Jan. 3, 2024  – A veteran’s conviction of disorderly conduct for his speech and behavior at a Veterans Affairs (VA) clinic did not violate the First Amendment because the clinic is a non-public forum, the U.S. Court of Appeals for the Seventh Circuit has ruled in U.S. v. Krahenbuhl, No. 22-3264 (Dec. 14, 2023).

Jamison Krahenbuhl, an Air Force veteran, visited the Milo C. Huempfner VA Outpatient Clinic in Green Bay in March 2021.

When Tiffany Mueller, a respiratory therapist, told Krahenbuhl that test results showed that he didn’t appear to have sleep apnea, Krahenbuhl got upset.

Krahenbuhl pounded a table with his fists and swore at Mueller.

Another therapist who overheard Krahenbuhl’s remarks tripped a silent alarm to summon the VA police.

Mueller asked Krahenbuhl to leave. As Mueller walked Krahenbuhl back to the entrance, he kept yelling.

Police Encounter

A VA policeman, Daniel St. Amour, tried to speak with Krahenbuhl near the patient advocate office, and again as Krahenbuhl walked toward the entrance. Krahenbuhl replied by swearing at St. Amour.

Outside the building, St. Amour put his hand on Krahenbuhl’s shoulder. Krahenbuhl turned around and swore again at St. Amour.

St. Amour’s fellow officer Andrew Turk grabbed Krahenbuhl’s arm near the parking lot. Krahenbuhl made a fist and swung his right arm back, as if he were about to hit Turk.

St. Amour drew his pepper spray canister. Krahenbuhl dropped out of his fighting stance.

St. Amour and Turk told Krahenbuhl that they too were veterans. Krahenbuhl said the VA was “fucking with his disability,” then walked to his car and drove away.

Convicted of Disorderly Conduct

The U.S. Attorney for the Eastern District of Wisconsin charged Krahenbuhl with two counts of disorderly conduct, under 38 C.F.R. section 1.218(a)(5), (b)(11).

A magistrate judge found Krahenbuhl guilty on both counts. Krahenbuhl appealed to the U.S. District Court for the Eastern District of Wisconsin and lost, so he appealed to the Seventh Circuit.

First Amendment Challenge

On appeal, Krahenbuhl argued that: 1) his conviction violated the First Amendment; and 2) the government failed to prove each necessary element of the crimes.

Judge Joel Flaum began his opinion for a three-judge panel by explaining that assuming Krahenbuhl’s speech was protected, the government can still regulate some protected speech.

“The constitutionality of the regulation depends on where the expression occurred, that is, the forum,” Flaum wrote.

Regulating speech in a public forum requires a compelling government interest, Judge Flaum explained, while speech in a non-public forum may be regulated so long as the regulation is both reasonable and content-neutral.

Looking to caselaw from the U.S. Court of Appeals for the Ninth Circuit, Flaum concluded that the VA clinic in Green Bay was a non-public forum.

“Like the building in [the Ninth Circuit case], the Clinic’s ‘primary aim’ is to provide veterans with medical care, not a space to exchange ideas,” Judge Flaum wrote.

“Even if some speech occurred incidentally at Clinic events, the purpose of the Clinic was not to facilitate speech.”

Regulation Is Reasonable

Flaum pointed out that both the U.S. Courts of Appeal for the Sixth and Ninth Circuits have held that 38 C.F.R. section 1.21(8)(a)(5) is both 1) viewpoint-neutral; and 2) reasonably applied to conduct inside VA facilities.

Judge Flaum wrote that while the prohibition in 38 C.F.R. section 1.21(8)(a)(5) is broad, “it does not distinguish based on the content of speech but instead how the content is relayed.”

As a result, he concluded, the section’s application to Krahenbuhl’s conduct was reasonable.

“The Clinic is a place veterans go to receive necessary medical treatment,” Flaum wrote. “Loud noises, shouting, abusive language, and other conduct that disrupts Clinic employees from their work is properly prohibited.”

VA vs. GSA

Krahenbuhl argued that the government had failed to prove that the VA clinic in Green Bay was under the control of the VA, as opposed to the General Services Administration (GSA), as required by 38 C.F.R. section 1.21(8)(a).

But Judge Flaum noted that nothing in the relevant caselaw indicated that the government was required to use a specific type of evidence to prove that the clinic in Green Bay was under the control of the VA.

Flaum concluded that, viewing the evidence in the light in most favorable to the government, a rational trier of fact could conclude that the clinic in Green Bay was under the control of the VA, based on the following:

• the police officers testified that they were VA employees and stationed at the clinic;

• the police officers wore VA police uniforms and responded to the alarm triggered by Mueller; and

• the respiratory therapists testified that they worked for the VA at the clinic.

‘An Ace from his Sleeve’

Regarding Krahenbuhl’s argument that the clinic in Green Bay was under the control of the GSA, rather than the VA, Judge Flaum concluded that Krahenbuhl had impermissibly invited error.

Flaum noted that Krahenbuhl had raised the issue for the first time while making a directed verdict motion after the government had finished its case-in-chief.

Judge Flaum also pointed out that Krahenbuhl had failed to raise the GSA issue in his proposed jury instructions.

“The only time he mentioned the GSA was to paraphrase the regulation, not make any discernible argument with respect to GSA control,” Flaum wrote. “It was only after the government rested at trial that Krahenbuhl changed course.”

As a result, Judge Flaum concluded, Krahenbuhl had violated the invited error doctrine.

“A defendant cannot propose the necessary elements of the crime and then, after the government concludes its presentation of evidence, perform an about-face,” Flaum wrote.

“Only after the government rested did he attempt to pull an ace from his sleeve, claiming that a not-previously-disclosed element prohibited his conviction.”