Republican congressman Ed Royce may be planning on retiring at the end of his term this year, but that’s not stopping Brea’s efforts to regulate protests in the city that, more often than not, end up outside his downtown office. City council appeared poised to pass an ordinance right before Christmas with sweeping provisions that would’ve, among other things, limited non-permitted protests to 30 people or under while footing activists with application fees for permitted ones.
When liberal activists and union members, who’ve spent a good deal of time setting up shop outside Royce’s office last year in protest, learned of the far-reaching regulations, they packed council chambers on Dec. 19 to voice their dissent. The American Civil Liberties Union of Southern California also sent a letter to council members outlining its “significant concerns” with the proposed law running afoul of the First Amendment in key areas. The council ended up tabling discussion on the ordinance that evening for a later date.
That later date arrives this month and the controversial ordinance is back, albeit in a revised form. The do-over is scheduled for Feb. 20 when a full council is expected to be seated. Between that time, city officials met with Peter Eliasberg, ACLU of Southern California’s chief counsel, as well as liberals from Indivisible CA-39 and other groups to hear out their concerns. “I went down to the site, we talked about it and frankly I have to be complimentary to the city attorney’s office,” Eliasberg tells the Weekly. “I thought they were thoughtful about the issues that I raised and I thought that they made a very serious effort to address the concerns.”
Karen Lawson, an Indivisible CA-39 member, joined with representatives from D39 Action Council, Sierra Club and Orange County Labor Federation, Brea residents and others for a Jan. 31 meeting with city officials. “The community representatives just don’t feel like an ordinance is necessary at all,” she says. “We feel like the city is treating public assembly like a special event.” The roots of wanting to regulate protests in Brea stretch back to 2014 when city council held a study session, but nothing came of it. They hastily returned to the idea after labor unions held a pro-immigrant Temporary Status Protection rally outside Royce’s office in October when a man drove his car through an intersection blocked off by protesters.
“This ordinance is…not the result of any request by Royce or by [Dwight] Manly or any other business in the area,” councilman Marty Simonoff wrote of the previous attempt in a Dec. 24 email obtained by the Weekly. “This is the result of what took place recently at the intersection of Birch and Brea Blvd. 200 protesters took over the intersection, blocking traffic, placing their personnel in yellow vests in the intersection and crosswalks acting as traffic officers stopping traffic.” And then, Daniel Wenzek drove into the crowd.
Aside from that incident, protests outside Royce’s office have been tame. “Indivisible 39 are typically a low keyed protest group which shows up with between 20-30 protesters, stay for an hour and disperse,” Brea police Lieutenant David Dickerson wrote his colleagues in a Nov. 20 email. Even still, Brea police had planned protests, including the council speak out, vetted by the Orange County Intelligence Assessment Center last year, even those held by Indivisible CA-39.
But now Brea is backtracking on requiring a permit for protests of more than 30 people in downtown, something the ACLU opposed in December. “It would be illegal for the City to require a permit for groups of 30 or more,” Eliasberg wrote to council in a Dec. 18 letter obtained by the Weekly. He cited a Long Beach case where the Ninth Circuit established a precedent that permits are only warranted for groups of 75 people or more. “Accordingly, the City should alter the 30-person threshold for obtaining a permit so that is comport[s] with the relevant First Amendment threshold.” And they did. The new permit requirement citywide is for protests of 75 people or more.
The ACLU also disagreed with the attempt to limit spontaneous protests to outside city hall in the original proposed law. “If the principal purpose of a demonstration [is] to try and persuade a government official who has a district office in Brea to vote a certain way on an ordinance or statute that was recently set for an upcoming vote, by far the most effective place to do so is on the sidewalk outside [the] officials district office,” Eliasberg wrote. “The ordinance impermissibly interferes with the First Amendment right to communicate in the location of the organizer’s choosing.”
And just like that, another important change in the draft law now allows for permit exemptions concerning spontaneous protests outside the offices of elected officials in addition to city hall. But does expanding such protests to two spaces go far enough? “Public assembly occurs in a spontaneous way based on social media that can expand a planned action from 20 people to 200 real quick,” Lawson says, maintaining her concerns. “Public assembly encompasses the potential for demonstration in front of a business or a school district.”
The revision is unlikely to face legal criticisms from the ACLU. “Could it have been even broader and still not created many law enforcement headaches?” Eliasberg asks. “Yeah, I think it could’ve been. But that’s more of a policy determination than it really is a legal one. The city is also backing off of banning sound amplifying devices after the ACLU cited First Amendment case law concerning bullhorns. Last but not least, the new ordinance isn’t going to deny permits for activists who have unpaid debt from previous permitted actions.
Speaking of fees, activists wouldn’t be asked to pay for submitting permit applications, but they’re still on the hook for “departmental service charges.” What are those? It won’t be for paying police. The staff report clarifies that such charges only relate to traffic control barricades, non-cop personnel and portable toilets.
Given the revisions, will the revamped protest law elicit opposition when introduced later this month? “The city did not indicate that they were open to making any further changes,” says Lawson. “We’ll turnout community representatives for the first reading of the amended ordinance and will make public comments that reflect these areas of our ongoing concerns.”