City Council
Report
City Council Meeting: August 24, 2021
Agenda Item: 7.B
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To: Mayor and City Council
From: George Cardona, Interim City Attorney, City Attorney's Office, Municipal Law Subject: Introduction and Adoption of an Emergency Ordinance to Amend Santa Monica Municipal Code Section 4.08.780 to Promote the Public Safety and Welfare by Prohibiting Certain Items at Public Assemblies and Community Events
Recommended Action
Staff recommends that: (1) one of the Councilmembers who voted in the majority against adoption of a similar emergency ordinance on April 13, 2021 move for reconsideration pursuant to Council Rule 12(d); and (2) if the motion for reconsideration is made, the City Council adopt an emergency ordinance amending Santa Monica Municipal Code Section 4.08.780 relating to restrictions on carrying, using, or possessing certain specified items during community events or public assemblies to promote public safety and welfare.
Summary
The City of Santa Monica supports peaceful protests, public assemblies, and community events, and the free speech and assembly rights of individuals to engage in expressive activities in public forums such as the City’s sidewalks, streets, and public parks. The City also recognizes the need to promote the safety and welfare of those who engage in peaceful protests, public assemblies, and community events, as well as the safety and welfare of City residents, City businesses, and City visitors who encounter and are affected by such peaceful protests, public assemblies, and community events.
In recent years, there has been increasing concern about violence at public events, as numerous public protests, demonstrations, and rallies conducted throughout the nation in cities such as Washington, D.C.; Charlottesville, Virginia; St. Louis, Missouri; and Portland, Oregon, and throughout California, in cities such as Berkeley, Laguna Beach, Long Beach, Los Angeles, and Oakland, have erupted in violence between demonstrators and counter-demonstrators and violence against law enforcement 2 of 15
personnel. Participants and counter protestors have adapted to local law enforcement’s attempts to keep demonstrations peaceful and free of violence. They have changed their tactics and methodology by employing apparel and equipment to intimidate and violently engage opposing factions. Thus, at many of these events, devices such as wooden sticks, plastic and metal pipes, bats, chains, and various types of projectiles (e.g., rocks, concrete, pellets, glass bottles, and ball bearings), as well as certain types of containers, including, but not limited to, glass bottles, metal containers, balloons, super soakers and toy or replica guns, filled with flammable or noxious substances (such as gasoline or urine), as well as aerosol sprays deployed to cause flames or attack olfactory systems, and other items have been used as improvised weapons resulting in injuries and property damage. Demonstrators, counter-demonstrators, and others have also carried shields, worn gas masks, helmets, and body armor, thrown objects at police, shined laser lights into the eyes of police, used accelerants to light fires, and used large sticks as weapons to threaten bodily harm and attack businesses.
Recent examples of these types of intentionally violent protests include a series of protests in the Los Angeles area surrounding mandatory vaccinations, mask wearing, and businesses requiring proof of vaccination status before allowing patrons to enter.
These protests were held at the Breast Cancer Center of Cedar Sinai Hospital in West Hollywood. Over the last two weeks, these protests led to violence as protestors and counter-protestors clashed at restaurants in West Hollywood such as Harlowe and The Abbey. See https://www.instagram.com/tv/CR5x0eDgUAw/?utm_medium=copy_link; https://twitter.com/chadloder/status/1420972457406525442. On August 10, 2021 in Salem, Oregon at a Planned Parenthood location, militia dressed participants came wearing gas masks and carrying an axe (see photo below). 3 of 15
In light of these and similar circumstances, to protect public safety and welfare, a number of California cities, including Berkeley, Laguna Beach, Los Angeles, Modesto, and Oakland, have adopted ordinances prohibiting, or authorizing issuance of regulations prohibiting, the carrying at protests, public assemblies, and community events of items of the type listed above that can readily be used as weapons. These ordinances have proven successful. For example, in July of this year, in the City of Los Angeles, there was a three-weekend period of active violence among protestors and counter-protestors at the Wi Spa business in MacArthur Park. The Los Angeles Police Department found themselves confronting a much more aggressive and tactically proficient group of protestors on both sides. Items such as tactical vests, helmets, bats, umbrellas, knives, guns, metal containers, gas masks were utilized during the three weeks of violent protests by protestors and counter-protestors. The Los Angeles Police Department shared in an official video posted on You Tube that their city ordinance, Los Angeles Municipal Code Section 55.07, which prohibits particular items at scenes of protests, was very helpful to them in making arrests and dissipating the violent conflict. 4 of 15
See LAPD Wi Spa Protest Briefing - July 17, 2021
https://www.youtube.com/watch?app=desktop&v=2184GgL1aWs Similarly, Laguna Beach, Berkeley, Oakland, and Modesto have all shared that their city ordinances prohibiting specified items at protests have assisted in safeguarding the communities they serve and those trying to exercise their First Amendment rights.
