In response to Flagler Beach Police Chief Matt Doughney’s request for clarification on the city’s jurisdiction to evict people from public areas, Flagler Beach City Attorney Drew Smith and attorney Abby Osborne-Liborioon wrote the following document on August 6. A man was wrongfully arrested outside the Funky Pelican in March, which led to the request and the memo. The individual had not disrupted the customers of the restaurant; he was on the sidewalk. Here is an analysis of the memo together with the responses of the city commissioners:The city attorney for Flagler Beach suggests a new ordinance that would restrict trespassing in public areas.
NOTE
TO: Matt Doughney, Chief of Police
FROM: Abby Osborne-Liborio; D. Andrew Smith, III
RE: Best Practices for Handling Protesters and Trespassers on Public Property
Date: 6 August 2025
Problems:
The following topics have been covered in the current memorandum based on Florida law and pertinent case law:
A SHORT ANSWER
Factual Information
A Funky Pelican employee called the FBPD on March 2, 2025, requesting that a man standing on the sidewalk in front of the eatery be taken off.
and pestering visitors. Additionally, the employee asked FBPD to trespass on the man’s property. Following their conversation with the individual to gather more information, the FBPD officers asked him to move when they arrived on the site, but the man refused. The man was apprehended for trespassing following a back-and-forth conversation between FBPD and the suspect. Therefore, in order to determine whether trespassing is appropriate and how to proceed in such cases, FBPD sought information about best practices for handling people on public land.
TALK
First of all, speech consists of written or spoken words, symbols, and expressive behavior. The environment in which a communication is delivered determines how protected it is.OneSpeech that occurs in conventional public forums will be the main subject of this memorandum. Public parks, walkways, and roadways are examples of traditional public forums.2.
After that, it’s critical to comprehend why anyone on public property—that is, roadways and/or sidewalks—should not be trespassed, even if they are asked to leave. Trespass on property (other than a building) is defined as follows in accordance with Section 810.09(1)(a) of the Florida Statutes:
A person who knowingly enters or stays on any property other than a conveyance structure without authorization, a license, or an invitation:
Although it isn’t stated explicitly, this regulation isn’t meant to apply to those who are speaking in purely public areas, like a sidewalk. According to the mentioned statute, trespassing occurs when someone enters property without authorization and knows that their presence is prohibited by a posted notice or verbal communication. Since public forums are open and accessible to the general public, entry is typically assumed to be permitted, and trespassing is consequently permitted.3In addition, a police officer is acting as the property owner’s designee when they react to trespassing accusations and then issue a warning and/or make an arrest.4The City maintains public property, including sidewalks and roadways, but it does so in the public’s trust.5As a result, trespassing is usually inappropriate when interacting with individuals on public land and is never suitable while interacting with people exercising their right to free expression.
Lastly, both the Florida Constitution and the US Constitution guarantee the right to free speech. The Due Process provision of the Fourteenth Amendment has made the right to free speech available to the states, incorporating it into the First Amendment of the US Constitution.6Florida’s constitution, which prohibits the passage of legislation that restricts or impedes the right to free speech, offers further protection.7The law gives the greatest protection and deference to speech that occurs in public forums.8.Below is a summary of the best practices that FPBD should follow when addressing protesters and others who are peacefully expressing their right to free speech on public property.
The U.S. Constitution’s First Amendment protects the right to free speech and assembly. Although there are several circumstances—discussed below—in which speech is not protected, it is generally assumed that speech is protected because these circumstances are uncommon.
The messages being sent in some circumstances may be offensive, appear inappropriate, use profanity, and/or be aimed at police enforcement. The speech is still very likely to be protected, though. If the communication is aimed at law enforcement, it is especially crucial to keep this in mind. Only a few years ago, a Federal Court upheld speech in which the speaker used foul language and derogatory insults toward law enforcement.9.Consequently, it’s critical to keep in mind that discrimination based on the message being given should never occur in such circumstances.
3. Talk to each other.
The key is communication. The FBPD needs to communicate:
Next, law enforcement must use the least amount of force possible if it is required. FBPD should use the principle of proportionality in determining the appropriate response to the actions and mood of the person and/or crowd, and should actively be mindful of any actions which may increase tensions by using more gear and equipment than necessary10In
10.See Police Exec. Research Forum,ThePoliceResponsetoMassDemonstrations:Promising Practicesand Lessons Learned,71 (2018), https://www.policeforum.org/assets/PoliceResponseMassDemonstrations.pdf
general, arrests, detentions, and excessive force should not be the response to those peacefully exercising their rights to speech and assembly.11
Finally, it is important to remain professional and calm. FBPD training materials and policies should be strictly adhered to at all times. Citizens are far more likely to cooperate when they believe that law enforcement is perceived as fair, respectful, and restrained in their interactions and responses.Twelve
Although there is a Constitutionally protected right to free speech, it is not absolute and without its limits.13.Certain categories of speech are not included in the protections afforded by either the Florida or Federal Constitution. Those categories of speech are as follows:
Words of incitement are words that are directed to inciting or producing imminent lawless action and is likely to incite or produce such action.14To constitute as words of incitement is a very high bar. The issue is that the speaker must actually intend for lawless action and therefore case law suggests there is generally not enough evidence to prove this point.
Fighting words are those which by their utterance inflict injury or tend to incite an immediate breach of the peace.15In other words, they are intended to provoke a response beyond speech. However, words alone are generally insufficient. Again, the bar has been set very high for what is considered to fall within fighting words and generally speech is protected even if it s undertone may seem of an incitement nature.
