Pompano Beach May Be Using an Unconstitutional Law to Restrict Protests

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It's a time-honored hallmark of American democracy: the right to march around waving a protest sign, whether it says "Fuck the Pope" or "Obama Actually Eats Puppies."

But not everyone appreciates freedom of speech, at least not when it shows up on their doorstep. And some communities make a habit of passing dubious laws intended to discourage protesters.

Put Pompano Beach on that list. Earlier this month, members of South Florida Smash HLS were protesting outside the home of Peyton LaCaria, the CEO of Landmark Bank, when approximately a dozen cops from the Broward Sheriff's Office showed up. (Landmark Bank made a $4-million loan to Worldwide Primates, the controversial importer that Smash HLS is working to shut down, earlier this year.)

According to John Brown, an activist with Smash HLS, one officer, who identified himself as Sergeant Nida, told them they needed a permit in order to protest. Knowing that Pompano Beach has no such rule, the protesters asked to see the ordinance.

Nida produced Pompano Beach’s ordinance on unlawful assembly, which doesn’t mention anything about permits, but reads as follows (bolding ours):

If two or more persons, whether armed or not, riotously or tumultuously assemble in the city, it shall be the duty of the Chief of Police, police officers, or any Commissioner of the city to go among the persons so assembled or as near to them as may be done with safety, and in the name of the state to command all persons so assembled to disperse immediately and peaceably. If the persons do not so disperse, it shall be the duty of the officer to command the assistance of all persons in seizing, arresting, and securing the persons in custody. Each and every person so assembled who shall not obey the order of the officer to disperse at once and do so immediately and peaceably, shall be guilty of a misdemeanor. Any person who shall be commanded to aid and assist in the seizing and securing of the riotous persons so unlawfully assembled or in suppression of the riotous or unlawful assembly, and shall neglect or refuse to obey the command, or when requested by the officer to depart from the place, refuses or neglects to do so, shall be deemed one of the rioters or persons unlawfully assembled and shall be punished accordingly.

That bolded word, “tumultuously,” is key. According to the BSO, Smash HLS was being “tumultuous,” which made the protest an unlawful assembly.

But according to Smash HLS, the word "tumultuous" is unconstitutionally vague. And the officers who confronted them seemed unable to define it. When the activists asked what they could do to continue their protest without being considered “tumultuous,” they were told only that they’d have to leave and get a permit — despite the fact that the ordinance says nothing about permits. (Worth noting: The protesters weren’t using bullhorns or amplification devices and were standing in the street at the end of the cul-de-sac, not on LaCaria’s property.)

“Obviously, we were at an impasse,” Brown says.

Facing arrest, they agreed to disperse. But they plan on challenging the ordinance in the future.

“I spoke with a lawyer, and we're going to look into pursuing this issue against the city,” Brown says. “I’d like to see that particular law thrown out.”

Michael Masinter, a law professor at Nova Southeastern University who specializes in First Amendment issues and chaired the Florida ACLU’s legal panel for 20 years, agrees the law is overly broad and needs to be rewritten.

“I don’t know what ‘tumultuously’ means, and the very fact that I don’t know almost certainly means the ordinance is unconstitutional under the First Amendment,” he says. “A reasonable person has to be able to figure out what the law prohibits and the law doesn’t prohibit. A word like ‘tumultuous,’ your guess is as good as mine.”

The ordinance appears to have been on the books since 1958, in the early days of the civil rights movement. (Many nonviolent protesters who took part in sit-ins were charged with unlawful assembly.) Pompano Beach’s city attorney, Mark Berman, did not respond to requests for comment.

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