Autonomy Party

STATE OF MINNESOTA IN DISTRICT COURT COUNTY OF

BLUE EARTH FIFTH JUDICIAL DISTRICT File No. T8-03-4176

State of Minnesota,

Plaintiff, TRANSCRIPT OF PROCEEDINGS

vs.                                          PRE-TRIAL HEARING

Andrew J. Bushard,

Defendant.

The above-entitled matter came before the

Honorable Norbert P. Smith,

Judge of District Court, at the Blue Earth County

Courthouse, Mankato, Minnesota, on July 28, 2003.

APPEARANCES

Christopher Cain, Assistant Mankato City Attorney, appeared

on behalf of the State of Minnesota; Defendant appeared pro se.

Distribution:

Original - Court Administrator Copy - Andrew J. Bushard

Peggy Hill

Official Electronic Court Reporter Mankato, Minnesota

Page 2

THE COURT: How do you pronounce your last name, Andrew?

THE DEFENDANT: Bushard

THE COURT: Bushard. I probably would have done

it that way, but I wanted to make sure before I insulted you

by mispronouncing it. You've got a ticket here for

disorderly conduct. What's the status on this?

 

MR. CAIN: Your Honor, I talked with Mr. Bushard

prior to coming into court this afternoon and discussed with

him briefly the case. He indicates to me that he's going to

be representing himself, and not being able to resolve the

case with having certified the offense as a petty misdemeanor disorderly conduct charge,

Mr. Bushard indicated that he would reject that offer and proceed to trial;

and then I had informed him that there were two options: either a court trial or a bench trial tried before the Court,

or in the alternative, a jury trial. And he has decided that he would prefer a jury trial.

THE COURT: Well, let me do this, Mr. Bushard.

I'm willing -- and I suspect Mr. Cain is willing, although I

haven't talked with him about this, I assure you -- to

certify this matter as a petty misdemeanor and to have it

tried by me without a jury. The maximum penalty would be a

fine; technically, the maximum is $300. If it remains a misdemeanor and you have a jury trial,

if you're convicted your maximum penalty is 90 days in jail.

This is not the kind of case that deserves a jury trial, Mr. Bushard. I mean, it's a waste of time.

It's a case that's worthy of a $50 fine even if you are guilty of some impropriety. I'm sorry,

but that's the way it is. You didn't hurt anybody; you weren't fighting with anybody. Guys that get into fist fights

with cops in the parking lot behind the bar and plead to disorderly conduct get $300 fines.

People that are at most, even if they are upsetting people because of their comments and demonstrating in some manner, are not worthy of that kind of severity. At most, it's like a speeding ticket, a parking fine. What can happen in these jury trials is that people come in and testify, and he'll find the people that were upset because of your activity, bring them in, and somehow all of a sudden things get a lot more serious looking. That has happened. Sometimes it goes the other way, as well, and the jury would find you not guilty. And that's fine and good. But on the other hand, sometimes people, when the other side of the story comes out, as much as you might dispute it, the jury might buy into that and you're exposed to a more severe sentence and a conviction on your record for what is called a crime; whereas a petty misdemeanor, even if you're convicted, it's the same as a speeding ticket. It's not a big deal, and it's not going to adversely affect your status in the community or your

ability with employment or anything else. So I just want to make sure because you're representing yourself. If you had a lawyer, they'd be telling you these things. And if you insist on it, I'll give you a jury trial and we'll get her done one way or the other; and if you're convicted, you will. face the penalties that are applicable. On the other hand, if you -- you don't give up your right to a trial, you just give up your right to a jury trial, I can assure you that even if you're convicted your maximum penalty is going to be about the same as a speeding ticket. It's up to you. You tell me what you want to do. You don't have to touch that, just tell me.

THE DEFENDANT: I think the offer sounds fair because I do want to assert my innocence, but I believe that's a good offer.

THE COURT: Okay. And by that meaning go with a trial to me like a speeding ticket?

THE DEFENDANT: Bench trial, yes.

THE COURT: All right. Is that okay with you, Mr.

Cain?

MR. CAIN: It is, your Honor; and I should point out that I discussed those particular issues with Mr. Bushard prior to coming into court. I indicated to him, of course, first of all that I was the prosecutor and that I could not give him legal advice but did provide him procedurally the information that -- the distinction between a petty misdemeanor which is not a crime and a misdemeanor level offense which is a crime.

THE COURT: Yeah. Well, I'm not trying to coerce you into giving up rights that you think are critical, but I also need to tell you the facts of life.

THE DEFENDANT: Yes.

THE COURT: And you're not represented, so I think that's my role. All right, we'll schedule a bench trial for you. From a perspective of time, Mr. Cain, how much time do you think you need?

MR. CAIN: Judge, I would say two hours maximum. THE COURT: And for witnesses, what are you going to have besides maybe an officer?

MR. CAIN: I believe two officers and a co-owner of the Joe's Liquor Store.

THE COURT: All right, so three?

MR. CAIN: Three witnesses, maybe four at most. THE COURT: All right. And from your perspective, Mr. Bushard, other than yourself -- and you don't have to testify, but if you -- you may, of course, if you wish to do so. Any other witnesses?

THE DEFENDANT: I would like to testify myself.

COURT: Okay.

THE DEFENDANT: I would also like to call Mr. Cain to the stand.

