HomeMy WebLinkAboutMemo from City Attorney: Protest Activity - First Amendment parametersCity of Iowa City
MEMORANDUM
Date: April 15, 2021
To: City Council
From: Eleanor M. Dilkes, City Attorney
Re: Protest Activity — First Amendment parameters
INTRODUCTION
At your work session on March 23 the Council agreed to hold a future work session to
provide guidance on your expectations regarding the City's response to pedestrian access
to the interstate by protesters. In discussing that issue the Council requested that I provide
a memo regarding the First Amendment rights of free speech and assembly. This memo
will provide you with a summary of the basic law that governs the analysis of alleged
violations of the First Amendment. It will also review some specific cases that
demonstrate the complexity of these issues and may be relevant to your discussion. To
that end I have included more detailed summaries of the factual settings and court orders
than usual. I urge caution, however, in placing too much emphasis on one court's opinion
in connection with a certain set of facts. Most of the First Amendment legal standards are
clear on their face but it is the application of those standards to the facts that is difficult
and hard to predict particularly when one does not know the details of the factual situation
that may be encountered. In the event your future discussions narrow the issues,
additional legal analysis may be necessary.
CONCLUSIONS:
For ease of reading/understanding citations to authority are not included with the following
conclusions. They are supported by the citations and analysis included in the Discussion
below.
1. At the core of the First Amendment is a prohibition on "content -based" regulation,
i.e. the government cannot restrict speech based on the content of the speech.
Any restriction on speech must be applied equally to all speakers/protesters
without regard to the content of their speech or what, who or why they are
protesting.
2. The First Amendment is not absolute. Persons do not have a constitutional right to
protest whenever, however and wherever they please. In traditional public forums
like sidewalks and streets reasonable restrictions can be imposed on the time,
place and manner of protected speech provided that the restrictions are justified
without reference to the content of the speech, they are narrowly tailored to serve
a significant governmental interest and they leave open alternative channels for
communication of the information. The City's Public Assembly and Parade permit
ordinance is an example of such a regulation.
3. The First Amendment does not protect persons who engage in violence or cause
injury to persons or damage to property.
4. Interstate 80 is not a traditional or designated public forum. It is constitutional to
exclude pedestrians and non -vehicular traffic from the interstate.
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5. There is no constitutional right to remain in an area of an unlawful assembly after
an unlawful assembly has been declared and an order to disperse has been given.
Iowa Code chapter 723 prohibits "riot", "unlawful assembly' and "failure to
disperse" in response to a peace officer's order that participants in a riot or
unlawful assembly disperse. The Iowa Supreme Court has rejected overbreadth
and vagueness constitutional challenges to the crimes of both "riot" and "unlawful
assembly as the essence of both crimes is violence which is not protected by the
First Amendment.
"Unlawful assembly' does not require that all members of the group be acting in a
violent manner; it is sufficient that "any of them [are] acting in a violent manner,
and "with the intent that they or any of them will commit a public offense." This is
consistent with the constitutional analysis by the Eighth Circuit Court of Appeals
that the Fourth Amendment does not require officers to determine that each
member of the crowd is engaged in the unlawful activity as the Fourth Amendment
is satisfied if the officers have grounds to believe that all arrested persons were
part of the unit that was violating the law. Decisions of the Eighth Circuit are
binding precedent in Iowa.
6. Courts recognize the significance of a dispersal order prior to use of force to
disperse a crowd in analyzing whether a court injunction is necessary to protect
First Amendment rights of free speech, in crafting such injunctions and in
analyzing incidents after the fact to determine whether the use of force resulted in
excessive force or unlawful seizure in violation of the Fourth Amendment or the
prohibition against First Amendment Retaliation.
7. While not binding law in Iowa, in recent cases arising from other cities in which
courts have addressed whether a temporary injunction should be issued in
response to police uses of force, including tear gas and other chemical irritants,
courts have recognized the difficulty of drawing "an enforceable line that permits
police officers to use appropriate means in response to violence and destruction of
property but that also does not chill free speech or abuse those who wish to
exercise it." These courts have been willing to circumscribe the uses of chemical
agents for crowd control but generally unwilling to enjoin all use of chemical
agents, in part due to the risk that they may in some circumstances pose less
threat to public and protester safety than physical force aimed at addressing an
imminent threat of physical harm or destruction of property.
DISCUSSION
A. Forum Analysis
First Amendment analysis is dependent on the type of forum being regulated (where the
speech is occurring):
Our First Amendment analysis depends on the type of forum being regulated. In a
traditional public forum or a public forum by government designation (also known
as limited public forum), First Amendment restrictions are subject to strict scrutiny.
We uphold an exclusion of expressive activities if the regulation is necessary to
serve a compelling state interest and the regulation is narrowly drawn to achieve
that interest. A state may restrict access to a nonpublic forum, however, as long as
the regulation is reasonable and not an effort to suppress expression merely
because of opposition to a speaker's view.
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Jacobsen v. Howard, 109 F.3d 1268, 1272 (8th Cir. 1997) (citations and quotations
omitted).
1. Traditional Public Forum/Public Forum by Intentional Designation
Public streets and sidewalks are the archetype of a traditional public forum as they have
"time out of mind" been used for public assembly and debate. Frisby v. Schultz, 487 U.S.
474, 480 (1988).
A second type of public forum, sometimes known as the "designated" or "limited" public
forum, "may be created by government designation of a place or channel of
communication for use by the public at large for assembly and speech, for use by certain
speakers, or for the discussion of certain subjects." Sentinel Communications Co. V.
Watts, 936 F.2d 1189, 1202 (9th Cir. 1991) (citations omitted and providing the following
examples: Widmar v. Vincent, 454 U.S. 263, 267 (1981) (state university meeting
facilities); Madison Joint School Dist. v. Wisconsin Employment Relations Comm'n, 429
U.S. 167, 174 n. 6 (1976) (school board meetings); Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546, 555 (1975) (municipal auditorium and city -leased theater)).
