IN THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT

OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF KOOTENAI

STATE OF IDAHO, CASE NO. CR28-22-8769

Plaintiff,
v.
APPELLANT’S BRIEF
DEVIN WAYNE CENTER,

Defendant.

APPEAL FROM THE MAGISTRATE DIVISION OF THE FIRST

JUDICIAL DISTRICT IN AND FOR THE COUNTY OF KOOTENAI
STATE OF IDAHO

THE HONORABLE JAMES D. STOW

Magistrate judge, Presiding

Kinzo H. Mihara, ISB 7940 Ryan S. Hunter

MIHARA LAW PLLC 923 N. Third Street Deputy City Attorney
Coeur d’Alene 83814 Coeur d’Alene Prosecutor’s Office
Telephone: (208) 304-3850 710 E. Mullan Avenue
Facsimile: (208) 620-2200 Coeur d’Alene 83814
khmihara@miharalawgllcsom Attorney for Plaintiff / Respondent
Attorney for Defendant / Appellant

Glen K. Allen
Glen Allen Law
5423 Springlake Way
Baltimore, MD 21212
Telephone: 410-802-6453
Glenallenlaw@protonmail.com
Attorney for Defendant / Appellant (pro hac vice application pending)
 TABLE OF CONTENTS

Pages

TABLE OF AUTHORITIES …………………………...……………………...………… iii-iv

STATEMENT OF CASE …………………………………………………………………….1

ISSUES ON APPEAL …………………………………………………………………… 15-16

STANDARD OF REVIEW ………………………………………………………………… 16

ARGUMENT ………………………………...……………………………………………… 17

I. LAW ENFORCEMENT’S FAILURE TO PROVIDE REASONABLE

PROTECTION AND ACCOMODATION FOR APPELLANT’S
RIGHTS OF FREE SPEECH AND ASSEMBLY EFFECTIVELY
CREATED AN UNCONSTITUTIONAL PRIOR RESTRAINT,
VIOLATED APPELLANT’S RIGHTS UNDER THE FIRST
AMENDMENT AND IDAHO CONSTITUTION, AND TAINTED
APPELLANT’S ARREST, PROSECUTION, AND CONVICTION………..17

II. THE IDAHO CONSPIRACY TO RIOT STATUTE, AS APPLIED

TO THIS CASE, CRIMINALIZES CONDUCT PROTECTED BY THE
FIRST AMENDMENT AND IDAHO CONSTITUTION AND IS
UNCONSTITUTIONALLY VAGUE AND OVERBROAD ……………….. 24

A. Overview of State v. Poe and State v. Hammersley ………………………… 25

B. In Accordance with the As-Applied Standard Articulated in State v. Poe,

§ 18-6409 Unconstitutionally Infringed Appellant’s Freedom of
Speech; His Conviction, Accordingly, Must Be Reversed…………………. 26

III. NUMEROUS FREE SPEECH ISSUES, INCLUDING WHETHER MR.

ROUSSEAU’S SPEECH CONSTITUTED “FIGHTING WORDS” AND
WHETHER APPELLANT’S CONDUCT EXCEEDED “TIME, PLACE,
AND MANNER” RESTRICTIONS, SHOULD HAVE BEEN DECIDED BY
THE COURT AS A MATTER OF LAW BUT INSTEAD WERE
IMPROPERLY SUBMITTED TO THE JURY …………………………....... 34

ii
 IV. THE JURY’S VERDICT WAS NOT SUPPORTED BY SUFFICIENT
EVIDENCE AND RATIONAL INFERENCES FOR APPELLANT’S
GUILT BEYOND A REASONABLE DOUBT AS TO ALL REQUIRED
ELEMENTS OF THE CRIME OF CONSPIRACY TO RIOT, IN
PARTICULAR THE REQUIRED ELEMENT THAT THE DEFENDANT
ACTED “WITHOUT AUTHORITY OF LAW” ……………………………... 36

V. THE TRIAL COURT’S CONSOLIDATION INTO ONE SINGLE

CRIME OF SUCH DISPARATE OFFENSES AS MAKING LOUD OR
UNUSUAL NOICES, TRADUCING, AND THREATS OF VIOLENCE
VIOLATED APPELLANT’S RIGHT TO A UNANIMOUS JURY
VERDICT ……………………………………………………………………… 37

VI. THE TRIAL COURT’S DENIAL OF APPELLANT’S MOTION TO

COMPEL THE STATE TO PRODUCE EXCULPATORY BRADY
EVIDENCE VIOLATED APPELLANT’S DUE PROCESS RIGHTS,
WHICH WERE ALSO VIOLATED IN OTHER WAYS ………………….. 39

CONCLUSION ………………………………………………………………………………. 40

CERTIFICATE OF SERVICE ……………………………………………………………... 41

iii
 TABLE OF AUTHORITIES

Cases

Pages

Americans for Prosperity Foundation v. Bonta, 594 U.S. ---, 141 S.Ct 2373 (2021) … 30

Bible Believers v. Wayne County, Mich., 805 F.3d 228 (2015) (en banc)……… 18-20, 28

Bouton Const. Co. v. H. F. Magnuson,133 Idaho 756 (1999) …………………… 16

Boos v. Barry, 485 U.S. 312 (1988) ……………………………………………. 27, 29

Bose Corporation v. Consumers Union of United States, Inc., 466 U.S. 485 (1984).. 33, 35

Brady v. Maryland, 373 U.S. 83 (1963) ……………………………………………… 39-40

Cantwell v. Connecticut, 310 U.S. 296 (1940)………………………………………… 22

City of Lewiston v. Frary, 91 Idaho 322, 420 P.2d 805(1966) …………………………. 15

Cohen v. California, 403 U.S. 15 (1971) ……………………………………………….. 28

Counterman v. Colorado, 606 U.S. 66, 143 S.Ct. 2106 (2023) …………………… 26, 34, 39

Cox v. Louisiana, 379 U.S. 536 (1965) ……………………………………………… 22

Don’t Shoot Portland v. City of Portland, 465 F.Supp.3d 1150 (D. Ore. 2020) ………. 29

Edwards v. South Carolina, 372 U.S. 229 (1963) ………………………………………. 22

Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123 (1992) ……………………….. 29

Grayned v. City of Rockford, 408 U.S. 104 (1972)……………………………………. 22

Gregory v. City of Chicago, 394 U.S. 111 (1969). ………………………………………. 18

Grube v. State, 134 Idaho 24, 995 P.2d 794 (2000) ……………………………………... 33, 35

Hedges v. Wauconda Unit Sch. Dist. No. 118, 9 F.3d 1295 (7th Cir. 1993) ……………… 20

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)…………………………………… 28

IDHW v. Doe, --- Idaho ---, 537 P.3d 1252 (2023) ……………………………………….. 15

iv
Lunneborg v. My Fun Life, 163 Idaho 856, 421 P.3d (2018)………………………………. 40

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) …………………………. 30

NAACP v. Alabama, 357 U.S. 449 (1958) ……………………………………………….. 29, 30

Near v. Minnesota, 283 U.S. 697 (1931) …………………………………………………. 23

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976)……………………………………. 23

New York Times v. Sullivan, 376 U.S. 254 (1964) ……………………………………….. 32

Organization for a Better Austin v. Keefe, 407 U.S. 415 (1971) …………………………. 22

Ovadal v. City of Madison, Wisconsin, 416 F.3d 531 (7th Cir. 2005) …………………….. 20

Snyder v. Phelps, 562 U.S. 443 (2011) ……………………………………………….. 27, 32, 35

Southeastern Promotions, Ltd v. Conrad, 420 U.S. 546 (1979) ………………………. 22

State v. Hammersley, 134 Idaho 816, 10 P.3d 1285 (2000) ……………………………. 25-26

State v. Johnson, 156 Idaho 359 (2014). ……………………………………………….. 36

State v. Lewis, 144 Idaho 64, 156 P.3d 565 (2007). …………………………………….. 39

State v. Poe, 139 Idaho 885, 88 P.3d 704 (2004)………………………………… 24-25, 28, 33

State v. Thurman, 134 Idaho 90, 996 P.2d 309 (2000)…………………………… 1

States v. Reyes, 169 Idaho 781 (2022) ……………………………………………. 40

State v. Roth, 166 Idaho 281 (2020) ……………………………………………….. 17

State v. Tyron, 164 Idaho 254 (2018)………………………………………………. 36

Talley v. California, 362 U.S. 60 (1960) …………………………………………… 29

Terminiello v. City of Chicago, 337 U.S. 1 (1949)………………………………….. 32

Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969) … 28

Ward v. Rock Against Racism, 491 U.S. 791 (1989) ………………………………… 22

Watters v. Otter, 955 F.Supp.2d 1178 (D. Idaho 2013) ………………………………. 31

v
United States. v. Gipson, 553 F.2d 453 (5th Cir. 1977) ………………………………. 38

United States v. Jones, 574 F.3d 546 (8th Cir. 2009) ………………………………….. 15

United States v. Playboy Entm’t Grp., 529 U.S. 803 (2000)……………………………. 22

United States ex rel. Robinson Rancheria Citizens Council v. Borneo,

971 F.2d 244, 248 (9th Cir. 1992) ………………………………………………………. 15

Other Authorities

Burton Caine, The Trouble with “Fighting Words”: Chaplinsky v. New Hampshire
Is a Threat to First Amendment Values and Should Be Overturned,
88 Marquette L.R. 443, 493-97 (Winter 2004)…………………………………………… 27

Statutes

Idaho Code § 18-1701…………………………………………………………………… Passim

Idaho Code § 18-6409…………………………………………………………………… Passim

Idaho Constitution, Article I, Section IX ……………………………………………….. Passim

United States Constitution, First Amendment …………………………………………… Passim

vi
 STATEMENT OF THE CASE

This case presents Freedom of Speech and Assembly issues under the First Amendment of

the United States Constitution and Idaho Constitution, Article I, Section IX,1 that are of

extraordinary importance, especially in light of the ideological disputes that divide our country

today. Given how starkly these free speech issues are presented, this case can fairly be viewed as

a test case – testing whether these rights will be respected when the speech in question may be

considered objectionable by those with authority. As explained in this brief, the arrest,

prosecution, and conviction of the Appellants failed this test, for many reasons.