Santa Monica has an existing ordinance, Santa Monica Municipal Code (“SMMC”) Section 4.08.780, which, premised on concerns with violence arising from otherwise peaceful protests, prohibits the carrying or possession of any length of wood that is greater than ¼ inch in thickness and two inches in width, or if not generally rectangular, greater than ¾ inch in its thickest dimension. But this ordinance has been criticized as overbroad for potentially extending to sticks used to support large expressive signs or other expressive items, while at the same time it does not address at all a host of other items that can readily be weaponized, serve no legitimate purpose at a peaceful protest, and have been seen being used to engage in violence at demonstrations in Los Angeles, Modesto, Portland, Salem, Seattle and Washington DC.
The Santa Monica Police Department asks City Council to adopt an ordinance revising SMMC Section 4.08.780 to implement a ban at events and public assemblies on the carrying or possession of items that can readily be weaponized and serve no legitimate purpose at a peaceful protest, public assembly, or community event. (Attachment A).
Adopting such an ordinance will further the goal of ensuring that community members may continue to exercise their constitutional rights to engage in expressive activities without fear of violence or injury.
This is presented as an emergency ordinance, to take effect immediately, considering that on Sunday, August 29, 2021, a “Worldwide Rally of Freedom” intended to show opposition to vaccination, mask mandates, and requirements for proof of vaccination status, is expected to be held at the Santa Monica Pier. The event has been promoted on social media platforms including Facebook, Twitter, and Telegram. The SoCal Antifa group has also promoted the event and stated an intent to come to Santa Monica to counter-demonstrate. The City must be prepared for the possibility that this protest will be seen as an opportunistic moment at which individuals may choose to participate in violence similar to what we have seen over the last year and very recently in Los 5 of 15
Angeles and West Hollywood. Given the anticipated protest and the high risk that it will be accompanied by volent conduct of the type intended to be addressed and mitigated by this proposed ordinance, staff recommends Council adopt the ordinance on an emergency basis so that its provisions take effect immediately. Adoption as an emergency ordinance requires at least five affirmative votes. See City Charter Sections 615, 619.
Discussion
In light of the concerns and events described above, staff has reviewed SMMC Section
4.08.780’s ban on wooden sticks over a certain size at demonstrations and public assemblies and recommends modifications as reflected in the proposed emergency ordinance, which promote the public safety and welfare while also preserving First Amendment rights. In proposing these modifications, staff has also taken into account City Council and public comment received in connection with Agenda Item 7.D from the March 9, 2021 Council meeting (which was pulled prior to consideration by Council) and Agenda Item 7.C. from the April 13, 2021 Council meeting, where the motion to adopt a similar ordinance failed by a vote of four (Councilmembers Davis, Himmelrich, McCowan, McKeown) to three (Councilmembers Brock, de la Torre, Parra).
In recent years, numerous cities have adopted similar ordinances banning items that can be weaponized at demonstrations and special events in response to the increase in violent altercations between demonstrators and counter-demonstrators and against law enforcement personnel that have resulted in property damages, personal injuries, and even death at public assemblies and special events. The purpose of such ordinances is to safeguard peaceful demonstrators and the community from violence and unwarranted harm while preserving First Amendment rights to engage in expressive activity at peaceful public assemblies and community events. As events this last year have proven, much of the violence has been directed and targeted between protestors and counter-protestors of opposing views, often using items that are readily weaponized. These types of ordinances seek to prevent this type of targeted violence by providing clear and narrowly tailored guidance to attendees about which items cannot be brought to 6 of 15
public assemblies and community events because they pose an undue risk of being converted to weapons should violence arise.
