MEMORANDUM CONFIDENTIAL—ATTORNEY-CLIENT PRIVILEGED, DATE: April 27, 2006 TO: Kathleen Robinson, FROM: Mike Rank ‘Asst. Chief, Field Services Burean City Attorney Tucson Police Department x 4221 SUBJECT: Guidelines for dealing with protesters at events in City parks Issue: As a follow-up to the events at Armory Park on April 10, 2096, you have asked this office to summarize the applicable legal guidelines for Tucson Police Department (CIPD) response when protesters sppear at events in City parks for which a thint party has received either an exclusive or nonexclusive use permit. We first provide a summary of four conclusions, then a longer discussion of each point. ‘Summary of Conelusion + TPD may not exclude protesters fiom events open to the public and eld in lunenelosed areas of City parks under a nonexclusive use permit. But TPD may separate protesters and event participants if conduct by either or bath raises concerns of public safety or of interference with one by the other. * An exclusive use permitholder who has fenced and restricted access to the emitted area can choose to bar or eject protesters. If the permitholder chooses to do so, and seeks TPD assistance, TPD should apply the criminal irespass standard of A.R.S. § 13-1502, which requires that a person have knowingly entered or remained on the permitted area after the permitholder hhas made a reesonable request that the person leave. * Atall times, TPD can enforce ARS. § 13-2904, prohibiting disorderly eon- duct, * TPD should also apply A.R.S. § 13-2904’s disorderly conduct standards to decide whether a person has violated TC. § 21-3(7)(4), which prohibits inter ference with a permitholder. (aoorsata.n0c)Kathleen Robinson, Asst. Chief, TPD Page2 April 27, 2006 + TPD should continus to enforce all existing statutes and ondinances regulating fircarms and the use of fire in parks. General guidelines for events held in unenelosed park areas under nonexeh- sive use permits. A. TPD may not wholly exelude protesters from events open to the public and held in unenclosed areas of City parks. For the reasons stated in my April 12, 2006 memorandum to Mike Hein, the First Amendment does rot allow TPD to either exchice protesters from a City park, or keep them away from an event open to the public and held on an unenclosed portion of a City park, merely beeause a third party has reserved a portion of the park for the event and may disagree with the protesters’ message.! As that memorandum explained, a reservation to use a particular area of a City park does not automatically allow exclusive use of the entire park. The City’s Parks and Recreation Department only grants exclusive use permits where the facility already is en- closed (e.g. Hi Corbett Field, Tucson Rodeo Grounds), or where the event organizers themseives enclose the permitted park area with fencing and then restrict access, for ex- ample through an admission charge. All other City park use permits are nonexclusive, In those eases where the City has issued a permit, PD should find out from Parks and Recreation whether the permit is exclusive or nonexclusive. B. If conduct by either a protester or an event participant makes it necessary to intervene in order to ensure public safety and no interference, TPD may separate the two groups. If conduct by either side makes it necessary to intervene to ensure pubic safety and noninterference between the protest and the pemnitted event, PD can enforce a rea- sonable physical seperation between the protesters and the event participants through ____fenes, barricades, police lines, or other appropriate means.” ' See, e.g. Garthright v. City of Portland, 439 F.3d 573 (9 Cir. 2006) (city could not evict controversial preacher from park event even though his speech was upsetting. 10 other event participants, who had obtained a nonexclusive permit). ? Oliveri v, Ward, 801 F.2d 602, 607-08 (2 Cir, 1986); Beckerman v. City of Tupelo. Mississippi, 664 F.2d 302, 520 (5 Cir. 1981); South Boston Allied War Veterans Council ¥. City of Boston, 297 F Supp.2d 38 (D. Mass. 2003) (City enjoined from allowing tnap- proved groups from marching within a tile of the end of « permitted parade), o01sc11D0c)‘Kathleen Robinson, Asst. Chief, TPD Paye3 April 27, 2006 In deciding this issue, TPD ean consider not only the situation at the scene, fiom the per= spective ofthe safety of participants, spectator, police personnel and persons or property in general, but also any pror history of similar events or protests regarding issues of pub- lic safety and of compliance or noncompliance with permits or TPD's orders, and any public statements by any of the participating persons oF groups that indicate « heightened or lessened threat to public safety TPD’s pre-event planning should include preliminary consideration of the facts set forth above and also delineating the area(s) o be used for potential separation of event participants and any protesters if it becomes necessary. HL General guidelines for events held under exelusive use permits. A. Au exclusive use permitholder who has fenced and restricted ace cess (othe permitted are can choose to bar or eject protesters, As stated, the City's Parks and Recreation Department grants exclusive use per- rrits for certain enclosed facilities like Hi Corbett Field or the Tucson Rodeo Grounds, and also grants such permits where the event organizers themselves enclose the reserved park area and restrict access, for example by fencing it and cherging for admission. The City can “issuef ] permits to groups seeking to make exchisive use of [City property] for expressive gctivity during a limited period of time.” In tum, an exclusive use permitholder has a First Amenstment right to conduct the event and convey its mes- sage within the permitted area without interlerence from competing activities or protests.