The Appellant in this case, Devin Center,2 together with other Appellants James Johnson,

Forrest Rankin, and Robert Whitted, all members of an organization called Patriot Front, were

convicted of an alleged conspiracy to riot under Idaho Code §§ 18-1701 and 18-6409, sometimes

described by the prosecution as a conspiracy to disturb the peace but more accurately characterized

as the noncriminal conduct of preparing to protest in an organized and nonviolent manner. In

reality, the Appellants did nothing more or less than make preparations to exercise their free speech

rights in a well-organized way that would have aspects of a spectacle and thereby bring notice to

their political message. Making Appellants’ convictions even more unjust was the trial court’s

1
This brief relies primarily on federal cases, which Appellant believes are fully sufficient to
mandate reversal of his conviction. If required, however, Idaho Article, Section IX should be
interpreted to provide even broader protection of Appellant’s rights to freedom of speech and
assembly. See, e.g., State v. Thurman, 134 Idaho 90, 97, 996 P.2d 309, 316 (2000) (“It is well
settled that Idaho courts are free to interpret provisions of the Idaho Constitution to provide greater
protection than their corresponding provisions of the United States Constitution.”).
2
The prosecutions of James Johnson (Case No. CR28-22-8761), Forrest Rankin (CR28-22-8763),
and Robert Whitted (CR28-22-8589) were consolidated into Mr. Center’s prosecution (CR28-22-
8769, the present case) for trial. Johnson, Rankin, and Whitted were all convicted together with
Mr. Center of conspiracy and have all filed identical appeals based on the same facts and legal
issues. This brief, accordingly, will frequently refer to all four defendants as “Appellants” (plural),
with the understanding that what was applicable for Appellants as a group is also applicable to
each Appellant, including Mr. Center in this case, as individuals.
denial of the Appellants’ motion to compel the State to produce exculpatory Brady and / or

Youngblood evidence, namely, the contents of a cell phone that would have corroborated that

Appellants had no intentions of committing the supposedly intimidating actions the State charged

them with committing.

The chain of events leading to Appellants’ arrest began with a 911 call from a man named

“Keith” on the afternoon of June 11, 2022. See generally Trial transcript, July 18, 2023, pages

125-42. Keith, an Army veteran, had observed several cars and a U-Haul truck pull into the

parking lot of a hotel located three or four miles from downtown Coeur d’Alene. Id. at 128-30;

141. He watched as several young men exited the cars and climbed into the back of the U-Haul.

Id. at 130-31. He observed that the young men, whom he described as “impressive . . . strong good

guys” (id. at 141), wore the same type of clothes. Id. at 131. He noticed the young men had poles

of some type. Id. He did not see the young men cause any trouble. Id. at 141. He described their

actions as “organized and very precise.” Id. at 131. Finding the scene “highly unusual,” (id. at

138), he made a 911 call and stayed on the scene until law enforcement arrived about 10 minutes

later. Id. at 136.

Keith’s 911 call was received by the Coeur d’Alene Police Department at a time when that

department and the law enforcement departments of surrounding jurisdictions were on high alert.

A gay pride event, also known as an “All Ages Drag Show,” (id. at 566) (testimony of Robert

Whitted) was taking place in the City Park in downtown Coeur d’Alene; other events, including a

Church of Satan baptism (which was later cancelled, id. at 238 and 287) were taking place or

scheduled to take place in a nearby park. Antifa, a group with a history of violent behavior, was

also expected. Id. at 255-56, 287. The general area was crowded, with multiple demonstrations,

motorcycle gangs and others carrying guns, and extra levels of law enforcement. Id. at 155-56

2
(testimony of CDA Police Officer Taylor). Among many other heightened readiness measures,

the law enforcement authorities brought SWAT quick response vehicles and armored vehicles into

the area and placed undercover officers in the crowds. Id. at 346-47.

After Keith’s 911 call, the U-Haul he described, which had departed the hotel parking lot

and was heading downtown, was pulled over by law enforcement in what they characterized as an

investigative stop. In the U-Haul the law enforcement authorities found 31 young men, later

identified as members of Patriot Front. Three of the members, including Patriot Front’s leader

Thomas Rousseau, were in the cab area in street clothes, id. at 259; 28 others were in the back of

the U-Haul wearing khaki pants, blue shirts, baseball hats, and face coverings. Id. at 264. Before

the investigative stop and subsequent arrest of the Patriot Front members were completed, over 15

police officers, some carrying semi-automatic weapons, including officers from the Coeur d’Alene

Police Department, the Kootenai Sheriff’s Department, and the Idaho State Police, had arrived at

the scene. Id. at 196-97, 209.

The law enforcement authorities arrested all 31 young men, charging them with conspiracy

to riot under Idaho Code § 18-1701. See Affidavit of Probable Cause (dated June 13, 2022) and

Citation Filed (dated June 15, 2022). During the men’s arrest and subsequent booking, law

enforcement took possession of hard-shell inserts that fit under baseball hats; a megaphone;

shields; flag poles with flags attached; two-way radios; a First-Aid kit; cell phones; shin guards;

and a smoke cannister. Trial transcript at 176, 266.

Law enforcement also confiscated documents that included pamphlets and a copy of a

short speech. Id. It was uncontested at trial that the Patriot Front young men were on their way to

the All Ages Drag Show / Gay Pride Event, to offer the pamphlets to the public and present a short

speech by Mr. Rousseau. See, e.g., id. at 506, 516, 563.

3
 The State introduced the Patriot Front pamphlets into evidence at trial as Exhibit 16

(possibly Exhibit 18). Trial transcript at 566-67 (testimony of Robert Whitted). See also Exhibit

14 (photo of pamphlets). A headline on the pamphlets read: “Strong Families Make Strong

Nations.” Trial transcript at 567. This headline was consistent with the trial testimony of Devin

Center, one of the Appellants, that

Patriot Front is an American patriotic fraternal organization devoted to a brotherhood, we

call it, of patriotic young Americans who seek to change themselves for the better so that
they can, in turn, change their community for the better and make the United States a better
more traditional-valued place to live.

Id. at 506.

The State also introduced Mr. Rousseau’s proposed speech into evidence as Exhibit 13.

The Patriot Front members understood – and Appellants Center’s and Whitted’s testimony on this

point was unrebutted – that the gay pride event would include Drag shows with male nudity in

front of children; the Patriot Front members found this conduct highly objectionable and immoral.

Trial testimony of Robert Whitted at 566, 571, 574-75; see also id. at 542, 545 (Center testimony)

(Patriot Front members understood families and children would be at the park and there would be

an “all ages inclusive drag queen performance in the park”). Rousseau’s proposed speech would

have expressed the Patriot Front members’ impassioned and vehement indignation toward this

conduct. In its entirety Rousseau’s proposed speech read:

We are here to raise a voice against the moral depravity which permits events such
as this to take place, against the predatory acts of homosexuals determined to tear down
the pillars of civil society.
These obscene acts perpetrated by drug addled freaks must not be given tolerance
to undermine the safety and integrity of American communities. Our youth will rise up and
destroy this affront to our culture, or be prey to the repugnant lust of these costumed
prostitutes.
Any man who dares to claim a shred of dignity is now under an undeniable
obligation to stand up to this gruesome attempt to turn his community, his nation with a

4
 proud history, into a deranged whorehouse. If you are complacent, you will be complicit.
Do not bear the shame of knowing you could have stopped this, when it is your child, your
sister, your brother, they wish to violate next.
Those who would corrupt our posterity, and poison the minds of our youth ought
to be driven beyond the fringes of civilization. Perhaps there, they may practice their
hedonism in a cell, or in the sea, but not in the country for which our fathers died.
Do not forget, while they speak of their faux revolution and their fraudulent
victimhood, their pockets are lined with state subsidies. The government pours billions into
corporations all sharing the same mission, to unleash hordes of crazed perverts into
unsuspecting communities, to destabilize the people and erase their culture, so that they
may be easier to inflict tyranny upon. Let them choke on their fortunes!
America was built on the backs of families, caring mothers and strong fathers.
Modern comforts have obscured this fact. If America is to survive, it will not be for
tolerance to what is wrong, but adherence to what is right. Nothing but the natural family
can serve as bedrock to the community. Without moral virtue, all liberty is forfeit.
The fulfillment of every urge is their only end, but service to the nation’s cause
makes a man immortal.

Trial Exhibit 13. At trial, Mr. Center made clear that only Mr. Rousseau was to speak at the

demonstration; the other Patriot Front members were to remain silent. Id. at 522-23, 536; see also

Exhibit 12 (Planning Document).

Another document taken by law enforcement during the arrest, and later introduced by the

State as Exhibit 12 (admitted into evidence, Trial transcript at 366), was a document variously

referred to at trial as the Patriot Front “Operational Plan” or “Planning Document.” Manifesting

the discipline and strong organization that all parties at trial testified characterized the Patriot Front

preparations for their proposed demonstration, this one-page document coordinated the drop-off

points, meeting places, and vehicle loading instructions for the Patriot Front members, who were

coming from different locations. The document included the following statements:

During the observation window, men are to remain stationary and silent within
vehicles. The scout will relay information to the main party and signal when to make the
approach. Once the call is given the VE will take place and all will proceed to the transport
of vehicles to the drop site. . . .

5
 The column will quickly form on the outskirts of the park and proceed inwards
until barriers to approach are met. The speech will be given and flyers distributed. Smoke
will be used at the discretion of the column coordinators.
Once an appropriate amount of time and confrontational dynamic has been
established, the column will disengage and proceed East towards Sherman Ave. After
proceeding down Sherman Ave., the column will turn right at 5th Street where the transport
vehicles we’ll be waiting.

One of the arguments the State made at trial is that Exhibit 12 does not affirmatively

prohibit fighting or disturbance of the peace. Mr. Center explained why this was not necessary:

Q. And nowhere in that plan does it say don’t disturb the peace: correct?
A. In this document, no.
Q. Exhibit 12.
A. No. No, it was just discussed.
Q. Nowhere in the document does it say don’t fight?
A. Again, all of this is common sense. We just don’t do that it’s not –
Q. Okay –
A. needed in the document.
Q. So it’s not in that?
A. it’s not needed in the document, no.

Id. at 557-58.

At trial, Mr. Center explained why the Patriot Front members wore masks and attempted

to remain anonymous:

I understand it’s unusual in the public space to see a lot of men in masks but you have to
understand the political atmosphere of the country today is very tumultuous. There’s a lot
of very strongly held opinions on topics of the day and there are people who oppose our
specific beliefs to the point that more often than not there’s people who would either attack
us physically . . . in essence we wear masks to protect our identities from people not only
who would wish to attack us in person . . . but there’s also many people who would
photograph us or video our faces, our bodies, our identities and post them to nefarious
places online or on social media with malicious intent to release our personal information,
our data, our faces to the public and potentially harass us in our personal lives . . . Our
home address, our work location, our phone number . . . the identities of our loved ones,
our families, our friends. You name it.

6
Trial Transcript at 518-20. Expressed in summary form, the Patriot Front members were

concerned about being “doxxed,” i.e., being harassed and harmed financially, vocationally, and

socially by hostile persons publishing private or identifying information with malicious intent.

Mr. Center also explained why the Patriot Front members carried shields, shin guards, and

other defensive equipment:

Certain members, not all, but certain members of our group felt it was necessary to employ
knee and leg protection in any [sic] unlikely event that if we were assailed or attacked by
violent or violent groups or individuals during our demonstrations that would be necessary
for them to protect themselves from such attacks . . . [As to use of shields] similar to why
we use knee pads because during peaceful assembly there are individuals or groups who if
they knew we were in a location practicing our constitutional right they would attempt . . .
to assail us, attack us, throw things at us, hurdle [sic] things. You name it, they will try to
physically assault us or individuals in our group, and these shields are purely meant to
protect the individuals who carry them.