As evidenced by other cities who currently have such ordinances in place, these types of ordinances preserve the Constitutional right to peaceful protest while serving as a preventative measure against violence and helping to minimize the risk of serious injury should violence erupt. Indeed, one of the findings of the independent review of the violence that occurred in conjunction with a 2017 demonstration in Charlottesville, Virginia was that the City of Charlottesville should have prohibited the possession of items like sticks, shields, and poles that can be weaponized and that failing to do so contributed to the seriousness of the violence that occurred:
Restricting weapons other than firearms would have been difficult to accomplish on August 12. A prohibition on bats, poles, and shields would have required posting rules regarding the possession of certain items and the ability to uniformly enforce such restrictions. Despite the challenges to enforcing a ban on weapons other than firearms, we believe that such a ban would have been advantageous. Weapons carried by Alt-Right demonstrators and those there to oppose them increased both the quantum and seriousness of violence on August 12. If the individuals engaged in those acts of violence had been unarmed, there would have been fewer and less dangerous encounters. Accordingly, the City should have prohibited the possession of these items. (Attachment B at 157, emphasis added.) A formal recommendation of the report was that the City of Charlottesville “should explicitly provide law enforcement with the ability to restrict the possession of certain weapons to protect public safety” and that “[c]odifying this rule in a regulation ensures its uniform, content-neutral application.” (Id. at 174.)
Heeding the lessons learned from the Charlottesville protest and other recent protests where violence has erupted, cities throughout California, including Los Angeles (Muni.
Code § 55.07), Laguna Beach (Muni. Code § 8.50.010), Oakland (Muni. Code § 9.36.500), Huntington Beach (Muni. Code § 13.54.135), Beverly Hills (Muni. Code 7 of 15
§ 4-3-209), Modesto (Muni. Code § 4-23.02), San Marino (Muni. Code § 14.05.04), and Covina (Muni. Code § 9.54.040), have adopted ordinances that prohibit items that can be weaponized at public assemblies or special events. (See Attachment C [compilation of ordinances].) These ordinances have proven effective.
While many cities, including Santa Monica, already had in place older ordinances restricting the dimension of pieces of lumber that can be brought to demonstrations, such restrictions do not adequately address other items that may be weaponized and have been observed at more recent demonstrations.
For example, a month after the Charlottesville protests, the City of Laguna Beach adopted an ordinance prohibiting the carrying of or possession of items such as metal pipes, baseball bats, glass bottles, pepper or bear spray, and other similar items that can be weaponized at a demonstration or other public assembly held at a city beach or park. In adopting that ordinance, the City of Laguna Beach noted that persons who were present at rallies held within Laguna Beach carried with them items such as daggers, pepper spray, chains, and metal pipes that can and have been weaponized. (Attachment D.) In early May 2020, Laguna expanded its ordinance to also apply to public assemblies held on public property or other city facilities. (See Attachment C at
3.) The City of Los Angeles adopted its ordinance expanding the list of prohibited items beyond sticks of a certain dimension in November 2017. The City of Los Angeles recently amended its ordinance to prohibit laser pointers, after observing that such items were used at public assemblies. (See Attachment C at 1-2; Attachment E). Many cities, including the City of Charlottesville, have since modeled their restrictions on prohibited items off of Los Angeles’s ordinance. (Attachment F [Charlottesville]; Attachment C at 5 [Huntington Beach], 8-9 [Modesto], 10-12 [San Marino], 13-14 [Covina].)
The proposed amendments to SMMC Section 4.08.780 are modeled on the most updated ordinances adopted by the City of Los Angeles and the City of Modesto. As proposed, the revised Section 4.08.780 expands the lists of items that are prohibited at public assemblies (defined as events that do not require a community events permit under Chapter 4.68) and community events (defined as events that do require a 8 of 15
community events permit under Chapter 4.68). The expanded list includes items such as poles, plastic pipes, or wooden sticks unattached to a sign, metal pipes, projectiles like rocks and pieces of concrete, glass bottles, aerosol sprays, shields, baseball or softball bats, laser pointers, metal containers, gas masks or similar breathing devices, helmets, umbrellas bigger than a specified length, riot gear, protective equipment, flak jackets, stab/bullet resistant vests, and load bearing or similar “tactical vests” – all items that can be and have been used by protestors and counter-protestors seeking to cause harm or serious injury to others, and to vandalize and cause damage to local businesses and public property.
