9/26/2017
New Protesters, Old Problems

New Protesters, Old Problems

After Charlottesville, a look at the challenges of municipal liability

By Sarah R. Schmitz , Sun Choy , Sara Brochstein , Matthew Weiss

In the aftermath of Ferguson and Baltimore, both cities were chastised for the show of force used to address protesters, with particular criticisms of the display of tanks and military gear. Fast forward to August 2017 in Charlottesville, Virginia, where the city was criticized for allegedly standing by and failing to intervene amid physical altercations between protesters.

Meanwhile, local governments are under heavy scrutiny by the media and the public for any use of force, especially deadly force. The balance between the constitutional protection of free speech and ensuring order and safety is delicate for local governments that are attempting to make the right decisions and avoid future liability.

Political Rallies and the First Amendment

Rallies and marches certainly are not new First Amendment issues; they are deeply rooted in American history. Municipalities use their police power to regulate and control these protests to protect the safety of all. The constitutional inquiry into whether public safety serves as a legitimate justification to curtail protected First Amendment activity dates back nearly a century.

Generally, speech cannot be restricted based on the content of the viewpoint espoused. However, there is a limit. The Supreme Court, in Brandenburg v. Ohio, states that the constitutional guarantee of free speech does not permit the government to forbid speech that advocates the use of force or the violation of a law unless the advocacy is directed to inciting or producing imminent lawless action and the advocacy is likely to incite this. The Supreme Court used this theory later in National Socialist Party v. Village of Skokie, when it sided with neo-Nazis, aided by the American Civil Liberties Union, in their effort to stage a march through the heavily Jewish Chicago suburb of Skokie, Illinois. On remand, the Illinois Supreme Court found that even the display of a swastika was a symbolic form of free speech entitled to First Amendment protections.

It also was this standard that led to San Francisco facing significant scrutiny when a right-wing group known as “Patriot Prayer” was granted a permit to gather in Crissy Field on Aug. 26, 2017. The National Park Service, which operates Crissy Field, stated that it could not regulate the content of First Amendment activities; however, it reserved its right to revoke a permit where the gathering threatened public safety.

The Supreme Court has upheld restrictions and regulations when they were viewpoint-neutral and content-neutral restrictions regulating the time, place, or manner of speech. The crucial question in evaluating the constitutionality of such a restriction, as outlined in Grayned v. City of Rockford, is “whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.”

Such time, place, and manner restrictions must be content neutral, be narrowly tailored, serve a significant governmental interest, and leave open ample alternative channels for communication.

One of the tactics employed by local governments to maintain order is to use separation—where opposing political groups that converge on the same location are kept separate by the police with barricades. At an alt-right rally in Boston Common on Aug. 19, 2017, Boston Police created a large buffer zone between the alt-right demonstrators and thousands of protesters who showed up in opposition. This approach can be controversial, as some believe the mere existence of designated “free speech zones” violates the First Amendment, and civil libertarians view free speech zones as a form of censorship and public relations management.

Only where the risk of violence is significant have courts allowed some narrowly tailored restrictions on free speech to advance a compelling government interest. Those courts have said that “government must have some leeway to make adjustments necessary for the protection of participants, innocent onlookers, and others in the vicinity.”

This has led the Supreme Court to uphold the use of free speech buffer zones in and around the entrances to abortion clinics where the buffer was sufficiently narrowly tailored.

Further complicating the role of law enforcement is the inevitable gun presence at these rallies, given many states’ open- or concealed-carry laws. Indeed, in defending the law enforcement response to the protests in Charlottesville, Virginia Governor Terry McAuliffe cited the attendance of heavily armed militia as an influencing factor. The presence of weapons alone is not enough to allow for increased restrictions.

Courts have justified blanket searches of rally participants where the group sponsoring the rally had a “historically demonstrable penchant for violence” and the rally would be “attended by opposition groups who have historically clashed with the sponsoring organization.”

As local governments consider requests for marches, rallies, and protests sponsored by controversial groups, they would be well advised to avoid outright restrictions based on the content of the organizing group’s speech and instead focus on narrow ways to protect the general public and minimize the risk of violence when those groups exercise their constitutional right to free speech.

