Motivation for Alton chief's arrest of public speaker topic of court hearing

LACONIA — Alton Police Chief Ryan Heath spent about an hour on the stand in the 4th Circuit Court, Laconia District yesterday testifying about why and under what circumstances he arrested Jeffrey Clay — a local man who was addressing the Board of Selectmen at the time. Judge Jim Carroll took the matter under advisement and will issue a ruling at a latter date.

Yesterday's proceeding was a hearing on Clay's motion to dismiss the charges. Under direct examination from Alton Prosecutor Anthony Estee, Heath testified that he was at Town Hall the night he arrested Clay for two reasons — he had administrative business to discuss with the board and that since November of 2014 the board had asked for a police presence because of some disturbances.

"Mr. Clay started asking members to stand up and resign," Heath said, noting Clay also told the members they were violating the Right-to-Know law and that he disliked some of the actions the board had taken.

Heath arrested Clay and removed him from the selectman's meeting on February 3. Initially charged with two separate counts of disorderly conduct — one for failing to move from a public place after he was told to by a police officer (Heath) and one for disrupting a public meeting. The charge of disrupting a meeting was dropped by the prosecution.

Heath said he arrested Clay after the board chair made a motion to close public comment in the middle of Clay's speech. He said he asked Clay twice to take his seat in the audience and Clay ignored him. When Heath touched his left shoulder, Clay told him to remove his hand and continued to talk over the gavel banging of the chair. Heath testified that Clay asked him if he "was under arrest, yet" and he replied "No but you will be if you don't take your seat."

When Clay continued to speak, Heath arrested him.

In court yesterday were three media outlets and some free speech supporters — one of whom held a picture of a Norman Rockwell painting called "The First Amendment" so the judge could see it.

Key to yesterday's testimony was Heath's state of mind when he arrested Clay. The state contends that because of previous encounters, Heath had with Clay, Heath had reason to believe that Clay would exceed his five-minute allotted time.

Also relevant to the arrest is that the Alton Board of Selectmen changed their rules regarding public comment after a February 3 meeting to include that comments couldn't be "slanderous, libelous or make direct references by name of town employees or board members' families".

"It was clear Mr. Clay has escalated his behavior," Heath said, noting that on February 3, he asked asked Clay to stop talking at the request of the selectmen and Clay stopped and took his seat.

Clay's defense attorney Jared Bedrick, Esq. argued that this was pure speculation and that Heath couldn't possibly have known whether or not Clay would exceed his five minutes.

Under cross-examination, Heath testified that Clay was using his cell phone as a timer and had told the selectmen he was doing so.

Bedrick pounded Heath with questions related to his prior contacts with Clay, whether he arrested him on his own volition or whether he was acting at the direction of the board, and about his training in the First Amendment and what constitutes exceptions to it.

He also asked Heath if he understood a person doesn't have to obey and unlawful order from a police officer.

Heath said he understands the different between when he can intervene and when he will arrest someone. He said he arrested Clay because he disobeyed his order to take his seat.

"My decision to arrest was not made by the board," Heath said.

Some of the questions Heath fielded were about previous discussions the two men had over what he could and couldn't say at the meeting. Heath said he told Clay that he should be business-like and respectful and not make comments about the families of the members of the board, especially about their minor children — something Clay had done in the past according to Heath.

Judge Carroll had some questions of his own for Estee and Bedrick about some of the case law they cited in their respective motions and about some of the video he watched that was entered into evidence.

Referring to the video, Carroll noted that Selectman David Hussey called a point of order but didn't specify about what. "Does the state take the position that the conduct was libelous?" he asked.

Bedrick replied that the state doesn't argue that Clay's conduct rose to the definition of slanderous libel.

"So nobody knows if he violated the rules of conduct either," Carroll continued.

When Bedrick started to make reference to recent actions of a Belknap County Sheriff's Office deputy who refused to clear a meeting room when asked to do so by the then chair of the Belknap County Commission. Estee objected saying it was a different case and a different set of facts.

Carroll agreed.

Carroll also wanted to know how the attorneys felt that Heath's private discussions with Clay about what he could and couldn't say constituted prior restraint — or a ruling usually cited by news media who can't be told what they can and cannot publish.

Bedrick said what happened to Clay was worse than prior restraint because it could result in his client having a criminal record. Estee said Clay's arrest was based on Clay's reaction and conduct to Heath — not any previous discussions the two had.

Carroll said that it appears the case centers on the reasonableness of the arrest verses the lawfulness of the order.

Estee argued that Heath, by arresting Clay, prevented and "imminent threat of disorder."

"You guys (didn't prosecute) the case regarding disorder," Carroll said.

Estee countered that the government has a right to conduct orderly meetings.