THE COURT: Okay. Well, he would have nothing to do with that because he wasn't standing on the curb watching it go on that day, so he would not be a witness. You can only have witnesses dealing with the facts of what they saw, heard, smelled, observed. So the officers that were there, you, this fellow that he's mentioned, the so-called owner, and he's just doing a blanket maybe one other because it's possible there's another. He doesn't really know for sure, but he's just kind of protecting himself in regard to that so if he shows up with 4 instead of 3 it's okay. So other than for yourself, anyone else that you think of you'd want to have?

THE DEFENDANT: Probably just myself.

THE COURT: Okay. So at most two hours, hour and a half more like it.

THE REPORTER: How about September 23^{rd at 1:30?}

THE COURT: Is that all right with you?

THE DEFENDANT: I don't see any reason why that wouldn't work.

THE COURT: Okay?

MR. CAIN: That's fine.

THE COURT: Okay, then Mrs. Hill will give you notice on your way out. I recommend that you come a little bit early for the trial, and we'll proceed at that time.

Page 7

Anything else, gentlemen?

MR. CAIN: No, your Honor.

THE DEFENDANT: I would just like to clarify. When I discussed the case with Mr. Cain, I was under the impression that regardless of what type of trial I would

choose, I would still have to face the misdemeanor

THE COURT: No, we've changed that.

THE DEFENDANT: Yes. That is the reason, now, I changed my position.

THE COURT: Okay, that's fine, and there's nothing wrong with that. So, basically, this will be treated like - - in a sense, like a speeding trial. And if you are found guilty -- and I don't know if you're guilty of anything -but if you are found guilty, it will be a fine in accordance with the status of the offense. If you're found not guilty, it doesn't matter.

Anything else?

THE DEFENDANT: I do not believe I have anything

else.

THE COURT: All right, then pick up your notice on your way out. You are excused. Thank you.

MR. CAIN: Thank you, your Honor. (This concluded the proceedings.)

-----------

STATE OF MINNESOTA IN DISTRICT COURT

COUNTY OF BLUE EARTH FIFTH JUDICIAL DISTRICT

State of Minnesota,

Plaintiff, File No. T8-03-4176 vs. REPORTER'S CERTIFICATE Andrew J. Bushard,

Defendant.

I, Peggy Hill, do hereby certify that I am an Official Electronic Court Reporter in the Fifth Judicial District of the State of Minnesota; that as such I did electronically record the proceedings of the above-entitled action; that I did thereafter transcribe into typewriting the foregoing transcript from the recording taken on July 28, 2003; and that the foregoing transcript, consisting of 7 pages, constitutes a full, true, and correct transcription of all the proceedings of such hearing.

DATED: October 24, 2003

TAPE NO. P-3025

INDEX NOS. 789 - 1252

i

Page 8

Peggy Hill

Of ficia

Mankato, MN 56001

STATE OF MINNESOTA IN DISTRICT

COURT COUNTY OF

BLUE EARTH FIFTH JUDICIAL DISTRICT File No. T8-03-4176

State of Minnesota,

Plaintiff, TRANSCRIPT OF PROCEEDINGS

vs.COURT TRIAL

Andrew J. Bushard,

Defendant

The above-entitled matter came before the Honorable Norbert

P. Smith, Judge of District Court, at the Blue Earth County

Courthouse, Mankato, Minnesota, on September 23, 2003.

 

APPEARANCES

Christopher Cain, Assistant Mankato City Attorney, appeared

on behalf of the State of Minnesota; Defendant appeared pro se.

 

Distribution:

Original - Court Administrator

Copy - Andrew J. Bushard

Peggy Hill

Official Electronic Court Reporter Mankato, Minnesota

 

THE COURT: Okay, we're here for a trial on a disorderly conduct ticket.

We're dealing with this in a court trial as a petty misdemeanor,

Mr. Bushard having waived his right to a trial by a jury. Proceed.

MR. CAIN: Your Honor, the city would call Officer Becky Erickson to the stand.

BECKY ERICKSON, called as a witness, being first duly sworn, was examined and

testified under oath as follows:

THE REPORTER: Officer, would you please state your name and

spell your last name for the Court?

THE WITNESS: Becky Erickson, E-R-I-C-K-S-O-N.

THE REPORTER: Thank you.

DIRECT EXAMINATION

BY MR. CAIN:

Officer Erickson, who are you employed by?

A. The City of Mankato.

Q. In what capacity?

A. A police officer.

Q. Are you a certified peace officer?

A. Yes.

Q. How many years have you been in law enforcement? A. Thirteen.

Q. Were you on duty on June 4^{th of this year at approximately 4:10 p.m?}

 A. Yes, I was.

Q. Do you recall responding to a report of a disturbance at 402 North Fourth Street?

A. Yes, I do.

Q. That's here in the City of Mankato?

A. Yes.

Q. That's here in Blue Earth County, Minnesota?

A. Yes.

Q. What is 402 North Fourth Street, first of all?

A. It's Joseph's Liquor.

Q. It's a liquor store?

A. Liquor store.

Q. You responded to that location. Is that right?

A. Yes.

Q. Were you in a marked squad?

A. Yes.

Were you also dressed in uniform?

A. Yes.

Q. Somewhat similar to the way you appear here today?

A. Yes.

Q. When you arrived on the scene, did you identify other

parties involved, or who else was at the liquor store?

A. Yes, Officer Kreps was there speaking with a

male individual who was standing outside the store.

Q. That's Officer Larry Kreps that you're referencing?

A. Yes.

Q. Any other police officers there on

the scene when you got to the liquor store?

