The city attorney for Flagler Beach is suggesting that the city enact an ordinance that would make it clear when, where, and why police may trespass on public property, when they may, how much restraint police must use when interfering with someone’s speech (which is a lot), and what due process the targeted individual must be given.
The suggestion is included in a seven-page memo.City Attorney Drew Smith, with attorney Abigayl Osborne-Liborio, wrote Police Chief Matt Doughney on Aug. 6, at Doughney s request, following police officers wrongful arrest of a man standing with a sign on the public sidewalk outside the Funky Pelican restaurant at the pier last March.
An independent inquirySgt. Austin Yelvington of the Flagler Beach Police Department was judged to have overreached his authority when he detained Jeff Gray after a Funky Pelican employee requested that police trespass on Gray’s property. Funky Pelican’s land had not been visited by Gray. Outside the restaurant, he held a sign in support of veterans. Despite the employee’s assertion, there was no proof that Gray was harassing others.
According to a city attorney’s memo, the police officers need to have informed Funky Pelican employees that Gray was expressing his First Amendment rights, was not in violation of the law, and could not be trespassed.
Officer Emmett Luttrell actually did it when he initially arrived on the scene. Despite the fact that Gray was not being disruptive, Yelvington chose to arrest him when he refused to move.
Notably, on March 27, Cmdr. Georeg Bender, the investigator, called the Funky Pelican to arrange witness interviews. Bender noted in his investigation that when I identified myself and explained why I was phoning, I was promptly disconnected. On May 20, Bender had a meeting with a Funky Pelican management. There was no statement from the manager. The Funky Pelican is a private company that rents out public space; the building is owned by the city.
Additionally, Bender asked for training materials for the police officers in Flagler Beach. They were not given to him. Yelvington informed him that prior to the incident, he could not remember receiving any First Amendment instruction. In hindsight, he now understands that Yelvington’s action was wrong, Bender wrote. Bender’s 18-minute conversation with Yelvington is available to listen to here. Kyle Totten, a former investigator, represented Yelvington.)
According to the document, it is improper to trespass on public property while someone is peacefully expressing their right to free expression, especially when they are demonstrating. The document points out that Florida law provides even greater protection for speech than the First Amendment, with the statute giving the greatest protection and consideration to speech in public places like sidewalks and public parks.
The memo was welcomed by the commissioners of Flagler Beach.Commission Chair James Sherman remarked, “Our legal counsel did a great job outlining this memo to ensure we don’t have another issue like we did with Mr. Grey, who was peacefully exercising his First Amendment right.”
Commissioner Scott Spradley, a lawyer with a Flagler Beach business, stated, “I think the memo represents very wise advice by the city attorney.” I feel he did an excellent job not only of stating the law on the three points he made, but also in giving practical advice to the city on both how to implement the law, but also to act with restraint on any action that the city would consider.
Spreadey, along with Commissioner Rick Belhumeur, said codifying the memo s recommendations in an ordinance would be wise, to tie up loose ends.
The document concludes by saying that individuals, including protesters and demonstrators, who are peacefully expressing their right to free expression on public property should not be trespassed. It is necessary to assume that speech is protected. The speech’s content cannot be used as grounds for discrimination by authorities: Example: a Fuck the Police sign is not deemed offensive or considered fighting words, the memo states. Gray happened to be holding a small sign that expressed support for veterans, in plain, inoffensive language.
Notably, in the early years of the Biden administration, a group of maga Republicans used to gather weekly at the corner of State Road A1A and State Road 100, a short distance north of the Funky Pelican, with obscene signs insulting the president and his supporters. Police never interfered with the demonstrators.
Second, certain types of speech are not constitutionally protected, the memo states, but it s a high bar. The speech would have to incite imminent and real threats (humorous or hyperbolic political speech doesn t count), it must be obscene (though clearly more obscene than the signs on A1A), or it must include fighting words. Individuals may be arrested for creating a public disturbance, as drunk people are at times.
Third, While court cases recognize a jurisdiction s authority to trespass individuals from public parks, such authority should be used with caution and restraint, the memo states. Additionally, if the City desires to use trespass to aid in the enforcement of other laws within public parks, the City should consider adopting an ordinance providing clear due process protections to individuals who may be trespassed.
The memo summarizes the incident of March 2 before elaborating on the legal reasoning and setting out practical approaches. The memo emphasizes communications between officers, with whoever may have lodged a complaint (to educate them on the law), with the individual targeted, with the city attorney if necessary.
If force is needed, law enforcement absolutely must use the least amount of force necessary, the memo states. The Flagler Beach Police Department 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 necessary. In general, arrests, detentions, and excessive force should not be the response to those peacefully exercising their rights to speech and assembly.
Calm and professionalism must prevail at all times, the memo states. In the Gray incident, both officers remained calm, but Yelvington s professionalism faltered when he became snide with Gray, and at one point, based on body cam evidence, used unnecessary force to push Gray into the patrol car.
Martin, the city manager, forwarded the legal memo to the city commissioners on Monday. Doughney had disseminated the memo to his ranks on Aug.7.Please read the memorandum and familiarize yourself with its content, as this important information provides guidance by our legal counsel, he told his officers. The memo was entered into a database for future reference, Doughney wrote.