Policing Political Protests

While policing during protests has faced some highly publicized recent criticisms, there also have been reports of model policing and local government management, and lessons can be learned from these strategies. Cleveland has been in the spotlight for a Department of Justice investigation into the use of force and the fatal shooting of Tamir Rice. As a result, Cleveland entered into a consent decree and reformed many of its practices. Such reforms appear to be paying off, as Cleveland received overwhelming accolades for its handling of the Republican National Convention in 2016.

Given the city’s recent controversial police shootings, racial tensions in general, and then-presidential candidate Donald Trump’s attendance, critics expected a disaster. But the four-day event was, by most accounts, a success from a law enforcement perspective. The largely peaceful convention ended with a mere 24 arrests.

This success was attributed not only to the overwhelming street presence of uniformed police, but also the use of bicycles. In advance of the convention, Cleveland purchased 300 bicycles and provided training for the officers who would be riding them. Bicycles not only allowed law enforcement to respond more quickly to potential issues and access areas that vehicles could not, but also they were used as barriers between potential combatant protestors. Similar benefits have been reported about the use of mounted patrol, although the cost is sometimes prohibitive for smaller local governments.

In sum, it appeared that Cleveland managed to maintain crowd control while avoiding stifling First and Second Amendment rights, and the tools and training implemented by Cleveland police can be instructive for all.

Preempting the Removal of Confederate Monuments

In early May 2017, New Orleans Mayor Mitch Landrieu delivered a now-famous speech about why the city was removing Confederate monuments within the city proper. Following the violence in Charlottesville, other municipalities have likewise rushed to remove Confederate monuments. For instance, Baltimore removed monuments under the cover of darkness just days after the standoff. Mayor Catherine Pugh said it was “in the best interest of my city” to have the monuments removed “quickly and quietly.”

Like Baltimore, other municipalities cite public safety concerns to justify the removals. Essentially, these cities view Confederate monuments as magnets for violence, not to mention a risk management concern. However, many of these municipalities lack the authority to remove the monuments due to preemption.

According to the Southern Poverty Law Center, there are more than 700 Confederate monuments on public land and, not surprisingly, the majority are located in in the South.

Many of these states—including Alabama, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia—have statutes that preempt local governments from removing statues. In Virginia, § 15.2-1812 (Memorials for War Veterans) provides: “[I]t shall be unlawful for the authorities of the locality, or any other person or persons, to disturb or interfere with any monuments or memorials so erected, or to prevent its citizens from taking proper measures and exercising proper means for the protection, preservation, and care of same.”

There was ongoing litigation over the application of this statute to the Charlottesville City Council’s vote to remove the statue of Robert E. Lee when the violence erupted. Unfortunately, at least in the case of Charlottesville, the risk to the public was arguably increased by the litigation over a local entity’s authority to remove a Confederate monument.

This politically charged tension between state and local authorities is also being litigated in Alabama. Days after the events of Charlottesville, Birmingham Mayor William Bell ordered that the city’s 52-foot-tall Confederate obelisk in Linn Park Memorial be covered with a box-like structure. He did not order the removal of the monument because the Alabama Memorial Preservation Act of 2017 forbids “the relocation, removal, alteration, renaming, or disturbance of any architecturally significant building, memorial building, memorial street, or monument on public property which has been in place for 40 or more years.”

The state promptly sued the city and its mayor. “Birmingham does not have the right to violate the [act] and leaves my office with no choice but to file suit,” Attorney General Steve Marshall said, in a statement.

While public safety is certainly a legitimate concern, municipalities must consider the impact of preempting state laws and potential litigation when making the decision to remove Confederate monuments.



Sarah Schmitz is a claims attorney at OneBeacon Government Risks. She can be reached at sschmitz@onebeaconpro.com.

Sun Choy is partner at Freeman Mathis & Gary LLP. He can be reached at sunchoy@fmglaw.com.

Sara Brochstein is associate with Freeman Mathis & Gary LLP. She can be reached at sbrochstein@fmglaw.com.

Matthew Weiss is associate with Freeman Mathis & Gary LLP. He can be reached at mweiss@fmglaw.com.

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