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Hoffman: Pentico public trespass case displays government arrogance, denies due process

Hoffman: Pentico public trespass case displays government arrogance, denies due process

Wayne Hoffman
May 10, 2009
Wayne Hoffman
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May 10, 2009

Christopher Pentico's visit to Gov. Butch Otter's office on April 2, 2008, netted him a trespass conviction and the possibility of six months in jail with a $1,000 fine. The 42-year-old from Mountain Home will be sentenced on Monday. Pentico is not dangerous, but his tenacity got under the skin of state officials, making them appear arrogant and tyrannical as they sought to prevent his re-entry into public office buildings.

"It was so unbelievable. I couldn't believe this could happen," Pentico, who tutors veterans for a living, said recently. "It seemed like a fundamental breach of trust between a person and his representation."

On March 25, 2008, two Capitol security officers blocked Pentico's entry to the Legislative Annex and told Pentico not to enter the annex, the third and fourth floors of the Borah Post Office (the temporary home of the governor's suite of offices), and the state Department of Education.

"I was asked not to have (Pentico) come back, and I relayed that information to him," Idaho State Police Corporal Jens Pattis told me Wednesday. Pattis said he consulted with Otter adviser Clete Edmunson and House Sergeant-At-Arms Judy Christensen on how to handle Pentico.

Edmunson said Pentico wanted Otter to inject himself in Pentico's dispute involving Boise State University and the State Board of Education, and persisted even after being told Otter would have no part of it.

"He just kept coming back to us," Edmunson complained.

Was Pentico belligerent? I asked Edmunson.

"I wouldn't say belligerent," Edmunson answered. "Obstinate might be the right word for it."

"He wouldn't take no for an answer," added Mark Warbis, the governor's communications director.

Dismayed but not deterred, Pentico decided to enter Otter's forbidden office complex on April 2 to submit a written complaint against the officers who confronted him outside the annex. He left his protest correspondence with Otter's receptionist and left the building. Pattis promptly nabbed Pentico on a Boise sidewalk, positioned the scofflaw's arms behind his back and handcuffed him.

Pattis believes Pentico's chutzpah is to blame for his predicament. Pentico brazenly defied a law enforcement order when he could have just dropped his complaint in the mail, Pattis said. Pattis said he offered to help Pentico speak to his representatives whenever he needed it.

"I bent over backwards for this guy, trying to help this guy out," Pattis said.

Pattis applied the law as he knows it. But the Pentico affair remains a worrisome display of state arrogance. Through case law, Idaho's trespass law has been expanded to apply to public property. It's a bad fit. If you're a private property owner, you have very wide discretion to tell people to leave and not come back. No due process needed. The same cannot be said of public property. Due process should be required, and yet Pentico was denied his. Equally troubling is that a very small number of government employees proclaimed three public buildings off-limits and then compelled Pentico to obey - not because they were afraid of him, but because they were tired of dealing with him. They alone determined the point at which a diligent constituent became an obstinate one. And they alone determined that Pentico's obstinance had crossed an imaginary line requiring their action.

For such a severe action, there seems to be little or no real record of the events leading up to the decision to bar Pentico from state offices, as evidenced by several competing stories. Edmunson and Pattis said the House of Representatives' Judy Christensen was included in a chat about barring Pentico, but Christensen said she doesn't know who Pentico is and doesn't recall having a discussion about him.

"He's not barred from the building by any means," Christensen said unsuspectingly last week.

At the Department of Education, officials were under the impression Pentico was banned because he had threatened State Board of Education members. He had not. And while Pentico was banned from the Department of Education, he was not forbidden from going to the State Board offices one floor up. Yet the Board is an original source of the conflict that soured the relationship between Otter's aides and Pentico.

Pentico's attorney, Allen Derr, one of the preeminent First Amendment lawyers in the state, tried to focus the case on the obvious constitutional problems posed by banning a law-abiding citizen from several public buildings. Still, Magistrate Judge Kevin Swain decided Derr's constitutional arguments are not germane to the trespass case against Pentico, which is arguably the reason why Swain found Pentico guilty in last month's bench trial.

I wanted to visit with Pentico and offered two weeks ago to meet him at the Tea Party rally in front of the Capitol Annex, where I had been invited to speak. Pentico, fearing the reprisal of the state government, chose not to go.

His reluctance led me to recall this familiar quote from Thomas Jefferson: "When people fear the government, there is tyranny. When government fears the people, there is liberty." In Pentico's case, which do we have today?

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