Id. at 517, 521.

Mr. Center further testified as to their intentions as to the use of the U-Haul:

U-Haul trucks for our group are typically used to get a certain number of individuals from
one place to another in a discrete [sic] manner, because if we were to use our personal
vehicles, then -- and this has happened many times our license plate and make and model
of our personal vehicles would be photographed, videoed by oppositional forces if they
would be there, often they are, and used against us . . . You know . . . our personal
information, our vehicle, our license plate and that can lead to many open doors as far as
revealing our identity to the public.

Id. at 521-22.

Mr. Center also testified that, in addition to avoiding doxxing, Patriot Front’s dress, use of

shields, and flags served the purpose of bringing notice to Patriot Front:

Q. You heard the first witness describe how military and efficient you were. Do you recall
that?
A. Yes, I do.
Q. Do you guys train to be that way?

7
 A. We don’t necessarily train to be – to come off as intimidating or in a military way, but
we do train collectively as groups sometimes so that we can make sure that we are
organized and well-disciplined and so that any chaos factor that could go wrong in a First
Amendment demonstration doesn’t happen to us, and we can enter a location, practice our
constitutional right, and then exit the situation as quickly as possible.
Q. So you’re trained to be reserved and careful?
A. Yes, very much so.
Q. Does that training and carrying the flags, does it help to have people notice you?
A. Oh, yeah. That’s a main – it’s a large function of why the uniforms we wear for
example; the flags we carry; the reason why our shields, which are meant for defensive
purposes, are painted. It’s a spectacle, and a spectacle in the public space –
* * * * * * *
Q. Is a spectacle a positive for your group?
A. I believe so, yes. It helps our message be heard.
* * * * * * *
Q. Does – do you use the spectacle to intimidate anybody?
A. No, that’s – no, no.

Id. at 523-24.

Mr. Center also testified as to their intentions as to the use of the megaphone, i.e., to amplify

their voice if needed, but not to intimidate others. Id. at 517, 535. Mr. Center further testified that

Patriot Front has a policy of prohibiting offensive violence. Id. at 512 (Center testimony that

nonviolence is a cornerstone of Patriot Front ideology); id. at 527 (“Q. What form of protest did

your group agree to? A. We all agreed and were under very clear understanding that this would be

a peaceful demonstration.”)

None of the State’s witnesses testified that the Patriot Front members were disrespectful or

aggressive in any way during the arrest process, which included their being forced onto the ground

and handcuffed. To the contrary, all but one (who was noncommittal) affirmatively testified that

the Patriot Front members were polite, cooperative, and compliant. See, e.g., id. at 187 (testimony

of Officer Brazle); 283 (testimony of Officer Hagar); 451 (testimony of Officer Buhl). Mr. Center

testified that the Patriot Front members, including the Appellants, obeyed all police orders without

8
hostility and were peaceful the entire time during their arrest because “[t]hat’s expected conduct

of all of our members, if anything were to happen during a demonstration or anything else we do.”

Id. at 529-30.

Mr. Whitted testified that he, and by implication the other Patriot Front members, were

unaware of any obligation to obtain a permit for their planned demonstration:

Q. And were you aware of any efforts to find out the city ordinances or state statutes
that might apply to a demonstration that would take place on June 11th 2022?
A. I wasn’t aware that I needed to in a public space and we had never had issues
before. First Amendment protected speech.
* * * * * * * * *
Q. . . . I’m talking about the public space you have stated, you didn’t think you
needed to worry about any laws regarding.
A. That’s where we always do our demonstration is in the public space.
Q. You just assumed that that was going to be the case in this particular instance
as well?
A. Always has been, so I don’t – I don’t see the need . . . . to think otherwise.

Id. at 590-92. Mr. Whitted further explained that “I’m not exactly caught up on the law. I do

know that if we were asked to leave, we would have abided and left.” Id. at 596; see also id. at

546, 562-63 (Mr. Center testifying to his belief that his group did not need a “parameter [sic] to

demonstrate”).

The police officers called by the State at trial testified that the Patriot Front members’

shields, although defensive in nature, could potentially have been used offensively. They also

testified that the flag poles, which carried flags, could potentially have been used offensively. Mr.

Center and Mr. Whitted, however, denied that the Patriot Front members intended to use the shields

or flag poles offensively. Id. at 521, 549-50, 581-85. Moreover, one of the State’s own witnesses

testified that in his opinion the Patriot Front members’ intentions in attending the gay pride event

were peaceful, although the members were prepared for a riot. Id. at 429-30 (Testimony of Officer

Welch).

9
 The court presented 21 jury instructions (not counting subparts) to the jury. Jury instruction

15 set forth the required elements of the crime Appellants were charged with, i.e., conspiracy to

riot:

In order for the defendant(s) to be guilty of Conspiracy to Riot, the State must prove
each of the following:
1. On, about, or between February 25 and June 11, 2022,
2. the defendants, Devin Wayne Center, James Julius Johnson, Forrest Clark
Rankin, Derek Joseph Smith, and Robert Benjamin Whitted, agreed with Thomas
Rousseau, and/or other known or unknown persons agreed,
3. to commit the crime of Riot by willfully and maliciously disturbing the public
peace through loud or unusual noise; tumultuous or offensive conduct; and/or threatening,
traducing, quarreling, challenging to fight, or fighting;
4(A). without authority of law;
4(B). in Coeur d’Alene, Kootenai County, State of Idaho;
5. the defendants intended that the crime would be committed;
6. one or more of the parties to the agreement performed at least one of the
following acts:
a. On, about, or after February 25, 2022, Thomas Rousseau, Defendants, and/or
the other co-conspirators did knowingly and willfully agree, and did begin planning and
preparing, to disrupt the Pride in the Park event scheduled to occur at City Park in the City
of Coeur d’Alene, Kootenai County, State of Idaho, on June 11, 2022, and disturb the
public peace of the individuals in attendance.
b. Pursuant to that agreement, and as part of their planning and preparations,
Thomas Rousseau, Defendants, and/or the other co-conspirators created written document
that detailed their plan and intent to meet near Coeur d’Alene on June 10, 2022; rent U-
Haul moving truck for the purpose of covertly transporting they and their coconspirators
to City Park in Coeur d’Alene on June 11, 2022; and deploy near City Park with the intent
to enter it and create “an appropriate amount of confrontational dynamic” at the Pride in
the Park event and with the attendees thereof,
c. On June 10, 2022, Thomas Rousseau, Defendants, and/or the other co-
conspirators met at a location near Coeur d’Alene in preparation to execute their plan and
agreement to disturb and disrupt the Pride in the Park event at City Park the following day.
d. On June 10, 2022, Lawrence Norman rented a U-Haul moving truck; drove it to
the Springhill Suites located on Seltice Way in Coeur d’Alene on June 11, 2022;
rendezvoused [sic] with Thomas Rousseau, Defendants, and/or the other co-conspirators;
loaded into the U-Haul truck with Norman, Rousseau, and another co-conspirator in the
cab, and Defendants in the cargo area with other masked co-conspirators equipped with,
among other things, several shields, physical protective equipment, and smoke distribution

10
 device; and proceeded to drive on Northwest Boulevard towards the Pride in the Park event
intending to effectuate and execute their agreement to disturb the public peace of that event
and its attendees.
7. and such act or acts were done for the purpose of carrying out the agreement.
If any of the above has not been proven beyond reasonable doubt, then you must
find the defendant not guilty. If each of the above has been proven beyond reasonable
doubt, you must find the defendant guilty.

Also of particular relevance to this appeal are instructions 17B through 17K, which

provided:

Instruction 17B. The State alleges the defendant was a party to an agreement to
commit the crime of riot by disturbing the public peace. Riot is defined by law as, A, two
or more persons acting together; B, without authority of law; C, who, one, engaged in any
action or use of force or violence that disturbs the public peace; or, two, threatened to use
force or violence while having the immediate power to do so that results in a disturbance
of the public peace.
Disturbing the public peace is defined as maliciously and willfully disturbing the
peace or quiet of any neighborhood, family, or person by, one, loud or unusual noise; two,
tumultuous or offensive conduct; or, three, threatening, traducing, quarreling, challenging
to fight or fight.
Instruction 17C. Malice and maliciously mean the desire to annoy or injure another
or the intent to do a wrongful act.
Instruction 17D. Tumultuous means, one, making a loud, confused noise; a loud
confused noise uproarious [sic]; two, excited, confused, or disorderly; three, marked by
tumult, loud, excited, emotional; four, tending or disposed to cause a tumult; or, five,
marked by violent or overwhelming turbulence or upheaval.
Offensive means, one, of or for attack; two, unpleasant or disagreeable to the
senses; or, three, causing displeasure, anger, or resentment. Offensive conduct does not
mean a speech whose content the hearer finds offensive because such construction would
be unconstitutional.
Instruction 17E. The word threatening means statements where the speaker intends
to communicate a serious expression of an intent to commit an act of unlawful violence to
a particular individual or group of individuals.
Instruction 17F. The word traducing means speaking maliciously or falsely of
someone face-to-face where the word spoken may constitute, quote, fighting words, which
are words spoken face-to-face that are likely to provoke the average person to retaliation
and thereby cause a breach of the peace. The slander or shame directed towards another
must be made in a public arena or communicated to the public in such a way as to disturb

11
 the public peace of the victim or the public generally and not just as a means to disturb
another’s internal sensibilities.
Instruction 17G. The word quarrelling means engaging in an angry dispute or
altercation in such a manner that the participants’ voices maliciously and willfully
disturbed the peace or quiet of any neighborhood, family, or person.
Instruction 17H. The phrase challenge to fight means inviting someone face-to-
face to engage immediately in physical combat and /or attempting to incite the addressee
to fight by the use of, quote, fighting words.
17L. When the evidence shows that a person voluntarily did that which the law
declares to be a crime, it is no defense that the person did not know that the act was unlawful
or that the person believed it to be lawful.
17J. An act is willful or done willfully when done on purpose. One can act willfully
without intending to violate the law, to injure another, or to acquire any advantage.
17K. An individual has a right to join groups, to associate with others holding
similar beliefs, and to peaceably assemble.

Trial transcript at 622-25.

The State’s theory of its case, as expressed in the prosecutors’ closing argument, had the

following essential assertions: 1) the Drag Show / Gay Pride organizers and sympathizers were

exercising their First Amendment rights in a peaceful and cooperative manner in the City Park; 2)

the Patriot Front members intended to disrupt and interfere with the Drag Show / Gay Pride event,

which was wrongful because “my rights of freedom of speech and freedom of assembly end where

yours begin,” id. at 630; 3) the content of Patriot Front’s political message was not a proper issue

in this case, id.; but, 4) the Patriot Front members’ alleged disruptive intentions were shown,

among other ways, by the proposed speech found on their leader, Thomas Rousseau, which the

State introduced as an exhibit and argued would have “traduced” and criminally used “fighting

words” against the Drag Show / Gay Pride organizers.

