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Constitutionally Protected Expressive Activity & the First Amendment: 

“Who Ya Gonna Call?”

 

Robert C. Phillips
Deputy District Attorney (Ret.)
RCPhill101@goldenwest.net
858-395-0302
August, 2021

            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?

            The answer is actually quite simple:  Except when necessary to preserve the peace, and with other limited exceptions, the officer should do nothing.

Getting involved in such disputes, either by making an arrest or accepting the target of a citizen’s arrest, is likely to be little more than an exercise in futility.   What is not likely to happen is that the “trespassing” demonstrator or panhandler will ever get charged criminally in a court of law, or if he does, that a conviction will result.  This is because what such demonstrators or panhandlers are doing is generally not in violation of any of California’s criminal trespass or other related statutes.  And even if under some unique circumstance it is, at least in the case of the demonstrators, they might actually have a constitutional right to be on the complainant’s property espousing their political, social, or religious beliefs. In such a case, the constitutional protections will typically overshadow any contrary state or federal criminal statutes.

For an officer to attempt to interject a criminal prosecution into such a mix is more likely to result in civil liability for both the officer and his or her police department than get the “trespasser” into the criminal justice system.[6]

Balancing the Parties’ Conflicting Constitutional Rights:

It cannot be disputed that every person in this country has a constitutional right to the private ownership and use of property without undue interference from other persons or the government.[7]  This is no less true for the owners of a business or a shopping mall.[8]  It also applies to government-owned property.[9]  By the same token, however, we all have a First Amendment right to exercise free speech and to petition the government for redress of grievances.[10]  The right to “free speech” is broader than one might think, protecting literal speech as well as expressive or communicative conduct.[11]  However, neither a business owner’s private property rights, nor one’s First Amendment freedoms, are absolute.[12]  Either may often, depending upon the circumstances, be forced to give way to other competing interests.[13] 

When called to the scene of a dispute between a shopping mall or business owner and a demonstrator, signature collector, pamphlet or leaflet distributor, or anyone else who might be attempting to discuss personal beliefs with others, the police officer finds himself in the middle of these two constitutionally protected activities, each individual doing no more than attempting to exercise his or her sometimes conflicting rights.[14]  This, for the officer, is a lose-lose situation.  It puts the officer in the position where the parties want him or her to make some very difficult decisions when in actuality, he doesn’t have sufficient information to do it correctly or equitably.  It simply can’t be done.

The Federal Rule:

The United States Supreme Court has considered this type of situation and has attempted to strike a fair balance between one’s property rights and another’s free speech rights.  Recognizing that free speech rights are not absolute,[15] it has been held that a private property owner, including commercial enterprises such as large department stores and shopping malls, may, under most circumstances, prohibit others from using their property for purposes of exercising First Amendment free speech and petitioning rights, at least so long as there are other effective alternative channels of communication.  Such “alternative channels” would include the availability of public sidewalks, parks, and streets adjacent to the store or shopping complex from where the demonstrators can make their viewpoints known.[16]

The federal Tenth Circuit Court of Appeal has ruled that a city ordinance that prohibits standing, sitting, or remaining for most purposes on the City’s street medians violated the First Amendment because residents use those medians for protests or other expressive activity; i.e., as a “public forum.”  The City’s ordinances seeking to prohibit standing on street medians to solicit money or advertise various viewpoints were not narrowly tailored to serve significant governmental interest in that the city failed to show any real harm from such a use of the medians.[17]

As an interesting side note, the United States Court of Appeals, District Court Circuit, after the U.S. Supreme court struck down federal statutes prohibiting First Amendment activity on the sidewalks surrounding the Supreme Court building finding such areas to be a “public forum,”[18] recently upheld (in what might be considered by some as a bit of a hypocritical “what’s good for the goose, is not going to be upheld for when it affects the gander”) a similar statutory prohibition[19] when that same First Amendment activity is attempted within the so-called plaza area between the sidewalk up to the front door of the Supreme Court itself.[20]

            In a case involving an individual’s attempts to espouse his religious principles on the campus of the Georgia Gwinnett College, with interference from campus officials, the U.S. Supreme Court had the opportunity to discuss the issue of damages.  In the case of Uzuegbunam v. Preczewski,[21] the High Court held that, for purposes of U.S. Const. art. III standing, the two plaintiffs’ request in their lawsuit for “nominal damages” (not specifying any specific amount, but merely alleging that he had suffered damages) provided the necessary redress for a completed violation of their legal rights under the First Amendment. Because nominal damages were available at common law in analogous circumstances, a request for nominal damages satisfies the “redressability element” necessary to show legal standing where a plaintiff’s claim is based on a completed violation of a legal right.  For purposes of this appeal, it was undisputed that plaintiffs experienced a completed violation of their constitutional rights when campus officials enforced their speech policies against them. Because every violation of a right imports damage, nominal damages can redress petitioner's injury even if he cannot or chooses not to quantify that harm in economic terms.[22]

            What is important for our purposes here is that the Supreme Court noted that “there was no dispute” that plaintiffs had established in their lawsuit that by restricting their First Amendment freedom of speech rights, the campus officials had caused “(1) an injury in fact (2) that is fairly traceable to the challenged conduct . . . .”[23]

California’s Rule:

The California Supreme Court, on the other hand, has evaluated the problem differently.  The California Constitution contains its own version of the right to free speech[24] and to petition the government for redress of grievances.[25]  Interpreting these state provisions, it has been ruled that at least in California, the free speech and petitioning rights are to be given a broader application than provided for under the similar U.S. constitutional First Amendment protections, tipping the scale in most cases in favor of the demonstrator.[26] 

In so ruling, and while affirming a shopping center’s right to establish reasonable “time, place and manner restrictions”[27] on the activities of demonstrators,[28] signature collectors, pamphlet distributors, an organization soliciting funds for themselves or for a charity, and/or other individuals or organizations, the California Supreme Court has held that large department stores and shopping centers, at least generally, cannot prevent others from having access to their private property for the purpose of exercising free speech and petitioning rights.[29] 

The Court’s reasoning on this issue is based upon the concession that such businesses have, in effect, replaced the traditional town center where people used to meet to discuss the issues of the day.  Today, shopping malls and large businesses, by opening their private property to public access, have established a modern-day public forum for the communication of ideas and varied viewpoints.[30]  This is true even if the demonstrator’s message involves issues that are unpopular, controversial, or which to some—as in the case of some anti-abortion demonstrations where large, intentionally shocking photographs of aborted fetuses are used[31]—are personally offensive.[32]

Most recently, the First District Court of Appeal (Div. 2) used the “balancing of interests” test in finding that a parking lot and other exterior portions of a privately owned amusement park outside the ticketed area constituted public forums under the California Constitution,[33] and that an animal rights activist had a right to peacefully protest the park’s use of animal attractions in those areas.  The Court reasoned that the owner’s interest in restricting free expression was minimal in these large and open areas where it was undisputed that past protests had caused no disruptions and had not interfered with attendance.  Also, the public’s interest in expressive activity was strong in light of the large number of visitors and the direct connection between the protesters’ message and the featured attractions, and the city’s general plan and zoning laws categorized the park as a community park.  It was also noted that a “time, place, and manner” argument was forfeited because the owner did not raise it below.[34]

The United States Supreme Court, recognizing that the individual states may interpret their own Constitutions as they choose so long as not to diminish a person’s rights as guaranteed by the U.S. Constitution’s Bill of Rights, has given California its blessing on this concept.[35]

Recognized Exceptions to a Demonstrator’s Otherwise Lawful Exercise of His Freedom of Expression Rights:

Exceptions to this California rule have been found, however, when the location of the proposed activity is what can best be described as something other than the functional equivalent of a public forum.[36]  Whether or not a particular business or other location qualifies as an exception depends upon a careful evaluation of a number of factors.  The nature of the facility is certainly one such factor, as is the location relative to a store’s entrances and exits and how the area in question might be “typically configured and furnished.”[37]  The California Supreme Court has “instruct(ed) us to balance the competing interests of the property owner and of the society with respect to the particular property or type of property at issue to determine whether there is a state constitutional right to engage in the challenged activity.” (Citation)  The Supreme Court “did not hold that free speech and petitioning activity can be exercised only at large shopping centers or that such activities can be exercised on any property except for individual residences and modest retail establishments.  (Citation.)”[38]

But more importantly, a court must weigh the competing interests of the public and the property owner:[39] I.e.:  Because the store owner has a right to enjoy “freedom from disruption of normal business operations and freedom from interference with customer convenience,”[40] whether or not, and to what degree, the demonstrator’s activities interfere with the store’s activities is an issue that must be evaluated.[41] 

Where an exception is found, the business or shopping complex may very well have the legal right to prohibit constitutional expressive activity on its property altogether.[42]  This does not mean, however, that a police officer should necessarily be the one making this decision.  Rather, this merely means that the aggrieved business or shopping complex may seek a resolution in the civil courts where it can properly be determined, after an evidentiary hearing, whether an exception does in fact apply, and if so, what then is the most appropriate remedy. 

For this reason, although an exception to the general rule that these incidents are civil and best handled by a civil court judge may on its fact appear to apply, it is still strongly recommended that the responding law enforcement officers take no affirmative action absent a clear violation of a criminal statute (e.g., a battery, pursuant to P.C. § 242) other than a mere trespass.  Whether or not an exception applies will depend upon the circumstances, including whether, and to what degree, one’s First Amendment rights are in fact involved.  These are issues a police officer, responding to a radio call to referee a dispute between a business establishment and a demonstrator, is simply not equipped to resolve.  The issue is still better left to a civil court for an informed decision by a judge after a full evidentiary hearing.

But for the sake of being informed, below are listed the recognized exceptions to the general rule that malls, the fronts of large businesses, and other business establishments, provide a public forum for expressive activities.  Note that all these examples, except for trespassing on the school grounds of a school—grades kindergarten through 12th grade—are civil cases with a resolution being fashioned by a civil court, and not a police officer at the scene of the incident. 

So far, the courts have told us that the following businesses, locations, activities, or situations fall within this list of exceptions, thus potentially subjecting demonstrators or free-speech-related displays to exclusion:

 

• A stand-alone retail outlet which has its own parking area not shared with other businesses is not required to allow demonstrators to set up a table in front if it’s store.[43]  This would likely also include the large, box-style membership stores such as a Costco, at least when not part of a shopping center complex.[44]

 

• A single stand-alone supermarket’s decision to permit the placement of a few news racks on its property, in front of its store, did not create a public forum requiring it to allow other newspapers to place their racks there as well.[45]

 

• Any areas adjacent to a commercial store where the areas in dispute lack any “public forum attributes,” as shown by the evidence as presented to a civil court,[46] such as; “within a shopping center or mall, the areas outside individual stores’ customer entrances and exits, at least as typically configured and furnished.”[47]

 

• A grocery store that, even though sharing a parking lot with several other businesses, does not “encourage people to congregate in or to otherwise remain at the center for longer time periods” than necessary to complete their shopping, and which “does business as a convenience store with a goal of getting customers in and out of the store very quickly,” is not the equivalent of a public forum, or even a “quasi-public forum.”[48]

 

• A high school campus may not be entered by demonstrators without the permission of the school’s principal.   In such a case, Penal Code sections 627.2 and 627.7 may be enforced.[49]  But the rule is otherwise if the demonstrators set up their activities on the sidewalk in front of the school, so long as the sidewalk or streets are not being blocked.[50] Also note that the same protections are not necessarily accorded to a college campus where free speech receives greater protection; a college campus having “long been recognized as a ‘center for free intellectual debate.’ (Citation)”[51]  Also, driving a truck around a school with offensive pictures (aborted fetuses) displayed on the side of the truck is protected by the Constitution no matter how offensive or shocking their message might be to some people. [52] 

 

(Note:  Penal Code § 626.8 was expanded effective 1/1/2012 [AB 123] to include “willfully or knowingly creating a disruption with the intent to threaten the immediate physical safety of any pupil in preschool, kindergarten, or any of grades 1 to 8, inclusive, arriving at, attending, or leaving from school,” in an apparent attempt to get around the holding in Center for Bio-Ethical Reform; see fn. 40, below.)