A. Not at that time.

Q. After you got there and you noticed that Officer Kreps

was speaking to another individual, what did you do next? A

A. Officer Kreps told me that the male individual would not identify himself.

He had been picketing outside. The complainants, who were the owners of the store,

had stated that he had been harassing customers, that kind of thing. I tried to identify the male individual.

He would not acknowledge me or speak to me; he just stared straight ahead.

Q. The individual that refused to identify himself, later on

he was identified. Is that right?

A. Yes.

Q. That would have been as Andrew John Bushard, the defendant?

A. Correct.

Q. Now, is that person here in the courtroom today?

A. Yes, he's seated right here.

Q. Opposite of me here at counsel table?

A. Correct.

Q. You attempted to identify him at the scene, and he

refused to acknowledge who he was, or anything?

A. Yeah, he didn't speak to me at all.

Q.  What happened next?

A. Another female, Christina -

THE DEFENDANT: Objection, hearsay.

THE COURT: Okay, you don't have to yell. I can hear you fine; we're only ten feet apart.

THE DEFENDANT: Okay.

THE COURT: So calm down. He said hearsay because she was

going to say what somebody else said, so what's your response, if you wish?

MR. CAIN: Okay. I wasn't going to ask what the witness said.

THE COURT: All right. Then as long as the witness isn't going to say what someone

else said other than the officer, for purposes of transitioning and

explaining the setting, then proceed accordingly. Thank you.

BY MR. CAIN:

Q. Officer Erickson, did you identify this other female that was present at the scene?

A. Yes, Christina McDonald.

Q. Okay. Let's go back a little bit. You also identified the two

owners of Joe's Liquor Store. Is that right?

A. Yes, Doreen and Jack Graves.

Q. Okay. Did you speak with Ms. McDonald there at the scene?

A. Yes.

Q. Did you make any observations about her there at the liquor store?

A. She was upset. Some comments had been made -

THE COURT: No.

THE DEFENDANT: Objection, hearsay.

THE COURT: That's better, but you could tone it down another notch.

What you were told by Ms. McDonald is hearsay unless

there's an exception, counsel, so proceed.

BY MR. CAIN:

Did Ms. McDonald tell you anything about any

conversation that she had with the defendant?

THE DEFENDANT: Objection, hearsay.

THE COURT: No, that's not hearsay. Go ahead and answer yes or no.

A. Yes.

Did she tell you what he had said to her?

A. Yes.

THE DEFENDANT: Hearsay.

THE COURT: Relax.

MR. CAIN: Your Honor, that would be the statement of a party opponent.

THE COURT: Pardon me?

MR. CAIN: That would be the statement of a party opponent, the defendant.

That's an exception. I want to say under hearsay 8.01 -- or 8.04.

THE COURT: I appreciate that.

MR. CAIN: I want to say sub-section --

THE COURT: But doesn't that have to be a direct admission rather than one coming

from another person? Just out of curiosity, if I recall.

(The Court looked up the rule.)

THE COURT: 8.01 is a definition section for hearsay. Sub-part (d) indicates

statements which are not, in fact, hearsay; and admissions by a party deponent or

statements offered against a party are not, in fact, even hearsay, which is what you're

focusing on. I guess the only question I have is can that be filtered through another person.

MR. CAIN: Yes.

THE COURT: Pardon me?

MR. CAIN: Yes.

THE COURT: It doesn't seem to expressly determine or state if you can communicate

a party's statement from a witness who heard it stated by another witness, one way or

the other. It talks about a declarant is a person who makes a statement, and hearsay is a

statement other than one made by the declarant while testifying offered in evidence

to prove the matter asserted. And it's not hearsay if it is an admission by a party and it's

the party's own statement. They do talk about a co-conspirator, which wouldn't really apply.

Q. Any other comments, counsel?

MR. CAIN: Your Honor, it would be the state's position

that it's not hearsay; and even if it was, there's an exception to it.

THE DEFENDANT: Your Honor, Mrs. Graves is not here to testify.

THE COURT: That is, I suspect, the case.

MR. CAIN: That's correct.

THE DEFENDANT: Thus she cannot be cross examined.

MR. CAIN: The statement by Ms. Graves

is not going to be offered. It's not the statement by Ms. Graves.

THE COURT: All right, I will overrule the objection and allow the officer

to repeat what an upset witness at the scene said that the defendant

said to her.

 

BY MR. CAIN:

Q. What did Ms. McDonald tell you that the defendant said to her?

A. She told me that Mr. Bushard had called her a fetal alcohol baby.

Q. Did she appear upset by what the defendant had told her?

A. Yes.

Q. Did she express that to you, as well?

A. Yes.

Q. What happened next?

A. After I had spoken with Christina McDonald, I went in and spoke with Doreen

and Jack Grave, and they had told me that he had been out in front of their store

for approximately half an hour handing out pamphlets and harassing their customers.

THE COURT: Now, that is objectionable, and I exclude it from consideration.

Q. What happened next?

A. Commander Schisel came to the scene and tried to speak with the male, Mr. Bushard.

He wouldn't -- Mr. Bushard wouldn't give Commander Schisel any information. At that

time he was arrested for disorderly conduct, and I transported

him down to the Law Enforcement Center.

Q. Is there anything else in regards to your contact with the defendant on that day?

A. He was just processed at the Law Enforcement Center and released then.

MR. CAIN: I have no further questions of officer Erickson, your Honor.

THE COURT: Do you have questions of her?

THE DEFENDANT: I do.

CROSS EXAMINATION

 

BY MR. BUSHARD:

Q. Was I blocking the entrance to Joseph's Liquor?

Did you observe me blocking the entrance to Joseph's Liquor?

