NEWS- Late-breaking video: Did Collins mean to trespass?
Convicted trespasser and former House of Delegates candidate Rich Collins was back in court September 20 to contest his conviction for refusing to leave Shopper's World, where he was arrested in front of Whole Foods Market in May 2005.
The potentially precedent-setting misdemeanor case pits the Constitutional right of free speech against another compelling American icon: property rights.
Represented by the ACLU and the Rutherford Institute, Collins was convicted of trespassing last fall in Albemarle General District Court. His appeal was heard in Albemarle Circuit Court by Judge Paul Peatross, who earlier had dismissed Collins' civil suit against Shopper's World. That case is under appeal to the Virginia Supreme Court.
The defense tried a new tack in the criminal appeal, arguing that Collins acted in good faith when he refused to leave the private shopping center and thus did not have criminal intent to trespass.
"He had a good faith belief that what he was doing was lawful," said defense attorney Steve Rosenfield. "He showed up in a suit and a tie on a Saturday afternoon. He had a badge that identified him as a Democratic candidate. He was passing out literature. Mr. Collins was asserting his First Amendment free speech rights."
The surprise piece of evidence is a 40-minute police videotape of the arrest on which, says Rosenfield, Collins discussed his First Amendment rights 10 times. "There's no argument Rich Collins was there to exercise his First Amendment rights. The Commonwealth has to prove criminal intent beyond a reasonable doubt," said Rosenfield.
"He's saying because he was handing out political literature, he's exempt from property rights," argued Deputy Commonwealth's Attorney Rick Moore. "A private shopping center is not the same as a public square. First Amendment rights don't trump property rights."
When the Bill of Rights was written, a leafleteer like Collins likely would have been on public property, like Court Square. But in the 20th century, spaces commonly thought to be public– such as Barracks Road Shopping Center or Fashion Square Mall– are in fact private property.
Shopper's World claims a blanket no-solicitation policy. "Shopper's World invites the public to shop," said Moore. "They're not invited to come hand out political information."
In five states, noted Rosenfield, Collins would have been allowed to politick at a privately owned public space like Shopper's World. And his defense team seems intent on making that six states by pushing the Constitutional issue to Virginia's Supreme Court.
Peatross asked that if the minority states' view is that Collins does have a Constitutional right to free speech in a shopping center and if Collins believed he had that right, wouldn't that negate criminal intent?
"Ignorance of the law is no excuse," answered Moore.
Peatross also asked whether the arrest was a campaign stunt, quoting from the police video, "I'm low on campaign funds and I need the publicity."
Rosenfield said that assertion was made by Chuck Lebo, property manager for Shopper's World, to the police officer. "There was no evidence the media was there, no one was there snapping photos," said Rosenfield.
The defense conceded that Collins was asked to leave and refused, comparing that to civil rights demonstrations in the '60s when sit-ins were held at segregated lunch counters.
Peatross gave the attorneys until October 6 to file additional opinions supporting their cases. "This is an important case," he said. "I'm not satisfied the research has been thorough enough."
If he finds Collins guilty, Peatross may delay sentencing until the Supreme Court of Virginia decides whether to hear Collins' civil appeal.
"I have a good feeling," says Rosenfield after the appeal. "I was pleased at the questions [Peatross] was asking the prosecution."
"The other side has lost two times," reminds Shopper's World property manager Lebo. "We're all for free speech, so it's not that. It's about harassment and property rights. He was bothering the customers."
The videotape of the arrest made from the police cruiser has become a side issue of its own. Rosenfield said he saw it for the first time the week before the appeal, and that he's filed a complaint with Albemarle police chief John Miller.
"It should have been turned over," says Rosenfield. "That violated Rich's right to have exculpatory evidence in his first trial."
At press time, Miller said he had not received Rosenfield's letter, but he points out that notification of the videotape was written at the bottom of the police report, and that was overlooked by both the commonwealth's attorney and defense. "We were not hiding it," declares Miller. "Everyone had a chance to see it."
UVA environmental prof Rich Collins is now the poster boy for two revered issues: free speech and property rights. FILE PHOTO BY JEN FARIELLO