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Home My WebLink AboutM-03-103109:,24,,2003 17:00 FAX DLiANE MORRIS MIAMI 2001%008 DUANE MORRIS LLP 200 SOUTH BISCAYNE BOULEVARD, SLTIF 3410 MIA.K FL 33131.2397 PHONE: 305.960.2200 FAX 305.960.2201 FACSIMILE TRANSINIITTAL SHEET To: Priscilla Thompson, City Clerk Fax No.: 305-858-1610 Phone No.: 305-250-5360 To: Hon. Manuel A. Diaz, Mayor Fax No.: 305-854-4001 Phone: 305-250-5300 Joe Arriola, City Mgr. Fax No.: 305-250-5410 Phone: 305-250-5400 City Commissioners: Angel Gonzalez Fax No.: 305-250-5456 Phone: 305-250-5430 Arthur E. Teele, Jr. Fax No.: 305-250-5399 Phone: 305-250-5300 Tomas Regalado Fax No.: 305-856-5230 Phone: 305-250-5420 Johnny L. 'Winton Fax No.: 305-579-3334 Phone: 305-250-5333 Angel Gonzalez Fax No.: 305-250-5456 Phone: 305-250-5430 Joe Sanchcz Fax No.: 305-250-5386 Phone: 305-250-5380 From: Lida Rodriguez-taseff Date: September 25, 2003 # of Pages: Message: Please see attached. NOTE: Original will NOT follow. CONFLDENTIALITY NOTICE Submitted Into the public record in item 11 , s . -_ City Clerk THIS FACSIMILE TRANSMISSION IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE RENEW OF THE PARTY TO WHOM IT IS ADDRESSED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY TELEPHONE THE SENDER ABOVE TO ARRANGE FOR ITS RETURN, AND IT SHALL NOT CONSTITUTE WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE. If there is a problem with this transmission, please cull us as soon as possible at 30S.960.2200. 93-1031 09%•24,,200 17:00 FAX DUANE MORRIS MIAMI 2002/008 Lida Rcdrquuz-Scwclr ACLU, Gre6rer Miami Raural.l C. Ma=:haL1 ACLU 6i r1ozida f1MER►G,A, K!LIYIL L15.tRTIE5;UN1rJN September 24 2003 Via ,Facsimile Members, City of Miami City Commission Mayor, City of Miami City Manager, City of Miami Police Chief, City of Miami Police Department City Attorney, City of Miami 3500 Pan American Drive Miami, FL 33133 Sul, M, f -,tea Infn the T / ; ifi_,x iZ Oak . City Clerk AMEKIrAN ('JVIL LISFd IFh UN(ON OF FLOP MA. Gentlemen: 4500 MSCAYNE BLVD, �v,Tr. ;4o PC isJ3� We are writing to express our concerns regarding City of Miami Ordinance t�i.aN1i, 1-131ii-576-233; 54-6.1, which will go before the City of Miami City Commission for second reading F1303.5 6.11 n6 WWVI',nCLUFL.URC, on Thursday, September 25, 2003 (the "proposed ordinance"). The proposed ordinance is an unconstitutional restraint on speech and, if applied to every protest, demonstration and assembly it would bring the civic life of this City to a screeching halt and would effectively obliterate the First Amendment in this community. Sadly, we are certain that you gentlemen know this That is why the Commission unanimously approved an amendment which would sunset the proposed ordinance on November 27, 2003. That is also why the Commission stated that it was its intent to use this ordinance to target those who wish to protest the FTAA. In addition to being unconstitutional, the proposed ordinance is bad public policy. Whether intentionally or not, if it passes this proposed ordinance, the Commission will needlessly puts at risk the lives and safety of our City of Miami police officers who will be on the ground policing the FTAA protests. Why? Because this unfair, unconstitutional ordinance which specifically targets FTAA protesters, rather than assisting the policing function, does nothing more than inflame the passions of protesters who will surely hold those on the ground, the men and women in a police uniform, responsible for the actions of the City of Miami Commission, Members of the Commission will not be on the ground; will not be risking their lives; and will not be asked to keep the peace when thousands of protesters begin walking our streets. However, we know that they are mindful of those who will risk their lives and that is why we are appealing to their good judgment. Let us be clear here. The ACLU does not endorse or condone violence because the First Amendment does not protect those who engage in violence. Law enforcement therefore has both the right and the obligation to arrest all persons who engage in violence or who attempt to engage in violence. However, law enforcement does not need this proposed ordinance to arrest those who engage in violence or who attempt to engage in violence. 