In a traditional public forum or designated public forum, content -based regulation, to
survive, "must be the least restrictive means of achieving a compelling state interest."
McCullen v. Coakley, 573 U.S. 464, 478 (2014). This is an exacting standard. Content
based regulations are "presumptively invalid", R.A.V. v. City of St. Paul Minn., 505 U.S.
377, 382 (1992), and it is a "rare case" in which strict scrutiny is overcome. Williams-
Yulee v. Florida Bar, 135 S.Ct. 1656, 1665 (2015). Essentially, a determination that a
governmental regulation is content -based is fatal for the regulation.
Reasonable restrictions can be imposed on the time, place, or manner of protected
speech, provided that the restrictions "are justified without reference to the content of the
regulated speech, that they are narrowly tailored to serve a significant governmental
interest, and that they leave open ample alternative channels for communication of the
information." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v,
Community for Creative Non -Violence, 468 U.S. 288, 293 (1984)).
a. Permit Requirements
The City's Public Assembly and Parade Permit ordinance found at City Code 10-1 was
comprehensively revised in 2004 to be consistent with First Amendment law and is an
example of a valid time, place and manner restriction. The application for a permit asks
for information concerning the proposed location/route, expected size of the group,
contact person, mechanical equipment to be used, number and type of motor vehicles or
other forms of transportation to be used, etc. The permit must be issued if certain
conditions are met such as the proposed right of way can accommodate the group and
the event won't interfere with another event. Neither the application nor the criteria for
approval have anything to do with the content of the speech/reason for the protest.
Rather they are aimed at assuring the health and safety of both the protesters and the
public. See Thomas v. Chicago Park District, 534 U.S. 316, 322 (2002) (upholding as a
valid time, place and manner regulation Chicago's park permitting scheme that applied to
all groups of more than 50 people ("the picnicker and soccer player, no less than the
political activist or parade marshal" alike) and was designed "not to exclude
communication of a particular content, but to coordinate multiple uses of limited space, to
assure preservation of the park facilities, to prevent uses that are dangerous, unlawful, or
permissible under the Park District's rules, and to assure financial accountability for
damage caused by the event.").
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City Code exempts "spontaneous events" from the permit requirement, which are defined
as follows:
Spontaneous events responding to news or affairs coming into public knowledge
within three (3) days of such public assembly or parade provided that the organizer
thereof gives written notice to the city manager or designee at least one hour prior
to such parade or public assembly.
City Code Section 10-1-1(B)3; see e.g. Long Beach Area Peace Network v. City of Long
Beach, 574 F.3d 1011, 1036-38 (9th Cir. 2009).
In accordance with caselaw, Iowa City's permitting ordinance also prohibits residential
picketing defined as "Picketing that is directed, focused, or targeted at a particular private
residence or the private residences on either side of the targeted private residence." City
Code sections 10-2-1 and 10-2-3; Douglas v. Brownell, 88 F. 3d 1511(8 1h Cir. 1996).
b. Eighth Circuit
Opinions of the United States Court of Appeals for the Eighth Circuit are binding in Iowa.
As an example of the application of the above principles by the Eighth Circuit, in Frye v.
Kansas City Missouri Police, 375 F.3d 785 (e` Cir. 2004), the Plaintiffs, anti -abortion
protesters, alleged that their arrest after they refused to back away from a busy
intersection or remove large graphic signs that that were distracting drivers was in
violation of their First Amendment rights. The Eighth Circuit found there was no violation,
stating:
In this case, taking the facts in the light most favorable to appellants, we agree
with the district court that the police officers did not impose restrictions based on
the content of appellants' message. As the district court noted, the police officers
did not forbid appellants from expressing their anti -abortion message. Indeed, the
police officers did not forbid appellants from expressing their message by the use
of the large photographs displaying mutilated fetuses. Rather, the police officers
placed reasonable restrictions on the location of the signs in order to protect public
safety. The officers gave the demonstrators the option of staying by the side of the
road if they did not display the large, graphic photographs that had distracted
motorists or the option of displaying the photographs at a location further from the
road. Thus, the police officers narrowly tailored the restrictions to serve a
significant governmental interest and left open alternative channels of
communicating their message.
Id. at 790; see also Weed v. Jenkins, 873 F. 3d 1023 (8th Cir. 2017) (officer had probable
cause to arrest plaintiff who participated in highway overpass protest and refused to
disperse after officers ordered dispersal due to traffic safety concerns).
2. Non-public forum
Not every instrumentality used for communication is a traditional public forum or a public
forum by designation. Cornelius v. NAACP, 473 U.S. 788, 803 (1985). The First
Amendment does not guarantee access to property simply because it is owned or
controlled by the government. Id. In places that are not traditional or designated public
fora, government -imposed restrictions need only be reasonable and not an effort to
suppress expression merely because of opposition to the speaker's views. Jacobsen v.
Department of Transportation, 450 F. 3d 778, 780 (8th Cir. 2006)(citing Jacobsen V.
Howard, 109 F.3d 1268, 1272 (8th Cir. 1997)).
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3. Interstates
The Eighth Circuit has held that highway rest areas are non-public fora. Jacobsen, 450
F. 3d at 780 (upholding Iowa DOT prohibition on news racks at public interstate rest
areas). In doing so it relied on cases from the Ninth and Eleventh Circuits that had
reached the same conclusion. Id. (citing Jacobsen v. Bonine, 123 F.3d 1272, 1273-74
(9th Cir.1997) (perimeter walkways at highway rest stops are nonpublic fora); Sentinel
Commc'ns Co. v. Watts, 936 F.2d 1189, 1203 (11th Cir.1991) (same). In Sentinel
Communications Co. the Ninth Circuit reasoned as follows in concluding that sidewalks at
interstate rest areas are non-public fora:
Although arguing that rest areas are "traditional" public fora, Sentinel does not
appear to be analytically precise in arguing whether the forum at issue is a
traditional public forum or a public forum by designation. As components of the
Interstate System, safety rest areas are hardly the kind of public property that has
"by long tradition or by governmental fiat ... been devoted to assembly and
debate." Perry, 460 U.S. at 45, 103 S.Ct. at 954. They have not "immemorially
been held in trust for the use of the public," and have not, "time out of mind," "been
used for purposes of assembly." Hague, 307 U.S. at 515, 59 S.Ct. at 964. Indeed,
as modern phenomena, rest areas have never existed independently of the
Interstate System; they are optional appendages that are intended, as part of the
System, to facilitate safe and efficient travel by motorists along the System's
highways. At the outset, then, it seems clear to us that rest areas are non-
traditional fora.