 

• A secured apartment complex, as “a place where the public is generally excluded, where an individual can escape the public forum by retreating into his or her apartment and closing the door,” is not required to allow leafleting to its tenants.[53]

 

• An auditorium located within a public university’s laboratory complex used for large technical group meetings “clearly do(es) not qualify it as a traditional public forum, nor even as a ‘semi-public forum.’”[54]

 

• The advertising within or on a transit bus, not being the equivalent of a public forum, may be restricted as to its content,[55] particularly when a proposed advertisement provides false information.[56]

 

But see the concurring opinion from the U.S. Supreme Court’s denial of certiorari—concurring only because the full court was not available to consider the issues—holding that if they did hear the case, they should reverse the D.C. Circuit’s decision in that forbidding transit bus advertisements based on its religious content constitutes “discrimination by a governmental entity and a violation of the First Amendment.”[57]

And also see a case out of the Third Circuit Court of Appeal where the federal Court held that the Southeastern Pennsylvania Transportation Authority cannot prohibit ads in its busses that are political in nature or reference matters of public debate, finding the Transportation Authority’s standards were unconstitutionally overbroad and incapable of reasoned application. The court pointed specifically to SEPTA’s broad prohibition against advertisements referencing “certain political messages” and “public debate” as violations of the First Amendment. [58]

The Ninth Circuit has also on the issue, holding that public buses’ sides constitute a “limited public forum” because the county had adopted and consistently implemented a formal policy requiring screening of all potential advertisements, and where the purpose of the bus advertising program was to generate revenue such that expressive activities were incident to the commercial venture.  Rejection of the advertisement in question was a proper viewpoint-neutral and content-based limitation because the exclusion was consistent with the intended purpose of the buses to provide safe and reliable transportation, the standard was sufficiently definite and objective to prevent arbitrary and discriminatory enforcement, and the threat of disruption of bus service was real and not speculative.[59] 

However, in another seemingly similar case, the Court reached the opposite conclusion in ruling that a city’s transit authority violated a union’s First Amendment rights by declining, under its advertising policy, to run the union's proposed advertisement on the authority's buses because, even though the authority’s advertising program, which was a “limited public forum,” had legitimate concerns with transportation services and safety, none of the authority’s reasons for rejecting the union’s proposed ad was supported by an independent review of the record.  In particular, the record did not support the authority’s rejection of the union’s ad as public issue advertising, and rejection of the union’s ad on the basis that it did not propose a strictly commercial transaction was belied by the breadth of the authority’s policy, which broadly allowed for advertising that more generally promoted an entity that engaged in commercial activity.[60] 

Also, in yet another case, reflecting the inconsistency of the various cases evaluating this issue, a plaintiff's complaint challenging the constitutionality of the City of Semi Valley’s regulations prohibiting mobile billboards on public property unless they qualified as authorized emergency or construction-related vehicles was held by the Ninth Circuit Court of Appeal to have been improperly dismissed after a federal district court erroneously concluded that the ordinances were content neutral and reasonable time, place, and manner restrictions that did not violate the First Amendment; the lower court evaluating the sufficiency of plaintiff’s complaint against the wrong standard. The Court held instead that the authorized vehicle exemption was a content-based distinction, which triggered strict scrutiny review.[61]

The federal Sixth Circuit Court of Appeal has chimed in on the issue as well, siding with a conservative free speech group by ruling that a Detroit-area public transit authority’s ban on political speech in ads on its buses violated the First Amendment because such speech is not clearly defined.  The American Freedom Defense Initiative (AFDI) filed suit against the Suburban Mobility Authority for Regional Transportation, or SMART, in 2010, after two of its proposed ads regarding Islam were rejected for placement on buses. The ads were part of an outreach by AFDI to Muslims who wanted to leave the Islamic faith and promoted the website RefugefromIslam.com.  AFDI was initially successful and obtained an injunction from a federal judge, but the Sixth Circuit overturned the ruling in 2012 and held SMART had enacted a permissible total ban on political advertising.  In so deciding, the Court focused heavily on recent Supreme Court decisions, including the 2018 case Minnesota Voters Alliance v. Mansky. [62]  Mansky involved a ban on political apparel at polling locations, but the Supreme Court struck the law down as unconstitutional because of the lack of a definition of the term “political,” pointing out that SMART’s failure to precisely define political speech runs afoul of the precedent established in Mansky.[63]

 

• A city ordinance prohibiting the solicitation and immediate receipt of funds inside an airport terminal (i.e., Los Angeles International Airport, in this case), in its parking areas, and the adjacent sidewalks, “in a continuous or repetitive manner,” was held to be a reasonable time place and manner restriction on the California constitutional free speech rights of the International Society for Krishna Consciousness, in a decision issued by the California Supreme Court.  The ordinance notably did not seek to ban the solicitation of funds to be collected in the future, the passing out of leaflets, or talking with willing persons walking by, the Court finding the attempt to collect money on the spot to be more disruptive in an already-busy airport than these other activities.[64]  The Ninth Circuit agreed, finding the ordinance to be a reasonable restriction on the right to free speech under the First Amendment.  The Ninth Circuit’s reasoning included the finding that major international airports had a legitimate interest in controlling pedestrian congestion and reducing the risk of fraud and duress attendant to repetitive, in-person solicitation for the immediate receipt of funds.  Also, the ordinance was limited in nature and left open alternative channels to raise funds.[65]

 

• A court may impose as a condition of probation in a theft-related case that a particular person stay out of a named retail store.  Such a probation condition may lawfully include all stores in that chain (e.g., Home Depot) state-wide.[66] 

 

• A high school supervisor who’s duties include maintaining an orderly and safe environment for the students, and who during a police-student confrontation (breaking up a fight) yells “police brutality” and tells students to videotape the altercation on their cellphones, while maybe not subject to criminal charges, was subject to administrative discipline, including being fired.  The “First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities.”[67]

 

• The lawfulness of the exclusion of demonstrators from a Border Patrol enforcement zone at a checkpoint area can only be determined by a judicial evaluation and eventual determination of the issue whether the area is a public or non-public forum.[68]

 

• In a case where the plaintiffs are owners and employees of a bikini barista stand in Everett, Washington, the Ninth Circuit ruled as to the plaintiffs’ First Amendment contention that the act of wearing almost no clothing (pasties and g-strings only) while serving coffee in a retail establishment constituted speech.  The Court further held that the plaintiffs had not demonstrated a “great likelihood” that their intended messages related to empowerment and confidence would be understood by those who view them. The panel concluded that the mode of dress at issue in this case was not sufficiently communicative to merit First Amendment protection.[69]

 

• Enacted to be effective on January 1, 2019 (SB 946), the so-called “Safe Sidewalk Vending Act” prohibits the arrest of vendors selling food or merchandise from a “pushcart, stand, display, pedal-driven cart, wagon, showcase, rack, or other non-motorized conveyance, or from one’s person, while upon any public sidewalk or other pedestrian path,” or while operating within a public park.[70]  Although permits may be required, violators of the relevant (extremely comprehensive) statutes may be cited and fined only with what is referred to as an “administrative fine.”[71]

True Threats:

            Aside from the above, there are occasions when a person issues what has become known in the law as a “true threat.”  Such activity is not protected by the First Amendment freedom of speech.  For instance:

Threatening words written on a vehicle, if directed to a specific individual and the circumstances indicate that the person would actually act on those threats (i.e., a “true threat”), is not constitutionally protected speech. [72]  “The First Amendment does not protect violence.”[73]  Similarly, making a bomb threat is not protected speech under the First Amendment.[74] 

A workplace violence restraining order imposed on defendant under Code Civ. Proc., § 527.8, was supported by substantial evidence. A reasonable person could conclude that defendant disclosed a deputy city attorney’s address so that he would know defendant could find his residence. Defendant’s repeated threats, and the recent change in his attitude toward the deputy city attorney, also supported the trial court’s conclusion that defendant’s conduct was reasonably likely to recur in the absence of a restraining order.  The portions of the order that applied to speech—i.e., the prohibition against threats of violence and the order precluding appellant from disseminating the deputy city attorney's home address—were based upon specific prior threatening conduct that was not protected by the First Amendment. The order was therefore constitutionally permissible.[75]  The Court also noted that “(a)n actual intent to cause harm is not a requirement to prove a threat that falls outside the protection of the First Amendment. ‘The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protects individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.”’”[76]

A state university may impose discipline upon a student for “[c]onduct that threatens or endangers the health or safety of any person within or related to the University community, including physical abuse, threats, intimidation, harassment, or sexual misconduct,” as provided for under Title 5, section 41301(b)(7), of the California Code of Regulations.   However, this authority may not be used in retaliation against a student who, in a non-threatening manner, exercises his First Amendment freedom of expression rights to challenge the policies and activities of the university’s administration.[77]  This is an issue that, except to preserve the peace, is best litigated in court after the filing of a lawsuit.

However, where defendant sent a letter to the district attorney’s office, expressing anger over its handling of his parole violation case, it was held not to be punishable under Penal Code § 69 because it was not a “true threat” outside the protection of the First Amendment.  Under the circumstances, a reasonable listener would not have found the letter, stating that defendant’s confinement constituted a kidnapping of a Russian military operative and threatened that the entire office would be sentenced to death by firing squad, to be a serious expression of an intent to commit an act of unlawful violence because it was delusional, threatened violence by third parties who were not defendant’s associates, and included repeated assurances that defendant was not threatening to personally commit violence.[78]

Rioting or threatening to riot have sometimes been defended under the guise of a First Amendment free speech right  However, the courts have drawn the line between one’s freedom of expression and “true threats.”  The Ninth Circuit has explained the differences between the two where it held that a district court erred in finding the federal Anti-Riot Act was facially overbroad and dismissed an indictment against defendants that charged them with conspiracy to violate, and violating, the Act.  The Ninth Circuit, in reversing the district court, held that 18 U.S.C. § 2101(a)(1), (2), and (4) do not violate the First Amendment except insofar as § 2101(a)(2) prohibits speech tending to “organize,” “promote,” or “encourage” a riot, and 18 U.S.C.S. § 2102(b) expands the prohibition to “urging” a riot and to mere advocacy.  However, those offending portions of the Act were held by the Ninth Circuit to be severable from the remainder of the Act, and that once the offending language was removed, the remainder of the Act is not unconstitutional on its face.[79]

In discussing “true threats,” the Ninth Circuit meticulously defines its applicability under the First Amendment where the defendant was claiming that the term “riot” is unconstitutional on its face.  Per the Court; “A ‘riot’ requires either one or more ‘acts of violence’ or one or more ‘threats’ to commit one or more acts of violence. (18 U.S.C.) § 2102(a). The completed acts of violence (or the threatened acts of violence) must ‘constitute a clear and present danger of, or . . . result in, damage or injury to the property . . . or to the person of any other individual.’ Id.  (⁋) Acts of violence are not protected under the First Amendment. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 . . . (1982). Nor are ‘true threats,” which involve subjective intent to threaten.  See (United States v. Cassel, 408 F.3rd (622) at 633 (9th Cir. 2005); see also Virginia v. Black, 538 U.S. 343, 359-60 . . . (2003). ‘True threats’ are not limited to bodily harm only but also include property damage. See Cassel, 408 F.3d at 636-37; see also (United States v.) Miselis, 972 F.3d at 540 (4th Cir. 2020); United States v. Coss, 677 F.3d 278, 283-84, 289-90 (6th Cir. 2012); United States v. Parr, 545 F.3d 491, 497 (7th Cir. 2008). (⁋) ‘[W]e do not hesitate to construe’ a statute punishing threats ‘to require . . . intent’ to threaten. Cassel, 408 F.3rd at 634; cf. Elonis v. United States, 575 U.S. 723, __, . . . (2015). By requiring proof of ‘intent’ and proof that the overt act was committed ‘for [the] purpose’ of a riot, (fn. omitted) which also indicates subjective intent, (fn. omitted) Congress limited the ‘threats’ part of the definition of a riot to ‘true threats.’ Thus, a ‘riot,’ as defined in the Act, is not protected under the First Amendment.[80]

The Police Officer’s Dilemma:

Again, the existence of an exception to the general “don’t arrest” rule doesn’t always mean that a police officer is the one who should be making this decision.  Nor does it mean that there is even an applicable criminal statute authorizing an arrest.  Absent a clear cut violation of an established criminal statute, and sometimes even then, it is still often best to let a civil court make the decision.  This is partially because the issue can get even more complicated in that there may be exceptions to these exceptions. 

For instance:  “(W)here the property owner itself is the subject of a public dispute or controversy—as for instance a labor dispute—its property may as a practical matter be the only available forum to effectively express views on the controversy and it may be required to give its opponents access to its property.”[81]  In a labor dispute, therefore, it would likely be held that it is improper for a police officer to attempt to assist the business owner in evicting the demonstrators.