True Threats are those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.16The speaker doesn t need to necessarily intend to carry out the threat.17The focus is on the fear that it brings to the person it is directed at.18For example, direct threats tokillsomeone would be considered a true threat. It is important to note that political jokes or hyperboles are not considered true threats.19Example: a Fuck the Police sign is not deemed offensive or considered fighting words.
Obscene speech is speech that essentially offends the average person because of its sexualmessage andlacks any artistic,literary,political,or scientificvalue.20Thiscategoryofspeech oftenencompasses issues of nudity or sexual conduct. Such speech would include distributing material which depicts nudity to minors.
Although there are categories of speech which remain unprotected. It is important to remember that the standard of what is unprotected is high and the presumption should be that the speech is protected. If in the rare occasion, there is an instance in which you believe one s speech falls under one of these categories and there is aspecific state statute that is appropriate, you may take reasonable action.
As previously discussed, public parks are considered a publicforum.
Trespass in public parks may be addressed under Section 810.09,Florida Statutes.21As discussed previously, parks are considered a public forum and, within posted hours, are open to the public. Therefore, to have a conversation about trespass there must be some other violation of law or park rules. While many police departments use trespass to prevent repetitive violations, departments should use caution when invoking trespass here. Trespass warnings carry with them the prohibition from returning to the property for a period of time. Given that public parks are open to the public, the prohibition on entering a park could in some cases be viewed as a punitive measure out of scale with the violation that gave rise to the trespass.
If a violation is observed at a public park, the first action should be to address the specific violation without resort to trespass. If the violation is repeated again afterwards, only then should trespass even be considered. In such cases, the trespass is being used to protect the park property and park users from a recurring violation of law. The trespass is a last resort not a first resort.
In recent years, several jurisdictions that use trespass within public parks and properties have adopted codes providing clear rules and standards for when and how to trespass on public parks and properties. Those ordinances often include a number of violations within a defined period of time (for instance, three (3) violations in a six (6) month period) that must occur before a trespass is issued. Those ordinances also often provide additional due process protections for the person being trespassed that allow for an appeal to be heard by the City regarding the prohibitionfrom
returning to the property. The City may want to consider such an ordinance as it would provide additional clarity both to police officers and the public.
ADDITIONALNOTESREGARDINGTRESPASSINGFROMPUBLICPARKS:
CONCLUSION
Although the law recognizes a municipality s authority to issue trespass violations on public property, such violations should be issued sparingly and only after careful consideration. Speech alone does not give rise to a violation that would support trespass. Even in cases in which an exception to First Amendment protections applies, it is the fact that there was more than just speech occurring that justifies the exception. Parks, sidewalks, and roads are all open to the public. The public has a right to enter them. Restricting that right requires just cause and due process. If trespass is being considered upon a public property, some other violation of law or regulation must have occurred. In any encounter upon public property officers are encouraged to focus on the underlying violation first. Only if proper steps to address the underlying violation prove unsuccessful in correcting the violator s behavior upon the public property should trespass beconsidered.
[Notes]
1Watrousv.State, 325 So. 3d 1017, 1018 (Fla. 2nd DCA 2021) (explaining that several factors alters the First Amendment analysis, including forum).
2IsSocialMediaaPublicForum?,CivicPlus, (May 19, 2022), https://www.civicplus.com/blog/sma/is-social-media-a-public-forum/.
3See Section 3 of the instant Memorandum which addresses limited exceptions with regard to publicparks.
4Rodriguezv.State, 29 So. 3d 310, 312 (Fla. 2nd DCA 2009) ( Property owners and lessees give officers authority to issue such warnings in hopes that trespassers will either (1) comply with the officers requests to leave and actually depart the premises or (2) remain on the property, thereby authorizing the officers to arrest for a misdemeanor committed in their presence. ).
5Hall, Timothy L.,PublicForumDoctrine, EBSCO (2022), https://www.ebsco.com/research-starters/law/public-forumdoctrine.
6See generallyGitlowv.NewYork, 268 U.S. 652(1925).
7Fla. Const. Art. I,4.
8Ledfordv.State,652 So. 2d 1254, 1256 (Fla. 2nd DCA1995).
9SeegenerallyWoodv.Eubanks, 25 F.4th 414 (6thCir.2022).
11Id.
12Edward R. Maguire & Megan Oakley, Harry Frank Guggenheim Found.,PolicingProtests:Lessonsfromthe Occupy Movement, Ferguson & Beyond: A Guide for Police 9 10 (2020), https://www.hfg.org/wp-content/uploads/2021/06/PolicingProtests.pdf.
13Foxv.HamptonsatMetrowestCondominiumAssociation,Inc., 223 So. 3d 453, 457 (Fla. 5thDCA2017).
14Brandenburgv.Ohio, 395 U.S. 444, 447(1969).
15BrownvState, 358 So. 2d 16, 18 (Fla.1978).
16Virginiav.Black, 538 U.S. 343. 359(2003).
17Idat360.
18Id.
19See generallyWattsv.UnitedStates, 394 U.S. 705(1969).
20See generallyMillerv.California, 413 U.S. 15(1973).
21See above for statutorylanguage.
22K.J. v. State, 107 So. 3d 523, 524 (Fla. 4th DCA 2013) (explaining that officers who did not witness a person committing a crime when the park was closed, did not justify the officer requiring the person to stay out of the park when the park was open).
23K.S.v.State, 840 So. 2d 1116, 1117 (Fla. 1st DCA 2003) (explaining that the State failed to provide evidence that there was proper postage of hours which is a required element of trespass).
24Mussallamv.State, 133 So. 3d 568, 569 (Fla. 2nd DCA 2014) (explains that PD having a hunch about criminal activity did not warrant an investigate stop and detention, even if in a high crime area).