A. Not when I arrived.

Q. Was I preventing customers from entering Joseph's Liquor?

A. Not when I arrived.

Q. Did you observe me being on their property, or was I on the public sidewalk?

A. When I arrived, you were on the public sidewalk.

Q. Did I seem to post threat of imminent physical harm to others?

A. Not at the time I arrived.

Q. Did I strike you or threaten to strike you? A. No.

Did they even tell you that I blocked the entrance?

They, as Christina McDonald or Doreen or Jack Grave?

A. No.

Q. Did they even tell. you I prevented customers --

I physically prevented customers from entering the store?

A. No.

Q. Did they even tell you I physically attacked customers?

A. No.

Q. Did Christina McDonald, Doreen Grave, or Jack Grave

in any way indicate I was posing imminent physical harm?

A. No.

Q. Did you see me physically preventing people from moving?

A. No.

Q. Did you physically see me preventing people

from entering the establishment?

A. No.

THE COURT: You're getting a little repetitive.

Q. Don't you think a misdemeanor citation for what alleged -

what appeared to be a non-violent offense was a little drastic?

A. No.

Q. Did you actually see me harass customers?

A. No.

Q. Did you actually see or hear me call customers names?

A. No.

Q. Thus, this all boils down to the believability of Doreen Graves,

Christina McDonald, Jack Graves, neither -- no three of them who are here, statements.

A. Correct

Q. Did I resist arrest?

A. No.

Q. Was I aggressive during arrest procedures?

A. No.

Q. Did you assume I was wrong because I did not respond to you?

A. I'm sorry, can you ask that again?

Q. Did you assume I was guilty of the crime because I did not respond to you?

A. No, I assumed you were guilty of the crimes because of

what the complainants and the other witnesses had said.

Q. Thus, you assumed they were correct?

A. Correct.

Q. Do you believe everything you hear?

A. No.

Q. Haven't you ever been in situations where people lied against one person

when the person was telling the truth or otherwise misrepresented the facts?

You've never been in any situation -

THE COURT: Let her answer the question. Yes, or no?

A. I don't -- I don't recall a specific instance where the majority of the people

have said something and one person -

Q. You've never remembered people lying about someone in your 13 years of police work, never once?

A. Oh, people have lied to me, yes.

Q. Ever make false reports?

A. I'm sure they have.

Q. If my conduct was legal, which I believe it is, wouldn't the shopkeepers have an incentive to lie,

or at best grossly misrepresent matters, since the police cannot -

THE COURT: No, that's not a proper question. You've testified -- you ask her questions

about what she's testified about, not her opinion about something else. So stick to the facts.

Q. Did you call my -- after you found out my identification, did you call that in?

A. we ran a check on you through dispatch.

Q. Did I have any criminal record?

MR. CAIN: Objection, relevancy.

THE COURT: Sustained. Criminal record's irrelevant. I couldn't hold it against you one way or the other.

That comes as a part of sentencing if you are convicted. It doesn't come as part of a determination of guilt.

 

Q.Did you call in the criminal record for the three report makers?

A. No.

Q. If they were convicted of a felony or another infamous crime,

wouldn't that be important if they were --

wouldn't that be some information that would be helpful to find out?

THE COURT: Mr. Bushard, your questions about her belief on their

credibility is pointless because it doesn't matter what she thinks.

It's only what I think. Plus, you're the one that didn't say anything at the scene,

so there is no comparison that she could make. If you had said the light was

green and they had said the light was red, then she'd have to

figure it out. But she didn't have to figure it out because

she only had one side of the issue.  So this whole issue of credibility is moot.

Ask her questions about any of her testimony, otherwise let's move on.

BY MR. BUSHARD:

Christina McDonald made a report to you, did she not?

A. Yes.

Q. She's not anywhere in the courtroom today, is she?

A. No.

Q. Jack Grave and Doreen Grave also made a report to you. Did they not?

A. Yes.

Q. They're not anywhere in the courtroom today, are they?

A. No.

Q. You couldn't find any independent witnesses besides

Doreen Grave and Jack Grave?

A. And Christina McDonald.

Who is not here today.

A. Correct.

Q. You could not find any independent witnesses to testify today?

A. Correct.

Q. Did Officer Kreps tell me not to return to the scene of the crime?

A. I don't recall.

Q. Define harass.

A. To offend, anger a person.

Q. That's pretty vague and subjective, is it not?

A. You asked me to define harass, that's how I view harassment.

Q. Thus, what I may consider harass would vary from

Mr. Cain or someone else. Is that correct?

A. Someone's individual belief, yeah. Yes.

Q. Can you even tell me what the disorderly conduct law, which is 609.72 says?

MR. CAIN: Objection, your Honor, relevancy again.

THE COURT: I would sustain the objection.

THE DEFENDANT: I believe it's relevant that if she's charging me under the law,

she should have knowledge of what the law says. I believe that's perfectly relevant.

THE COURT: Yeah, but all I'm going to get out of her is her parroting

back the statute, and I know the statute. So let's get to it. Okay?

She doesn't have to tell me what the statute is; I already know what that is.

BY MR. BUSHARD:

Q. Have you read State of Minnesota Court of Appeals CO-97-668,

also C8-97-756?

A. I do not believe so.

Q. Are you aware that one of these cases

rule that although defendants call police officers -

THE COURT: No, let me interrupt again. I'm the Judge; she's merely a witness who

saw things and issued a ticket. Test her knowledge of what she did at

the scene, but otherwise stop asking her pointless questions. You can argue your case

after we're all done. I'm the guy you've got to impress with the law.