            A police officer is simply not equipped to evaluate a shopping mall or other business’s efforts to regulate speech based upon the content (i.e., the subject matter) of whatever it is a person might be intending to relate to others.  For instance, attempts by a privately owned shopping mall to prohibit non-commercial expressive activity unrelated to the shopping mall’s businesses (i.e., a pastor discussing his religious beliefs with patrons who were willing to talk with him), being “content based” and non-disruptive to the mall’s activities, was held to be a violation of California’s Constitution, Article I, Section 2.[82]

            For those instances when the expressive activity is legally taking place on private property, such activity might still be subject to “reasonable time, place and manner” restrictions.  Determining which such restrictions might be enforceable and under what circumstances, is inherently problematic.  Whether or not a store’s own rules concerning time, place and manner restrictions are appropriate requires a court’s evaluation of the rules themselves, taking into account all the surrounding circumstances.[83]  For instance, it has been held that if a store is allowed to exercise discretion in enforcing its own rules without reference to some objective standards, “the regulation runs the risk of governing speech on the basis of its content,” making discriminatory practices possible.  Such a rule will not likely be upheld by a court if challenged.[84]

What seems to be happening, in practice, is that store administrators or their agents will cite one or more of the above listed exceptions, each standing for the right of a business or shopping complex to exclude, or at least limit, solicitors, and argue to the responding police officer that the case means that the officer must arrest the solicitor for trespass.  To the contrary:  All that these cases stand for is that the business or shopping complex has the power and the right to enforce their interests in a civil court of law.  Certainly, the store would much prefer to take a short cut and have a police officer solve their problems for them, relieving them of the need to institute a civil proceedings.  But that is not the way it should be done. 

Also, for officers who might be concerned that Penal Code § 142 mandates that an officer accept a person arrested by a private citizen when the arresting citizen insists, it should be noted that the Legislature amended section 142 a few years back, specifically making its mandatory provisions inapplicable to the citizen’s arrest situation.[85] Whether or not an officer determines to take custody of a person who is the subject of a citizen’s arrest is at the officer’s discretion.  In determining that there is no probable cause justifying an arrest, it would seem that an officer’s discretion would dictate that he or she decline to do so.

Other Unusual Circumstances Involving First Amendment-Protected Rights:

Profane Speech:

Defendant—not a fan of the government’s practice of drafting individuals into the military—wore a jacket in a county courthouse with lettering on the back expressing his discontent over the draft that read; “F__k The Draft.”  He was criminally charged and convicted for disturbing the peace, pursuant to P.C. § 415, which prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct . . . .”  After his conviction was affirmed by the state Second District Court of Appeal, the United States Supreme Court granted certiorari.  In reversing defendant’s conviction, the Supreme Court rejected the state’s argument that the four-letter expletive imprinted on defendant’s jacket was “offensive conduct” that might provoke others to violence against defendant, noting that he did not engage in any act of violence, or make any loud noises, when he wore the jacket in the municipal courthouse as an expression of his feelings toward the Vietnam War and the draft. A conviction resting solely upon “speech” may be justified under the First and Fourteenth Amendments only for the manner that the freedom was exercised, but not for the content of the message. The Court observed that the statute was not limited to protecting courtroom decorum, nor directed at erotic messages, and the message did not consist of “fighting words,” directed at readers of the message. That the message was thrust upon unsuspecting viewers, who were not captive and could avert their eyes, did not entitle the state to protect the sensitive by curtailing all such speech. Moreover, no evidence demonstrated that anyone was prepared to strike out at whomever assaulted their sensibilities.[86]

California, however, has made it illegal (as a form of “disturbing the peace”) where a person “uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”[87]  The use of this section has been held to be constitutional on numerous occasions.[88]  More recent decisions tend to cast some doubt upon the continuing validity of this theory (see below).

Officers also need to be aware, for instance, that a demonstrator’s lack of civility in a contact with a police officer does not provide the officer with probable cause to arrest.  A citizen has a First Amendment constitutional right to be critical of the police, even to the point where he or she directs profanity or obscene gestures at an officer.  Such conduct does not constitute “disorderly conduct” or any other form of resisting an officer in the performance of his duties, and thus cannot provide the necessary probable cause for an arrest.[89] 

The federal Fourth Circuit Court of Appeals applied even tighter standards in a case where the defendant was held to have been improperly convicted for using “abusive language” under Va. Code § 18.2-416, ruling that although an ugly racial epithet was used by defendant, and that it constituted extremely “abusive language,” the government failed to prove (or even to offer evidence) that defendant’s use of a highly offensive slur tended to cause immediate acts of violence by anyone.  In this case, former military officer Jules Bartow was shopping at the Quantico Marine Corps Exchange when he used a racist slur that generally seemed aimed at either an African American employee or an African American man in civilian clothes. Bartow was escorted out of the store and arrested by base security officers. He was then criminally convicted for using “abusive language” in violation of Virginia Code § 18.2-416.  While the Fourth Circuit Court of Appeals found that the racist slur to be “abhorrent” and “undoubtedly” constituted “abusive language,” it was held that the government failed to prove that Bartow’s use of the slur caused immediate violence by anyone. The court stated that the Virginia statute did not criminalize the use of the words used and it was “not a fighting word per se.” It was unclear to whom Bartow addressed the slur.  The Court also found that the government offered no evidence that any of the individuals towards whom it may have been addressed reacted violently, or that a reasonable person in their positions would have done so.[90]

Most recently, the United States Supreme Court (in an 8-to-1 decision) ruled that a public high school violated a student’s First Amendment rights by suspending her from the cheerleading team when, outside of school hours and away from campus, the student transmitted on social media vulgar language and gestures (i.e.,  posting pictures on the social media “snapchat,” showing the minor and a friend with middle fingers raised, bearing the caption: “F__k school f__k softball f__k cheer f__k everything.”) criticizing the school and its cheerleading team. The High Court ruled that although the school’s regulatory interests remained significant in some off-campus circumstances, certain features of off-campus speech diminished the strength of the unique educational characteristics that might call for special First Amendment leeway.  Under the facts of this case, the school’s interest in prohibiting students from using vulgar language to criticize a school team or its coaches did not overcome the student’s First Amendment interests in free expression. Contrary, perhaps, to what authority the school might have, had she expressed the same sentiments while on campus during school hours, the student spoke under the circumstances of this case where the school did not stand in “loco parentis,” and there was no evidence of a substantial disruption of a school activity.[91]

Picketing: 

Labor-related picketing raises a whole other set of issues that police officers are in no position to resolve, except to know that the courts tend to give such activities even more protections.  Labor-related picketing is generally recognized as “a special class of protected activity.”[92] The legality of, and procedures applicable to such demonstrations on private property necessitate consideration of such statutory enactments as the Labor Management Relations Act and other federal code provisions.[93]  These are complicated issues that lawyers and courts literally take years to resolve.

For instance, the California Supreme Court has held that a Ralph’s Supermarket’s privately owned entrance area, at least under the facts of one case, was not a “public forum” under the California’s liberty of speech provisions,[94] and therefore doesn’t enjoy state constitutional protections as other nearby areas and that other considerations that must be taken into account.  In this regard, the Court held that Labor Code § 1138.1, as well as something called the “Moscone Act,” which together comprise a part of a state statutory system for regulating labor relations and which are modeled on federal law, do apply.  In reaching this conclusion, the Court reversed the appellate court’s conclusion that the Moscone Act and Lab. Code. § 1138.1 violate the First and Fourteenth Amendments to the U.S. Constitution. [95]  

Per the California Supreme Court, the two statutes do not violate either the U.S. Constitution’s free speech or equal protection guarantees on the ground that they give speech regarding a labor dispute greater protection than speech on other subjects.  Both statutes afford substantive and procedural protections to peaceful union picketing on a private sidewalk outside a targeted retail store during a labor dispute.  Therefore, such picketing may not be enjoined (or stopped) on the ground that it constitutes a trespass.[96]  If a court can’t enjoin such activity, police officers similarly cannot be making arrests based upon an alleged trespass. 

            The rights of the picketers in this case involved issues that the courts batted back and forth for months, taking into account the actual physical makeup of the location of the picketing, with specific justices disagreeing with each other until the issues were finally resolved by the Supreme Court.  Even then, the Court issued four separate concurring opinions.  To expect a police officer at the scene, and without the benefit of months of contested litigation enjoyed by the appellate courts, to reach a just and correct resolution in such a circumstance, is completely unrealistic. 

It has also been held that labor union picketers may be precluded from picketing and conducting other demonstrations (i.e., loud chanting, singing, marching, carrying posters or placards, taking photographs, recording video footage, and distributing written materials or business cards) inside a retail establishment.[97] However, this decision was reached as a result of Walmart filing a civil complaint in the Los Angeles superior court for trespass, seeking injunctive and declaratory relief against the union, and not the result of any law enforcement action taken at the time of the civil defendant’s actions inside the store.  Should a retail establishment representative seek a criminal trespass arrest, citing this Walmart case, a responding officer should point out to the complainant that there is a difference between a civil and a criminal trespass, and refer the person to his or her store’s attorneys.

Whether or not picketing is legal, however, often involves issues that a patrol officer is in no position to decide.  Even when later considered by the courts, there may be honest differences of opinion.  For instance, in one particular case, the Ninth Circuit Court of Appeals held that the National Labor Relations Board erred in concluding that the employees' picketing in front of the commercial office building where they worked violated § 8(b)(4)(ii)(B) of the National Labor Relations Act, found in 29 U.S.C. § 158(b)(4)(ii)(B); a source no officer in the field can be expected to be familiar with.  Ultimately, it took an appellate court to tell us that the Board failed to identify substantial independent evidence rebutting the presumption that the employees’ picketing was lawful as the union never made any statements or took any actions indicating that an objective of its picketing was to coerce the building manager into pressuring the employer to meet the employees' demands.[98]

Using Sound Amplifying Devices:

How about the use of an amplifying device to make one’s presence even more disturbing?  It depends, apparently, upon the nature of the place where the noise is occurring. 

For instance, the Ninth Circuit Court of Appeal (in a split 2-to-1 decision) has held that the use of an amplifying device in a location which is already noisy is lawful and cannot be prevented.  A preliminary injunction against enforcement of a city ordinance that required individuals to obtain permits before using sound amplifying devices within the city should have been granted because the permit requirement was a unconstitutional “prior restraint” that chilled First Amendment free speech rights and would continue to chill these rights absent injunctive relief.  At least in this case, where plaintiff sought to use a bullhorn in front of the 138- acre Six Flags Discovery Kingdom, the City of Vallejo failed to show that it would suffer any hardship from the issuance of a preliminary injunction.  Per the Court, The sidewalk next to Six Flags ”is not an area of the city where people come to seek peace and quietude,” inferring that in other areas where “peace and quietude” are not an unreasonable expectation, such an ordinance might be enforceable. Also, although the city had amended the ordinance after the litigation had commenced, the case was not thereby rendered moot under U.S. Const. art. III because the amended ordinance only eliminated a permit fee, which did not eliminate the asserted harm caused by the permit requirement.[99]

Abortion Clinics:

            When Massachusetts enacted a statute that mandated that “counselors” (i.e., individuals who attempted to intercept women proceeding to a “reproductive health care facility” and counsel them on alternatives to abortion) remain at least 35 feet from a clinic’s entrance and its driveway (Mass. Gen. Laws, ch. 266, §§ 120E1/2(a), (b)), thus creating a safe “buffer zone” for pregnant women, the United States Supreme Court ruled in McCullen v. Coakley[100] that such a statute violates the counselor’s First Amendment rights.  By its very terms, the statute was held to restrict access to “public way[s]” and “sidewalk[s];” places that have traditionally been open for speech activities and that the Court has accordingly labeled “traditional public fora.”  The Court found the statute to be too broad and not “narrowly tailored” in that it “burden[s] substantially more speech than is necessary to further government’s legitimate interests.”

Similarly, it has been held in a California case that a city ordinance (Oakland) that sought to regulate the activities of certain individuals in front of an abortion clinic, but not others, when the different levels of enforcement are based upon the content of the message each represents (i.e., it is not “content-neutral”), is presumptively invalid.[101]

            Cases prior to the recent U.S. Supreme Court’s McCullen decision have reached seemingly conflicting conclusions in similar situations.  This is because in attempting to determine the legality of demonstrating, or “counseling,” in front of abortion clinics, the demonstrators’ (or “counselors’) First Amendment free speech and assembly rights must be balanced with the health and safety interests of women attempting to obtain medical services, including clinical abortions, in a private medical facility.[102] The results of such balancing will inevitably vary with the circumstances, taking into account any number of other factors. 