* ® Sisirunk v. City of Strongville, 99 F.3d 194, 198 (6" Cir. 1996) (upholding ban of oppo- sition party buttons at campaign rally by party in fenced area of public commons). * Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, $15 US. 557, 115 'SCt. 2338 (1995) (city could not require parade permitholler to inchade in parade a group whose message permitholder did not wish to impart): Siseramk, 99 F.3d at 198, 199: Schwitzgebel v. City of Strongville, 898 F Supp. 1208 (B.D. Ohio 1995), aff'.97 F.3d 1452 (6 Cir. 1996), cert denied;522 U.S. 827 (1997) (upholding ejection of protesters from campaign rally sponsored by party in fenced area of public commons); United Auto Workers v. Gasion Festivals, 43 F3d 902 (4" Cir.1995) (apholding refusal of booth space to labor union seeking to engage in promotional efforts at a community festival sponsored by not-for-profit corporation and held on area of city streets and sidewalks); Diener v. Reed, 232 F Supp.2d 362 (M.D. Pa. 2002), , judgment aff'd, 17 Fed. Appx. 601 (3".Cir.2003) (upholding exclusion of street preachers from private pemnitholders’ events on public property, where preachers’ verbal message-contrary to permitholders’ views); Sanders v. United States, 518 F Supp 728 (D.D.C. 1981), aff'd without op., 679 F.2d 262 ~ (D.C. Cir, 1982) (upholding exchision of demonstrator from federally permitted annualKathleen Robinson, Asst. Chief, TPD Page 4 April 27, 2006 T.C. Section 21-3(7)[4)'s protects this right through its general prohibition on disturbing or interfering with a permitholder, discussed in Seetion IT below. ‘Thus, an exclusive use permitholder can choose to deny entry to protesters wish- ing to enter the permitted area, and to eject protesters discovered after entry. TPD's pre- event planning should identify the permitholder, since this is the only person who ean make this choice. B. If the exclusive use permitholder chooses to bar oF eject protestors ant seeks police aid in enforcement, TPD should proceed as it would for any other criminal trespass under ARS. § 13-1502. If a permitholder chooses to bar or eject protesters, and seeks TPD assistance, TPD should apply AR.S. § 13-1502's criminal trespass standard, which requires that: © The protester(s) have knowingly entered or remained on the exelusive use area; ‘© Affier a reasonable request to leave; ‘+ Made by the permitholder, the person having lawful control over the permit ted area forthe duration ofthe event ‘The permitholder must be the one who requests that the protester leave and the bone who asks TPD for assistance. TPD should ot respond to requests from thin persons, including persons elsiming to speak on the permitholer’s behalf, © TPD should respond to protest activities near bur outside an exclusive use area as it would at any other location of nonexclusive nse. TTPD should respond to protest activities near but onside an exclusive use area 2s it would in any other park area of nonexclusive use. That i, it cannot exclude protesters from the area (see I(A) above), but it can separate them if required for purposes of public, safety or noninter‘erence between the event and the protest (see I(B) above). holiday Peace Pageant). See also World Wide Street Preachers’ Fellowship v. Peterson, 2004 WL 1622272 (S.D. Ind. 2004) (allowing leafleting, but prohibiting signs, banners, or megaphone preaching, within unfenced but designated exclusive use permit area set aside for parade). = caonisaa no)Kathleen Robinson, Asst, Chief, TPD Page 5 April 27, 2006 IIL, Atal times, TPD can enforce A.RS. § 13-2904, In dealing with either exclusive of nonexclusive use permits, TPD should enforce the disorderly conduct statute as it normally would, This is true whether the person en gaging in disorderly conduct is a protester, countsr-protester, event participant, observer, ‘or any other individual, ‘Two of the statute's standards, (A)(3) and (A)(S) may be particularly relevant in the context of eanfiontations between participants at permitted even's and protesters: A. Aperson commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, ot with knowledge of doing so, such person: 3, Uses abusive of offensive language or gestures to any person pres- eat in a manner likely to provoke immediate physical retaliation by sach person; ot 5. Refuses to obey a lawitl order to disperse issued fo maintain pub- lic safety in dangerous proximity to afire, ahazard or any other emergency, or IV, ‘TRD should also use A.RS. § 13-2904" standards (o decide if a person has violated T.C. § 21-3(7)(4), which prohibits interference