This distinction, however, is not crucial because it alone does not refute Sentinel's
contention that safety rest areas should be treated as traditional public
fora, i.e. that in creating such havens at intervals along the System, the
government has intentionally designated or opened these nontraditional fora to
public discourse and expressive activity. If this is the case, state attempts to
regulate the expressive activity would still be subject to strict scrutiny. 14
Thus, in considering the nature of the forum at issue, Sentinel points out that
topographical features of rest areas frequently resemble those found in city
parks, e.g. grassy areas, restrooms, water fountains, parking areas, picnic
benches. On this basis, Sentinel argues that a rest area is the interstate highway
equivalent of a city park and, therefore, is a public forum. Although the argument
has some intuitive appeal, we are not persuaded.
First, the Supreme Court has held that "[t]he mere physical characteristics of the
property cannot dictate forum analysis." Kokinda, 110 S.Ct. at 3120; see
also Greer v. Spock, 424 U.S. 828, 835-37, 96 S.Ct. 1211, 1216-17, 47 L.Ed.2d
505 (1976) (where presence of sidewalks and streets within military base did not
require finding that base was a public forum). More important, there is evidence
which suggests that, despite the superficial resemblance between rest areas and
municipal parks, the government did not intend to open the forum to the same
panoply of activity permitted in the latter fora.
Nevertheless, the practice of allowing some speech activity on interstate property
does not amount to the dedication of such property to speech
activities. See Kokinda, 110 S.Ct. at 3121. Once again, the Supreme Court has
held "that '[t]he government does not create a public forum by ... permitting limited
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discourse, but only by intentionally opening a non-traditional forum to public
discourse.'" Id. (emphasizing Cornelius, 473 U.S. at 802, 105 S.Ct. at 449). Here,
the government did not create rest areas for the purpose of providing a forum for
expressive activity; "[t]hat such activity occurs in the context of the forum created
does not imply that the forum thereby becomes a public forum for First
Amendment purposes." Cornelius, 473 U.S. at 805, 105 S.Ct. at 3450. We
accordingly hold that an interstate rest area is a non-public forum.
In light of this holding, any restrictions imposed by the DBS upon Sentinel's
placement of news racks in the nonpublic forum are tested only for
reasonableness. As the Supreme Court has explained,
The Government's decision to restrict access to a nonpublic forum need only
be reasonable; it need not be the most reasonable or the only reasonable
limitation. In contrast to a public forum, a finding of strict incompatibility between
the nature of the speech or the identity of the speaker and the functioning of the
nonpublic forum is not mandated.... Nor is there a requirement that the restriction
be narrowly tailored or that the Government's interest be compelling. The First
Amendment does not demand unrestricted access to a nonpublic forum merely
because use of that forum may be the most efficient means of delivering that
speaker's message.
The court's reasoning regarding rest areas applies more forcefully to the traffic lanes of
the interstate.
B. First Amendment Retaliation
[f]he law is settled that as a general matter the First Amendment
prohibits government officials from subjecting an individual to retaliatory actions ...
for speaking out. To prevail on a First Amendment retaliation claim, the plaintiffs
must show that they engaged in protected activity, that the defendants' actions
caused an injury to the plaintiffs that would chill a person of ordinary firmness from
continuing to engage in the activity, and that a causal connection exists between
the retaliatory animus and the injury. To establish this connection, the plaintiffs
must show that they were singled out because of their exercise of constitutional
rights.
Bernini v, City of St. Paul, 665 F.3d 997, 1006 (2012) (citations and quotations omitted)
(rejecting First Amendment retaliation claims of protesters - discussed in more detail
below)
C. Peaceful Protests? Unlawful Activity?
1. United States Supreme Court
The right to free speech is not absolute. "The Supreme Court has long rejected
the notion that persons wanting to protest and propagandize 'have a constitutional
right to do so whenever and however and wherever they please."' State v Hardin,
498 N.W.2d 677, 679-680 (Iowa 1993) (quoting Adderley v. Florida, 385 U.S. 39,
48 (1966)). The government has the right to enforce trespass laws as to both private
and public property as long as the enforcement is even-handed and not based on the
protesters' message. Adderley, 385 U.S. at 47-48 (rejecting protesters' argument that they
had a constitutional First Amendment right to remain in the curtilage of a jailhouse over
the objection of the sheriff, concluding "[t]he United States Constitution does not forbid a
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State to control the use of its own property for its own lawful nondiscriminatory
purpose.")(quoting Cox v. State of Louisiana, 379 U.S.536 (1965 )).
The rights of free speech and assembly, while fundamental in our democratic
society, still do not mean that everyone with opinions or beliefs to express may
address a group at any public place and at any time. The constitutional guarantee
of liberty implies the existence of an organized society maintaining public order,
without which liberty itself would be lost in the excesses of anarchy. The control of
travel on the streets is a clear example of governmental responsibility to insure this
necessary order. A restriction in that relation, designed to promote the public
convenience in the interest of all, and not susceptible to abuses of discriminatory
application, cannot be disregarded by the attempted exercise of some civil right
which, in other circumstances, would be entitled to protection. One would not be
justified in ignoring the familiar red light because this was thought to be a means of
social protest. Nor could one, contrary to traffic regulations, insist upon a street
meeting in the middle of Times Square at the rush hour as a form of freedom of
speech or assembly. Governmental authorities have the duty and responsibility to
keep their streets open and available for movement. A group of demonstrators
could not insist upon the right to cordon off a street, or entrance to a public or
private building, and allow no one to pass who did not agree to listen to their
exhortations.