            For instance, a medical clinic, where persons are picketing or distributing leaflets on privately owned property, such as a 40-space parking lot of a small clinic that provides family planning services including abortions, has been held not to be a public forum.  In such a case, at least where the property is posted as being for the exclusive use of patients and staff, and after the demonstrators have refused to leave when requested to do so, it was held that the protestors may be arrested for trespassing, per P.C. § 602(o).[103] However, in light of the United States Supreme Court’s decision in McCullen v. Coakley, the correctness of this case is now in question, or at least should be reevaluated. 

Whether or not it is wise to make such an arrest, therefore, is questionable given all the factors that must be considered in determining the constitutionality of the protestors’ activities.  This, again, is probably something that an officer in the field is not equipped to decide. 

Distributing Leaflets on Windshields: 

As for placing leaflets or other forms of non-commercial (i.e., political) information on the windshields of parked cars, it becomes an issue of whether doing so “creates an abundance of litter significantly beyond the amount the city already manages to clean up.”[104]  Anything less than this has been held to be outweighed by the person’s First Amendment freedom of expression rights.  Also, the car owner’s right to be free from unwanted leaflets being put on his or her windshield must generally take a back seat to the leafleteer’s freedom of expression rights,[105] depending upon the circumstances.[106] But in any case, these are issues that can only be resolved after an evidentiary hearing in a civil court; not by a police officer standing on a street corner as he attempts to referee the warring parties. 

Protesting a Funeral:

Another unusual circumstance highlighting the importance courts attach to First Amendment freedom of expression rights involved members of a Baptist Church who were protesting America’s tolerance of homosexuality by picketing at the military funeral for a soldier killed in Iraq.  The demonstrators used inappropriate signage such as “Thank God for Dead Soldiers.”  The justifiably offended soldier’s father’s $5 million judgment in a civil suit for the intentional infliction of emotional distress was reversed by the federal Fourth Circuit Court of Appeal, holding that the demonstrator’s activities, as offensive as they might be, was protected by the First Amendment.[107]  The United States Supreme Court upheld the appellate court’s ruling in this case despite agreeing that the demonstrator’s actions were “outrageous.”[108] The First Amendment may at times takes precedence over the exercise of common decency and respect.

Note, however, that as a result of this case, the California Legislature made such conduct illegal by statute.  As of January 1, 2013, pursuant to Penal Code § 594.37, it is now a misdemeanor to engage in picketing on public property where such picketing targets a funeral during the time period beginning one hour prior to the funeral and ending one hour after it ends.  The constitutionality of this statute, however, has yet to be determined.  In that a state statute never takes precedence over federal constitutional protections, such as provided under the First Amendment, the validity of this statute is questionable.

Illegal Aliens Seeking Work:    

How about the groups of illegal aliens that crowd city street corners or entrances to Home Depot or other box-style stores?  The Ninth Circuit Court of Appeal has ruled that soliciting employment or other favors on street corners in such a manner is a form of a constitutionally protected freedom of expression.  A city ordinance attempting to outlaw such activity is therefore unconstitutional as being too broad in that it sought to regulate significantly more speech than was necessary to achieve the city’s purposes, and because there are other ways, such as enforcing already existing traffic laws, to control such activities.[109] In reaching this conclusion, the court overruled its own previous decision on this issue which had upheld a substantially identically worded ordinance.[110]

“Occupy” Demonstrations: 

It has further been held that a governmental entity has the right to place reasonable time, place and manner restrictions on demonstrators who, en mass, seek to occupy public land for extended periods of time,[111] such as occurred in the recent so-called “occupy” demonstrations that occurred in a number of major U.S. cities.  Recognizing that there is no constitutional right to erect structures (e.g., tents) on another’s property, [112] which includes public parks, [113] it has been held that it is not unreasonable for a local government to enforce a no-camping-overnight ordinance on the demonstrators.

Political Demonstrations: 

Political demonstrations also raise unique issues.  The general rule is that government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government agency fears, dislikes, or disagrees with the views expressed.  Further, government agents may not constitutionally disadvantage one group in comparison to another where the agents had no objectively reasonable security rationale for doing so.  The fundamental right to speak, however, being subject to exceptions, does not leave people at liberty to publicize their views whenever and however they please.[114] 

In the most recent authority on this issue, it was held by the Supreme Court (reversing a contrary ruling out of the Ninth Circuit Court of Appeal) that Secret Service agents had not violated a clearly established right when they moved anti-government protesters away from a public restaurant where President Bush was to eat dinner, taking them out of weapons range, while leaving the pro-government protestors were they were originally situated.  Under the circumstances of this case, the Supreme Court found both that (1) there was no prior case law that would have alerted the Secret Service agents that they might be violating the First Amendment, and (2) in any case, leaving the anti-government protestors within easy “weapons range” (handguns or explosive devices) of the President made no sense from a security standpoint.[115] 

Note also that when dealing with military bases, it has been held that a public road easement through a military installation (Vandenberg Air Force Base, in this case), even though located outside the fenced area of the base and thus not a physical part of the military installation itself, may still be controlled by military authorities.  Exclusive possession and control of such an easement through a military base is not required for a road to be included within the control of the installation authorities.  Thus, a “protest area” set aside by the base commander for peaceful demonstrations on such an easement is still subject to the command authority of a military officer.  The choice to secure a portion of the installation more closely with fences does not alter the boundaries of the installation as a whole or diminish the authority of the installation commander over the unfenced areas.[116] 

Public Meetings: 

Anyone who willfully and unlawfully disturbs or breaks up any lawfully conducted assembly or meeting (except meetings listed in Pen. Code § 302, a church assembly; and Elect. Code, § 18340, an assembly of electors), is guilty of a misdemeanor pursuant to Pen. Code § 403.   Section 403 has been upheld as constitutional.[117]

Elections Code § l8340 provides that:  “Every person who, by threats, intimidations, or unlawful violence, willfully hinders or prevents electors from assembling in public meetings for the consideration of public questions is guilty of a misdemeanor.”  Elections Code § 321 defines an “elector” as “any person who is a United States citizen 18 years of age or older and . . . is a resident of an election precinct at least 15 days prior to an election, [or is not a resident but either]:

(1)  He or she was a resident of this state when he or she was last living within the territorial limits of the United States or the District of Columbia, [or]

(2)  He or she was born outside of the United States or the District of Columbia, his or her parent or legal guardian was a resident of this state when the parent or legal guardian was last living within the territorial limits of the United States or the District of Columbia, and he or she has not previously registered to vote in any other state.”

It has been held that § 403 does not apply if the meeting in question is “an assembly of electors,” as defined above.   It is a misdemeanor to disrupt such meetings only under § 18340, and then only if the disruption consists of “threats, intimidations, or unlawful violence.”  Applying § 403 to a group’s protest of a meeting of public officials and members of the public who came together to discuss conditions in a neighborhood was held to be error in that the meeting was covered by § 18340.[118]

            The right of anyone to express his or her ideas at any public meeting or assembly necessarily involves constitutional protections; e.g., First Amendment free speech and the right to petition the government for redress of grievances.[119]  In order to preserve the constitutionality of section 403, therefore, the courts have narrowly construed its provisions, balancing a person’s First Amendment rights to express his or her views with the right of the assemblers to conduct their meetings without unnecessary interference from others.[120]  “Audience activities, such as heckling, interrupting, harsh questioning, and booing, even though they may be impolite and discourteous, can nonetheless advance the goals of the First Amendment.”[121] Such activities, therefore, may not always be prevented.  The interests of those holding the meeting must be balanced with the First Amendment rights of those attending the meeting in determining where to draw the line.

            Therefore, a city ordinance used to enforce decorum within any public meeting must be narrowly drawn, insuring not to prohibit constitutionally protected activities or speech.  A court will invalidate a statute for being constitutionally overbroad whenever there is a realistic danger that the statute itself significantly compromises recognized First Amendment protections of parties not before the Court.  Such a statute, however, is not overly broad if, by its terms, it only permits a presiding officer to eject an attendee for actually disturbing or impeding a meeting.  But the term “disturbing” is limited to actually disturbing or impeding a meeting; i.e., an “actual disruption of the meeting.”  Giving it a broader meaning, to where it brings within its prohibitions lesser, constitutionally protected acts, will make it overbroad.  A statute may not arbitrarily deem just any violation of its rules of decorum to be a disturbance.[122]

            “(S)ection 403 authorizes the imposition of criminal sanctions only when the defendant’s activity itself—and not the content of the activity’s expression—substantially impairs the effective conduct of a meeting.”[123]  It’s not what the defendant says.  It’s the manner and circumstances under which he chooses to say it that is subject to regulation.  For instance, dumping garbage on the floor of a school board meeting room, at least when the defendant refused to stop when ordered to do so, was held not to be protected speech and sufficient probable cause to justify an arrest for a violation of P.C. § 403.[124]

            The nature of the meeting being disrupted must be taken into account.  In order to hold a defendant criminally liable, it must be shown that “the defendant substantially impaired the conduct of the meeting by intentionally committing acts in violation of implicit customs or usages or of explicit rules for governance of the meeting, of which he knew, or as a reasonable man should have known.”[125]

In a case out of Arizona, the Ninth Circuit Court of Appeal reversed the federal trial court’s dismissal (i.e., the granting of the civil defendant’s summary judgment motion) in favor of a state senator where it was claimed that the senator violated the plaintiff’s First Amendment rights when he ordered law enforcement to remove and bar plaintiff from reentering the Arizona Senate building because there were still undecided disputed facts concerning whether plaintiff actually disrupted the proceedings (plaintiff leading loud applauding from an overflow room which could be heard on the Senate floor), and whether the senator had legitimate concerns that if plaintiff were allowed into the Senate building in the future he would interrupt legislative debate.  The case was properly dismissed as to the law enforcement officers involved only because they arrested plaintiff for criminal trespass when he attempted to reenter the Senate Building on a later date pursuant to a facially valid order issued by the senator.[126]  Although the decision does not tell us, it appears that no criminal case was ever issued against the plaintiff.

It is also noted that officers should be sensitive to the possibility that where the disrupted governing body orders law enforcement to arrest a person who is causing the disruption of a meeting, that that governing body’s actions against the individual might later be held to be retaliation for other problems or issues he or she has caused.  Should it be found that the governing body is enforcing an official policy of retaliation,[127] the individual may well have grounds for a federal 42 U.S.C. § 1983 lawsuit (although the officer himself may have a “good faith” defense).[128]

            The courts have suggested strongly that in close cases, the persons causing the disruption be verbally warned once and only arrested or cited if the offending activity continues after the warning.[129]  However, the need for a warning depends upon the circumstances.  While section 403 (or any similar local ordinance) must be used very judiciously given the First Amendment protections involved, where the illegality of the disruptive act or acts is “self-evident,” a warning may not be necessary.[130]

California’s Freedom of Access to Clinic and Church Entrances Act (“FACE Act”); Penal Code §§ 423 et seq.:

            Effective January 1, 2002, specific misdemeanor criminal violations, enacted for the protection of health care services providers and their “clients,” as well as for places of religious worship, were added to the Penal Code, and may, where necessary, be enforceable by law enforcement officers.  These new sections outlaw the intentional injury to, intimidation of, or interference with, or attempt to do so, any person or entity because that person or entity is a reproductive health services client, provider, or assistant, “by force, threat of force, or physical obstruction that is a crime of violence.”  (P.C. § 423.2(a))  The same protections are given to any person who is lawfully exercising or seeking to exercise his or her First Amendment right of religious freedom at a place of religious worship.  (subd. (b))[131]                                         

The new sections also prohibit the “nonviolent physical obstruction” of a reproductive health services client, provider, or assistant (subd. (c)), or a place of religious worship (subd. (d)), where such action involves the intentional injury to, intimidation of, or interference with, the victim. 