The contradiction between the State’s # 3 and # 4 assertions above was manifest.

Moreover, even apart from the State’s focus on Rousseau’s planned speech, the prosecutors,

despite their assurance that the Patriot Front’s ideology was protected by the First Amendment and

12
would not be attacked, frequently put the Patriot Front members’ political and social views at issue

in the trial. For example, in the prosecutors’ cross examination of Robert Whitted the following

colloquy occurred:

Q. Let me ask you, counsel read a line to you about the caring mothers and strong
fathers built on the backs of families. I want to ask the caring mothers, are there any women
in the Patriot Front organization?
A. No, but we have, you know – I have a wife and-
Q. Would you call it a men’s group?
A. It’s a fraternal organization but we could have events where, you know, women,
girlfriends, wives are invited out, and they, you know, interact with each other –
Q. But –
A. [inaudible]
Q. - they’re not members of Patriot Front?
A. No, they are not.
Q. Any minority members?
A. What do you mean?
Q. Black, Latino, Jewish.
A. Not to my knowledge.
Q. Any lesbian – well, gay, bi, transsexual, queer members?
A. I don’t believe so. Not to my knowledge, no.

Id at 596-97. Patriot Front’s membership criteria, like those of many other advocacy groups, are

inextricably linked to its political and social ideology. The prosecutor’s question regarding

minority members in Patriot Front, in particular, contravened the State’s repeated assurances that

it would not be asking the jurors to decide the case based on antipathy to Patriot Front’s ideology.

Following closing arguments, the case was submitted to the jury. During deliberation, the

jury sent a question to the court: “is it a law that a permit must be filed for a group to protest or

counter protest in a public place?” Id. at 694. The court’s response was that the jury had all the

law the court was able to instruct them on. Id. at 694-95. As this brief in its Argument section

will address, however, the answer to the jury’s question was in fact complicated (and important),

and it is easy to see why the jury was confused as to its role on such issues.

13
 On July 11, 2023, prior to the trial on July 18-20, 2023, Appellants’ counsel submitted a

“Motion to Compel and Motion for Independent Analysis.” See Docket Entry for July 11, 2023.

By this motion, Appellants sought to

compel the discovery sought in Exhibit A of the attached Declaration of Counsel as well
as the inspection of the digital media advice device sought in the attached Motion for
Independent Analysis and for an independent analysis of evidence. This motion is based
on the attached Motions and Declarations filed by Kinzo Mihara in another matter, attached
as Exhibit D1. Defendants would ask this court to take judicial notice of the pleadings filed
in related case under I.R.E 201, and incorporate the pleadings into the record of this case.

The “attached Motions and Declarations filed by Kinzo Mihara in another matter” referred

to State v. Rousseau, CR28-22-8737, another “Patriot Front” case. The essence of the Rousseau

motion and declaration, thus incorporated into the Appellants’ motion, was that the State had

possession of highly exculpatory information, i.e., Brady material, related to the defense of the

Patriot Front cases, on the electronic device of Graham Whitsom, a Patriot Front defendant; that

Mr. Mihara had sought this Brady material via the Exhibit A referenced in Appellants’ motion;

that the State had not complied with the request; and therefore Appellants moved to compel

production of the material. See Declaration of Counsel included in the Rousseau motion.

On July 17, 2023, the trial court denied Appellants’ motion, stating:

I would find the following - there was no basic statement included, effectively it said to see
things filed in other files. Included a request to take Judicial Notice in other cases. Would
decline, not specific enough. Further would find the filing untimely - effectively filed July
12th. On the merits of the Motion, would find the Declaration of Mr. Mihara and Mr. Roloff
are speculative. No specifics. Especially given the timeline, goes back to Motion itself, to
being non-specific. Infers a lack of specifics as opposed to describing a very specific item.
It certainly is at least plausible that someone else has either viewed this or had it sent to
them. There must be some communication regarding that. This is the fifth trial setting for
at least Mr. Center's case. The Motion to Compel and for Independent Analysis are denied
for the reasons as outlined.

Court Minutes for July 17, 2023.

14
 The Rousseau motion to compel that was incorporated into the Appellants’ motion shows

it was filed on June 26, 2023 and thus raised before the trial court. The Rousseau motion was

subsequently incorporated into a motion to dismiss in the Rousseau case that was granted as a

discovery sanction against the State on November 3, 2023. See Order of Dismissal, attached to

this brief as Attachment A.3

The jury found for the State and convicted all the Appellants, plus Derek Smith, also a

defendant at the trial but not an Appellant. The court then sentenced the Appellants to five days

in jail, $1000 fines, and probation for one year. Appellants filed a timely Notice of Appeal on

August 31, 2023. See Docket Entry for that date.

ISSUES ON APPEAL

I. DID LAW ENFORCEMENT’S FAILURE TO PROVIDE REASONABLE

PROTECTION AND ACCOMODATION FOR APPELLANT’S RIGHTS OF
FREE SPEECH AND ASSEMBLY EFFECTIVELY CREATE AN
UNCONSTITUTIONAL PRIOR RESTRAINT, VIOLATE APPELLANT’S
RIGHTS UNDER THE FIRST AMENDMENT AND IDAHO
CONSTITUTION, AND TAINT APPELLANT’S ARREST, PROSECUTION,
AND CONVICTION?

II. DOES THE IDAHO CONSPIRACY TO RIOT STATUTE, AS APPLIED TO

THIS CASE, UNCONSTITUTIONALLY CRIMINALIZE CONDUCT
PROTECTED BY THE FIRST AMENDMENT AND IDAHO
CONSTITUTION?

3
Appellants respectfully request that the Court take judicial notice of the Rousseau Order of
Dismissal. See, e.g., IDHW v. Doe, --- Idaho ---, 537 P.3d 1252, 1262 (2023) (analyzing Idaho
Rule of Evidence 201 and holding that magistrate court could take judicial notice of adjudicatory
decrees and factual findings in a different case); United States ex rel. Robinson Rancheria Citizens
Council v. Borneo, 971 F.2d 244, 248 (9th Cir. 1992) ("[W]e `may take notice of proceedings in
other courts . . . if those proceedings have a direct relation to matters at issue.'") (citations for
internal quotations omitted); City of Lewiston v. Frary, 91 Idaho 322, 326, 420 P.2d 805, 809
(1966) (favorably citing California case that “an appellate court can properly take judicial notice
of any matter of which the court of original jurisdiction may properly take notice.”); U.S. v. Jones,
574 F.3d 546, 551 n.2 (8th Cir. 2009) (“Judicial notice may be taken at any stage of the proceedings,
including appeal, as long as it is not unfair to a party to do so and does not undermine the trial
court’s factfinding authority”) (quoting Federal Rule of Evidence 201(f)).

15
 III. WERE NUMEROUS CONSTITUTIONAL FREE SPEECH ISSUES,
INCLUDING WHETHER MR. ROUSSEAU’S SPEECH CONSTITUTED
“FIGHTING WORDS” AND WHETHER APPELLANT’S CONDUCT
EXCEEDED “TIME, PLACE, AND MANNER” RESTRICTIONS, WHICH
SHOULD HAVE BEEN DECIDED BY THE COURT AS A MATTER OF
LAW, INSTEAD IMPROPERLY SUBMITTED TO THE JURY?

IV. WAS THE JURY’S VERDICT SUPPORTED BY SUFFICIENT EVIDENCE

AND RATIONALITY FOR APPELLANT’S GUILT BEYOND A
REASONABLE DOUBT AS TO ALL ELEMENTS OF THE CRIME OF
CONSPIRACY TO RIOT, IN PARTICULAR THE REQUIRED ELEMENT
THAT THE DEFNDANTS ACTED “WITHOUT AUTHORITY OF LAW’?

V. DID THE TRIAL COURT’S CONSOLIDATION INTO ONE SINGLE CRIME

OF SUCH DISPARATE OFFENSES AS MAKING LOUD OR UNUSUAL
NOICES, TRADUCING, AND THREATS OF VIOLENCE VIOLATE
APPELLANT’S RIGHTS TO A UNANIMOUS JURY VERDICT?

VI. DID THE TRIAL COURT’S DENIAL OF APPELLANT’S MOTION TO

COMPEL THE STATE TO PRODUCE EXCULPATORY BRADY
EVIDENCE VIOLATE APPELLANT’S DUE PROCESS RIGHTS, WHICH
WERE ALSO VIOLATED IN OTHER WAYS?

STANDARD OF REVIEW

When the district court reviews a decision of the magistrate court on appeal, the district

court “must review the case on the record and determine the appeal in the same manner and on the

same standards of review as an appeal from the district court to the Supreme Court under the

statutes and law of this state, and the Idaho Appellate Rules.” I.C.R. 54(f)(1). An appellate court

exercise free review of issues of law. Bouten Const. Co. v. H.F. Magnuson, 133 Idaho 756, 760

(1999).

When reviewing for an abuse of discretion, the inquiry examines whether the trial court:

“(1) correctly perceived the issue as one of discretion; (2) acted within the outer boundaries of its

discretion; (3) acted consistently with the legal standards applicable to the specific choices

16
available to it; and (4) reached its decision by the exercise of reason.” State v. Roth, 166 Idaho

281, 283 (2020) (internal quotes omitted).

ARGUMENT

I.

LAW ENFORCEMENT’S FAILURE TO PROVIDE REASONABLE PROTECTION

AND ACCOMODATION FOR APPELLANT’S RIGHTS OF FREE SPEECH AND
ASSEMBLY EFFECTIVELY CREATED AN UNCONSTITUTIONAL PRIOR
RESTRAINT, VIOLATED APPELLANT’S RIGHTS UNDER THE FIRST
AMENDMENT AND THE IDAHO CONSTITUTION, AND TAINTED APPELLANT’S
ARREST, PROSECUTION, AND CONVICTION

The prosecution in its closing argument asserted that law enforcement in this case

recognized obligations to balance two fundamental duties: (1) protect public safety, and (2) protect

the First Amendment rights of the participants. See, e.g., id. at 651 (closing argument); see also

id. at 174-75 (testimony of Captain Hagar). Unfortunately, law enforcement, in allegedly

conducting this balancing process, failed to give any weight at all to the Patriot Front members’

fundamental free speech and assembly rights, e.g., to give a speech in a public forum, to distribute

pamphlets, to remain anonymous, and to draw attention to themselves by their uniforms and other

means. Instead, law enforcement launched a preemptive strike, arresting the Patriot Front

members immediately and entirely foreclosing their opportunity to exercise their rights.