As the City of Modesto explained in adopting its original ordinance that banned similar items:
Clubs, sling shots, paint projectiles and fireworks have been used as weapons to hit, threaten, or injure other persons. Bags of paint and other paint projectiles, when thrown or propelled at police officers, can injure officers or bystanders. Vandals have used hammers, clubs, spray paint and other pressurized paint sprayers to vandalize local businesses, stores, parks, bus shelters and public property. Metal and other impact resistant shields may conceal weapons from the vision of police officers, may be used to hit police officers and have allowed individuals who hide behind them to throw bottles, rocks, paint, or other objects at police officers.
Individuals wielding metal or other impact resistant shields have confronted or provoked police officers, thereby endangering both officers and nearby peaceful demonstrators. Large wrenches have been used to illegally open fire hydrants, thereby deterring or delaying police and fire response. (Attachment G at 2 [Modesto Staff Report, August 9, 2019].) On August 10, 2021, the Modesto City Council unanimously passed an update to the City’s ordinance adding items such as metal containers, gas masks or similar breathing devices, helmets, umbrellas, riot gear, protective equipment, flak jackets and stab/bullet resistant vests, load bearing or similar “tactical vests. (Attachment H [Modesto redline of changes].) 9 of 15
Modesto’s decision to update its ordinance was based on the evolution of protestor tactics and examination of similar incidents throughout the nation that identified a need for additional safeguards. (Attachment I [Modesto Staff Report, June 23, 2021].) As examples, Modesto explained the addition of certain prohibited items as follows:
Metal Containers
Currently, glass containers are listed under 4-23.02(9). Metal containers are an expansion of this restriction to prevent their use as a blunt object capable of striking others and causing significant injury. The addition of metal containers does not unreasonably prevent public assembly, and several alternative drink containers are readily available to the public that would serve a similar purpose.
Other California cities have adopted this restriction, including the City of Laguna Beach.
* * *
Laser Pointing Devices
A recently adopted tactic of unlawful demonstrators is the use of laser pointing devices in an attempt to distract or injure officers. Recently three officers sustained serious eye injuries in Portland due to the use of lasers pointers.
Umbrellas
Another tactic utilized by demonstrators interested in escalating confrontation or committing unlawful acts is the use of umbrellas as both a shield and weapon, as well as a means of concealing illegal activity. When observed in use these large umbrellas were routinely pointed/placed between opposing factions by possessors in an aggressive fashion. At no time were they seen being used to provide respite from the elements. The proposed restrictions regarding umbrellas still allow for their use during rain, and only provides guidance on their size similar to previous municipal code limitations relating to the type, size, and composition of sign materials (4-23.02, Subsections 1-3). (Attachment I at 2-3.)
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As for gas masks, helmets, riot gear, protective equipment, flak jackets, stab/bullet resistant vests, load bearing or similar “tactical vests,” this type of equipment is often used by military or law enforcement personnel. It has a specific purpose in the military arena as well as in the law enforcement sector. It is hard to justify why anyone coming to express their First Amendment rights peacefully would need such tactical gear. It can reasonably be determined that those who come with such gear type of protection are doing so in anticipation of violence or preparation of. This type of gear is considered “tactical” by military and law enforcement standards. It serves a unique and specific purpose. Non-authorized users of such equipment provide an intimidation factor which emboldens them and provide an advantage in violent physical confrontation. Helmets can be used as blunt striking instruments; tactical vests provide weapon concealment opportunities, and, overall, this type of gear provides protection from crowd control techniques that are a necessary tool when trying to dispel violent confrontations. Tactical gear of this type is not designed or intended to facilitate peaceful assembly.
