Constitutionally Protected Expressive Activity & the First Amendment: “Who Ya Gonna Call?”
Robert C. Phillips
Deputy District Attorney (Ret.)
*UPDATED JULY 2022*
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We commonly encounter situations where a person is using a cell phone to record our actions in field. As well, we respond to merchant complaints of demonstrators, solicitors, pamphlet distributors, etc. outside a business. For over thirty years, Mr. Phillips historical research and legal writing has provided peace officers with the most practical, field-specific and updated information to fulfill their legal, moral and ethical responsibility to protect the rights afforded to citizens by the United States Constitution.
The situation is not at all uncommon: An individual business owner, security official for a large shopping mall, or store manager representing a major retail chain store such as (but not limited to) Costco, Wal-Mart or Target, complains to law enforcement that demonstrators, signature collectors, pamphlet distributors, an organization soliciting funds for themselves or for a charity, a panhandler, or some other politically, socially, or religiously motivated individual or group of individuals has set up a table on their property near an entrance to a store. Such persons, while on the mall or the store’s “private property,” and commonly in violation of some of the mall’s or store’s rules established to control or prohibit such activity, are generally attempting to communicate to store patrons some political, social, religious, or otherwise controversial viewpoint.
In such a situation, the mall or store representative will typically call for law enforcement’s assistance in evicting the offending individual(s), demanding that the responding police officer tell them to leave or, in the alternative, arrest them for trespassing. Should the officer balk at doing so, the complainant can be expected to wave around a ream of important looking documents purporting to be case law saying that what the “trespassers” are doing is “illegal.”[1]
The mall or store representative might also insist that he or she is going to make a citizen’s arrest and, pursuant to Penal Code § 142, the officer is required by law to accept the arrestee even if the officer does not agree with the wisdom or legality of doing so.
Another related situation might be where a citizen is attaching leaflets to parked cars; an activity prohibited by some city and county ordinances as a form of littering as well as an intrusion on one’s private property.[2] Or, the problem might be the all too often occurrence of illegal alien day-laborers soliciting employment or other favors from the mall’s or store’s parking lot or at an adjacent curb of a public thoroughfare.[3]
Similarly, when a panhandler plops himself down in front of a store soliciting monetary handouts, store owners fear that such an unsightly or odorous individual might scare away potential customers.[4] Such a person is typically homeless (or at least represents himself to be homeless), shabbily dressed, and at the very least, annoying to the store’s regular customers.
Another possible situation might be when a “sidewalk vendor” insists on selling his or her wares, be it food or merchandise, from either a pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other non-motorized conveyance, or perhaps from one’s person, upon a public sidewalk or other pedestrian path in front of the complaining party’s store, or in a public park.[5]
So what should the police officer do when confronted with any one of these situations? Click below to read the full bulletin.
[1] E.g., Lloyd Corp. v. Tanner (1972) 407 US. 551 [92 S.Ct. 2219; 33 L.Ed.2nd 131];
Diamond v. Bland (1974) 11 Cal.3rd 331; and
Costco Companies, Inc. v. Gallant (2002) 96 Cal.App.4th 740
Ralphs Grocery Company v. Victory Consultants, Inc., et al. (2017) 17 Cal.App.5th 245
[2] See Klein v. City of San Clemente (9th Cir. 2009) 584 F.3rd 1196
[3] See Comite De Jornaleros De Redondo Beach v. City of Redondo Beach (9th Cir. 2011) 657 F.3rd 936
[4] See P.C. § 647(c)
[5] See Gov’t. Code §§ 51036 et seq.