All the relevant terms are specifically defined in P.C. § 423.1.  For instance, to “interfere with” means “to restrict a person's freedom of movement.”  (subd. (b)) To “intimidate” means “to place a person in reasonable apprehension of bodily harm to herself or himself or to another.”  (subd. (c)) And “physical obstruction” means “rendering ingress to or egress from a reproductive health services facility or to or from a place of religious worship impassable to another person, or rendering passage to or from a reproductive health services facility or a place of religious worship unreasonably difficult or hazardous to another person.”  (subd. (e))

But the Legislature, in enacting these statutes, specifically noted that “nothing in this act, and no actions by anyone pursuant to this act, (are intended) to otherwise harm anyone because of his or her beliefs, constitutionally protected speech, or lawful actions.”  (Stats 2001, ch 899, subd. (f))  While there are as of yet no case decisions interpreting the scope of these new provisions, it is apparent from this statement of intent that they are not to be used to limit peaceful protests or the exercise of a protestor’s First Amendment freedom of speech rights.  In other words, so long as protestors at reproductive health services facilities aren’t in clear violation of the “interference . . . of movement,” “intimidation,” and “physical obstruction” prohibitions, arrests should not be made.  And even when protestors are pushing the envelope on these issues, it might be best if any arrests are preceded by a warning.

Certainly, a court of appeal will not allow the standard trespass provisions to circumvent these section 243 et seq. restrictions on law enforcement actions at the scene of a peaceful demonstration.  This again should be the subject of a determination by a civil court based upon an evidentiary hearing where “reasonable time, place, and manner restrictions,” if any, may be imposed by the court.  Police officers at the scene” should not be expected to guess what those restrictions might be.

Use of Trespassing Statutes:

Even assuming the above issues could be resolved in the field, and if it were to be determined that the property owner had a legal right to either exclude the protestors or put restrictions on their activities, the question then becomes:  “Now what? What do we charge them with?”  

The answer to this question is not as simple as one might expect.  To the contrary, with limited exceptions, it will be found that California’s trespass statutes are woefully inadequate in these situations.  There is simply no such thing as a “P.C. § 602, trespass.”  An applicable subdivision of section 602, or some other similar section altogether, must be found for which there is at least probable cause to believe all the elements are being met.

Penal Code § 647c, for instance, which prohibits the obstruction of a street, sidewalk or other place open to the public, requires more than merely being an annoyance.  Rather, it must be proved that the interference with vehicular or pedestrian traffic constituted at least being stopped by, or having to walk around, the demonstrator.  The offender must be found to have actually and significantly blocked an entrance, exit, passageway, sidewalk or street.[132]  What “significantly blocked” means in any particular situation may be difficult to determine and is perhaps something best resolved, at least in close cases, by a civil court.  In other words, it is advisable that a police officer not make an arrest except in the most obvious of circumstances.

Trespasses under either Penal Code §§ 602(k)[133] or 602.1 similarly fail to properly address the constitutional expressive activity situation.  Both sections require proof of a “specific intent” to injure property or property rights, or to interfere with the business or occupation carried on by the owner.[134]  While it may be argued that setting up a table or otherwise standing at a store’s entrance creates “a risk” of interfering with the store’s operations,[135] this fact alone is not likely to be legally sufficient to prove a specific intent to do so.[136]  The law on this issue is so clearly stated that officers cannot even claim qualified immunity should they choose to arrest (or take a citizen’s arrest) where there is no actual, intended interference with a store’s operation.[137]

However, it has been held that where an individual refuses to leave a restaurant, sitting at a booth for about eight hours during which he was asked by the manager to leave about four times, where the responding officer, who had frequently responded to similar calls at that restaurant for the same person, found him sleeping at the booth, and when the person ignores the officer’s request to leave several times, it may be inferred that the defendant is intentionally interfering with the business as required by P.C. § 602.1.  It was held that arresting the person on this charge was supported by probable cause.[138]

Note, effective as of January 1, 2018, a new subdivision (c) has been added to P.C. § 602.1, which is meant to deal with aggressive solicitors posing as county employees in public buildings such as a county Hall of Records, approaching members of the public in an effort to persuade the person to use them as an agent to conduct public business such as filing a fictitious business name or filing articles of incorporation.  Such an offense, which requires the defendant to refuse to leave before an arrest may be made, is an infraction with a $400 fine.[139] 

There is also in fact authority to the effect that a known gang member who had previously been “banned” from a shopping mall due to his disruptive behavior and who then returned on a later date, may be assumed to have returned “for the purpose of injuring any property or property rights” or “with the intention of interfering with, obstructing, or injuring any lawful business,”[140] satisfying this necessary element.  Such an assumption, however, even if reasonable (see the dissenting opinion in this case, arguing that no such intent can be inferred from merely having been banned once before.[141]), does not appear to be applicable to one who merely sets up a table for the purpose of collecting signatures or distributing literature.[142]  To the contrary, it has been held that free speech considerations take precedence over whatever inconvenience or annoyance shopping mall demonstrators might pose to regular patrons.[143]

An officer may be confronted with the five-decades-old criminal case of In re Ball,[144] where it was held that setting up a table to collect signatures and solicit donations is a violation of P.C. § 602(k).[145]  The defendant’s conviction was in fact upheld in Ball, the last, and only, criminal resolution of a case in any of this line of cases known to this author.  The issue for the appellate court in Ball, however, was whether there was any evidence presented at trial to the effect that the defendant did in fact have the specific intent to interfere with the victim’s business.  The court found that there was such evidence supporting the defendant’s conviction, based primarily upon testimony that as a direct result of the defendant’s actions, the victim (Disneyland) was forced to divert the off-loading of a passenger tram to a different location. 

So, under Ball, unless there is at a minimum a significant alteration of a mall’s or other business’s activities as the direct and obvious result of a signature collector’s activities, such as by having to divert the public through some other entrance or exit, it is extremely unlikely that merely setting up a table at a store’s entrance constitutes probable cause of a violation of P.C. § 602(k).  And even if you find such a situation, it must be remembered that Ball is a five decades old case with a whole lot of new appellate authority since then emphasizing the importance of protecting a demonstrator’s right to express himself.  In short, the continuing validity of Ball is questionable.

It has also been held that P.C. § 602(k) may be violated under the theory that entering an owner’s land without permission injures the victim’s right to exclude unauthorized persons.  But the case that says this involved the defendant’s unauthorized entry into an area constituting private property of a boat marina where entry was restricted to keycard holders.[146]  Also, this theory requires as a prerequisite that the owner of the land have the right to exclude others; an argument that doesn’t logically apply to open areas, albeit private property, in front of stores and in malls, particularly when the “trespasser” is there for the purpose of exercising his First Amendment rights.

So unless there is a complete blocking of an entrance to a store,[147] or it can otherwise be proved that the demonstrator has the specific intent to interfere with, or somehow damage the store’s business itself, there is just no chargeable trespass section that covers the situation when someone sets up a table in a shopping mall or near the entrance to a Wal-Mart, Costco or Target store, attempting to get the attention of patrons as they come and go.  As noted in the above cited case law, an unsupported claim that by merely being there and soliciting patrons somehow interferes with a business, or even when specific patrons are being annoyed by the demonstrators’ activities, does not support the elements of any available trespass sections under California law.

Penal Code § 602(m)[148] appears on its face to be a prohibition that might apply.  However, the courts have interpreted the term “occupying,” one of the section’s necessary elements, as requiring more than a transitory trespass.[149]  Under the statute, “occupy” means a “nontransient, continuous type of possession with some degree of dispossession and permanency.”[150] Thus, the section is only applicable to the situation where the trespasser has done something equivalent to setting up housekeeping, with the intent to live there for an extended period of time.  There is no authority for the argument made by some that by merely asking such a person to leave, such request being ignored, somehow turns the situation into a non-transitory trespass and a violation of P.C. § 602(m).

It has been suggested by some that P.C. § 602(o) is a trespass section that may be used.  Where the property is private property or structures “not open to the general public,” and a demonstrator ignores a request by the property owner, or a law enforcement officer at the request of the owner, to leave, then a trespass per P.C. § 602(o)[151] may be charged.[152] 

Note, however, that subdivision (o) specifically requires that the property be “not open to the general public.”[153]  Although one may question whether a mall or business qualifies as property “not open to the general public,” the Ninth Circuit Court of Appeal has answered this by finding this element applicable when there is evidence that the person accused of trespassing has been previously banned from the property.  Per the Ninth Circuit, even though the property may be open to everyone else in the “general public,” it is not open to the person previously excluded, thus satisfying this element.[154]

 This argument, it seems, is a bit of a stretch.  Lower federal courts have limited the application of this “not open to the general public” element to circumstances where, for instance at a sporting event, one must buy a ticket, thus limiting access to those in the general public who have purchased the right to enter.[155]  But even if a state court were to accept the Ninth Circuit’s broader application of this rule, the typical demonstrator attempting to use a store’s or mall’s property to distribute leaflets is not likely, in most cases, to have been previously ordered from the property.  And such a demonstrator, even if previously ejected from the property, would seem to constitute something completely different from a disruptive gang member who had no other legitimate business on the property but to make trouble.

Also, there is no crime under subdivision (o) until the trespasser has refused to leave when asked, according to the section, and there is nothing to keep him from returning later with immunity unless and until he makes the necessary refusal.

Lastly, subdivision (o) specifically excludes from its provisions when the “trespassers” are on the premises for the purpose of engaging in activities protected by the California or the United States Constitutions.  Exercising one’s First Amendment rights would seem to come within this exception to the section’s prohibitions. 

Penal Code § 602(t) is one trespass provision that might work.  But it requires a previous ejection or a current refusal to leave when ordered by the property owner or a police officer at the request of the owner, plus a prior conviction for an offense that occurred on that property.  The officer must also consider that the prior conviction has to be less than five years old in the case of a felony, two years for a misdemeanor, or one year for an infraction.  Serious felony priors, per P.C. § 667.5(c), never wash out.

Section 602(t) is one you might well use where a trouble-making “mall rat” refuses to leave or to stay away, so long as the necessary prior conviction exists.  It is not one that’s likely to apply in the case of a demonstrator who is there merely to collect signatures or pass out leaflets. 

Penal Code section 602.8(a) is often overlooked.  However, the elements of this offense require that the property entered be “lands under cultivation or enclosed by fence,” or “uncultivated or unenclosed lands, where signs forbidding trespass are displayed at intervals not less than three to a mile along all exterior boundaries and at all road and trials entering the lands.”  However, this offense is only an infraction for the first two offenses, becoming a misdemeanor only upon a third or subsequent offense.[156]  Lawful labor union activities, activities protected by the California and U.S. Constitutions, someone making a lawful service of process, land lawful land surveying activities, are exempted.[157]  The Attorney General is of the opinion, however, that the owner of a mobile home park, an apartment complex, and a homeowner’s association of a condominium project, may use this section to prohibit uninvited, non-resident political candidates from distributing campaign materials door to door.[158]  

Officers may be confronted with a federal case out of Nevada, Tsao v. Desert Palace,[159] where the plaintiff in a civil suit was validly arrested for trespassing at a casino where she’d been asked to leave before.  This case, however, was based upon a Nevada trespassing statute that specifically applied to the situation, and which does not require any prior convictions or other extraneous elements.  California has no equivalent to such a statute.

Loiterers and Vagrants:

With California’s trespass statutes being so inadequate, some jurisdictions might try to legislate away the problem by enacting their own “loitering” or “vagrancy” ordinances.  Such ordinances vary in their language.  Generally speaking, however, the courts have struck down most of them as being too broad.  In short, the courts have held that it is unconstitutional (i.e., a Fifth and Fourteenth Amendment “due process” violation) to try to outlaw the act of merely standing around,[160] even when done so “for no apparent purpose.”[161]  People have a constitutional right, per the courts, to be homeless and to stand around and do nothing.

The courts do not like loitering statutes:  “(W)e are . . . aware of the long and checkered history of loitering statutes . . .”[162]  Absent (1) some statutory constraints on the discretion the statute vests in the police, and (2) a requirement that the loitering be for some “specified illicit purpose,” and (3) maybe a limitation of its “operation to defined geographical locations in which loitering for the proscribed purposes has historically been a problem,”[163] trying to prevent someone from standing in an area otherwise open to the public (even if on private property, even if without written permission, and even without  some “purpose legitimately connected with the business or activity of the legal occupant of the premises”), will likely be unsuccessful.

Trying to criminalize one’s mere presence at a particular location without imposing on law enforcement the requirement that the person be shown to be there for some bad or illegal purpose is likely to be held to be “unconstitutionally broad.”[164]

There is case law for the proposition that a court might uphold a loitering statute where there is language in the statute similar to “. . . not hav(ing) a purpose legitimately connected with the business or activity of the legal occupant of the premises . . . ”  But such a statute will only be upheld if such language is interpreted by a court to require that there be proof of a specific intent to commit some other illegal act while in the process of loitering.[165]  This still means that we will have to be able to prove that the loiterers in question are there for some unlawful purpose aside from the loitering itself.  It is not likely that passing out flyers or soliciting donations will meet the requirements of this necessary element.