Unlike Los Angeles and other cities, staff proposes that Council revise Section
4.08.780 to allow a larger dimension for wood sticks and plastic pipes to be attached to a sign or other expressive display. This modification is proposed in light of public comment and to allow officers to more readily determine whether a stick or pipe is compliant without having to resort to a ruler, as arguably may be necessary to determine whether a stick is prohibited by the existing SMMC Section 4.08.780, which restricts carrying, using, or possessing “any length of lumber, wood, or wood lath unless that object is one-fourth inch or less in thickness and two inches or less in width or, if not generally rectangular in shape, such object shall not exceed three-quarter inch in its thickest dimension.” As revised, Section 4.08.780 also clarifies that pens, pencils, and other writing instruments are not within the scope of the prohibition.
The proposed ordinance also provides that a violation of Section 4.08.780 is a misdemeanor and requires, when feasible (and excluding exigent circumstances), that a warning be given before enforcement commences. The proposed ordinance also provides that, for community events, modifications to the restricted items may be made 11 of 15
upon a finding by the Community Events Committee that the modifications will not impair or threaten public safety.
Any ordinance that imposes time, place, or manner restrictions on First Amendment activity must pass a three-prong test. The ordinance must be (1) content neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave ample alternative means of communication available (Edwards v. City of Coeur D'Alene, 262 F.3d 856 (2001). The City Attorney’s Office has reviewed the restrictions proposed in the revised Section 4.08.780 and believes that they comply with both federal and California constitutional requirements. The proposed ordinance is content neutral, is narrowly tailored to serve the significant government interest in protecting the safety of demonstrators and the community, and still allows for a multitude of ways in which individuals can communicate their views.
The City has a substantial interest in safeguarding its citizens against violence and in protecting police and demonstrators alike. See Hill v. Colorado, 530 U.S. 703, 724-25 (2000); see also Vlasak v. Superior Court, 329 F.3d 683, 689 (9th Cir. 2003) (holding that LA City’s ban on wooden sticks over a certain size at protests did not violate the First Amendment). The First Amendment does not protect violence. See N.A.A.C.P v.
Claiborne Hardware Co., 458 U.S. 886, 916 (1982).
The items restricted in the proposed revised Section 4.08.780 have little to no First Amendment purpose and instead have been used in other jurisdictions for violent altercations with counter-demonstrators or to vandalize private and public property. In addition, the restrictions are content neutral because the restrictions apply regardless of the views being expressed. As in Vlasak, the proposed “ordinance does not prohibit leaflets, photographs, mega-phones, or a panoply of other devices used for getting attention during picketing or demonstrations” and thus “preserves the demonstrators' right to ‘reach the minds of willing listeners’ through an ‘opportunity to win their attention.’” 329 F.3d at 690. Finally, the proposed ordinance includes a subsection providing that it is not intended to violate and shall not be applied or enforced in a manner that violates the U.S. or California constitutions or other applicable state or federal law. 12 of 15
The proposed ordinance addresses conduct that is not currently unlawful. While criminal statutes address assaults using weapons, they do not currently implement a ban on possession of those weapons at public assemblies and community events. As the Charlottesville after-action report suggests, the goal of the ordinance, as with other cities’ similar ordinances is to avoid the presence at peaceful protests of weapons that have no place in peaceful protests, as a means of decreasing both the likelihood that any assaults will occur in the first place and the harm from any assaults that may occur since they will occur without weapons.
It is recognized that police practices in response to peaceful protests needed to be addressed after the May 2020 protests and looting in Santa Monica. The Police Department has enacted new forms of training and teams specifically designed to handle crowd control concerns and de-escalation in such environments. This work is continual and dynamic and is expected to continue with input from the new Public Safety Reform and Oversight Commission. The amendments suggested in this ordinance are not intended to be a final and complete fix, but they are a response to one component of the larger issue of ensuring that individuals maintain their ability to exercise their right to peacefully protest free from fear of violence or harm, whatever the source.
Alternatives for Consideration
The Council could consider a number of alternative actions:
(1) Leave in place current SMMC 4.08.780. Council could leave in place the current version of SMMC 4.08.780. As noted above, however, this ordinance has been criticized as overbroad for potentially extending to sticks used to support large expressive signs or other expressive items. Despite that criticism, the current version would withstand constitutional scrutiny, as it is modeled off of a similar ban the Ninth Circuit upheld in Vlasak. At the same time, however, it does not address at all a host of other items that can readily be weaponized and serve no legitimate purpose at a peaceful protest.