Cox at 534; see also Colten v. Kentucky, 407 U.S. 104, 109 (1972)
(protester's First Amendment rights were not violated by a prosecution for
disorderly conduct when he refused to get back in his car and get out of
the middle of the road after being ordered to do so by officer).
2. Eighth Circuit
In Bernini v. St Paul, 665 F.3d 997 (8th Cir. 2012) the Eighth Circuit
addressed the arrest of persons protesting the Republican National
Convention after the police ordered that no one be allowed to enter the
downtown area around the convention site. The facts recited by the
Court were as follows:
We recite the facts in the light most favorable to the plaintiffs, the nonmoving
parties. From September 1-4, 2008, St. Paul hosted the Republican National
Convention at the Xcel Energy Center. The Convention attracted large crowds of
protestors. Throughout the first day, property damage was reported around the
City. There were broken building windows, objects thrown at cars and buses, and
vandalized police cars. After marches with permits had ended, Senior Commander
Joseph Neuberger, who was the east area commander for mobile field force
operations during the Convention, ordered that no one be allowed to enter the
downtown area. Neuberger believed it was necessary to "reestablish control [and]
reestablish law enforcement presence" downtown and around the Convention site.
The events at issue occurred on or near Shepard Road in St. Paul. Shepard Road
runs along the southeastern edge of downtown St. Paul and borders the
Mississippi River. The road was a major thoroughfare during the Convention. It
served as a route for emergency vehicles to access the Xcel Energy Center, and it
was the planned route of the First Lady's motorcade on the evening of September
1. Although Shepard Road runs along the edge of downtown St. Paul, it provides
only limited access to downtown, because much of the road is bordered by the
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Mississippi River on one side and a large concrete wall on the other. Jackson
Street and Sibley Street intersect with Shepard Road and provide access to the
east end of downtown St. Paul.
After ordering downtown closed, Neuberger learned about a group of people
marching east on Shepard Road. Neuberger instructed a team of officers—known
as Neighborhood Response Team 36 ("Team 36")—to position itself at the
intersections of Shepard Road and Jackson Street and Shepard Road and Sibley
Street to prevent entry to the downtown. As Team 36 traveled to the intersections,
the unit passed a large group marching along Shepard Road. The officers received
information that the group was connected to unlawful acts that had occurred earlier
in the day. Team 36 positioned approximately 11 officers at each intersection,
blocking access to the downtown area.
At about 4:30 p.m., as seen on video recordings submitted as evidence, a group of
approximately 100 people gathered at the intersection of Shepard Road and
Jackson Street and stood on the sidewalk across the street from the officers on the
south side of Shepard Road. About fifteen people, advancing behind two large
signs, soon began to cross Shepard Road, moving toward the officers and
downtown St. Paul. The words "Direct Action Against Capitalism" were written
across one of the signs.
The officers instructed these people to "back up, back up!" As the group continued
to cross Shepard Road, the officers deployed stinger blast balls. These balls
contain rubber pellets; they are designed to sting the targeted persons. The small
group then retreated to the sidewalk on the south side of Shepard Road. Although
the plaintiffs deny seeing anyone throw objects at Team 36, the officers reported
that numerous objects—including rocks and bags containing feces—were
propelled at them.
After the group retreated to the sidewalk along Shepard Road, it began to move to
the west. The officers, soon joined by reinforcements, also moved west in an
attempt to direct the crowd away from Jackson Street and back in the direction
from which it came. As the crowd proceeded west, it grew to include hundreds of
people. On video footage, members of the crowd can be heard chanting in unison
"the whole world is watching" and various profanities. The police continued to use
non -lethal munitions, including smoke, blast balls, and chemical irritants, in an
apparent effort to keep the crowd moving west.
In consultation with Neuberger, Steven Frazer, the officer in charge at the scene,
decided to encircle the crowd in a park adjacent to Shepard Road and near
Ontario Street, approximately 0.6 mile west of the Jackson Street intersection.
Because much of Shepard Road is bordered by the river and concrete wall, this
park presented the first opportunity west of Jackson Street to gather the crowd,
which now included approximately 400 individuals. After the officers contained the
crowd in the park, they announced multiple times by loudspeaker that all persons
were under arrest and must sit down and place their hands on their heads. Officers
then attempted to determine who had been present at the Shepard–Jackson
intersection. According to one officer, these people "stayed together as group" and
"were segmented off from the other people" in the park. The sorting process led to
the release of approximately 200 people. The officers then booked and placed into
custody about 160 others. The parties dispute whether the officers ordered the
crowd to disperse before encircling the park and making the arrests.
Id. at 1001-1003.
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In upholding a grant of qualified immunity' to the officers the Court held that neither the
protesters' First Amendment rights nor their Fourth Amendment rights (to be free from
unreasonable seizure and excessive force) were violated, reasoning:
1. The Fourth Amendment does not require that officers determine that each member
of the crowd is engaged in the unlawful activity; the Fourth Amendment is satisfied
if the officers have grounds to believe all arrested persons were part of the unit
that was violating the law. Id. at 1004 (citing Carr v. District of Columbia, 587 F. 3d
401, 408 (D.C. Cir. 2009)).
2. The police had probable cause for arrest as a reasonable officer could have
concluded that the individuals, who positioned themselves directly across from the
officer line, many of whom wore gas masks and other facial coverings as if
preparing for a confrontation, shouted profanities and taunted the officers, were
acting as a group and intended to break through the police line in an attempt to
access downtown, were committing one or more offenses under state law,
including third degree riot and unlawful assembly. Id. at 1003-1005.
3. Police officers' deployment of non -lethal munitions was reasonable and was not
excessive force under Fourth Amendment as officers reasonably believed that a
growing crowd intended to penetrate the police line and access downtown St.