Also, a court will not allow the state to merely assume the violation of the loitering statute by a person’s mere presence at the scene of a radio call.  For instance, merely being in a motel’s parking lot, sitting on a block wall while happening to be at the site of a radio call concerning someone else (based upon a physical description) urinating in the area, is not “loitering” in that there was no articulable basis for concluding that the defendant lacked a lawful purpose to be on the property, much less that he was there “for the purpose of committing a crime as opportunity may be discovered.”[166]

Courts, however, have upheld the constitutionality of P.C. § 653b; loitering around school grounds:  “[E]very person who loiters about any school or public place at or near which children attend or normally congregate and who remains at any school or public place at or near which children attend or normally congregate, or who reenters or comes upon a school or place within 72 hours, after being asked to leave by the chief administrative official of that school . . . is a vagrant, and is punishable (as a misdemeanor).   [¶] As used in this section, 'loiter' means to delay, to linger, or to idle about a school or public place without lawful business for being present.”  (P.C. § 653b(a) & (d))  But the court only upheld a juvenile court true finding after implying a “with the intent to commit a crime” element into the offense.  “If a specific intent to commit an unlawful act, or to violate a constitutional right made definite by the Constitution itself, any federal law, or any judicial decision, suffices to insulate a statute from attack on vagueness grounds, we see no basis to hold 653b unconstitutionally vague because its specific intent element requires proof of intent to commit “a crime” as opposed to a designated criminal offense.”[167]  Some might argue that this decision employs some improper judicial legislating. 

There is also a problem with loitering statutes that contain language to the effect that the loiterer “ . . . is causing public inconvenience or annoyance.”  Case law interpreting the constitutionality of the various trespass statutes (see above) can be interpreted to mean that just because some people are offended at a loiterer’s presence is not enough, by itself, to justify an arrest.[168]

Similarly, other statutes that have sought to control the homeless have generally been held unconstitutional as too vague or arbitrary to be enforced.  In striking down as vague a Los Angeles City ordinance[169] seeking to make illegal the living in one’s vehicle on city streets and parking lots, the Ninth Circuit discussed the United States Supreme Court’s views on attempts as outlawing public “vagrancy.”  “In Papachristou v. City of Jacksonville,[170] the Supreme Court held that a city ordinance prohibiting ‘vagrancy’—which was applied to ‘loitering,’ ‘prowling,’ and ‘nightwalking,’ among other conduct—was unconstitutionally vague.  (Citation) The Court viewed the ordinance in its historical context as the descendant of English feudal poor laws designed to prevent the physical movement and economic ascension of the lower class.  (Citation) In America, such laws had been used to ‘roundup . . . so-called undesireables,’ and resulted ‘in a regime in which the poor and the unpopular [we]re permitted to stand on a public sidewalk . . . only at the whim  [26] of any police officer.’ (Citation) The Court concluded that ‘the rule of law implies equality and justice in its application. Vagrancy laws . . . teach that the scales of justice are so tipped that even-handed administration of the law is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together.’ (Citation)”[171]

The above illustrates how attempts to enforce local ordinances that purport to prohibit homeless individuals from camping overnight, even with the permission of the landowner are replete with “equal protection” issues that officers in the field are not equipped to resolve.[172]

Also, it has been ruled that local ordinances making it illegal for the homeless to sit, lie, or sleep on a city’s sidewalks (or on any public property) constitute cruel and unusual punishment under the Eighth Amendment, and are unenforceable absent evidence showing that the homeless have available a home or shelter to go to.  Such acts “are universal and unavoidable consequences of being human,” per the Ninth Circuit Court of Appeal.[173] However, at least one California court (i.e., the Sixth District Court of Appeal), in an unpublished decision, has ruled that counties do not have a duty to provide shelter to the homeless.[174]

And just to round it out, it has also been held by the Ninth Circuit Court of Appeal that homeless people living on the street have property rights that are protected by the Fourth (seizure) and Fourteenth (due process) Amendments as well.[175] “The seizure of a homeless person’s property implicates important Fourth Amendment concerns.”  If property is to be seized without a warrant or a pre-seizure hearing (a Fourteenth Amendment “due process” issue), the seizing entity must be prepared to justify the need, and why it was determined that an exigency required the immediate seizure.[176]  

Lastly, it has been held by the federal Eleventh Circuit that a non-profit organization that advocates the re-direction of government funds currently being used for military purposes, using those monies to feed the homeless instead, is exercising its First Amendment freedom of expression rights by setting up food distribution “picnics,” where the homeless are fed while also being indoctrinated as to the organization’s message.[177]

The bottom line issue with loitering and vagrancy statutes or ordinances is that absent a specific intent element, either express or implied, to the effect that the person is standing around for some “specified illicit purpose,” we’re going to have a “void or vagueness,” or “overly broad,” issue.  As recently noted by the U.S. Supreme Court: “A scienter requirement in a statute ‘alleviate[s] vagueness concerns,’ ‘narrow[s] the scope of the … prohibition[,] and limit[s] prosecutorial discretion.’”[178] Where we can’t show that, the statute is unenforceable.

Panhandlers:

In the case of an annoying panhandler soliciting money, the courts have ruled that even though he may not be exercising any recognized freedom of expression rights, he or she is not in violation of any state law.  Specifically, the prohibitions related to “soliciting alms” contained in Penal Code § 647(c) may not be enforced against the common panhandler “who merely sits or stands by the wayside” asking for money.  Section 647(c) can only be used where the panhandler (or anyone else soliciting funds) actively walks up to or approaches another for the purpose of asking for money.[179]  It is generally only the “aggressive solicitation for the immediate exchange of funds,” such activity being “content neutral” for purposes of the First Amendment and the California Constitution, Art. 1, § 2(a), that may be legislatively banned.[180]

Attempts to use any of the trespassing statutes to chase off a panhandler runs into the same issues as applicable to First Amendment demonstrators, as discussed above.  In the usual situation, with limited exceptions, California trespass statutes just don’t apply to such a situation.  And, as indicated above, it has further been held that a local loitering ordinance is unenforceable against a panhandler absent proof that he or she is loitering there with the specific intent to commit some other illegal act.[181]  The fact that he may constitute an annoyance, perhaps even discouraging regular customers from entering a particular store, is not sufficient to overcome the panhandler’s right to solicit monies.[182]

Also, someone other than a panhandler who is soliciting money for his own organization, or for maybe a charity, may very well be exercising his free speech rights, according to the California Supreme Court.[183]  This, again, along with the issue of what, if any, reasonable time place and manner restrictions are applicable to the situation, is a convoluted issue that can only be handled by a civil court.

Photographing and Videotaping in Public:

A private citizen has a First Amendment right to videotape public officials, including, but not limited to, police officers while in a public place.[184]  In a case out of Massachusetts, the arrest of a citizen for a state wiretapping violation, where he was caught videotaping police activity, was held to be in violation of the citizen’s Fourth Amendment search and seizure rights.[185] It has also been held by that same federal appellate court that police lack authority to prohibit a citizen from recording commissioners during a town hall meeting “because [the citizen’s] activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights[.]”).[186]

It is pretty much accepted that a state’s eavesdropping statute that attempts to prohibit the recording of another without the consent of all parties, cannot be used to prevent the audiovisual-recording of police officers performing their official duties in a public place, at least when the officers are speaking at a volume audible to bystanders.  Use of such a statute has been held, under these circumstances, to violate the First Amendment’s right to free-speech and free-press.  “The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.”[187] And it has been held that “The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”[188]

The Ninth Circuit has also recognized, without discussing the issue, the First Amendment’s protections for one who records bystanders who happened to be viewing public demonstrations, even without their consent.[189]  Citing Fordyce[190] in an unpublished opinion, the Ninth Circuit further recognized the First Amendment right to photograph the scene of a traffic accident.[191]

The federal Third Circuit Court of Appeal has held in two separate cases, where plaintiffs alleged that police officers illegally retaliated against them for exercising their First Amendment right to record public police activity, that private individuals have a First Amendment right to observe and record police officers engaged in the public discharge of their duties,[192] although the defendant police officers were held to have qualified immunity in that the rule was, per the Court, not well-settled at the time.

More recently, it has been recognized that private individuals have a right to photograph and film government officials in public spaces, such as U.S. Customs and Border Patrol agents at a United States-Mexico port of entry.[193]  “The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.”[194]  The issue may be whether the complained of photographing or filming was done in a public place, or of government officials working on public property.  That’s an issue that must be decided by the trial court.  But if so, then the seizure and destruction of the plaintiffs’ photos is a violation of their First Amendment rights.[195]

And even more recently, the federal First Circuit Court of Appeal has ruled that a state statute purporting to make it illegal for a private citizen to secretly record police officers discharging their official duties in public spaces violated the First Amendment because the particular statute at issue (i.e., Massachusetts General Law, Chapter 272, Section 99, enacted in 1968, making it a crime for a person to, among other things, intercept any wire or oral communication made by another person) was “not narrowly tailored to further the government’s important interest in preventing interference with police doing their jobs and thereby protecting the public.” The Court found that that the civil defendants (i.e., the Commissioner of the Boston Police Department and the District Attorney for Suffolk County) presented little evidence to show how secret, nonconsensual audio recording of police officers doing their jobs in public interfered with their mission. Instead, the Court stated that “Section 99 broadly prohibits such recording, notwithstanding the myriad circumstances in which it may play a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the public's ability to hold them to account for their wrongdoing.”  As such, the statute, at least as applied to these plaintiffs, was found to violate the First Amendment.[196]

Contrary to Massachusetts’ attempt to outlaw the secret recording of police officers performing their daily functions, as of January 1, 2016, California’s resisting arrest statutes, Penal Code sections 69 and 148, respectively, specifically state that photographing, videotaping, or audio recording, is not an interference with the officer’s performance of his duties.[197]

However, there is some authority for the argument that an airport security checkpoint constitutes a “uniquely sensitive setting” where “order and security are of obvious importance,” and thus entitled to greater protection than out on the street.  Whether or not law enforcement officers may prohibit an uncooperative suspect (i.e., refusing to provide evidence of his identity while attempting to board a commercial airliner) from recording TSA agents and other law enforcement officers at an airport security checkpoint is an open question, at least providing officers with qualified immunity from civil liability when they seize the suspect’s camera over his objection and delete (or attempt to do so) the contents.  While defendant was acquitted of all criminal charges after a jury trial, the officers were found to have qualified immunity in the resulting civil case.[198]

Resisting Arrest and the First Amendment:

            Police officers are often confronted with uncooperative individuals while they (the officers) are attempting to perform their statutory and constitutional duties.  The temptation often is to end the distraction by arresting the distractor for interfering with the officer in the performance of their duties, per P.C. § 148(a).  However, officers must remember that absent an actual obstruction of the officer’s attempts to perform his or her duties, the person may have a First Amendment constitutional right to voice his displeasure.  As noted by the California Appellate Court:

“‘[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.’ (Houston v. Hill (1987) 482 U.S. 451, 461 [96 L.Ed.2nd 398, . . . ].)  Indeed, ‘[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.’ (Id. at pp. 462–463 . . . .) While the police may resent having abusive language ‘directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.’ (Duran v. City of Douglas, Ariz. (9th Cir. 1990) 904 F.2nd 1372, 1378.)”[199]

            It has also been held that a person’s statement of an intent to refuse to comply with the directive of a peace officer, before actually refusing, is not sufficient to satisfy the elements of the criminal offense defined in P.C. § 148(a).[200]

Conclusions:

In the vast majority of situations, a police officer is left without any tools with which to enforce an order for a demonstrator to pack up one’s card table and leaflets, and leave.  But even in the rare instance where a specific trespass or other statute might apply, using the power of arrest to resolve the issue is most often not the wisest of ways to handle the situation.  Given the complexity of the issues as discussed above—i.e., whether or not the site, under the circumstances, is the equivalent of a “public forum,” and if it is, whether the store’s time, place and manner restrictions are reasonable—the whole issue is one best left for a civil court to resolve.

The myriad of factors that must be considered, weighed, and resolved, are all issues best determined after an evidentiary hearing in the controlled atmosphere of a civil court where all parties have been heard, and at which the court can properly determine the rights and duties of everyone involved.[201]  These are not issues an individual police officer can properly determine, or should be expected to determine, while standing between two angry individuals in an emotionally charged situation, each trying his hardest to impose his viewpoint over that of his opponent, at the scene of the complaint.