09 :24%2003 17:00 FAX DUANE MORRIS MIAMI 4� 003/008 In the interest of protecting the First Amendment rights of all of those involved, we nate attaching our memorandum which sets forth in detail the problems with the proposed ordinance. Thank you for your attention to this matter. Randall Marshall can be reached at 305-576-2337. Lida Rodriguez-Taseff can be reached at (305) 960-2242 (office), and 305-582-1255 (cell). V truly yours, nNl id klC'nN f.IVIL 4 L:HrRTtes ONION of ida Rodriguez-Taseff FL00 IDAnt,3 President ACLU Greater Miami Chapt ;i0h A►$fAYTTC i1LYD, � 7 L11TF. MIAML FL Ti305-575-L 37 F30i-576.1106 WIAW.ACLUFI—ORG Randall C. Marshall Legal Director, ACLU of Florida cc: Jorge Arrizurieta, Exec. Du./C00/ Florida FTAA, Inc. Ambassador Luis Lauredo, Exec. Dir./Miami 2003 FTAA, Inc. a n o „a as rl 6gz9 03-103 09.24:2003 17:00 FAX DUANE MORRIS MIAMI 14004/008 MEMORANDUM TO: Members, City of Miami City Commission Mayor, City of Miami City Manager, City of Miami Police Chief, City of Miami Police Department City Attorney, City of Miami FROM: Lida Rodriguez-Taseff, President — Greater Miami Chapter of the ACLU of Florida There are legitimate security concerns raised by the anticipated protests during the Free Trade Arca of the Americas ("FTAA") meetings in Miami in November and no one suggests that criminally violent acts are constitutionally protected. However the approach of the ordinance — criminalizing objects instead of actions — is fundamentally flawed and there are numerous legal problems raised by the proposed amendments. We bring but a few of these items to your attention in an effort to avoid litigation over the constitutionality of the amendments as passed upon first reading. Rather than focus on specific anticipated protests, the City would be well served to send the ordinance back to the drawing board with directions to the Law Department to address legitimate concerns in a manner that will comport with the First Amendment. The proposed amendments are content based and thus in violation of the First Amendment. Submitted Into the public record. in d r K .., n with itern�.,. City Clerk �r3-1 031 Randall C. Marshall, Legal Director, ACLU of Florida A.MkRI(:4h (,(�l(. LIBERTIES UNION OF FLORID.& E: Pro d Ordidin Chapter 54 — Streets and Sidewalks RProposed Ordinance amen p g P 4SOO RT5C MM FILVD, SULTt 340MIAMI, 317 TL O DATE: September 24, 2003 V305-5 4- T�3n5-57r-337 t1305 -31G-1106 VWW4!.A('LUr,L.0R(: There are legitimate security concerns raised by the anticipated protests during the Free Trade Arca of the Americas ("FTAA") meetings in Miami in November and no one suggests that criminally violent acts are constitutionally protected. However the approach of the ordinance — criminalizing objects instead of actions — is fundamentally flawed and there are numerous legal problems raised by the proposed amendments. We bring but a few of these items to your attention in an effort to avoid litigation over the constitutionality of the amendments as passed upon first reading. Rather than focus on specific anticipated protests, the City would be well served to send the ordinance back to the drawing board with directions to the Law Department to address legitimate concerns in a manner that will comport with the First Amendment. The proposed amendments are content based and thus in violation of the First Amendment. Submitted Into the public record. in d r K .., n with itern�.,. City Clerk �r3-1 031 09 2,!