This conduct flagrantly contravened relevant precedents from the Supreme Court and lower

courts. It also violated the Coeur d’ Alene Police Department’s own policies, which instruct

officers to employ verbal warnings and explore alternate tactics and strategies before making mass

arrests. See Coeur d’Alene Police Department Policy Manual (Attachment B to this brief), Section

429.6 (“If a public gathering or demonstration remains peaceful and nonviolent, and there is no

reasonably imminent threat to persons or property, the Incident Commander should generally

17
authorize continued monitoring of the event. Should the Incident Commander make a

determination that public safety is presently or is about to be jeopardized, he/she or the authorized

designee should attempt to verbally persuade event organizers or participant to disperse of their

own accord.”); Section 429.8 (“If practicable, warnings or advisements should be communicated

prior to arrest. Mass arrests should be employed only when alternate tactics and strategies have

been, or reasonably appear likely to be, unsuccessful”).4

Numerous decisions from the United States Supreme Court and lower courts have affirmed

the obligations of government authorities, including law enforcement, to take reasonable measures

to accommodate and protect the free speech rights of unpopular dissidents and counter protestors,

even if their presence at a demonstration is unwelcome and likely to incite disorderly and

vociferous opposition. A seminal case is Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123

(1992), in which the Supreme Court found facially unconstitutional a county ordinance that

allowed a county administrator to vary the fee for assembling or parading based on the estimated

cost of maintaining public order. The case crystallizes the legal rule that governments, faced with

the likelihood of conflict between opposing groups at a free speech protected event, cannot take

the easy way out and prevent one of the groups from attending, but must take reasonable measures

to protect and accommodate all the free speech participants.

Another highly apposite case is Bible Believers v. Wayne County, Mich., 805 F.3d 228

(2015) (en banc). In that case, the plaintiffs, self-described Christian evangelists, attended the

Arab International Festival in Wayne County, Michigan, a celebration of Arab culture and

heritage, for the purpose of trying “to convert non-believers, and call sinners to repent.” Id. at 236.

4
Appellants respectfully request that the Court take judicial notice of this Police Manual, an
official government document, pursuant to I.R.E. 201(c)(2). Please see footnote 3 for an
explanation of the propriety of judicial notice. This is Brady material, undisclosed by the State.

18
“The quintessential attribute of the Bible Believers’ message was intolerance, principally

proclaiming that Mohammed was a false prophet who lied to them and that Muslims would be

damned to hell if they failed to repent by rejecting Islam.” Id. The crowd consisted of large

numbers of Muslims, some of whom responded to this message by heckling the speakers and

throwing trash and bottles. Rather than controlling the crowd or protecting the speakers, the police

opted to remove the evangelists in order to restore peace.

In finding this conduct unconstitutional, Judge Clay, author of the en banc opinion, stated:

In a balance between two important interests—free speech on one hand, and the
state’s power to maintain the peace on the other—the scale is heavily weighted in favor of
the First Amendment. See, e.g., Terminiello, 337 U.S. at 4 . . . . Maintenance of the peace
should not be achieved at the expense of the free speech. . . . If the mere possibility of
violence were allowed to dictate whether our views, when spoken aloud, are safeguarded
by the Constitution, surely the myriad views that animate our discourse would be reduced
to the “standardization of ideas ... by ... [the] dominant political or community groups.” Id.
at 4-5 . . . . “[U]ncontrolled official suppression of the privilege [of free speech] cannot be
made a substitute for the duty to maintain order in connection with the exercise of th[at]
right.” Hague v. Comm. for Indus. Org., 307 U.S. 496, 516 (1939).

Bible Believers, 805 F.3d at 253. Judge Clay acknowledged, however, that:

[T]he Constitution does not require that the officer “go down with the speaker.” . .
. The police may go against the hecklers, cordon off the speakers, or attempt to disperse
the entire crowd if that becomes necessary. Moreover, they may take any appropriate action
to maintain law and order that does not destroy the right to free speech by indefinitely
silencing the speaker. Fundamentally, no police action that hinders the speaker’s freedom
of speech should be deemed legitimate in the eyes of the Constitution unless it satisfies
strict scrutiny, which requires the police to achieve their ends by using only those means
that are the least restrictive with respect to the speaker’s First Amendment rights. . . .

*******

We do not presume to dictate to law enforcement precisely how it should maintain the
public order. But in this case, there were a number of easily identifiable measures that could
have been taken short of removing the speaker: e.g., increasing police presence in the
immediate vicinity, as was requested; erecting a barricade for free speech, as was

19
 requested; arresting or threatening to arrest more of the law breakers, as was also requested
....
The Bible Believers attended the Festival to exercise their First Amendment rights
and spread their religious message. The way they conveyed their message may have been
vile and offensive to most every person who believes in the right of their fellow citizens to
practice the faith of his or her choosing; nonetheless, they had every right to espouse their
views. See Cantwell, 310 U.S. at 309 . . . . When the message was ill-received, the police
did next to nothing to protect the Bible Believers . . . . Instead, the WCSO accused the
Bible Believers of being disorderly and removed them from the Festival. On this record,
there can be no reasonable dispute that the WCSO effectuated a heckler’s veto, thereby
violating the Bible Believers’ First Amendment rights.

805 F.3d at 253-55.

The parallels between the facts in Bible Believers and those in this case are strong. Here

too the police instead of making reasonable efforts to protect and accommodate the Appellants’

rights along with those of the Drag Show / Gay Pride organizers, immediately jumped to the

expedient alternative of silencing the Appellants by arresting them. Not only Bible Believers but

other cases condemn such actions. See, e.g., Ovadal v. City of Madison, Wisconsin, 416 F.3d 531,

537 (7th Cir. 2005) (“The police must preserve order when unpopular speech disrupts it: ‘[d]oes it

follow that the police may silence the rabble-rousing speaker? Not at all. The police must permit

the speech and control the crowd; there is no heckler’s veto’”) (quoting Hedges v. Wauconda Unit

Sch. Dist. No. 118, 9 F.3d 1295, 1299 (7th Cir. 1993)). And in this case too, as in Bible Believers,

805 F.3d at 253-54, the police had no argument that they lacked the manpower or means to put in

place basic crowd control measures (as required by the Coeur d’Alene Police Department policy

manual), such as separating the Appellants from the Drag Show / Gay Pride organizers or warning

any hecklers from either side. As set forth in the Statement of the Case, 15 or more armed police

converged on the Appellants’ U-Haul when Appellants were arrested and many more police,

including some in armored vehicles, were at the City Park; the Appellants and other Patriot Front

members, meanwhile, were unarmed and fully compliant with police instructions during the arrest.

20
The police had more than ample resources to maintain public peace at the City Park; there was no

need to immediately jump to the most draconian remedy of arrest in contravention of their duties

to find the least restrictive means to accommodate all the contending factions.

The nonexistent police protection of the Appellants was also selective in ways that strongly

implicate improper non-neutral police reaction to the Patriot Front message. The Coeur d’Alene

Police Department’s disregard of its own policies to give warning and employ alternative strategies

and tactics before making mass arrests is one compelling example. For another example, one of

the State’s police witness testified that it was his practice, before citation or arrest, to warn persons

who were using megaphones about the sound restrictions that applied to amplified speech. Trial

transcript at 252-53. The Patriot Front members, by contrast, were never warned about use of their

one megaphone but rather immediately arrested before they could even consider using it; and then

the prosecutors argued to the jury that the Appellants’ possession of the megaphone, by itself,

together with the Operations Plan, was sufficient to sustain a conviction for conspiracy to riot. Id.

at 641-42. Similarly, many other persons at the City Park not only had guns, including rifles, but

also protective armor. Id. at 254-55, 324. None were arrested. Indeed, at one point the Pride

organizers complained about a man with “a rifle, two pistols, and a knife” who was “creeping us

out,” id. at 255, but this man also was not arrested or apparently even questioned. The Patriot

Front members, by contrast, were arrested and prosecuted on the flimsy pretext that they intended

to use their homemade defensive shields and flag poles (with flags on them) for offensive purposes.

The State at trial frequently invoked “time, place, and manner” restrictions on protected

speech – which the prosecution also sometimes characterized as “rules of the game” -- to justify

the arrest and prosecution of the Appellants. See, e.g., Trial transcript at 282, 641, 644-45. Free

speech boundaries on “time, place, and manner” restrictions, however, corroborate that the police’s

21
preemptive strike by immediately arresting the Patriot Front members was unconstitutional. Public

places such as park and sidewalks are traditional public forums subject to the highest level of

Constitutional scrutiny; it is well-settled that state action that limits protected speech in such

forums is subject to strict scrutiny and will not be upheld unless the restriction is narrowly tailored

to be the least-restrictive means available to serve a compelling government interest. See, e.g.,

Ward v. Rock Against Racism, 491 U.S. 791 (1989); United States v. Playboy Entm’t Grp., 529

U.S. 803, 813 (2000). The Supreme Court has consistently held that punishing, removing, or by

other means silencing a speaker due to existing or anticipated crowd hostility does not constitute

the least restrictive means available to serve a legitimate government purpose. See, e.g., Cantwell

v. Connecticut, 310 U.S. 296 (1940); Terminiello v. City of Chicago, 337 U.S. 1 (1949); Edwards

v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Gregory v. City

of Chicago, 394 U.S. 111 (1969). It certainly did not in this case, where the police had fully

adequate manpower and resources to assure the public safety without such draconian measures.

Finally, arresting the Patriot Front members before they could even attempt to exercise

their free speech and assembly rights, e.g., by distributing pamphlets or giving a planned speech,

effectively constituted a prior restraint. See, e.g., Southeastern Promotions, Ltd v. Conrad, 420

U.S. 546, 553, 558 (1979) (prior restraints give public officials “the power to deny use of a forum

in advance of actual expression”). In Organization for a Better Austin v. Keefe, 407 U.S. 415

(1971), the Supreme Court vacated a lower court’s injunction that prevented the petitioner from

distributing leaflets that criticized the respondent, a real estate broker. The Court stated that “[a]ny

prior restraint on expression comes to this Court with a ‘heavy presumption’ against its

22
constitutional validity.” Id. at 420.5 The evidence adduced by the State in this case falls far short

of rebutting this presumption.