Paul. Id. at 1006.
4. The plaintiff failed to make out a case of First Amendment retaliation because
members of the group moved toward the police in a threatening manner and
began to block traffic along a major roadway, the officers engaged the group only
after the unlawful failure to disperse and "the only reasonable inference supported
by the record is that the group's unlawful conduct, not the officers speech,
motivated the officers' actions." Id. at 1007.
See also, White v. Jackson, 865 F.3d 1064, 1076-79 (8th Cir. 2017) (officers had
arguable probable cause to arrest protestors who "chose not to disassociate" from
unlawful assembly on the street where most of the protests occurred); Burbridge v. City of
St. Louis, 430 F. Supp.3d 595 (E.D. Missouri 2019)(rejecting claims of media members
who were arrested along with other protesters for being present at an intersection after
police officers had given multiple dispersal orders to the crowd using the public address
system of a police vehicle); Dundon v. Kirchmeiier, 2017 WL 5894552, at *8 (D. N. Dakota
2017)(Denial of temporary restraining order (TRO) requested by protesters of Dakota
pipeline based in part on conclusion that protesters had repeatedly refused law
enforcement commands to vacate certain public and private property and established a
free speech zone for use by protesters in an area more accessible to emergency services;
while the majority of protesters were non-violent "a sizable minority of protesters could
"best be categorized as a group of unlawful and violent agitators" with the primary purpose
of creating "chaos and mayhem").
' Qualified immunity shields a public official from a suit for civil damages unless: 1) the
evidence, viewed in the light most favorable to the plaintiffs, establishes the violation of a
constitutional or statutory right, and 2) the right was clearly established at the time of the
violation, such that a reasonable officer would have known his actions were unlawful.
Bernini, 665 F.3d at 1001.
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The facts of Bernini can be compared with the facts in Quraishi v. St. Charles County
Missouri, 986 F. 3d 831 (8th Cir. 2021) in which the Eighth Circuit affirmed the district
court's denial of qualified immunity to the officers on claims of excessive force, unlawful
seizure and First Amendment retaliation by news reporters covering a public protest. The
record lacked evidence that the reporters were refusing to disperse, obstructing officers
performing their duties, or interfering with officers in a way that impacted officer safety, in
violation of Missouri law. It was disputed that the police gave dispersal orders to
reporters, whether anyone launched projectiles from reporters' area, and whether police
ordered reporters to turn off their lights before deploying tear -gas, and videos at the
scene showed that reporters' location was calm prior to police arriving at that location.
3. Iowa Crimes of Unlawful Assembly and Failure to
Disperse
Chapter 723 of the Iowa Code ("Public Disorder") includes the crimes of Riot, Unlawful
Assembly and Failure to Disperse, which are defined as follows:
723.1 Riot. A riot is three or more persons assembled together in
a violent manner, to the disturbance of others, and with any use of
unlawful force or violence by them or any of them against another
person or causing property damage. A person who willingly joins
in or remains a part of a riot, knowing or having reasonable
grounds to believe that it is such, commits an aggravated
misdemeanor.
723.2 Unlawful assembly. An unlawful assembly is three or more
persons assembled together, with them or any of them acting in a
violent manner, and with intent that they or any of them will
commit a public offense. A person who willingly joins in or remains
a part of an unlawful assembly, knowing or having reasonable
grounds to believe that it is such, commits a simple misdemeanor.
723.3 Failure to disperse. A peace officer may order the
participants in a riot or unlawful assembly or persons in the
immediate vicinity of a riot or unlawful assembly to disperse. Any
person within hearing distance of such command, who refuses to
obey, commits a simple misdemeanor.
The Iowa Supreme Court has twice rejected constitutional challenges of vagueness and
overbreadth to earlier but similar versions of the riot and unlawful assembly provisions. In
both cases the Court determined that the essential element of the offenses is violence.
Williams v. Osmundson, 281 N.W.2d 622, 626 (Iowa 1979) (prohibited activity is
assembling together in a violent manner and distinguishes it from cases holding laws
unconstitutional that did not include this element); State v. Elliston, 159 N.W.2d 503, 508
(Iowa 1968) ("it rightfully protects against violence"); see also United States v. Daly, 378
F. Supp.3d 539, 554 (W.D. Virginia 2019)(rejecting vagueness and overbreadth
challenges to Federal Anti -Riot Act and citing N.A.A.C.P. v. Claiborne Hardware Co., 458
U.S. 886, 916, 927, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (noting that the "First
Amendment does not protect violence," fighting words "that provoke immediate violence,"
"words that create an immediate panic," or incitement); Ostergren v. Cuccinelli, 615 F.3d
263, 271 (4th Cir. 2010) (noting that "incitement of illegal activity" is among "certain
April 15, 2021
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categories of 'unprotected' speech that may be circumscribed entirely"); Am. Life League,
Inc. v. Reno, 47 F.3d 642, 648 (4th Cir. 1995) (noting that the "use of force or violence is
outside the scope of First Amendment protection," as are "[t]rue threats of force")).
In interpreting a law "[w]ords bear their ordinary meanings unless the context indicates
that a technical meaning applies." Bribriesco-Ledger v. Klipsch, Slip Op. No. 19-1397
(Iowa Supreme Court filed April 9, 2021). Black's Law Dictionary (11th ed. 2019) defines
"violence" as "[t]he use of physical force, [usually] accompanied by fury, vehemence, or
outrage; [especially] physical force unlawfully exercised with the intent to harm." Violence
can occur without resulting injury or damage. For example, under Iowa law "assault" is
defined as "[a]ny act which is intended to cause pain or injury to, or which is intended to
result in physical contact which will be insulting or offensive to another, coupled with the
apparent ability to execute the act" and "[a]ny act which is intended to place another in
fear of immediate physical contact which will be painful, injurious, insulting, or offensive,
coupled with the apparent ability to execute the act." Iowa Code Section 708.1. Violence
"encompasses acts where one uses physical force with the intent to injure, regardless of
whether an injury actually occurs." United States v. Pineda-Duarte, 933 F.3d 519, 523
(6th Cir. 2019); see also 18 U.S.C. Section 16 (federal "crime of violence" defined in part
as "an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another').