-'2003 17:01 FAX DUANE MORRIS MIAMI 2005%008 Although originally proposed as time, place, and manner restrictions that would apply equally to all covered events within the City of Miami, by limiting the duration of the amendments to specifically target the anticipated FTAA protests in November, the City Commission is singling out one event. In effect, the amendments create one set of rules for the FTAA protests and another set of rules for other protests. In doing so, the City will tun afoul of the First Amendment by enacting regulations based upon the content of the speech engaged in by the protesters. This is particularly aggravated by the fact that the City of Miami Police Department is on record as saying that fully 98% of the protesters are expected to be law abiding, non-violent protesters. In order to address anticipated criminal actions by a few, the City will be limiting the First Amendment rights of the vast majority of peaceful participants. AMERICAN CML Hr:kries t,rrrON OF II. The proposed amendments are poorly drafted. rLORIDA 1500 131SCAYNIr 111,vT), Sl)= ado In a rush to get something enacted, the Law Department has done the Commission MiAMT/305-' (- 3FL 31 a ave disservice. The most glaring example of poor draftsmanship starts with the very 7'i305 -57( -?317 glaring P P P Di F/305-575-1106 beginning of the proposed amendments. W WW.AC:LUFLAR.G The title of new section 54-6.1 is "Farade and Assembly Prohibitions." The definitional section then goes on to define "parade" and "assembly," both of which include a "demonstration." IIowever, part (b) then applies the ordinances prohibitions only to "parades and demonstrations." Because criminal statutes are to be strictly construed, the prohibitions may not apply to any assembly other than a demonstration. Thus, for example, many events during the FTAA may be classified as meetings, picket lines, rallies, or gatherings which are not covered by the prohibitions and leave the City exposed to litigation if the ordinance is wrongly applied. III. The prohibitions are overbroad in their scope and ban legitimate, expressive activities protected by the First Amendment. Because the ordinance sweeps too far in its scope to include protected speech, it is overbroad and in violation of the First Amendment. Instead of making actions unlawful, the ordinance criminalizes the possession or carrying of many legitimate, expressive Submitted Into the public record 4n cmecYh. item C'7 �� Priddlll AoTt�n City Clerk o!3-1031 09f24, 2003 17:01 FAA DUANE MORRIS MIAMI Z006/008 objects, with no regard for the First Amendment. There are numerous examples throughout the probibitions. (b)(3) and (b)(4) criminalizes the use of many materials that are widely used to make props for use in protests. For example, protests often contain large, elaborate objects that serve as a visual representation of the message. Holding a sign that says "McDonalds exploits workers for profits" hardly conveys the message as well as a 12 foot tall Ronald McDonald holding large bags of money. Materials criminalized by these provisions make it impossible to make such props. (b)(11) chininalizes the carrying, possession or wearing of "any gas mask or AMERICAN CMI, similar device designed to filter all air breathed." That would include surgical masks and LIBERTIES UNION OF bandanas, among other things. Many individuals who engage in protest against free trade TLORID N 4501) WSC.A"r nI.,YO, do so because of their belief that free trade has a detrimental effect upon the environment. sura 340 It is one thing to hold a placard that says "FTAA harmful to the environment" and quite MIAMI, rL 33137 r,;0;_5?61_.;a7 another to see 50 protesters marching in unison, all wearing ;as masks to protest harm to Fl3G•576.1106 the environment. The masks themselves express more than mere words and the wearing \VtV\ti.ACL UFL.URG of such masks is fully protected by the First Amendment. (b)(12) similarly criminalizes the carrying, possession or wearing of "a bulletproof vest." Because of police actions and reactions around the world to protests, many protesters engage in protest at these events to bring to light what they perceive as police misconduct. Again, it is one thing to hold a sign that says "police use excessive force against protesters" but