The state contended at trial and may contend in this appeal that the alleged fact that the

Drag Show / Gay Pride organizers had a permit and the Patriot Front members did not was a

sufficient predicate for concluding that the Patriot Front members’ proposed appearance at the

event constituted a disturbance of the peace. Indeed, the State’s emphasis on this point triggered

a question from the jurors on this permit topic (a question that was not appropriate for them to

answer). For the following reasons, the State’s argument in this respect was flawed:

 As a factual matter, the Drag Show / Gay Pride organizers did not have a permit at the
particular time on the afternoon of June 11, 2022 between 2 pm and 3 pm that the
Patriot Front members would have made their appearance had they not been arrested.
Appellants respectfully request the Court to take judicial notice6 of Attachment C
(certified copies of City of Coeur d’Alene City Park permits for the day of June 11,
2023; see pages 5 and 9: North Idaho Pride Alliance had permits for 8 am to 2 pm and
3 pm to 9 pm on June 11, 2023, but not 2 pm to 3 pm, which, according to police arrest
records, is when the Patriot Front members would have arrived at the City Park).
 The Appellants were not prosecuted for conspiracy to appear at a park without a permit,
but rather conspiracy to riot. Even had Appellants been prosecuted for conspiracy to
appear at a park without a permit, such a charge could not have been sustained on the
facts adduced at trial. The Appellants testified without contradiction that they were

5
In prior (and subsequent) cases the Supreme Court noted that the presumption against the validity
of prior restraints on free expression has a long history, dating back to the founding of the nation.
See, e.g., Near v. Minnesota, 283 U.S. 697, 715 (1931) (discussing Madison’s opposition to prior
restraints); see also id. at 722-23 (“Equally unavailing is the insistence that the statute is designed
to prevent the circulation of scandal which tends to disturb the public peace . . . but the theory of
the constitutional guaranty is that even a more serious public evil would be caused by authority to
prevent publication.”); Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 560 (1976) (“If it can be said
that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’
it at least for a time.”).
6
Please see footnote 3 explaining authority for judicial notice.

23
 unaware they needed a permit; consequently, they did not have the mens rea to conspire
to enter park without a permit.
 As explained in the Statement of the Case, the Appellants were never warned that they
supposedly were not allowed in the park because they lacked a permit. Appellants
testified without contradiction that had the Patriot Front members been advised they
lacked legal authority to use the park, they would have complied and not used the park
for their demonstration. Tr. transcript at 590-92, 596 (Testimony of Mr. Whitted); id.
at 546, 562-63 (testimony of Mr. Center).
 Parks and streets are traditional public forums given the highest level of First
Amendment protection. Counsel for Appellants are unaware of any precedents that
hold that persons such as Appellants could have been excluded from such a traditional
public forum, much less prosecuted, simply on the basis of lacking a permit.

II.

THE IDAHO CONSPIRACY TO RIOT STATUTE, AS APPLIED

TO THIS CASE, CRIMINALIZES CONDUCT PROTECTED BY THE
FIRST AMENDMENT AND IDAHO CONSTITUTION AND IS
UNCONSTITUTIONALLY VAGUE AND OVERBROAD

As interpreted by the prosecution, presented to the jury, and applied in this case, the

conspiracy to riot statutes (§§ 18-701 and 18-6409), under which the Appellants were tried and

convicted, criminalized a host of actions or planned actions by the Appellants that were protected

by the First Amendment and Idaho Constitution. The statutes as applied, consequently, were

unconstitutionally overbroad. See, e.g., State v. Poe, 139 Idaho 885, 893, 88 P.3d 704, 712 (2004).

They were also unconstitutionally vague, as Appellants had no reasonable way to know that their

conduct in preparing for a demonstration in a traditional public forum would subject them to

criminal prosecution. Id., 139 Idaho at 904, 88 P.3d at 722.

A.

Overview of State v. Poe and State v. Hammersley

24
 In State v. Poe the Idaho Supreme Court addressed the First Amendment constitutionality

of § 18-6409. It is appropriate, accordingly, to summarize the Poe decision at the outset.

The facts Poe were simple. In September 1999, defendant-appellant Joseph Poe was

charged with disturbing the peace in violation of § 18-6409 based on statements he made to a

thirteen-year-old boy who had come with his mother to Poe’s home to pick up another child. The

jury found Poe guilty, and the district court upheld his conviction on appeal. He then appealed to

the Supreme Court of Idaho. 139 Idaho at 891, 88 P.3d at 710. See also id. at footnote 1 (explaining

why the Court provided little detail as to the underlying facts)

Poe contended on appeal, inter alia, that Idaho Code § 18-6409 is unconstitutionally

overbroad and vague on its face. In addressing this facial challenge to the statute, the Court first

addressed the impact of its prior decision in State v. Hammersley, 134 Idaho 816, 10 P.3d 1285

(2000), in which the Court had rejected an as-applied challenge to § 18-6409. Like the facts in

Poe, those in Hammersley were quite simple (and very different from those in the present case).

In Hammersley, defendant-appellant Dana Hammersley drove to a Junior High to pick up her

daughter, Cassandra, age 13. When Hammersley arrived, Cassandra was talking with her friend

Nicole Goodwin. After Cassandra got into her mother's car, Hammersley, in the presence of her

daughter and other juveniles, yelled at Goodwin to “shut your fucking mouth, you bitch Nikki.”

Based on these facts, the Court rejected Hammersley’s as-applied challenge to § 18-6409.

In Poe, the Court addressed two issues relating to its prior Hammersley decision. The first

was whether the Hammersley opinion had addressed a facial constitutional challenge to Idaho

Code § 18-6409. The Court concluded Hammersley had not done so. Id., 139 Idaho at 892-93, 10

P.3d at 711-12. The second was whether the Hammersley opinion properly articulated the standard

for an as-applied challenge. The Poe Court concluded that the Hammersley opinion erred in this

25
regard. Id. 139 Idaho at 893, 10 P.3d at 711-12. The Poe Court then stated the proper standard

for an as-applied constitutional challenge: “If a statute as applied to a particular defendant infringes

upon his or her freedom of speech protected by the First Amendment, the defendant’s conviction

must be reversed without any showing that such infringement was ‘substantial.’” Id. Although the

Court in Poe thus addressed the proper as-applied standard, it repeatedly emphasized that the

defendant-appellant Poe in that case, unlike the Appellants in this case, presented only a facial and

not an as-applied challenge to Idaho Code § 18-6409. See, e.g., 139 Idaho at 902,906, 10 P.3d at

721, 725.

B.

In Accordance with the As-Applied Standard Articulated in State v. Poe, Idaho Code §
18-6409 Unconstitutionally Infringed Appellant’s First Amendment and Idaho Constitutional
Rights. His Conviction, Accordingly, Must Be Reversed.

For the many reasons below, Idaho Code § 18-6409 as applied to this case infringed

Appellant’s rights under the First Amendment and Idaho Constitution and must be reversed.

Fighting Words. The prosecution at trial argued that the draft speech Thomas Rousseau

prepared but was never allowed to give constituted “fighting words” sufficient for conviction under

Idaho Code § 18-6409 and, by implication, exclusion from free speech protection. Two

fundamental and unconstitutional flaws vitiate this argument and Appellant’s resulting conviction.

First, although Rousseau’s impassioned draft speech may have been regarded by some as

offensive and even insulting, it does not approach remotely close to satisfying the “fighting words”

exception from free speech protection, as that exception has been delimited by Supreme Court

cases. The reality is that, as the Supreme Court noted recently in its Counterman v. Colorado, 606

U.S. 66, 143 S.Ct. 2106, 2138 n.4 (2023) decision, no Supreme Court decision has upheld a

conviction under the “fighting words” doctrine in 80 years. During this long span, statements far

26
more belligerent, vulgar, and taunting than those in Rousseau’s speech have been rejected by the

Court as grounds for conviction.

In Terminiello v. Chicago, 337 U.S. 1 (1949), for example, an anti-semitic priest referred

to the objects of his wrath as "slimy scum," "snakes," and "bedbugs.” Nonetheless Justice Douglas

for the Court, positing that speech "may indeed best serve its high purpose when it . . . stirs people

to anger," that "[s]peech is often provocative and challenging," and that "a function of free speech

under our system of government is to invite dispute," reversed the priest’s conviction for

disturbing the peace. Id. at 5-6. In the law review article entitled The Trouble with “Fighting

Words”: Chaplinsky v. New Hampshire Is a Threat to First Amendment Values and Should Be

Overturned, 88 Marquette L.R. 443, 493-97 (Winter 2004), the author, Burton Caine, collected

well over a dozen Supreme Court decisions between 1942 and 2004 in which the speech in question

was far more disparaging and taunting (and vulgar) than anything in Rousseau’s speech and yet

the fighting words doctrine was rejected. More recently, in Snyder v. Phelps, 562 U.S. 443 (2011),

church members picketed near the funeral of a military service member with signs proclaiming,

e.g., “Thank God for Dead Soldiers” and “You’re Going to Hell.” Id. at 448. Nonetheless, the

Court, in upholding the church members’ First Amendment defense to a civil action for outrageous

conduct, swiftly rejected any application of the “fighting words” doctrine. See id. at 451 n.3.

These many decisions corroborate what the Supreme Court stated in Boos v. Barry, 485

U.S. 312 (1988), a case in which the Court struck down on First Amendment grounds a District of

Columbia law banning the display of signs criticizing foreign governments outside the

governments’ embassies. The Court explained: “[W]e have indicated that in public debate our own

citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate

27
‘breathing space’ to the freedoms protected by the First Amendment.” Id. at 322 (quoting Hustler

Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)).

In summary, the first – and a decisive – deficiency in the State’s “fighting words” rationale

for conviction is that Rousseau’s planned speech simply did not constitute “fighting words” under

Supreme Court precedents. A second and equally fatal defect in the State’s argument also fatally

undermines the Appellants’ resulting conviction.

In Poe, the Idaho Supreme Court, seeking to preserve from constitutional challenge at least

a small portion of the “fighting words” doctrine and consequently the “traducing” and

“quarrelling” components of Idaho Code § 18-6401, added the requirement that the fighting words

be “face-to-face.” Poe, 139 Idaho at 895-96, 88 P.3d at 714-15. In this case, however, the

prosecution introduced no evidence whatever that Rousseau’s speech, which he was never allowed

to give, would have been presented face-to-face with persons who supposedly found it so offensive

as to be fighting words. The prosecution's argument in this respect was speculation resting on

conjecture. Such rank speculation would not be sufficient to support a conviction even without

the free speech issues that permeate this litigation. But such speculation is simply not permitted in

a First Amendment context. See, e.g., Tinker v. Des Moines Independent Community School Dist.,

393 U.S. 503, 508 (1969) (“[I]n our system, undifferentiated fear or apprehension of disturbance

is not enough to overcome the right to freedom of expression”); Cohen v. California, 403 U.S. 15,

21 (1971) (“[T]he mere presumed presence of unwilling listeners or viewers does not automatically

justify curtailing all speech capable of giving offense”); Bible Believers, 805 F.3d at 253 (“[T]he

Constitution demands that content-based restrictions on speech be presumed invalid and that the

government bear the burden of showing their constitutionality”) ( internal citation omitted).

28
 Patriot Front Was Organized and Disciplined. The prosecution, presenting testimony

that the Patriot Front members conducted themselves in an organized and disciplined manner,

argued that from this evidence the jury could conclude that the Appellants had sinister intentions.