THE DEFENDANT: Okay.

THE COURT: Okay? Maybe she made a mistake; maybe you're guilty as sin; but

I don't know that yet because I've got to get all the facts first, then we'll talk about the law.

THE DEFENDANT: Okay.

 

BY MR. BUSHARD

Q. I was wondering -- I looked through the disorderly conduct law. I was

wondering if you could tell me anywhere in that law where it explicitly forbids --

explicitly makes -

THE COURT: You weren't paying attention. I'm the guy that works on the law;

she works on the facts. Have you got any more questions about the facts as she

testified them to be? Save your good stuff for later when you

talk to me about what the law is. Okay?

THE DEFENDANT: Okay. No further questions for this witness.

THE COURT: Any re-direct?

MR. CAIN: Briefly, your Honor, in regards to the hearsay question

that the defendant objected to that the Court had actually sustained.

RE-DIRECT EXAMINATION

Q. Officer Erickson, what did Jack and Doreen Grave tell you

about the defendant's conduct on the date in question?

A. They told me that he had been harassing

customers and handing out pamphlets for the past half hour, approximately.

MR. CAIN: I have nothing further of this witness, your Honor.

THE COURT: Any follow-up questions on just what she said now?

THE DEFENDANT: No. No, your Honor.

THE COURT: All right, you're excused.

THE WITNESS: Thank you.

MR. CAIN: The state calls Commander Dan Schisel to the stand.

DANIEL T. SCHISEL, called as a witness, being first duly

sworn, was examined and testified under oath as follows:

THE REPORTER: Would you please state your name

for the Court and spell your last name?

THE WITNESS: Daniel T. Schisel, S-C-H-I-S-E-L.

 

DIRECT EXAMINATION

BY MR. CAIN:

Q. Commander Schisel, who are you employed by? A. City of Mankato.

Q. In what capacity?

A. Police commander.

Q. What are the duties of a police commander, briefly?

A. If officers -- I supervise a crew of officers.

Q. And so you were on duty on June 4th of this year at. around 4 o'clock in the afternoon?

A. That is correct.

Q. Did you respond to a report for a request for assistance at Joe's Liquor here in Mankato?

A. That's correct.

Q. Did you go to that location?

A. I did.

Q. You responded to it in a marked squad or marked suburban?

A. An Expedition, yes; correct.

Q. Dressed in uniform similar to the way you appear today?

A. That's correct.

Q. What happened after you got to that location?

A. I explained to, later identified as Andrew Bushard, who I was;

and I explained that he did have the right to picket there and -

Q. That he did have the right?

A. I explained that he did have the right to picket there, but it needed to be under

certain rules: that he needed to be in the boulevard and that he could not harass the customers;

but if it's followed under the rules that yes, he could picket there.

Q. What happened next?

A. I did make several attempts to identify him, trying to get his name

so that we would have that for a police report in case there were other people

that would come forward or if there were problems later on we would know who he was.

He would not say anything, and he would not budge when he was standing outside there.

Q. He refused to identify himself?

A. That is correct.

Q. Did he offer any explanation or any -

A. He did not. I attempted three times, at least, to identify, again, myself

and explain everything that Officer Becky Erickson and Larry Kreps

had explained to him: that we needed his name for identification, and that

he needed to follow the lines about being in the boulevard and not harassing

the customers. He did not reply, though.

Q. At that time, what happened next?

A. I did place him under arrest for disorderly conduct.

Q. While you were dealing with him at that point in time while

he was being placed under arrest, did he have a tape recorder?

A. Later on at the police station we did discover that he did have a tape recorder in his bag.

Q. You ultimately placed that tape cassette that was in the tape recorder into evidence?

A. The officers did, yes.

Q. What happened next after dealing with him there at the

 A. Like Officer Becky Erickson had indicated, she did transport

him, and he was taken to the police station where they

proceeded with the booking process and then released him.

 Q. This all happened here in the City of Mankato, Blue Earth  County, Minnesota?

 A. That is correct.

MR. CAIN: I have nothing further of this witness, your Honor.

THE COURT: Having in mind the limitations we've discussed, do you have any

questions of this officer?

THE DEFENDANT: Yes, your Honor.

CROSS EXAMINATION

BY MR. BUSHARD:

Was I blocking the entrance to Joseph's Liquor?

A. When I arrived, no.

Q. Was I preventing customers from entering the building?

A. When I arrived, no.

Q. When you arrived, was I on public property?

A. You were in the sidewalk in front of Joseph's Liquor.

Q. Sidewalk would be public property, would it not?

A. There's a point there where it's Joseph's Liquor property,

and there's a point there where it's boulevard;

that is correct. I don't know what point that is, but -

Q. The city -

THE COURT: Let me interrupt. When you say boulevard, I have in mind

the space between the curb and the edge of the sidewalk.

What are you using as your definition of boulevard?

THE WITNESS: Yes, that's correct, your Honor.

THE COURT: All right. So, if a person -- if he were standing on the grass, it's okay;

if he's standing on the sidewalk, it's not okay. Is that what you're using?

Just so I understand your perspective.

THE WITNESS: There is a sidewalk, and it's

poured concrete right up to Joseph's Liquor.

THE COURT: All right.

THE WITNESS: And I'm -- I'm not sure exactly where that line is,

but I assume from the sidewalk to a portion of the concrete there is boulevard.