4. Other jurisdictions
While not controlling law in Iowa, to assist with your discussions a review of recent court
decisions in other jurisdictions may be helpful. Most of these cases arise from cities in
which the interactions between law enforcement and protesters was far more extensive
both in time and scale than what occurred in Iowa City. The courts' analysis of whether
and to what extent protesters' rights were violated and what, if any, injunction was
necessary are very fact specific. Several of the courts that addressed these issues
started with a similar admonition as recited by the court in Breathe v. City of Detroit, 484
F. Supp.3d 511, 516 (E.D. Mich. 2020):
The Court takes a short detour before analyzing these factors to
stand with many of its sister courts in recognizing the following
underlying principles: demonstrators have a right to protest the
actions of the police and other members of the government
without fear of government retaliation; police officers, especially in
their duty to protect person and property, have difficult and often
dangerous jobs that require them to make split-second decisions;
and just as not all protestors seek destruction, not all officers seek
violence. The Court must thus balance the need to protect the
sacred rights of speech and assembly from interference and
retaliation with that of police to respond appropriately when the
safety of the officers and the City's citizens are threatened. "This
Court recognizes the difficulty in drawing an enforceable line that
permits police officers to use appropriate means in response to
violence and destruction of property but that also does not chill
free speech or abuse those who wish to exercise it." Black Lives
Matter Seattle -King Cty. v. City of Seattle, Seattle Police Dept,
No. 2:20 -CV -00887 -RAJ, 466 F.Supp.3d 1206, 1212 (W.D. Wash.
June 12, 2020); see also Abay v. City of Denver, 445 F. Supp. 3d
1286, 1291 (D. Colo. 2020).
April 15, 2021
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Detroit
In Breathe, subsequently clarified by 2020 WL 8575150 (E. D. Mich. May 16, 2020) the
court issued the following order and clarification:
Considering the factors discussed above, the Court finds that temporary injunctive
relief is warranted and grants in part Plaintiffs' Motion for a Temporary Restraining
Order. (ECF No. 4.)
For a period of 14 days, to be extended upon a showing of good cause, but not
beyond 28 days absent consent by Defendants, the City of Detroit, including the
Detroit Police Department, and all officers, agents, and departments under the
Police Department's control (for purposes of this order, "the City") is enjoined from:
• Using striking weapons (including, but not limited to, batons and shields),
chemical agents (including, but not limited to, tear gas and pepper spray), or
rubber bullets against any individual peacefully engaging in protest or
demonstrations who does not pose a physical threat to the safety of the public or
police;
• Deploying chemical agents or a sound cannon against persons peacefully
engaging in protest or demonstrations without an audible warning and a
reasonable amount of time to disperse;
• Placing in a chokehold or ramming with a vehicle any individual attending a
demonstration;
• Tightening the zip ties or handcuffs placed on any individual to the point that the
restraints cause physical injury, including loss of circulation or change in color;
• Arresting any demonstrators en masse without probable cause.
In the event that Plaintiffs seek relief for an alleged violation of this Order, the City
must respond to the motion for relief within 24 hours.
Because this is a non-commercial case, the balance of equities favor Plaintiffs,
and there is no realistic likelihood of harm to Defendants from enjoining their
conduct, the Court waives the security bond requirement.
Breathe, 484 F. Supp. 3rd at 520-521.
Clarification:
Although Defendants have not presented a viable legal or factual basis for
modifying the TRO [temporary restraining order, i.e., temporary injunction] to
enjoin Plaintiffs, Defendants' motion provides an opportunity to make the scope of
the TRO clearer. The Court fully appreciates that this case involves multiple sets of
interests. Protesters have an interest in voicing their beliefs and seeking reform.
The police have an interest in maintaining the peace and enforcing the laws.
These interests can co -exist. Both sides recognize this. The Detroit Police have
stated that they do not use force against peaceful protesters. And Plaintiffs have
expressed that they do not intend to voice their opinion through violence and they
undoubtedly recognize that they cannot violate the law without consequences.
This Court's TRO did not go further than what both sides acknowledge.
To the extent this was somehow not clear from the TRO (although the Court
believes it was), the Court clarifies that nothing in the TRO (1) suspends any laws
that prohibit violent or destructive actions by protesters or (2) prevents Detroit
police from (a) reasonably and lawfully protecting themselves and the public
against violence perpetrated by protesters that could harm officers or the public
April 15, 2021
Page 13
(including protesters throwing objects at police, such as frozen water bottles,
bricks, bottle rockets, or cherry bombs); or (b) taking reasonable and lawful action
against protesters who violate any laws or resist lawful arrest (e.g., ordering
protesters to cease unlawful activity, or using reasonable force to arrest a protester
if there is probable cause to believe that the protester violated the law).
In sum, most of the restrictions in the TRO only enjoin officers from taking action
against "any individual peacefully engaging in protest or demonstration who does
not pose a physical threat to the safety of the public or police." Detroit Will
Breathe, 484 F.Supp.3d at (emphasis added). Police officers are still left with
a variety of lawful tools when faced with protesters who pose a physical threat or
have broken the law. Indeed, as Detroit Police Chief James Craig himself stated,
the TRO "is no different than what we've always done" and "reinforces" the police
department's policies. Morgan G. Statler, Detroit police chief dismisses judge's
ruling on tactics for protests: 'Nothing has changed', The Hill, Sept. 5, 2020,
https:Hperma.cc/4CGA-CUJG.
The notion that "nothing has changed" is the essence of preserving the status quo,
and that is the purpose of injunctive relief. For the foregoing reasons, Defendants'
motion to modify temporary restraining order (ECF No. 24) is DENIED.