But it is common knowledge that demonstrators often form into groups that exhibit traits of

organization and discipline. Indeed, “[o]rganized political protest is a form of ‘classically political

speech.’ . . . ‘Activities such as demonstrations, protest marches, and picketing are clearly

protected by the First Amendment.’” Don’t Shoot Portland v. City of Portland, 465 F.Supp.3d

1150, 1155 (D. Ore. 2020) (citing Boos, 485 U.S. at 318). Being organized and disciplined

enhances the demonstrators’ ability to communicate their message more effectively and avoids

chaos and disorder. Moreover, these traits add an aspect of drama to the demonstrators’

presentation, as they could have done here if the Appellants had been allowed to conduct their free

speech activities in the City Park. Such expressive conduct is protected free speech. See Watters

v. Otter, 955 F.Supp.2d 1178, 1185 (D. Idaho 2013) (“Occupy Boise’s tent city and overnight

camping constitute expressive conduct protected under the First Amendment”).

Masks, Uniforms, and Use of U-Haul. One of the State’s major themes at trial was that

Patriot Front members, including Appellants, sought to protect their identities by wearing masks

and uniforms and using a U-Haul to travel together. These steps, the State argued, supposedly

implicated their intentions to engage in unlawful activity. A right to associate and express oneself

anonymously, however, has long been recognized in First Amendment and free speech

jurisprudence. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958) (holding that the State of

Alabama could not compel the NAACP to reveal to the State’s Attorney General lists of its

members names and addresses); Talley v. California, 362 U.S. 60 (1960) (invalidating a Los

Angeles ordinance that prohibited the distribution of handbills with the names and addresses of

29
persons who prepared, distributed, or sponsored the handbills); McIntyre v. Ohio Elections

Commission, 514 U.S. 334 (1995) (invalidating an Ohio statute that prohibited the distribution of

anonymous campaign literature); Americans for Prosperity Foundation v. Bonta, 594 U.S. --, 141

S.Ct. 2373 (2021) (holding that California regulation requiring disclosure of donors to tax-exempt

charities violated First Amendment). This right, indeed, has roots in the values, conduct, and

concerns of our nation’s Founding-Era Generation. See, e.g., Tally, 362 U.S. at 66 (“Persecuted

groups and sects from time to time throughout history have been able to criticize oppressive

practices and laws either anonymously or not at all. . . . Even the Federalist Papers, written in favor

of the adoption of our Constitution, were published under fictitious names”); McIntyre, 514 U.S.

at 357 (“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent

practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the

tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the

First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas

from suppression—at the hand of an intolerant society.”)

Part of the rationale for protecting anonymous expression is a recognition that threats of

reprisal from disclosure of dissidents’ identities chill the right to associate and speak freely. See,

e.g., NAACP v. Alabama, 357 U.S. at 462-63 (“[R]evelation of the identity of [NAACP’s] rank-

and-file members has exposed these members to economic reprisal, loss of employment, threat of

physical coercion, and other manifestations of public hostility. Under these circumstances, we

think it apparent that compelled disclosure of petitioner's Alabama membership is likely to affect

adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs

which they admittedly have the right to advocate”); see also Bonta, 141 S.Ct. at 2388 (“The

petitioners here . . . introduced evidence that they and their supporters have been subjected to bomb

30
threats, protests, stalking, and physical violence . . . . Such risks are heightened in the 21st century

and seem to grow with each passing year, as ‘anyone with access to a computer [can] compile a

wealth of information about anyone else, including such sensitive details as a person’s home

address or the school attended by his children’”) (internal citation omitted).

This fear of reprisal rationale applies with great force to this case. The two Appellants who

testified at trial described the threats and harms Patriot Front members had received from Antifa

and similar groups in the past and their understanding that Antifa would be at the Drag Show / Gay

Pride event. Trial transcript at 517, 518-20, 521, 590. Their testimony that Antifa would be present

was not controverted by the State; to the contrary, the State’s witnesses themselves testified that

Antifa was expected and, further, that Antifa has a history of violence. Id. at 208, 256, 287, 294.

The Appellants’ concerns about disclosure of their identities, accordingly, were well-founded.

Finally, the Patriot Front members’ use of masks and uniforms, planned arrival together,

and standing silently while their leader delivered his speech were expressive conduct designed to

bring attention to the Patriot Front message and were entitled to First Amendment and Idaho

Constitutional protection. See Watters v. Otter, 955 F.Supp.2d at 1185.

Shields, Shin Guards, and Flag Poles (with Flags Attached). As noted above, the

Appellants testified that (1) Antifa had threatened and harmed them or other PF members in the

past, and (2) they believed Antifa would be at the Drag show; and the State’s witnesses testified

that (3) Antifa was expected at the event and (4) was an organization with a history of violence.

As to (4), the State’s witnesses could hardly have testified otherwise, as the evidence of Antifa

violence and criminality is overwhelming. See, e.g., Trial Tr. at 287. Against this background and

given that there were groups at the City Park who were openly carrying arms, including a rifle, it

approached absurdity for the prosecution to contend that Appellants’ flag poles (with flags

31
attached) and homemade shields should be deemed offensive weapons and evidence of Appellants’

intentions to threaten others at the City Park event. Such contentions cannot be reconciled with

the government’s evidentiary standard required in First Amendment cases.

“Confrontational Dynamic.” The prosecution frequently invoked the phrase

“confrontational dynamic” from the Appellants’ Operations Plan as supposed evidence that the

Appellants intended violent activity at the City Park event. Given the First Amendment context,

however, the prosecution’s use, or rather misuse, of this phrase directly conflicted with Supreme

Court characterizations of the First Amendment, e.g., Terminiello, 337 U.S. at 5-6 ("[s]peech is

often provocative and challenging," and "a function of free speech under our system of government

is to invite dispute"); New York Times v. Sullivan, 376 U.S. 254, 270 (1964) (confirming “a

profound national commitment to the principle that debate on public issues should be uninhibited,

robust, and wide-open”); Snyder v Phelps, 562 U.S. at 460-61 (“Speech is powerful. It can stir

people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great

pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we

have chosen a different course—to protect even hurtful speech on public issues to ensure that we

do not stifle public debate”). In all these cases and many others, the defendants had created what

could fairly be described as a “confrontational dynamic” and yet their speech was held protected.

Moreover, the Operations Plan indicated that the Appellants and other Patriot Front members

intended to “disengage” as soon as the “Confrontational Dynamic” had been created.

Megaphone. The prosecution made much out of the fact that the Patriot Front members

were found to possess a megaphone. In fact, the prosecution in the State’s closing argument

contended to the jury that the Appellants could be convicted based solely on their alleged intentions

to make amplified sound beyond legal limits. Trial Tr. at 641-42. Appellants acknowledge that

32
reasonable time place and manner restrictions on amplified sound are not unconstitutional. Here,

however, as in so many other aspects of the trial, there was no evidence of the Appellants’ intent

to amplify their speech beyond legal limits. The Appellants denied any intent to do so, and even

if the jury did not credit their testimony, “[n]ormally the discredited testimony is not considered a

sufficient basis for drawing a contrary conclusion.” Bose Corporation v. Consumers Union of

United States, Inc., 466 U.S. 485, 512 (1984). The State’s arguments once again rested on rank

speculation and conjecture not appropriate in a Free speech context, or indeed in any case.

Conclusion. The conspiracy to riot statutes invoked by the State, as applied to the

Appellants, unconstitutionally criminalized a host of Appellants’ actions or planned actions that

were protected under the First Amendment and Idaho Constitution, in contravention of the as-

applied standard set forth in State v. Poe. The statutes, accordingly, were unconstitutionally

overbroad as applied.

They were also unconstitutionally vague as applied. It is a basic principle of due process

that an enactment is void for vagueness if its prohibitions are not clearly defined. Grayned v. City

of Rockford, 408 U.S. 104, 108 (1972). Vague laws offend several important values. Id. First,

“we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what

is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing

fair warning.” Id. at 109. Second, a vague law impermissibly delegates basic policy matters to

policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application. Id. Third, where a vague statute “abut(s) upon

sensitive areas of basic First Amendment freedoms, it ‘operates to inhibit the exercise of (those)

freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone’ . .

33
. than if the boundaries of the forbidden areas were clearly marked.” Id. (internal citations

omitted).

All these rationales for the prohibition of vague laws apply in this case, but the latter two

especially. That the police here felt free to arrest and the State to prosecute Appellants based in

large part on the Appellants’ planned speechmaking and expressive activity in a classic public

forum – a city park -- reveals the unconstitutionally amorphous nature of the conspiracy to riot

statutes as they were interpreted and applied in this case. They also highlight the danger of chilling

free speech rights. Many citizens, seeing someone convicted of conspiracy to riot based on a

proposed speech in a public park, would hesitate to speak their minds themselves. As the Supreme

Court has declared many times but most recently in Counterman v. Colorado:

Prohibitions on speech have the potential to chill, or deter, speech outside their boundaries.
A speaker may be unsure about the side of a line on which his speech falls. Or he may
worry that the legal system will err, and count speech that is permissible as instead not. . .
Or he may simply be concerned about the expense of becoming entangled in the legal
system. The result is “self-censorship” of speech that could not be proscribed—a “cautious
and restrictive exercise” of First Amendment freedoms.

Id., 600 U.S. at 75.

III.

NUMEROUS FREE SPEECH ISSUES, INCLUDING WHETHER

MR. ROUSSEAU’S SPEECH CONSTITUTED “FIGHTING WORDS” AND WHETHER
APPELLANTS’ CONDUCT EXCEEDED “TIME, PLACE, AND MANNER”
RESTRICTIONS, SHOULD HAVE BEEN DECIDED BY THE COURT AS A MATTER
OF LAW BUT INSTEAD WERE IMPROPERLY SUBMITTED TO THE JURY

As described in the prior section, a plethora of Constitutionally-based free speech issues

were sent to the jury in this case, including whether Rousseau’s planned speech constituted

“fighting words,” whether the Patriot Front apparel and masks constituted protected expressive

conduct, and generally where the line is to be drawn between neutral “time, place, and manner”

34
restrictions and impermissible infringement of protected Constitutional rights. These are not,

however, issues that were proper for jury determination.

The Supreme Court has made clear that courts must act as gatekeepers to assure that

convictions and judgments do not make “forbidden intrusions on the field of free expression.”

Bose Corporation, 466 U.S. at 508 (1984). Judges are “expositors of the Constitution” who must

independently decide whether evidence in the record is sufficient to cross Constitutional

thresholds.” Id. at 511. For cases where lines must be drawn, as between speech unconditionally

protected and speech that may be regulated, judges must examine for themselves and cannot

delegate to juries whether the statements at issue and the circumstances under which they were

made are of a character which the principles of the First Amendment protect. Id. at 501, 508.

When the standard for a particular case is provided by the Constitution, the court’s role in marking

out the standard by a case-by-case adjudication is of special importance. Id. at 503. The

development of and subsequent limitations on the “fighting words” doctrine and the complicated

constitutional analysis of the “time, place and manner” doctrine, see, e.g. Grayned, 408 U.S. at

108 (explaining critical importance of different forums for First Amendment analysis, such as

“public forums,” “limited public forums,” and “nonpublic forums”) epitomize this judicial case-

by-case approach, which juries cannot and should not be asked to undertake.