THE COURT: Okay. So, when you say boulevard you'd be talking about the city right-of-way?

THE WITNESS: Correct.

THE COURT: And so a portion from the curb to at some point on the

sidewalk is city right-of-way; and then from there on whether it's concrete

or not, it may be, then, privately owned?

THE WITNESS: Yes, your Honor.

THE COURT: Okay, thank you. Go ahead.

 

BY MR. BUSHARD:

I was on the sidewalk?

A. That is correct.

 

Q. Did I seem to pose a threat. of

imminent physical harm to others?

A. No.

Q. Did I strike you or threaten to strike you?

A. No.

Q. Did either the witnesses or the police

officers tell you I blocked the entrance?

A. They indicated to me that you were harassing the customers.

Q. That's not the question I asked. I asked:

Did the police officers or the witnesses

tell you I blocked the entrance?

A. Well, when you say witnesses,

I'm referring to what the

officers informed me that had

taken place prior to my arrival.

Q. Thus, did Christina McDonald, Doreen McDonald,

Jack Grave, or these two officers in the courtroom

in any way indicate I was blocking the entrance

to Joseph's Liquor?

A. Christine McDonald had indicated to

Officer Becky Erickson that she -

MR. BUSHARD: Hearsay.

A. -- was being harassed when you

had called her this name. Okay.

Q. That's not the question I asked. I asked:

Did they tell you I blocked the entrance?

A. I did not talk to any of the witnesses other than

Officer Larry Kreps and Officer Becky Erickson.

Q. Did Officer Larry Kreps or Officer Becky

Erickson tell you I blocked the entrance?

A. No, they did not.

Q. Did Officer Kreps or Officer Becky Erickson tell you

I physically prevented customers from entering the store?

A. You were harass -- they indicated that you were harassing

customers through Christine McDonald.

Q. But they did not tell you I physically prevented

customers from entering the store?

A. I don't believe they witnessed that.

Q. Did they tell you I physically attacked customers?

A. No.

Q. Did they tell you -- did you listen to the tape?

A. We didn't hear anything on the tape.

I'm not sure if there's anything on the tape, or not.

Q. Did I resist arrest?

A. No.

Q. While we were standing there, did a speeding car go by?

A. I was dealing with our situation. I don't know that.

Q. Did you not say, "Where's a cop when you need it," when a speeding car went by, then laugh?

A. I don't recall.

Q. If you don't recall that, maybe you may not

have recalled some other parts of the case.

A. I'm clear on what the officers had called me to the scene for,

and I'm clear on myself explaining several times over and over that all you needed to do

was identify yourself so that we would have it for the police report, and you continued to -

Q. Would -- as a police officer, if a car is

speeding by, wouldn't that be important?

THE COURT: Wait a minute.

MR. BUSHARD: He's not answering the question I asked.

THE COURT: Well, the question is pointless. Who cares -- to be blunt.

Just keep to the facts of the case. Do you have any other

questions of him as far as what he said?

THE DEFENDANT: I'm demonstrating his con --

the nature of his conduct on this incident.

THE COURT: That may be, but it's irrelevant to me. Do you have any more

questions of the facts? I mean, all he did was take reports from other people

and provide you with guidance, so there isn't much for him to contribute.

Anything else you need to ask him? THE DEFENDANT: I do not believe.

THE COURT: Any re-direct? MR. CAIN: No, your Honor.

THE COURT: Then you're excused.

MR. CAIN: The city rests, your Honor.

THE COURT: All right. You may testify if you want to, but you are constitutionally

allowed not to. It's up to you. You know this; I know you do. Do you want

to testify, or do you want to remain silent?

THE DEFENDANT: I would like to testify.

THE COURT: Then come on up, be sworn, and have a

seat.

ANDREW J. BUSHARD, called as a witness, being first duly sworn, was

examined and testified under oath as follows:

THE REPORTER: Would you state your name for the Court, please?

THE WITNESS: Andrew J. Bushard, J is for John.

THE COURT: All right. Then tell me what you want me to know about this.

Not about the law, not about the cases that you've read, just the facts that you want me to know about.

Then you'll get a chance after we're all done to present the law in a formal argument.

THE DEFENDANT: Yes, your Honor.

THE COURT: Just go ahead.

THE DEFENDANT: I have a problem with the business of the liquor trade, t

herefore I feel compelled to protest. Thus, on June 4th I protested at Joseph's Liquor.

My mode there was to hold up my sign which on one side says: This shop sells alcohol.

{I mispoke I wanted to say "drugs" instead of "alcohol"]

On the other side it says: Boycott the liquor industry. Also there, I was planning to not confront people.

I was there to show the sign. Usually, the sign is enough. If people are interested,

they'll come to me. Then I had some leaflets to pass out. These leaflets were in

regards to a fast of 21 days I did last November to protest the liquor industry.

That helped explain why I was out there.  After a short while, Jack Graves

came to the scene. He came from -- he was inside the store. He saw my sign, apparently.

He said, "What type of drugs do we sell here?" I didn't respond. He said, "What type of drugs

do we sell here?" I didn't respond. He said, "Are you on drugs?" I didn't respond. I believed it would --

it was bet -- there was no productive reason to respond because it would just get into an argument.

Then he said, "That's it, I'm calling the police." A little bit later Doreen Grave,

who is also one of the owners of the store, came by me. She muttered: "Sick bastard,"

to me.A woman named Christina McDonald was wondering what my sign said. She inquired

about that. She asked: "What type of drugs do they sell?" Then it apparently dawned on her.

