By Tim Carpenter, Kansas Reflector
LAWRENCE — An attorney representing 78-year-old Earl Ray Harris asked the Kansas Court of Appeals to toss a felony conviction resulting from a protest against public employees who were digging a ditch on his land without permission.
Reid Nelson, a state appellate defender, said his Crawford County client initiated in March 2019 a lonely but consequential protest of the ditch project. Harris complained to a city council member before going to the site. He made his opinion about the incursion known by sitting on a stool and holding a shotgun. Two public works employees at the scene hid behind vehicles. Eventually, Girard Police Department officers arrested Harris.
Harris was acquitted of aggravated assault, which required proof of an actual threat of bodily harm. A jury found him guilty of “aggravated interference with the conduct of public business in a public building.”
During oral argument on the appeal Tuesday, Nelson reminded the three-judge panel that Harris performed his protest on his own property rather than in a public building. The conviction should be overturned because the law says the impediment must involve a public building, Nelson said.
“In this day and age, when you invoke a weapon, doesn’t that change the character of the message?” said Court of Appeals Judge Amy Fellows Cline.
Nelson said Harris never pointed the weapon at anyone. He said the unloaded firearm was in two pieces and had to be held together with a cable tie during the trial.
“The First Amendment right to freedom of speech and expression and the Second Amendment right to bear arms are both rights that can make people uncomfortable,” he added. “The United States Supreme Court says clearly that before the exercise of these important rights can be criminalized, the jury must determine that the action involves a true threat of violence.”
Nelson said a jury would have a difficult time making that assessment because the interference law was unacceptably vague. It infringed on freedom of speech and expression in the U.S. Constitution and Kansas Constitution’s Bill of Rights, he said. The attorney contended the conviction violated Harris’ Second Amendment right to bear arms.
“There’s nothing wrong with calling the police for this type of thing,” Nelson said. “The mistake came when they arrested him for doing nothing more, really, than walking on his property with his own gun and turning his back, in a completely nonthreatening manner, on these employees.”
The Court of Appeals panel of Chief Judge Sarah Warner, Judge Thomas Malone and Cline convened at the Dole Institute of Politics at the University of Kansas for argument of the case so members of the public could get a glimpse of how the judiciary operated.
Much of their time in the building, which is festooned with memorabilia tied to former U.S. Sen. Bob Dole, was devoted to teasing out meaning of the statute on aggravated interference with public employees.
Andy Lohmann, assistant solicitor general for Kansas, urged the judges to reject Harris’ appeal. He said the law in question wasn’t mysterious. A reading of the statute made clear the Kansas Legislature was interested in protecting government workers beyond physical walls of a government structure, he said.
“Ultimately,” Lohmann said, “you can commit the crime of ‘interfering with the conduct of public business in a public building’ — not in a public building.”
On this point, Lohmann was asked by the panel to confirm he didn’t believe it mattered whether Harris carried out his protest in a building or a pasture.
“That’s correct,” Lohmann said. “He knew he was going to impede public officials by intimidating them with the weapon.”
He told the appellate judges the constitutional issues raised by the defendant’s attorney weren’t relevant to the appeal.
“The right to bear arms is not the right to carry a weapon for whatever purpose,” Lohmann said. “The state has the ability to make sure that someone is not carrying the weapon in order to intimidate a city worker so they stop working.”
Warner, who grew up in Pittsburg and joined the Court of Appeals in 2019, said both Nelson and Lohmann asserted during their presentations that they had a firm understanding of K.S.A. 21-5922.
“It’s kind of a strange statute,” she said. “Everyone is willing to argue that this is a clear statute, but I’m not sure that I’m among your number.”