The Snyder v. Phelps case exemplifies the gatekeeper role of judges in First Amendment
matters. As the Court there held:
The jury here was instructed that it could hold [the Westboro Church protestors]
liable for intentional infliction of emotional distress based on a finding that Westboro’s
picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard
with “an inherent subjectiveness about it which would allow a jury to impose liability on
the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular
expression.” . . . In a case such as this, a jury is “unlikely to be neutral with respect to the
content of [the] speech,” posing “a real danger of becoming an instrument for the
suppression of ... ‘vehement, caustic, and sometimes unpleasan[t]’ expression . . . Such a

35
 risk is unacceptable . . . What Westboro said . . . is entitled to “special protection” under
the First Amendment, and that protection cannot be overcome by a jury finding that the
picketing was outrageous.

562 U.S. at 458 (quotation marks and citations omitted). What the Court said of “outrageousness”

applies with equal force to “fighting words” and expressive conduct – that a jury is unlikely to be

neutral regarding the content of the speech and likely to make its determination based on the jurors’

tastes or views. Those issues, accordingly, should not have been submitted to the jury.

IV.

THE JURY’S VERDICT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE

AND RATIONAL INFERENCES FOR APPELLANT’S GUILT BEYOND A
REASONABLE DOUBT AS TO ALL REQUIRED ELEMENTS OF THE
CONSPIRACY TO RIOT CRIME, IN PARTICULAR THE REQUIRED ELEMENT
THAT THE DEFENDANT ACTED “WITHOUT AUTHORITY OF LAW”

Under Idaho law, a jury's verdict must be overturned if it is not based on sufficient evidence

and rational inferences establishing guilt beyond a reasonable doubt as to all elements of the crime

with which the defendant was charged. State v. Tyron, 164 Idaho 254, 258 (2018); see also State

v. Johnson, 156 Idaho 359, 361 (2014). Federal law under the Fourteenth Amendment is similar.

State v Tyron, 164 Idaho at 258. As set forth in Jury Instruction 15.4A (see Statement of the Case

at page 10 above), among the required elements on which the State had the burden of proof was

that Appellants’ planned actions, which the State claimed amounted to conspiracy to riot, were

“without authority of law.”

But the State did not come close to adducing sufficient evidence, and certainly not such as

would satisfy the stringent beyond a reasonable doubt standard to which the State was subject, that

the Appellants acted or planned to act “without authority of law.” To the contrary, the Appellants’

actions and planned actions came well within the protective aegis of very powerful and important

“authorities of law”: namely, within the authority and protection of the First Amendment and

36
Article 1, Section IX of the Idaho Constitution. In Appellant’s first and second arguments in this

brief, he explained why all the actions and planned actions that the prosecution sought to

characterize as the crime of conspiracy to riot – Rousseau’s planned speech, the planned

distribution of pamphlets, the uniforms and masks to protect identities, the shields and shin guards

to protect against possible Antifa attacks, the possession of a megaphone – were shielded,

defended, and consequently authorized by these constitutional provisions.

The “without authority of law” required element in fact underscores the perils of charging

a conspiracy to riot crime in a paradigmatic First Amendment / free speech context of

demonstrators and counterdemonstrators with impassioned views colliding in a public forum. One

of these dangers, which manifested in this case, is that juries would be tasked with determining

complex First Amendment / free speech issues, a task for which they are ill-suited.

V.

THE TRIAL COURT’S CONSOLIDATION INTO ONE SINGLE CRIME OF SUCH

DISPARATE OFFENSES AS MAKING LOUD OR UNUSUAL NOISES,
TRADUCING, AND THREATS OF VIOLENCE, VIOLATED APPELLANT’S
RIGHTS TO A UNANIMOUS JURY VERDICT

Imagine, if the Court will, a hypothetical criminal statute with the generic title of

“Wrongful Conduct” that encompassed such disparate offenses as kidnapping, practicing medicine

without a license, and driving while intoxicated. Assume further that a defendant was convicted

in a jury trial of “Wrongful Conduct” without a jury instruction requiring the jury to specifically

identify which of the disparate offenses the jury agreed the defendant had committed. On these

hypothetical facts, there could be no assurance of jury unanimity. One subset of jurors could have

found the defendant guilty of kidnapping and no other offense; another subset, of practicing

37
medicine without a license and no other offense; a third, of driving while intoxicated and no other

offense.

The Fifth Circuit in U.S. v. Gipson, 553 F.2d 453 (5th Cir. 1977) addressed a conviction

based on circumstances similar to this hypothetical. In Gipson, the defendant was convicted of

violating a statute prohibiting the sale or receipt of a stolen vehicle. The statute could be violated

by any of six prohibited acts: receiving, concealing, storing, bartering, selling, or disposing of a

stolen vehicle. Id. at 458. These six acts, the court held, fell into two conceptual groupings that

were sufficiently different that a jury finding of the actus reus element of the offense would not be

“unanimous” if some of the jurors thought the defendant committed only an act in the first

conceptual grouping while others believed he committed an act only in the second. Id. The court

therefore concluded that “the jury was permitted to convict Gipson even though there may have

been significant disagreement among the jurors as to what he did. The instruction was therefore

violative of Gipson’s right to a unanimous jury verdict.” Id. at 458-59. See also State v. Severson,

147 Idaho 694, 711-12, 215 P.3d 414, 431 (2009) (“An instruction informing the jury that it must

unanimously agree on the specific occurrence giving rise to the offense is necessary, however,

when the defendant commits several acts, each of which would independently support a conviction

for the crime charged”).

The relevant facts in this case parallel those in Gipson. As in Gipson, the jury here was

offered a smorgasbord of options for conviction that did not require unanimous jury agreement

about what the Appellant allegedly conspired to do. One subset of jurors could have agreed that

the Appellant conspired to make “loud or unusual noise,” Jury Instructions 17B and 17D, but not

agreed on anything else; another subset could have agreed the Appellant conspired to threaten to

use force or violence, id. at 17B and 17E, but not agreed on anything else; another subset could

38
have agreed that the Appellant conspired to traduce someone face-to-face, id. at 17B and 17F, but

not agreed on anything else. Each of these possibilities had a distinct actus reus and, moreover, a

distinct First Amendment / free speech analysis. See generally, e.g., Counterman, 600 U.S. 66

(2023) (addressing First Amendment analysis for “true threats.”). As in Gipson, therefore, the

Appellants in this case were deprived of their constitutional right to a unanimous jury verdict.

VI.

THE TRIAL COURT’S DENIAL OF APPELLANT’S MOTION

TO COMPEL THE STATE TO PRODUCE EXCULPATORY
EVIDENCE VIOLATED APPELLANT’S DUE PROCESS RIGHTS,
WHICH WERE ALSO VIOLATED IN OTHER WAYS

“The due process clause of the Fourteenth Amendment requires that criminal prosecutions

comport with prevailing notions of fundamental fairness,” which “requires a meaningful

opportunity to present a complete defense” and “constitutionally guaranteed access to evidence.”

State v. Lewis, 144 Idaho 64, 66, 156 P.3d 565, 567 (2007). Thus, the State has a constitutional

duty to disclose “all material exculpatory evidence known to the state or in its possession.” Id. at

66-67, 156 P.3d at 567-68 (citing Brady v. Maryland, 373 U.S. 83, 87 (1963) and Grube v. State,

134 Idaho 24, 27, 995 P.2d 794, 797 (2000)). As the U.S. Supreme Court held in Brady: “the

suppression by the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.” 373 U.S. at 87. This is a crucial protection under the

Fourteenth Amendment because it helps ensure the fair administration of justice. Id. at 87-88.

The trial court in this case erred in not compelling the State to produce Brady material as

the Appellants requested in their motion to compel, filed on July 11, 2023. In reviewing

discretionary rulings, an appellate court engages in a multi-tiered inquiry to determine whether the

39
trial court: “(1) correctly perceived the issue as one of discretion; (2) acted within the outer

boundaries of its discretion; (3) acted consistently with the legal standards applicable to the

specific choices available to it; and (4) reached its decision by the exercise of reason.” Lunneborg

v. My Fun Life, 163 Idaho 856, 863, 421 P.3d 187, 194 (2018).

Two factors in this case weigh heavily under this required analysis. The first is that,

explained above, the State’s obligations with respect to Brady material is a crucial due process

right. The second is that the State could not fairly claim it was surprised by the Appellants’

important motion. The materials Appellants adopted from the Rousseau case showed that the State

had been apprised of the Patriot Front defendants’ needs and requests for the exculpatory material

from the Patriot Front members’ cell phone not only since June 26, 2023, when the Rousseau

motion was filed, but since April 2023, when a similar request had been made in yet another Patriot

Front case. Given this long lapse of time, it was not credible – as the court in the Rousseau case

later determined – that the State could not, at a minimum, have returned the cell phone in question,

so that Appellants could have used or at least proffered the exculpatory evidence that was

contained on it. Given this joinder of the crucial importance of the evidence, the State’s

constitutional obligations to provide it, and no credible explanation for the State not doing so, the

court erred, Appellants submit, in denying their motion to compel.

In States v. Reyes, 169 Idaho 781, 791 (2022), the Idaho Supreme Court stated: “Under the

doctrine of cumulative error, a series of errors, harmless in and of themselves, may in the aggregate

show the absence of a fair trial.”) (internal citations omitted). If an accumulation of harmless

errors can show the absence of a fair trial and a due process violation, far more can an accumulation

of impactful and harmful errors do so. And there was an accumulation of harmful errors in this

case: the arrests of the Appellants in violation of their rights under the First Amendment and Idaho

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Constitution; the confiscation during the arrest of their proposed speech, pamphlets, and other free

speech materials and use of these materials to justify their arrest and prosecution; the prosecution’s

use of their proposed speech and other free speech materials and expressive conduct to justify their

conviction; the improper tasking of the jury to determine Appellants’ Constitutionally-based free

speech protections; the lack of jury unanimity in its verdict. Both the federal and Idaho

Constitutions firmly protect all defendants’ due process rights to a fair trial, but Appellants in this

case did not receive anything close to a fair trial.

CONCLUSION

For the reasons stated, Appellants respectfully request that their convictions be reversed

and the charges against them dismissed.

Respectfully submitted this 14th day of February, 2024.

MIHARA LAW PLLC

//s// Kinzo H. Mihara

____________________________
Kinzo H. Mihara, ISB 7940
Attorney for Defendant / Appellant

GLEN ALLEN LAW

//s// Glen K. Allen

____________________________
Glen K. Allen
Attorney for Defendant / Appellant
(pro hac vice application pending)

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 14th day of February, 2024, I caused to be served a
true and correct copy of the foregoing document by the method indicated below, and addressed
to the following:

CDA City Prosecutor [ ] U.S. Mail

[ ] Hand Delivered
[ ] Facsimile to: 446-1833
[X] Odyssey: cdaprosnotices@cdaid.org

//s// Kinzo H. Mihara

Kinzo H. Mihara

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