Every situation is a little different, either in the type of location the person is “trespassing” upon, the degree of interference alleged by the business owner, or the nature of the expressive activity involved (e.g., signature collecting, leaflet distribution, oral protests, picketing, religious sermon, etc.).  A civil court is properly equipped to balance the equities and establish the ground rules that are appropriate to the specific situation.  A police officer at the scene is not.  Absent a clear-cut violation of a criminal statute (e.g., a battery, per P.C. § 242), a law enforcement officer, therefore, should not even attempt to get involved in resolving these issues.   

Should it be determined that no arrests are to be made, and where it is the business or shopping mall owner who is complaining, that person should be told to consult his or her own private legal counsel and seek a civil restraining order or injunctive relief.   In the case of a complaining signature collector or demonstrator, perhaps arguing to the officer that a store’s rules, or “time, place and manner” restrictions, are unreasonable, they should similarly be advised to seek a preliminary injunction restraining the store owners from attempting to prevent their proposed activities on the store’s property.[202]

In either case, the parties first need to get their issues and arguments before a civil court.  After an evidentiary hearing, the judge may then properly balance the rights and interests of the parties involved and issue an order with specific guidelines as to who can do what, when, where and how.  When appropriate, the court can also impose “reasonable time, place and manner” restrictions on the parties.  But to do this, the civil court must first make certain determinations based upon the evidence it receives from the concerned parties. 

It has been held, for instance, that reasonable time, place, and manner restrictions on the exercise of First Amendment rights are appropriate only as long as such restrictions (1) are “content neutral,” (2) are narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternatives for communication.[203]  A police officer responding to a call for help from an irate shopping center representative complaining about his property being used without permission is just not equipped to handle the decision-making on such issues that is required under the law. 

After the particular circumstances in issue are properly evaluated by a civil court judge, and the rules are clearly set out in writing by the court, a police officer may then—and only then—enforce these rules as a misdemeanor violation of a court order pursuant to Penal Code § 166(a)(4).  But remember that that court order affects only the parties to the already-litigated civil matter.  The next demonstrator who feels the need to violate the store’s rules or otherwise incur the store owner’s wrath, is not bound by the prior court order unless and until he or she becomes a co-party in the next court order.

The bottom line is this:  There is a reason why nearly all the case law on this topic are civil cases.  Generally, almost without exception, it is a civil issue that first needs to be evaluated by a civil court, after an evidentiary hearing and before any criminal action is taken.  A short term solution by criminally charging a person at the scene with trespass or some similar violation is just not feasible, given the complexity of the issues and the inadequate trespass statutes available for use.  Police officers called to the scene of an incident involving the exercise of constitutionally protected expressive activity rights would be well-advised to avoid trying to use the criminal law to resolve what experience has told us is better handled in a civil court of law. 

 

[1]             E.g., Lloyd Corp. v. Tanner (1972) 407 US. 551 [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.

[6]             E.g., see Snatchko v. Westfield (2010) 187 Cal.App.4th 469

              See also Hall v. City of Fairfield (2014) 2014 U.S. Dist. LEXIS 44975

[7]             Fourteenth Amendment, U.S. Constitution

[8]             Donohue Schriber Realty Group, Inc. v. Nu Creation Outreach (2014) 232 Cal.App.4th 1171

[9]             Jacobson v. United States Department of Homeland Security (9th Cir. 2018) 882 F.3rd 878

[10]            First Amendment, U.S. Constitution

[11]            Spence v. Washington (1974) 418 U.S. 405, 409 [94 S.Ct. 2727; 41 L.Ed.2nd 842]

[12]            E.g., see United States v. Osinger (9th Cir. June 4, 2014) 753 F.3rd 939, 946-947       

Donohue Schriber Realty Group, Inc. v. Nu Creation Outreach, supra, at p. 1178

[13]            E.g., see Wong v.  Bush (9th Cir. 2008) 542 F.3rd 732

              See also Jacobson v. United States Department of Homeland Security, supra.

[14]            See Dietrich v. John Ascuaga’s Nugget (9th Cir. 2008) 548 F.3rd 892

[15]            Members of the City Council of the City of Los Angeles v. Taxpayers for Vincent (1984) 466 U.S. 789 [104 S.Ct. 2118; 80 L.Ed.2nd 772]

[16]            Lloyd Corp. v. Tanner, supra.

[17]          McCraw v. City of Oklahoma. City (10th Cir. 2020) 973 F.3rd 1057

 

[18]            United States v. Grace (1983) 461 U.S. 171 [103 S.Ct. 1702; 75 L.Ed.2nd 736]

[19]            40 U.S.C. § 6135

[20]            Hodge v. Talkin (D.C. Cir. 2015) 799 F.3rd 1145

[21]            (Mar. 8, 2020) __ U.S. __ [141 S.Ct. 792; 209 L.Ed.2nd 94]

[22]            Ibid.

[23]            Id., at p. __ [209 L.Ed.2nd at pp. 100-101]

[24]            Calif. Const. Art I, § 2, subd. (a)

[25]            Calif. Const. Art I, § 3

[26]            Robins v. Pruneyard Shopping Center (1979) 23 Cal.3rd 899;

              Fashion Valley Mall, LLC v. National Labor Relations Board (2007) 42 Cal.4th 850;

Best Friends Animal Society v. Macerich Westside Pavilion Property, LLC (2011) 193 Cal.App.4th 168

[27]            See Berger v. City of Seattle (9th Cir. 2008) 512 F.3rd 582, 589

[28]            See also Clark v. Community for Creative Non-Violence (1984) 468 U.S 288 [104 S.Ct. 3065; 82 L.Ed.2nd  221]

[29]            Ibid.; see also Westside Sane/Freeze v. Hahn, Inc. (1990) 224 Cal.App.3rd 546

[30]            Robins v. Pruneyard Shopping Center, supra.

[31]            See Reeves v. Rocklin United School District (2003) 109 Cal.App.4th 652

[32]            See Snyder v. Phelps (4th Cir. 2009) 580 F.3rd 206 (Cert. granted)

[33]            Art. I, § 2, subd. (a)

[34]            Park Management Corp. v. In Defense of Animals (2019) 36 Cal.App.5th 649.

[35]            Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74 [100 S.Ct. 2035; 64 L.Ed.2nd 741]

[36]            Donohue Schriber Realty Group, Inc. v. Nu Creation Outreach, supra.

              Ralphs Grocery Company v. Victory Consultants, Inc., et al. (2017) 17 Cal.App.5th 245, 258-259

[37]            Donohue Schriber Realty Group, Inc. v. Nu Creation Outreach, supra, at pp. 1181-1182

[38]            Ralphs Grocery Company v. Victory Consultants, Inc., et al., supra, at p. 259

[39]            Costco Companies, Inc.  v. Gallant (2002) 96 Cal.App.4th 740

Van v. Target Corp. (2007) 155 Cal.App.4th 1375

[40]            H-CHH Associates v. Citizens for Representative Government (1987) 193 Cal.App.3rd 1193

[41]            See In re Hoffman (1967) 67 Cal.2nd 845

[42]            E.g., Donohue Schriber Realty Group, Inc. v. Nu Creation Outreach, supra, at pp. 1182-1184

[43]            Trader Joe’s Co. v. Progressive Campaigns, Inc. (1999) 73 Cal.App.4th 425;

              Lushbaugh v. Home Depot U.S.A., Inc. (2001) 93 Cal.App.4th 1159

[44]            See Costco Companies, Inc. v. Gallant, supra.

              Van v. Target Corp. (2007) 155 Cal.App.4th 1375

[45]            Judlo, Inc. v. Von’s Companies (1989) 211 Cal.App.3rd 1020, 1029

[46]            Van v. Target Corp., supra.

[47]            Donohue Schriber Realty Group, Inc. v. Nu Creation Outreach, supra, at p.

Ralphs Grocery Company v. Victory Consultants, Inc., et al., supra.

[48]            Albertson’s, Inc. v. Young (2003) 107 Cal.App.4th 106

[49]            Reeves v. Rocklin United School District, supra.

[50]            See P.C. § 647c

[51]            O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, and at p. 503

[52]            Reeves v. Rocklin United School District, supra.

Center for Bio-Ethical Reform Inc. v. Los Angeles County Sheriff Dept. (9th Cir. 2008) 533 F.3rd 780

[53]            Cox Cable San Diego, Inc. v. Bookspan (1987) 195 Cal.App.3rd 22, 29

[54]            U.C. Nuclear Weapons Labs Conversion Project v. Laurence Livermore Laboratory (1984) 154           Cal.App.3rd 1157, 1170

[55]            Women’s International League etc. Freedom v. City of Fresno (1986) 186 Cal.App.3rd 30, 41;

              See also Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (D.C. Cir. 2018) 897 F.3rd 314

[56]            American Freedom Defense Initiative v. King County (9th Cir. 2015) 796 F.3rd 1165

[57]            Citing Good News Club v. Milford Central School (2001) 533 U.S. 98 [121 S.Ct. 2093; 150 L.Ed.2nd 151;

Rosenberger v. Rector and Visitors of Univ. of Va. (1995) 515 U.S. 819 [115 S.Ct. 2510; 132 L.Ed.2nd 700; and

Lamb’s Chapel v. Center Moriches Union Free School Dist. (1993) 508 U.S. 384 [113 S.Ct. 2141; 124 L.Ed.2nd 352

[58]            The Center for Investigative Reporting v. Southeastern Pennsylvania Transportation Authority (3rd Cir. 2020) 975 F.3rd 300.)

[59]            Seattle Mideast Awareness Campaign v. King County (9th Cir. 2015) 781 F.3rd 489

[60]            Amalgamated Transit Union Local 1015 v. Spokane Transit Authority (9th Cir. 2019) 929 F.3rd 643

[61]            Boyer v. City of Simi Valley (9th Cir. 2020) 978 F.3rd 618.)

[62]            (June 14, 2018) __ U.S. __ [138 S.Ct. 1876; 201 L.Ed.2nd 201]

[63]            American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation   (6th Cir. 2020) 978 F.3rd 481

[64]            Krishna Consciousness v. City of Los Angeles (2010) 48 Cal.4th 446

[65]            International Society of Krishna Consciousness of California Inc., v. City of Los Angeles (9th Cir. 2014) 764 F.3rd 1044

[66]            People v. Moran (2016) 1 Cal.App.5th 398

[67]            Toney v. Young (9th Cir. 2018) 714 F. Appx 717;

See also Garcetti v. Ceballos (2006) 547 U.S. 410, 424

[68]            Jacobson v. United States Department of Homeland Security (9th Cir. 2018) 882 F.3rd 878

[69]            Edge v. City of Everett (9th Cir. 2019) 929 F.3rd 657

[70]            See Gov’t. Code §§ 51036 et seq.

[71]            Gov’t. Code § 51039

[72]          See Fogel v. Collins et al. (9th Cir. 2008) 531 F.3rd 824

[73]            Cox v. Louisiana (1965) 379 U.S. 536, 554-555 [85 S. Ct. 453; 13 L.Ed.2nd 471]

[74]            In re J.M. (2019) 36 Cal.App.5th 668

[75]            City of Los Angeles v. Herman (2020) 54 Cal.App.5th 97

[76]            Id., at p. 104; quoting Virginia v. Black (2003) 538 U.S. 343, 359-360 [155 L. Ed.2nd 535; 123 S.Ct. 1536] 

[77]            O'Brien v. Welty (9th Cir. 2016) 818 F.3rd 920

[78]            People v. Smolkin (2020) 49 Cal.App.5th 183

[79]            United States v. Rundo (9th Cir. 2021) 990 F.3rd 709

[80]            Id., at pp. __-__

[81]            Costco Companies, Inc., v. Gallant, supra, at p. ­755, fn. 1; citing In re Lane (1969) 71 Cal.App.2nd          872, 876

Sears, Robuck & Co. v. San Diego County Distr. Council of Carpenters (1979) 25 Cal.3rd 317, 326-327

[82]            Snatchko v. Westfield (2010) 187 Cal.App.4th 469

[83]            E.g., see Best Friends Animal Society v. Macerich Westside Pavilion Property, LLC (2011) 193 Cal.App.4th 168

[84]            Costco Companies, Inc., v. Gallant, supra, at p. 754

[85]            Subd. (c) of P.C. § 142

[86]            Cohen v. California (1971) 403 U.S. 15 [91 S.Ct. 1780; 29 L.Ed.2nd 284]

[87]            Pen. Code § 415.3.