She said, "Alcohol." Then she asked: "What's wrong with alcohol?" I gave her a flyer, then

she got some soda from the machine and she said, "Caffeine's a drug, too." Then one of

her friends came along. They said, "Come on, Christina, let's go." Then she went around -- along.

Then shortly after that, officer -- before that -before Officer Kreps came,

Joseph also came back out. Joseph Grave said, "Look this way." He had a camera

in his hand. He called me a word I'm not going to repeat. I looked that way.

He took the picture. He said, "I just talked to my lawyer; see you in court."

Officer Kreps came onto the scene. He said, "What's up?"

He tried to get some response from me. I did not respond to him for a

number of reasons I can explain later. Then he got frustrated. He grabbed --

he grabbed my book bag. I grabbed my book bag at the same time. We struggled

for a little bit. He said, "You don't want to get into this." I still held onto it for a

second, and then he said, "Let go." I let go of it. Then I asked him,

"Do you have a search warrant?" He says, "I don't need one."

Then I yelled as he was looking through my bag, "I do not consent to this search.

I do not consent to this search. I do not consent to this search."

Then Becky Erickson -- Officer Becky Erickson came onto the scene.

She also tried to get me to respond to her. I did not do that. She found out my name through

the leaflet that I was distributing. They both then -- after both of them trying to get me to

respond, they discussed among themselves what they could get me for. They threw

out a few different possibilities. They said -- Officer Becky Erickson said, "Maybe we can get

him for vagrancy"? Officer Kreps said, "Maybe we could get him -- we could have them get him for --

arrest him as a citizen for disorderly conduct." They threw out a couple different laws I was allegedly breaking.

They called Officer Schisel. They called him onto the scene. He also tried to respond to me.

A speeding car went by. They laughed. They said, "Where's a cop when you need one?"

Then, as he said, he told me, "You have a right to be here, but you're not doing this right."

They really wanted me to identify myself. Then finally, he said, "There's a right way and a wrong way to do this."

Then they decided to arrest me. They put me in the squad car.

They took me to the police station. That brings us to today.

THE COURT: All right, thank you. Questions of him?

MR. CAIN: Briefly, your Honor. CROSS EXAMINATION

BY MR. CAIN:

Q. Mr. Bushard, isn't it true that while you were outside the

store that you were talking with other customers that were going into the store?

A. I was if they -- if they approached me.

Q. And your testimony was that on one side of the

sign that you were carrying, that it said something to the

effect that this shop sells liquor. Is that what you said was on the sign?

A. I said, "This shop sells drugs."

Okay. So that was on the sign?

A. It was.

Q. And on the other side, do you recall what was on there?

A. It said, "Boycott the liquor industry."

Okay. And isn't it true that you spoke with a Christina

McDonald there at the site of the liquor store?

A. I did; I did.

Q. And do you admit or deny telling her that

she was a fetal alcohol syndrome baby, or something to that effect?

A. I deny it. I wouldn't call her something that stupid.

Q. You deny calling her any names?

A. I deny calling her any names.

Q. Were there other customers that you spoke with there while you were at the scene?

A. I do not believe I spoke to any. One man came by; he said,

"You're nuts," but I do not believe any approached me,

therefore I do not believe I responded. If you're referring

THE COURT: Ask another question.

Q. You're denying harassing other customers?

A. I did not -- I certainly did not harass other customers.

Q. Okay. What -- what. type of contact or communication did you have with the other customers?

A. On that day -

Q. That day.

A. On June 4th, as I said, I almost spoke to no one except those who

approached me. The only one I could remember was Christina McDonald.

Q. There weren't other customers that you spoke with?

A. Not on June 4 th .

Q. It's also true that you refused to identify yourself there

at the scene to the police officers?

A. That is true.

Q. And you would acknowledge that calling someone a name,

though, that would be considered harassment?

A. I would -- I would be wary -- first of all, I do not say I said that;

but even if I did, I would be reluctant to call that harassment.

Q. And if you said other things similar to what was

alleged that you said to Ms. McDonald, do you consider that harassment?

A. If I said other words than what I said to Ms. McDonald,

would I consider that harassment? If I explained to her what

my sign said, no, I don't think that would be harassment.

MR. CAIN: I have nothing further, your Honor.

THE COURT: All right, then you may return to your seat. Thank you.

I presume that concludes the presentation of your evidence?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you have any re-direct -- or

rebuttal?

MR. CAIN: No rebuttal, your Honor.

THE COURT: All right. Do you wish to argue presentation, and

I'm presuming under 609.72, that I need to find beyond a reasonable

doubt that Mr. Bushard engaged in offensive or abusive conduct or said things

which are construed as fighting words and that tend to alarm,

arouse anger or resentment in others.

MR. CAIN: Yes.

THE COURT: So, your comments, sir?

MR. CAIN: None, your Honor. The city would rest on the evidence.

THE COURT: All right. Briefly, briefly.

THE DEFENDANT: May I stand, your Honor?

THE COURT: You may, or you may sit -- either way. I don't need a 20 minute exposition on the constitution.

 Okay? I'll give you a minute, and that's it. Go ahead.

 THE DEFENDANT: I believe, your Honor,

it's an  injustice I'm here at all.

There's certainly more important  cases.

This almost became a jury trial.

I believe the two bad sides here are Officer

Kreps because he violated my fourth amendment

rights, and Joseph's Liquor because they

 are selling bad products. Mr. Cain is my adversary -

THE COURT: Now just a minute. Let's stick to

the facts and to the law applicable to the statute,

otherwise  sit down. I'm not here to listen to you

expound on life's problems that

you have or experienced or on your

philosophy of life. Either talk about

the facts and the statute, or

 sit down. I don't have the time for all of this.

