IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI KANSAS CITY MUNICIPAL COURT DIVISION CITY OF KANSAS CITY, MISSOURI,

v. MICHAEL C. MIKKELSEN, Defendant. ) ) ) ) ) ) ) Case Nos: 2G030910

DEFENDANTS MOTION TO DISMISS WITH SUGGESTIONS IN SUPPORT COMES NOW defendant Michael Mikkelsen, through counsel, and moves the Court to dismiss the above captioned case because his underlying arrest for trespassing on a public sidewalk is patently unconstitutional and infringes on his right of assembly, association, privacy, travel and movement, as well as other liberty interests guaranteed under the Constitution. In support of his motion, Defendant states the following: Facts 1. Shortly after 1:00 am on June 17, 2012, defendant was peacefully standing on the

sidewalk, by the bridge, next to the 4 St and Broadway St, in Kansas City, Missouri. The sign, on the wall of the bridge stated "No Trespassing." 2. Around 1:10 am on June 17, 2012, Officer Fisher, Badge No. 05179, an officer

with the Kansas City, Missouri Police Department, approached Defendant and told Defendant that Defendant was trespassing. The officer told the Defendant that the Defendant was

trespassing, and that it was the same as refusing to leave. The Defendant told the officer repeatedly that he was happy to leave. 3. The officer arrested the Defendant and issued the Defendant a citation, No.

2G030910, stating, in part, that the Defendant was, "...standing on bridge within 3 inches of no trespassing signage, P.O. Fisher gave subject verbal warning to leave property and subject

refused." Ex. A. 4. ST Ex. A. 5. Defendant was taken to the jail at 1100 Locust, Kansas City, Missouri, and was The citation indicates that the alleged infraction took place at 4 ST BRODWAY

eventually released on a bond. 6. On information and belief, a sidewalk near the 4th St and Broadway St, is an

ordinary public street and thoroughfare, and the City of Kansas City, Missouri, has never vacated the public right-of-way along that portion of the sidewalk. 7. Moreover, on information and belief, the No Trespassing signage on the wall of

the bridge, was placed to advise the pedestrians on the sidewalk, not to continue to travel on foot on to the bridge. 8. There are no signs or other indications that this sidewalk was closed to the public,

or that it differ from any of the other public sidewalks in the downtown area of Kansas City, Missouri. Argument The sidewalk running along 4th St and Broadway St, is a public sidewalk, not private property. For the reasons that follow, an individual cannot consistent with the United States Constitution be convicted of trespassing on a public sidewalk. Sidewalks, of course, are among those areas of public property that traditionally have been held open to the public for expressive activities, and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property. United States v. Grace, 461 U.S. 171, 180 (1983). As the Supreme Court recognized more than seventy years ago, Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of 2

assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. Hague v. C.I.O., 307 U.S. 496, 516 (1939). Because the sidewalk on which defendant was peacefully standing before being arrested by a police officer is a public sidewalk, defendant had a right to be present on that sidewalk on June 17, 2012 or at any other time of day or night. Thus, it would be unconstitutional for the court here to rule that defendant was unlawfully on the public sidewalk. Moreover, the United States Supreme Court has long recognized a citizens right to move about in public at will. Freedom of movement is basic to our scheme of values. Kent v. Dulles, 357 U.S. 116, 126 (1958). Over a century ago, the Court found that [u]ndoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any state is a right secured by the 14th Amendment and by other provisions of the Constitution. Williams v. Frears, 179 U.S. 270, 274 (1900). More recently, the Court has invalidated attempts by the government to restrict night walking, loafing, or strolling. Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972). [A]n individuals right to freedom of movement among locations and the right to remain in a public place are fundamental to our sense of personal liberty protected by the Constitution. U.S. v. Smedley, 611 F.Supp.2d 971, 976 (E.D. Mo. 2009). [I]t is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is a part of our heritage. Johnson v. Cincinnati, 310 F.3d 484, 497 (6th Cir. 2002) (quoting Dulles, 357 U.S. at 126). Criminalizing defendants presence on a public sidewalk no matter the time of day without showing extremely compelling reasons would also violate the fundamental constitutional right of freedom of movement. 3

Finally, this prosecution must fail as a matter of plain statutory intent and construction. City Code Section 50.102 provides that A person commits a violation of this section if he knowingly enters unlawfully or knowingly remains unlawfully . . . upon real property. Kansas City, Mo., Code of Gen. Ords. ch. 50, art. IV, 50-102 (emphasis added). As illustrated by the foregoing discussion, a persons right to enter or remain on a public street or sidewalk, whatever the time of day, cannot be revoked absent some sort of valid restriction or curfew. No such restriction is present in this case. Therefore, defendant was not unlawfully on the sidewalk, as required by the ordinance. WHEREFORE, in accordance with the arguments and authorities stated above, defendant respectfully requests that the trespassing charge be dismissed. Respectfully submitted, __________________________________ Michael A. Kinder, Mo Bar #56907 3100 Broadway, Suite 103 Kansas City, MO 64111 Phone (816) 695-1703 Fax (816) 531-8500 kinder222@yahoo.com ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that the above and foregoing was delivered via hand delivery to the Kansas City Municipal Prosecutor, on this 28th day of January, 2013 at: 1101 Locust St Kansas City, MO 64106 ___________________________________ Michael A. Kinder