[88]            E.g., see  In re John V. (1985) 167 Cal. App.3rd 761; and  Hoffman v. Municipal Court for Oakland-Piedmont Judicial Dist. (1970), 3 Cal.App.3rd 621

[89]            Duran v. City of Douglas (9th Cir. 1990) 904 F.2nd 1372, 1377-1378

              Velazquez v. City of Long Beach (9th Cir, 2015) 793 F.3rd 1010, 1019-1020

[90]            United States v. Bartow (4th Cir. 2021) 997 F.3rd 203

[91]            Mahanoy Area School District v. B.L. (June 23, 2021) __ U.S. __ [__S.Ct.__; __ L.Ed.2nd __; 2021 U.S. LEXIS 3395]

 

[92]            Retail Prop. Trust v. United Bhd. of Carpenters & Joiners of America (9th Cir. 2014) 768 F.3rd 938, 943

[93]            E.g., 29 U.S.C. § 158, referencing threats, coercion, and the unlawful restraint of others.

[94]            See Cal. Const., Art. I, § 2, subd. (a)

[95]            Ralphs Grocery v. United Food (2012) 55 Cal.4th 1083

[96]            Id., at pp. 1091-1104

[97]            Walmart Stores, Inc. v. United Food & Commercial Workers International Union (2016) 4 Cal.App.5th 194

[98]            SEIU Local 87 v. National Labor Relations Board (9th Cir. 2021) 995 F.3rd 1032

[99]            Cuviello v City of Vallejo (9th Cir. 2019) 944 F.3rd 816

[100]           (2014) 573 U.S. 464 [134 S.Ct. 2518; 189 L.Ed.2nd 502]

[101]           Hoye v. City of Oakland (9th Cir. 2011) 653 F.3rd 835

[102]           Madsen v. Women’s Health Center (1994) 512 U.S. 753 [114 S.Ct. 2515; 129 L.Ed.2nd 593]

[103]           73 Ops.Cal.Atty.Gen. 213 (1990);

              See also Feminist Women’s Health Center v. Blythe (1995) 32 Cal.App.4th 1641;

              Allred v. Harris (1993) 14 Cal.App.4th 1386, 1392-1293;

              Planned Parenthood v. Wilson (1991) 234 Cal.App.3rd 1662, 1672;

              Allred v. Shawley (1991) 232 Cal.App.3rd 1489, 1504-1505; and

              Hill v. Colorado (2000) 530 U.S. 703 [147 L.Ed.2nd 597]

[104]           Klein v. City of San Clemente, supra., at p. 1203

[105]           Id., at pp. 1204-1205

[106]           See Savage v. Trammell Crow Co. (1990) 223 Cal.App.4th 1562

[107]           See Snyder v. Phelps, supra. (Cert. granted)

[108]           Snyder v. Phelps (2011) 562 U.S. 443 [179 L.Ed.2nd 172]

[109]           Comite De Jornaleros De Redondo Beach v. City of Redondo Beach (9th Cir. 2011) 657 F.3rd 936

[110]           See Acorn v. City of Phoenix (9th Cir. 1986) 798 F.2nd 1260, 1262

[111]           Clark v. Community for Creative Non-Violence (1984) 468 U.S 288 [104 S.Ct. 3065; 82 L.Ed.2nd  221]

[112]           Lubavitch Chabad, Inc. v. Chicago (7th Cir, 1990) 917 F.2nd 341, 347; i.e., e.g., at an airport.

[113]           Clark v. Community for Creative Non-Violence, supra.

[114]           Wood v. Moss (2014) 572 U.S. 744 [134 S.Ct. 2056; 188 L.Ed.2nd 1039]

[115]           Ibid.

[116]           United States v. Apel (2014) 571 U.S. 359 [134 S.Ct. 1144; 188 L.Ed.2nd 75]

[117]           CPR for Skid Row v. City of Los Angeles (9th Cir. Mar. 10, 2015) 779 F.3rd 1098, 1102-1108

[118]           Id., at p. 1102

[119]           Lozman v. City of Riviera Beach (June 18, 2018) __ U.S.__, __ [138 S.Ct. 1945; 201 L.Ed.2nd 342]

[120]           In re Kay (1970) 1 Cal.3rd 930

[121]           Id., at p. 938

[122]           Acosta v. City of Costa Mesa (9th Cir. 2013) 718 F.3rd 800

[123]           In re Kay, supra, at p. 942

[124]           McMahon v. Albany Unified School District (2002) 104 Cal.App.4th 1275

[125]           In re Kay, supra, at p. 943

[126]           Reza v. Pearce (9th Cir. 2015) 806 F.3rd 497

[127]           Under Monell v. Department of Social Services of the City of New York (1978) 436 U.S. 658 [98 S.Ct. 2018; 56 L.Ed.2nd 611]

[128]           Lozman v. City of Riviera Beach, supra, at p.__ [138 S.Ct. at p. 1954]

[129]           Id., at p. 945

[130]           McMahon v. Albany Unified School District, supra, at pp. 1287-1288

[131]           See also the federal “Freedom of Access to Clinic Entrances Act of 1994 (18 U.S.C. § 248.)

 

[132]           See Jennings v. City and County of San Francisco Superior Court (1980) 104 Cal.App.4th 50, 55-         57

[133]           Formerly P.C. § 602(j)

[134]           Hamburg v. Wal-Mart Stores, Inc. (2004) 166 Cal.App.4th 497

[135]           See Van v. Target Corp (2007) 155 Cal.App.4th 1375, 1389-1390

[136]           Dubner v. City and County of San Francisco (9th Cir. 2001) 266 F.3rd 959, 955  

[137]           Hall v. City of Fairfield (2014) 2014 U.S. Dist. LEXIS 44975

[138]           People v. Turner (2017) 13 Cal.App.5th 397

[139]           P.C. § 602.1(c)

[140]           Blankenhorn v. City of Orange (9th Cir. 2007) 485 F.3rd 463, 473-474

[141]           Id., at p. 491

[142]           Id., at fn. 9

[143]           Snatchko v. Westfield (2010) 187 Cal.App.4th 469, 488-490

[144]           (1972) 23 Cal.App.3rd 380

[145]           Previously P.C. § 602(j)

[146]           People v. Pennington (2014) 229 Cal. App.4th 1376, 1385-1386

[147]           See In re Ball, supra.

[148]           Formerly P.C. § 602(l)

[149]           People v. Wilkinson (1967) 248 Cal.App.2nd Supp. 906

              In re Catalano  (1981) 29 Cal.3rd 1, 10, fn. 8

[150]           In re Y.R. (2014) 226 Cal.App.4th 1114, 1118-1121

              See also Edgerly v. City and County of San Francisco (9th Cir. 2010) 599 F.3rd 946, 952-954

[151]           Formerly P.C. § 602(n)

[152]           See 73 Ops.Cal.Atty.Gen. 213 (1990)

[153]           P.C. § 602(o)

[154]           Blankenhorn v. City of Orange (9th Cir. 2007) 485 F.3rd 463, 474

              Picray v. Sealock (9th Cir. 1998) 138 F.3rd 767, 772

[155]           James v. City of Long Beach (C.D. Cal. 1998) 18 F.Supp.2nd 1078;

              See also Hall v. City of Fairfield (2014) 2014 U.S. Dist. LEXIS 44975

[156]           P.C. § 602.8(b)

[157]           Subd. (c)

[158]           81 Ops.Cal.Atty.Gen. 71

              See also Edgerly v. City and County of San Francisco (9th Cir. 2010) 599 F.3rd 946

[159]           (9th Cir. 2012) 698 F.3rd 1128

[160]           See In re Cregler (1961) 56 Cal.2nd 308

[161]           Chicago v. Morales (1999) 527 U.S. 41 [144 L.Ed.2nd 67]

[162]           People v. Superior Court [Casewell] (1988) 46 Cal.3rd 381, 401

[163]           Id., at p. 392

[164]           E.g.; Kolender v. Lawson (1983) 461 U.S. 352, striking down as unconstitutionally vague former P.C. § 647(e); wandering about from place to place with no apparent purpose.

[165]           In re Huddleson (1964) 229 Cal.App.2nd 618

See People v. Hirst (1973) 31 Cal.App.3rd 75, 80

In re Christopher S. (1978) 80 Cal.App.3rd 903, 908-910

[166]           United States v. Brown (9th Cir. 2021) 996 F.3rd 998, 1007

[167]           In re Gary H. (2016) 244 Cal. App.4th 1463, 1468

[168]           See Jennings v. City and County of San Francisco Superior Court (1980) 104 Cal.App.4th 50, 55-57

[169]           Muni Code § 85.02

[170]           (1972) 405 U.S. 156 [92 S.Ct. 839; 31 L.Ed.2nd 110]

[171]           Desertrain v. City of Los Angeles (9th Cir. 2014) 754 F.3rd 1147, 1156-1157

[172]           See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41

[173]           Martin v. City of Boise (9th Cir. 2019) 920 F.3rd 584

[174]           Clinton v. Cody (2019) 2019 Cal. App. Unpub. LEXIS 3196

[175]           Lavan v. City of Los Angeles (9th Cir. 2012) 693 F.3rd 1022, 1029

[176]           Recchia v. City of Los Angeles Department of Animal Services (9th Cir. 2018) 889 F.3rd 553

[177]           Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale (11th Cir. 2018) 901 F.3rd 1235

[178]           McFadden v. United States (June 18, 2015) 576 U.S. 186, 197 [135 S.Ct. 2298; 192 L.Ed.2nd 260]

[179]           Ulmer v. Municipal Court  (1976) 55 Cal.App.3rd 263

[180]           Los Angeles Alliance for Survival v. City of Los Angeles (2000) 22 Cal.4th 352

              See also ACLU v. Las Vegas (9th Cir. 2006) 466 F.3rd 784.

[181]           People v. Superior Court [Casewell] (1988) 46 Cal.3rd 381, 401

People v. Hirst (1973) 31 Cal.App.3rd 75, 80

In re Christopher S. (1978) 80 Cal.App.3rd 903, 908-910

[182]           See Jennings v. City and County of San Francisco Superior Court (1980) 104 Cal.App.4th 50

[183]           Los Angeles Alliance for Survival v. City of Los Angeles, supra, at p. 364

[184]           Gericke v. Begin (1st Cir. 2014) 753 F.3rd 1; officer denied qualified immunity where plaintiff sued after being arrested for videotaping a police traffic stop.

[185]           Glik v. Cunniffe (1st Cir. 2011) 655 F.3rd 78, 82-84

[186]           Iacobucci v. Boulter (1st Cir. 1999) 193 F.3rd 14

[187]           ACLU v. Alvarez (7th Cir. 2012) 679 F.3rd 583, 595;

See also Fordyce v. City of Seattle (9th Cir. 1995) 55 F.3rd 436, 439-440

[188]           Smith v. City of Cumming (11th Cir. 2000) 212 F.3rd 1332, 1333

[189]           See Fordyce v. City of Seattle, supra, at p. 439; finding the applicability of the state’s eavesdropping statute to be an undecided issue.

[190]           Ibid.

[191]           Adkins v. Limtiaco (9th Cir. 2013) 537 Fed. Appx. 721

[192]           Fields v. City of Philadelphia (3rd Cir. 2017) 862 F.3rd 353

[193]           Askins v. United States Dep’t of Homeland Sec. (9th Cir. 2018) 899 F.3rd 1035

[194]           Id., quoting Smith v. City of Cumming (11th Cir. 2000) 212 F.3rd 1332, 1333

[195]           Ibid.

[196]           Project Veritas Action Fund v. Rollins (1st Cir. 2020) 982 F.3rd 813

[197]           Subdivisions (b) and (g), respectively

[198]           Mocek v. City of Albuquerque (10th Cir. 2015) 813 F.3rd 912

[199]           People v. Quiroga (1993) 16 Cal.4th 961, 966; Defendant could not be found to have violated P.C. § 148(a) by challenging the officers’ entry into the apartment.

[200]           In re Amanda A. (2015) 242 Cal.App.4th 537, 545-551

[201]           E.g., see Van v. Home Depot, supra.

[202]           See Needletrades, etc. Employees v. Superior Court (1997) 56 Cal.App.4th 996

[203]           Dietrich v. John Ascuaga’s Nugget, supra.