with a permitholder. If a person’s actions interfere with an event conducted uncler a permit, the pro= tester can be cited under T.C. Section 21-3(7)(4), which provides: [No person in a park shall: (4) Interfere with permittees. Disturb or inter- fere unreasonably with any person of party occupying any are, or patici- pating in any activity, under the authority of a permit license or reserva- tion. In deciding whether there has been interference, TPD should apply the standards set out in A.R.S. § 13-2904, Leafleting silent protest such as holding a sign, or engaging ‘or attempting to engage passersby in conversation at a normal tone, is obviously all per- rmissible and not an interference. Use of a bullhorn, or screaming and shouting, that dis- ripts an event such as.a concer, isnot permissible. (moorsa.p0e%)‘Kathleen Robinson, Asst. Chief, TPD Page 6 April 27, 2006, Y. TP should continue to enforce current ordinances on use of fire in parks. All current ordinances reganding te use of fire in parks continue to apply. A. Statutes disected specifically at prohibiting the barning of the American fag are unconstitutional. Texas v. Jonson, 491 U.S. 397, 109 S.Ct. 2533 (1989). How- ever, TPD may conlinte o enforee the City’s ordinances and regulations regarding any use Of fire in its parks, which proiect health and safety by probibiting conduct without reference to speeth or expression, B. If any protester or event participant bums or attempts to bum anything, in- cluding a fag, anywhere in a City park except in those areas and under those regulations designated by the Parks Director, that person can be cited under Tucson Code Section 21- 3(T)(2), which states ‘No petson ina park shall (2) Build, or atempt to build, kindle or ignite fire except in such areas and under such rules and regulations as mey be designated by the divecor, or drop, throw or otherwise scater lighted rnalches, buming cigarettes or cigars, charcoal or coals, or other larama- ble or faming materials within any park area ‘Violation of this section is class | misilemeanor. ©, Conduct under Section TV(B) above, if undertaken without a pemnt from the Fire Chief, also violates Tueson Fire Code § 308.3, which provides as follows: A person shall not atilize or allow to be utilized, an open flame in connes~ tion with a public meeting or gathering for purposes of deliberation, wor ship, entertainment, amusement, insiruction, education, recreation, await- ing transportation or similar parpose in assembly or educational occupan- cies without First obtaining a permit in accordance with Section 105.6. ‘This is a civil infaction enforceable under T.C. § 13.3, In addition, TFD can order the ‘person to eoase and desist. D. __ If any protester or event participant starts or attempts to start a fire on the stroet or public right of way adjacent, abutting, or contiguous to the park, thet person can be cited under TC See. 21-5(4): ‘No person shall: (4) Fires, Build, or attempt to build, kindle or ignite a fire, o drop, throw or otherwise scaticr lighted matches, buming cigarcites or cigers, charcoal or coals, or other flammable or lighied materials on any highway, road or trect or public property adjacent, abatting or contiguous to a park except in arcas designated for such purposes. {noo13830D00%)Kathleen Robinson, Asst. Chief, TPD Page 7 April 27, 2006 ‘Violation ofthis section is aclass I misdemeanor, Vi. ‘TPD should continue enforcing current statutes and ordinanees on the car- ying of firearms in parks. All current tatates ant ordinances regarding firearms in parks continue to apply, A. Arperson in possession of @ Firearm in the park wha produces a concealed weapons permit has violated ao law and should not be cited. B, A person carrying firearm openly who cannot produce « concealed weapons permit should be cited for violating TC. § 21-3(8)(2) (firearm in park without a emit), but only ifthe park has proper notic= posted advising that carrying a firearm in this developed or improved area is limited to persoas with a pemnit issued pursuant © § 134122. C.— Apperson who is discovered during appropriate law enforcement contact fo be carrying a concealed firearm who has not been issued 2 concealed weapons permit by the Department of Public Safety should be cited for violating T.C. § 21-3(5)(2) (firearm in patk without a permit) and A.R.S. § 13-3102 (carrying a concealed weapon). 1D. A person who is discovered during appropriate law enforcement contact to ‘be carrying a conceated firearm who has been issved a concealed weapons pemnit but who is not carrying that permit should be cited for violating TC. § 21-2(5%2) (Crean in park without « permit) and ARS, § 13-3112 (ailureto prosent permit), VI. Other Enforcement Issues Ofcourse, TPD may and should enforce al other applicable statutes tbat may be impli- cated by he conduct of individuals at these events. ‘These statutes might inclu these prohibiting threats an intimidation (ARS. § 13-1202) and assault (ARS. § 13-1203). Enforcement ofthese statutes must be applied equally to all individuals st these evenis, regardless oftheir viewpoint. Mnde : Liz Miller, Assistant City Manager Chief Richard Mirmda, TPD Fred Gray, Parks & Rec. onsen)