to while Mr. Minton walked by the bank 20 building. 21 My point is that there is again no way 22 to describe Mr. Minton, the shouting that 23 was going on across the street. 24 Finally, concerning the incident on 25 Watterson involving the two police officers. . 791 1 There has been no connection made, either in 2 the evidence or under the law between police 3 on the beat and the proper functioning of 4 this court. 5 When a person has an argument with a 6 police officer on a street corner it does 7 not go to the proper function of the court, 8 does not embarrass the court in its efforts 9 to function. 10 It is handled through the criminal law 11 if it rises to either the level of 12 disorderly conduct or an obstruction of a 13 police officer. 14 There is nothing in this injunction that 15 prohibited what Mr. Minton is shown doing on 16 the video that night. It does not act to 17 interfere with the spirt of this injunction. 18 No connection has been made between that 19 activity, this injunction and the court's 20 power to find people in contempt of court. 21 Again, I request that the court grant 22 the judgment of acquittal as to all seven 23 counts as to Mr. Minton. 24 THE COURT: Mr. Howie, I thank you very 25 much, sir. Attorneys I thank you. Well . 792 1 argued on behalf of your respective clients 2 and now the ball is my court. 3 I'll see you all Thursday morning, nine 4 o'clock here and at that time I will let you 5 know on my ruling on the JOA and in the 6 cases -- let's just be ready to go and if yo 7 don't have do to something you won't have to 8 worry about. 9 MR. MERRETT: Judge, you I have one 10 housekeeping matter. Mr. Henson has asked me 11 to request of the court that you swear him in 12 and give him leave to return to California to 13 work and -- 14 THE COURT: Mr. Henson, yeah. That's 15 fine. Come forward to the rostrum. 16 Thereupon: 17 KEITH HENSON 18 was called as a witness and having been duly sworn, was 19 examined and testified as follows: 20 THE COURT: Thank you, sir. State your 21 name for the record. 22 MR. HENSON: Keith Henson, Howard Keith 23 Henson. 24 THE COURT: You over the age of 18? 25 MR. HENSON: Yes, I I'm. . 793 1 THE COURT: Okay. And you are the Keith 2 Henson that the show cause in this case has 3 been issued against? 4 MR. HENSON: Yes, Your Honor. 5 THE COURT: Okay. And you understand 6 that you have a constitutional right to be 7 present at all times during these 8 proceedings, you have a right to testify on 9 your behalf, you have a right to present 10 witnesses, you have right to have witnesses 11 compelled to come testify on your behalf if 12 they won't come voluntarily and you also have 13 a right to remain silent. You don't have to 14 say too, you understand all that? 15 MR. HENSON: Yes, Your Honor. 16 THE COURT: One of things, you do a have 17 right to be here. 18 MR. HENSON: Yes, Your Honor. 19 THE COURT: Okay. Now, you can also 20 waive any of those rights, you can waive the 21 right to be here. Now, the case will go 22 forward and Mr. Merrett told me that he 23 represents you and you have a right to 24 communicate with him, stay in communications 25 with him and if you wanted to testify you can . 794 1 testify by video camera. That has been 2 allowed in criminal cases. 3 Now, do you understand all that? 4 MR. HENSON: I understand that, Your 5 Honor. Could I also testify by telephone? 6 MR. POPE: Your Honor, I -- 7 THE COURT: No, that's a problem in a 8 problem in criminal case, sir. The problem 9 there is that the opposition certainly has a 10 right to see you person and view credibility 11 in a criminal case. 12 MR. HENSON: If they have an objection 13 Your Honor, I suppose I'll have to either 14 testify by video or stay here. 15 MR. POPE: I want to be able to see this 16 man if he's going to testify either on video 17 or in person. 18 THE COURT: All right. Let the record 19 so reflect. 20 MR. HENSON: Never mind, Your Honor. 21 I'll stay. 22 THE COURT: All right. Thank you very 23 much. 24 Now, ladies and gentlemen, we'll start 25 at nine o'clock Thursday morning. We will . 795 1 secure the courtroom again if you want to 2 leave stuff here. And thank you all for 3 everything so far and we look forward to 4 picking it up and going ahead at 5 nine o'clock Thursday, the 15th day of 6 February, 2001, here in this courthouse in 7 this courtroom. Thank you. 8 (Thereupon, the trial was adjourned to 9 reconvene at 9:00 AM on February 15, 2001.) 10 11 12 End of Volume VI 13 14 15 16 17 18 19 20 21 22 23 24 25 .