quite another to see 50 protesters marching in unison with bullet proof vests prominently displayed. The Commission should take a page from the state statute mentioned. See Fla. Stat. 775.046: "A person is guilty of the unlawful wearing of a bulletproof vest when, acting alone or with one or more other persons and while possessing a firearm, he or she commits or attempts to commit any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or aircraft piracy and, in the course of and in furtherance of any such crime, he or she wears a bulletproof vest." In other words, it is the wearing of a vest for the purpose of engaging in otherwise criminal activities for the very purpose of aiding the commission of the crime, not simply the wearing of a protective device. dw " €Iti 1gc recorc item 0 Priscilla A. Tholps tri City Clerk 1)3-1021 09.24:2003 17:01 FAX DliANE MORRIS MIAMI Z 007,1008 Either intentionally, or as a result of careless draftiDd, section (b)(2) criminalizes the use of any "sign, poster, plaque or notice" that is made out of plastic — a material utilized frequently for those purposes. The list could go on and on but it is clear that legitimate, lawful activities which are protected by the First Amendment are made criminal under the ordinance. N. Some sections are vague and vest police officers with unfettered discretion. Criminal statutes must be clear enough to give fair warning to the public as to AMERICAN C1v3L what is prohibited. Parts of the ordinance fail to do so. For example, while (b)(1) provides LldvK Irs ur1oN or a specific list of prohibited objects, it also provides a catch-all provision that permits an FLOIVA 4W) 61S officer to designate virtuallyan object as unlawful. Similarly b 7 and ( 8 ants a5nu B[SCAYNF ALD, � y 1 y � )( ) �")( ) IVITr 340 total discretion to officers to decide what materials or devices that can be thrown or M1AM1, 1'C 3113% r/303-376.33:7 utilized as a projectile. Indeed, one "weapon" utilized at the Los Van Van concert in x!305.576.1106 Miami was a full Coke can, an object perhaps capable of being declared unlawful by a WNW.ACU171 ORG police officer under this ordinance but arguably specifically permitted under (b)(10)("liquids designed and intended for human consumption"). This again points out a fundamental flaw in the ordinance's approach: rather than criminalize acts, it criminalizes objects. V. The provisions will not be uniformly applied as they are directed to one series of protests. Although these amendments are aimed at the anticipated FTAA protests, their enforcement (if done evenhandedly) would ban many other forms of protected expression. For example, if the Florida Marlins win the pennant and there is a parade within the City of Miami, it would be a criminal offense for any team member to carry or possess a baseball or bat while in the parade. See (b)(1) and (b)(7). It is clear that the police would not enforce the ordinance against that type of activity. But the fact that they would not underscores the constitutional problems created by the ordinance. In addition, selective enforcement of the laws breeds contempt against the City of Miami Police Department. Submitted into the public record in con nec ti c ,� Ih item __V' _cn 9 n Pi,iscilla A. �f r 0 6jp on City Clerk t)3-1031 OV24, 2003 17:02 FAX DUANE MORRIS MIAMI Z008/008 AMERICAN CMI. UBBICTIE! UNION OF FLORIDA 4500 31SCAVNE IJL%1I, SUTTF 310 !MIAMI. IiL =313? V105.5?r,.233? F1305-576.1106 WWLP.ACLUfrL.01W V. Conclusion. The ordinance as drafted and as passed upon first reading has serious constitutional flaws and approaches security concerns raised by parades and assemblies in a flawed manner. We urge the Commission to send the ordinance back to the drawing board with directions to the Law Department to address the constitutional concems raised by the proposed ordinance. l t,';bm1 lted inti t1he public pa y Cl a P�'PV d • i 3' R". P.. G"� y • e Al ,}-p Y „ ."rP "]. va.5W25 item L l On t63 Priscilla A. Tho.-"apso'n City Clerk 93-1031