Breathe, 2020 at 8575150 at *2.
Denver
In Abay v. City of Denver, 445 F.Supp.3d 1286 (D.Col. 2020), in response to a request by
persons protesting police violence for a temporary restraining order (TRO) to enjoin the
city from using chemical agents the, Court granted the motion in part and entered the
following order:
The Denver Police Department and officers from other jurisdictions who are
assisting Denver Police Officers, from employing chemical weapons or projectiles
of any kind against persons engaging in peaceful protests or demonstrations. To
be better assure that this idealistic order is carried out, the Court temporarily
enjoins the Denver Police Department and officers from other jurisdictions working
with Denver Police Department officers from using chemical weapons or
projectiles unless an on -scene supervisor at the rank of Captain or above
specifically authorizes such use of force in response to specific acts of violence or
destruction of property that the command officer has personally witnessed. The
Court further orders that:
1. Kinetic Impact Projectiles ("KIPs") and all other non- or less -lethal projectiles
may never be discharged to target the head, pelvis, or back.
2. KIPs and all other non- or less -lethal projectiles shall not be shot
indiscriminately into a crowd.
3. Non -Denver officers shall not use any demonstration of force or weapon beyond
what Denver itself authorizes for its own officers. Any non -Denver officer permitted
to or directed to be deployed to the demonstrations shall be considered an agent
of Denver such that Denver shall ensure such officer is limiting their use of force to
that authorized by the Defendant.
4. All officers deployed to the demonstrations or engaged in the demonstrations
must have their body -worn cameras recording at all times, and they may not
intentionally obstruct the camera or recording.
April 15, 2021
Page 14
5. Chemical agents or irritants (including pepper spray and tear gas) may only be
used after an order to disperse is issued.
6. Any and all orders to disperse must be followed with adequate time for the
intended audience to comply, and officers must leave room for safe egress. If it
appears that the intended audience was unable to hear the order, the order must
be repeated prior to the use of chemical agents or irritants.
Seattle
In Black Lives Matter Seattle -King County v. City of Seattle, 466 F. Supp.3d 1206 (W.D.
Wash. 2020) a group of protesters protesting police brutality alleged that the Seattle
Police Department's use of less -lethal weapons deprived them of their right to protest and
be free from excessive force and sought a TRO enjoining the use of chemical weapons or
projectiles of any kind for the purpose of crowd control. The court granted the motion in
part and denied the motion in part and issued the following order:
For the reasons stated above, the Court grants in part Plaintiffs Motion for
Temporary Restraining Order (Dkt. # 6) and temporarily enjoins the City of Seattle
as follows:
(1) The City of Seattle, including the Seattle Police Department and any other
officers, departments, agencies, or organizations under the Seattle Police
Department's control (collectively, "the City"), is hereby enjoined from employing
chemical irritants or projectiles of any kind against persons peacefully engaging in
protests or demonstrations. This injunction includes: (1) any chemical irritant such
as and including CS Gas ("tear gas") and OC spray ("pepper spray") and (2) any
projectile such as and including flash -bang grenades, "pepper balls," "blast balls,"
rubber bullets, and foam -tip projectiles. This Order does not preclude individual
officers from taking necessary, reasonable, proportional, and targeted action to
protect against a specific imminent threat of physical harm to themselves or
identifiable others or to respond to specific acts of violence or destruction of
property. Further, tear gas may be used only if (a) efforts to subdue a threat by
using alternative crowd measures, including pepper spray, as permitted by this
paragraph, have been exhausted and ineffective and (b) SPD's Chief of Police has
determined that use of tear gas is the only reasonable alternative available. The
Chief of Police may only authorize limited and targeted use of tear gas and must
direct it to those causing violent or potentially life-threatening activity. To the extent
that chemical irritants or projectiles are used in accordance with this paragraph,
they shall not be deployed indiscriminately into a crowd and to the extent
reasonably possible, they should be targeted at the specific imminent threat of
physical harm to themselves or identifiable others or to respond to specific acts of
violence or destruction of property.
(2) In the event that Plaintiffs seek relief for an alleged violation of this Order, the
City must respond to the motion for relief within 24 hours.
(3) Because this is a non-commercial case, the balance of hardships favors
Plaintiffs, and there is no realistic likelihood of harm to the City of Seattle from
enjoining its conduct, the Court waives the security bond requirement.
(4) This Order will expire fourteen days after entry unless extended by the Court
for good cause. Fed. R. Civ. P. 65(b)(2).
In United States v. City of Seattle, 474 F.Supp.3d 1181 (W.D. Wash.2020 )the same
district court that entered the order above in the Black Lives Matter v. Seattle case
enjoined the implementation of the City of Seattle's ordinance prohibiting all use of
April 15, 2021
Page 15
chemical weapons because the ordinance created the risk that officers would resort to
excessive force which could violate both the Fourth Amendment and the terms of an
existing Consent Decree with the federal government.
In Benton v. City of Seattle, 2020 WL 4584214 (W.D. Wash. 2020) the same district court
denied a motion for TRO against use of all chemical weapons. The facts and arguments
of the Plaintiffs generally tracked those offered by plaintiffs in the Black Lives Matter case.
The court stated:
Like the previous two Winter factors, the Court already ruled on these two factors
in Black Lives Matter. But, unlike the previous two factors, the equities here have
shifted. They now tip sharply in the City's favor and against Plaintiff's request of
injunctive relief.
First, the Court already balanced the equities, and Plaintiffs give no reason why
the Court should re -weigh them now. In ruling on the TRO in Black Lives Matter,
the Court carefully balanced the constitutional right of protestors and the need for
SPD to protect the life and safety of the public and officers and the need to protect
public and private property. Black Lives Matter, (Dkt. # 34 at 10). The result was
this Court's tailored TRO and later preliminary injunction. Plaintiffs have not shown
why the July 25, 2020 protests require this Court to rebalance the equities or to
substitute a tailored preliminary injunction with a blanket ban on crowd control
weapons.