(2) Repeal current SMMC 4.08.780. Council could repeal current SMMC
4.08.780. This would address the overbreadth criticisms. But it would leave individuals free to bring to protests, public assemblies, and community events 13 of 15
wooden sticks or poles of any length and width, as well as a host of other items, which can readily be weaponized and serve no purpose at a peaceful protest. (3) Adopt an ordinance permitting the City Manager to implement temporary regulations prohibiting items on an ad hoc basis for particular events. As an alternative to adopting the revisions to SMMC 4.08.780 as proposed by staff, Council could consider following the approach taken by the City of Berkeley and the County of San Diego, both of which authorized the City Manager/Chief Administrative Officer to issue regulations restricting items that can be brought to public assemblies on an ad hoc basis. (Attachment J.) In 2017, Berkeley faced a series of assemblies that turned violent:
The March 4 and April 15 assemblies turned violent, fights broke out, and numerous people were seriously injured. Arrests were made for offenses that included battery and assault with a deadly weapon. Violence at the events has been well documented by the Berkeley Police Department, the news media, and participants on social media. Some participants came to the park with metal pipes, baseball bats, lengths of 2”x 4” lumber (some with nails in them), bricks, pepper spray, mace, daggers, combat shields, poles, axe handles, hatchets, helmets, masks, and similar items. (Attachment J at 5.) Following these events, in August 2017, the City of Berkeley adopted an urgency ordinance that authorized the City Manager to issue narrowly tailored temporary regulations in defined areas of the City consistent with the First Amendment, with the requirement that they be posted with at least 24 hours’ notice, and to take other actions necessary to preserve public health, safety, and welfare for events without permits. (Attachment J at 2-5.) Berkeley issued such temporary restrictions for events occurring in September 2017 as well as August 2018, which prohibited a similar list of items as in the Los Angeles ordinance, including bricks, rocks, billy clubs, pepper or bear spray, shields, metal pipes, chains, and other similar items that can be weaponized. (Id. at 6-11.) Berkeley’s ordinance has since sunset. The County of San Diego followed Berkeley’s model and its ordinance is still in effect. (Attachment J at 12.) This approach would provide the City Manager with authority to tailor temporary regulations for anticipated events. But, as noted above, there is not always significant advance 14 of 15
notice of events, which may occur spontaneously and rapidly in response to unanticipated occurrences. And tailoring regulations to events poses a risk of a claim that the regulations are based in part on the content or viewpoint of the event. As the Charlottesville report noted, having a fixed permanent prohibition ensures its uniform, content-neutral application.
(4) Include a sunset date for the proposed emergency ordinance. Council could require that the proposed emergency ordinance sunset after 120 days. Staff would use this period to assess public reaction to, any comments from the new Public Safety Reform and Oversight Commission on, and any experience in implementing the emergency ordinance to determine whether to seek a similar non-emergency ordinance of longer duration.
(5) Modify particular provisions of the proposed emergency ordinance. Council could modify particular provisions in the proposed ordinance to adjust the scope of any particular prohibition.
Fiscal Impact.
None.
Prepared By: George Cardona, Interim City Attorney
Approved Forwarded to Council
Attachments:
A. Attachment A_Proposed Ordinance
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B. Attachment B_Charlottesville Final Report
C. Attachment C_Compilation of Ordinances_Codes
D. Attachment D_2017.09.12_Laguna Staff Report
E. Attachment E_LA 2020 Ordinance 20-1362_ORD_186799
F. Attachment F_Charlottesville Muni Code
G. Attachment G_modesto_STAFF REPORT URGENCY NON-URGENCY ORDINANCES (2).DOC
H. Attachment H_Modesto_MMC_REDLINE_ADDITIONS-FINAL
I. Attachment I_Modesto_AR_-_URGENCY-NON_URGENCY_ORDINANCEAMENDMENT_TO_MMC_SECTION_4-23.02 J. Attachment J_Berkeley_County SD Alternative
K. Written Comments