 THE DEFENDANT: There are two components

of this case: the facts and the

application of the law, how the officers -

17 THE COURT: Good point.

18 THE DEFENDANT: -- used the law. The facts, I do

 not believe they proved beyond a reasonable doubt.

A  reasonable doubt, they have to prove beyond --

they have to  do a big job. I believe there is

plenty of doubt today. Not even the owners of the

bar were able to testify.  23 Christina

McDonald was not able to testify. They were able

 to find no independent witnesses.

I also testified I did  not call

her fetal alcohol baby.

Page 33

I would like to address the law. I examined this law.

I believe this law is very subjective, vague. Additionally,

 

I read some Court of Appeals decisions which in one case

there was a defendant who called lots of obscene names to police officers,

but the Court of Appeals in Minnesota ruled there was no imminent physical harm.

None of the officers testified I called them obscene names or threatened them.

Furthermore, we have to specify what we are referring to as harass, abuse,

offensive, disturb, reasonably alarm, all of these, all of these very subjective words.

The Supreme Court ruled they cannot use the laws for -to

combat rudeness or for social engineering. Even if I did call her that,

that could be considered rudeness because

they testified I did not prevent traffic flow, I did not prevent customers from entering the shop.

Also, social engineering is something very important to look for.

They are afraid some people like Joseph's Liquor are going to use the police to get somebody

from doing perfectly legal behavior. That is, of course, not right. There is nothing in what I did

or what I said which would lead someone to provoke imminent physical harm, and that's a

key phrase they ruled -- imminent physical harm. Even if I did say what they said, which is seriously questionable, I

 also believe there's a very sad -- very sad, cynical view some of us have about

police and disorderly conduct. There's that view that they just use disorderly

conduct because they can't find anything else to throw on you. That is -- that is an inherent problem

of a law as vague as our disorderly conduct law is.

Furthermore, I would like to address not talking to police.

There is nowhere in that law which says you have to talk to police or even

have to identify yourself. Why didn't I talk to police? Number one, I believe rights are

intrinsically rewarding to assert. I believe our constitutional rights, thus even

if I have bad reasons for not talking to police, even if I'm irrational, I don't have to do it.

I have good reason; I've had lots of bad experiences. Furthermore, I am aware of my rights.

I realize my rights are very important. I'm doing my part to make

sure these rights are preserved for everyone.

THE COURT: Okay, thank you.

All right, as I already indicated, the statute compels proof that the

defendant engaged in offensive, abusive, boisterous conduct, or in fighting words

if it's language, that reasonably tends to arouse alarm, anger, or resentment in others.

The proof that I have is that Mr. Bushard was picketing at Joseph's Liquor on the

particular day in question. During the time he was picketing, I'm not sure if he was

standing in the doorway, if he was standing on the sidewalk,

if he was standing on the street. He was there.

When the officers came, they saw him on the sidewalk,

but no  one could testify with accuracy

as to whether he was on the

 city portion of the sidewalk that's in the right-of-way,

 a/k/a boulevard, or if he was on Joseph's Liquor private

 property. He obviously upset the Joseph's, but that's true

 for every business owner that is picketed;

and I don't think  that the statute in question

rises to the level of

preventing a person from picketing as long as they aren't

 doing something else that's improper.

 As far as the comment made to McDonald, that was

 conveyed. It's denied that it was said, so that creates

 some doubt as to whether it was said. And frankly, even if

 it was, I'm not sure it rises to the level of fighting

 words. At least that's not a common phrase that one expects

 to hear as fighting words unless, of course, you happen to

 be someone who was a fetal alcohol affected person and 

therefore it would be personally and uniquely insulting,

but  I don't know that. Bottom line is Mr. Bushard

is doing that which I think

 the constitution permits. He was being a pain in the butt

 from the perspective of the Joseph people,

but I don't think  he violated

the law in question, gentlemen and lady, so I find him not guilty.   

You're excused.

 THE DEFENDANT: One request, your Honor.

 

THE COURT: No requests; you're excused.

THE DEFENDANT: They took my -- could I get my fingerprints

returned to me since I'm not guilty?

THE COURT: You'd have to go down to the LEC and talk to them;

I doubt it. I think once you're booked, you're booked.

(This concluded the proceedings.)

2 STATE OF MINNESOTA IN DISTRICT COURT

 COUNTY OF BLUE EARTH FIFTH JUDICIAL DISTRICT 4

 State of Minnesota,

 Plaintiff, File No. T8-03-4176 i

 vs. REPORTER'S CERTIFICATE 8 Andrew J. Bushard,

 Defendant.

 I, Peggy Hill, do hereby certify that I am an Official

 Electronic Court Reporter in the Fifth Judicial District of the

13 State of Minnesota; that as such I did electronically record

the 14 proceedings of the above-entitled action; that I did thereafter

15 transcribe into typewriting the foregoing transcript from the

16 recording taken on September 23, 2003; and that the foregoing

transcript, consisting of 36 pages, constitutes a full, true, and

18 correct transcription of all the proceedings of such hearing.

19 DATED: October 24, 2003

20 ~ . v

Peggy Hi

21 Of ficia Court Reporter Mankato, MN 56001

22

23 24

TAPE NOS. P-3066 & 3067

25 INDEX NOS. 3371 - 7024 & 001 - 710