Id at *4
Oakland
In Anti -Police Terror Project v. City of Oakland, 477 F.Supp.3d 1066 (N.D. Cal. 2020) the court
granted in part and denied in part the request for a temporary injunction. With respect to the
substantive limits that would be placed on tactics and munitions in conducting crowd control, the
court refused to ban all use of chemical munitions stating:
With respect to the tactics and munitions that OPD may use for crowd control, the
Court finds that the evidence in the record provides a sufficient basis for prohibiting
outright the use of stinger grenades, wooden bullets, rubber or rubber coated
bullets, pepper balls, and similar munitions. As discussed above, many of these
are already prohibited under Oakland's Crowd Control Policy. The Court has also
placed strict limits on the use of chemical agents, flashbang grenades and foam
projectiles. It has not banned them outright because Defendants have presented
evidence that there may be situations where there is an imminent threat of
physical harm to a person or significant destruction of property and where use of
these munitions may pose less of threat to the public than physical force by police
officer aimed at addressing that threat, such as use of batons. Based on the
current record, the Court concludes that there is at least a possibility that banning
these munitions could not only endanger public safety in general but also increase
the dangers faced by protestors. The Court may revisit this question at a later
stage of the case, however, after the parties have had an opportunity to conduct
discovery. As noted in the preliminary injunction, the Court does not conclude that
the use of these tactics and munitions in the limited circumstances permitted under
the Preliminary Injunction is either lawful or advisable.
Id. at 1091.
April 15, 2021
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San Diego
In Cervantes v. San Diego Police Chief, 2020 WL 5759752 (Sept. 28, 2020) the court
rejected First Amendment claims of protesters at a campaign rally for President Donald
Trump who were arrested for failure to disperse in violation of state law after repeated
unlawful assembly announcements and orders to disperse were given using a long range
acoustic device (LRAD) and a police helicopter in both English and Spanish and a
skirmish line was established to push the crowd away from the convention center, stating:
The Cervantes Plaintiffs had no First Amendment right to remain in the area of a
protest or riot after police issued an order to disperse and were violating the law by
doing so. See Hicks, 2006 WL 3311552, at *12 (citing Colten v. Kentucky, 407
U.S. 104, 109 (1972) ("Plaintiff had no protected First Amendment right to enter
the street in violation of a lawful order to disperse."); Cavanagh v. Humboldt Cty.,
No. C 97-4190 CRIB, 1999 WL 96017, at *4 (N.D. Cal. Feb. 22, 1999) (finding that
officers properly declared an unlawful assembly and dispersed the crowd where
plaintiffs failed to apply for required permit), affd, 1 F. App'x 686 (9th Cir.
2001); see also People v. Uptgraft, 8 Cal. App. 3d Supp. 1, 5 (1970) ("The fact that
people assert First Amendment rights does not place them above the law and
immunize them from obeying state laws, so long as such state laws are enforced
fairly and without discrimination.") (citing cases).16 Thus, once City Defendants
declared an unlawful assembly—the legality of which is not challenged by the
Cervantes Plaintiffs—City Defendants then "acted within the proper scope of their
authority by dispersing the crowd," which included Plaintiffs. Cavanagh, 1999 WL
96017, at *4.
The Cervantes Plaintiffs also appear to argue that once they were moved onto
Harbor Drive, the crowd no longer constituted an unlawful assembly, thereby
divesting police of lawful authority to disperse the crowd. (PIs.' Opp'n & Cross -Mot.
at 6.) In support of this notion, the Cervantes Plaintiffs argue that "[t]he only lawful
basis for declaring an assembly unlawful is widespread violence or threat of
widespread violence." (Id. at 14.) This is a misstatement of the law. The First
Amendment does not prohibit dispersing assemblies that are violent, "pose a clear
and present danger of imminent violence, or ... violatfe] some other law in the
process." Collins v. Jordan, 110 F.3d 1363, 1371-72 (9th Cir. 1996) (emphasis
added). However, the Cervantes Plaintiffs do not cite to any authority—nor can the
Court find any—to support the proposition that they could lawfully remain in the
area of an unlawful assembly despite the order to disperse. Nor does existing case
law establish, or even suggest, that the First Amendment prohibits law
enforcement from enforcing a dispersal order under the circumstances present in
this case.
Thus, in the period following the unlawful assembly declaration and dispersal
order, the Cervantes Plaintiffs' had no corresponding First Amendment right to
remain in the area of the unlawful assembly. Accordingly, the Cervantes Plaintiffs
suffered no First Amendment injury as a matter of law.
Id. at 7-8.
D. Potential State Law Changes
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Page 17
While beyond the scope of this memo, proposed state "Back the Blue" legislation, if
adopted, will need to be considered. This legislation (SF 342 with strike -after amendment
H-1342), currently contains a provision which would add a new Chapter to the Iowa Code
(27B) entitled "restriction on enforcement of state, local, and municipal law prohibited"
which provides: "A local entity or law enforcement department shall not adopt or enforce
a policy or take any other action under which the local entity or law enforcement
department prohibits or discourages the enforcement of state, local, or municipal laws."
The enforcement mechanism is similar to Chapter 27A (Enforcement of Immigration laws)
i.e. complaint by Attorney General, denial of state funds.
This proposed legislation also includes changes to criminal law including making it
unlawful for a pedestrian to be anywhere on a fully -controlled access facility, enhancing
the penalty for criminal mischief if the acts damaged, defaced, altered or destroyed any
publicly owned property, including a monument or statute, enhancing the penalty for
obstructing a public way, and further enhancing the penalty if the conduct obstructs or
attempts to obstruct a fully -controlled access facility, commits property damage or is
present during an unlawful assembly or riot, makes pointing a laser at another person with
the intent to cause pain or injury an assault, and enhances the penalty for unlawful
assembly and riot.
Cc: Geoff Fruin, City Manager
Dustin Liston, Police Chief
Sue Dulek, Interim City Attorney as of 4/17/21