Dallas Lawyers Try a Mulish Approach in Defending Protest Law. Judge Cracks Whip.

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Occupy Dallas
Dallas Police Chief David Brown never gave a terribly convincing defense of an ordinance barring protesters from demonstrating near highways. He said it was intended to protect the safety of motorists who might be distracted by a sign-waving demonstrator, but as council member Philip Kingston highlighted as the City Council considered revising the ordinance, Brown produced not a shred of evidence to support his claim.

Several peace activists challenging the constitutionality of the law in court would also like to know the city's rationale for the law, both for the decades-old original ordinance and the updated version passed in January. If a government in America decides to abridge free speech, after all, the courts require there be a compelling reason. Vague allusions of public safety may satisfy two-thirds of the Dallas City Council, but hopefully not a federal judge.

In their search for relevant information, however, the activists and their attorney, Texas A&M Law Professor Meg Penrose, have encountered stiff -- one might say absurd -- resistance from the city attorney.

See also: Dallas City Council Is Fine with Free Speech, as Long as It's Not Close to a Freeway

On several occasions during the discovery process, Penrose has sought to have the city answer, or produce documents that answer, some fairly basic questions about the anti-protest ordinance.

"Please explain how the carrying, holding, waving, or display of "signs" in the areas covered by the Revised Ordinance pose a safety threat or danger to anyone," the protesters ask in their first set of interrogatories.

"The City objects to this interrogatory as overly broad, unduly burdensome, and more appropriately addressed by way of deposition testimony."

OK. Perhaps the city could explain exactly how it defines "costume," which the ordinance bars from areas around highways.

"The City objects to this interrogatory to the extent it seeks privileged work product, attorney-client communications, and/or information protected by the legislative privilege."

See also: A&M Law Professor: Dallas' New Protest Ordinance Is Unconstitutional

And why does the ordinance include service roads in addition to highways?

"The City objects to this interrogatory to the extent it seeks privileged work product, attorney-client communications, and/or information protected by legislative privilege."

Well perhaps the city can at least say who participated in drafting the revised ordinance.

"The City objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The City further objects to this interrogatory as it seeks privileged work product, attorney-client communications, and/or information protected by the legislative privilege."

Even a request for a police report detailing accidents attributed to roadside protesters is "vague, overbroad, ambiguous, and unduly burdensome."

This goes on for dozens of questions. The best the city will offer is DVD footage of public meetings at which the ordinance is debated, the bulk of which are publicly available online.

More informal communications between the peace activists and the city are, if anything, even more bitchy. Penrose emailed assistant city attorney James Pinson in mid-April asking for the city's specific definition of two phrases used in the ordinance, "lateral lines of the roadway" and "main travel line." Pinson responded in early May after Penrose sent him a reminder email:

"Unfortunately, I don't have time to research your question at this time," Pinson writes. "Perhaps you could ask one of your students to do so."

The activists endured several months of this before giving up and asking U.S. District Judge Jorge Solis to force the city to actually respond to their questions.

Their frustration, cloaked though it is in legal jargon, is palpable.

"Such knee-jerk reaction of objecting to literally everything is both unfounded and indefensible," they write, blasting the city for "intransigence" and characterizing its reasons for refusing to answer questions variously as "spurious," "meritless" and "disingenuous."

Solis, it seems, agrees. Following a hearing on July 17, he ordered the city to answer the activists' questions and produce the requested documents by mid-August. He also overrode the city's objections to the plaintiffs' attempts to have Chief Brown testify in a deposition, which they'll also have to schedule by mid-August.

It's a minor procedural victory, but as the activists say in their motion to compel, they expect it will provide the ammunition to win summary judgment and a permanent injunction against the ordinance.

Send your story tips to the author, Eric Nicholson.


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21 comments
noblefurrtexas
noblefurrtexas

I am not infrequently stunned at the sheer ignorance of liberals, and their dependence on trial lawyers to further diminish the quality of life in our community.  I am also no fan of the current Chief of Police.  However, in this instance, he's absolutely correct. 


Protests beside a highway pose serious hazards, and no less those of construction workers now protected.  The difference is, the construction workers HAVE to be where they are.  Not so the protesters.  And, it's the law that drivers slow down in construction zones; not so for protesters. 


In this day of very dangerous distracted drivers, we don't need or want protestors adjacent to a highway further distracting drivers with crowds, signs, and making noise.  That is irresponsibly inept to even suggest.  And, we can't require drivers to slow down and observe caution signs next to the protest. 

This is a dumb idea, and it's sad we don't have more intelligent and cautious people evaluating the safety of highway side protests and/or signs. 



holmantx
holmantx topcommenter

So I guess I could hire some street people to hold big banners on the overpasses north and south of the afflicted area saying:

CAUTION! AVERT EYES . . . MORONS AHEAD

A kid dropped a chunk of concrete through my driver side windshield at 65 mph on I-30.  Ever since then, I change lanes when I see morons loitering over a freeway.

particularly if they have Nixon masks

RTGolden1
RTGolden1 topcommenter

I am probably way more forgiving of government idiocy at every level than your average citizen, as long as that government can produce some un-idiotic reason for their idiocy.  Doesn't mean I would condone or sanction the (insert idiocy here), but I can find room to forgive (as long as we're in the process of fixing as well).

This law is one of those things.  I could forgive the idiocy of  the law prohibiting free expression, if the city would just cop to the idiocy behind  the law and take steps to correct it.  As it stands, the whole justification for the law seems to be "....because we said so.", and the defense of the law seems to rest on the "it's my ball, and I'm going home" strategy.


Now, the point that I'm having a hard time understanding.  Why is Chief Brown the one having to stand up and justify this law to anyone?  And most of all, why is he justifying this law to the very legislative body that is supposed to pass the laws for his jurisdiction (the Council)?  Last I checked, the passing and/or repealing of City ordinances is the job of the City Council.  The Chief of Police is tasked with enforcing the law, as it is written.  Or am I wrong on this?

ozonelarryb
ozonelarryb

What about those dark blue costumes worn by those trigger happy yahoos? I see people slam a on their brakes and make hasty turns to avoid THEM.

schermbeck
schermbeck

Condescending dismissiveness is the last refuge of scoundrels.

WylieH
WylieH

So small signs by a freeway can be distracting, yet the entire side of the City-owned Omni Hotel, overlooking the complex mixmaster highway interchange is allowed to be a gigantic, illuminated, flickering, changing billboard at night?

sure... Makes sense.

ThePosterFormerlyKnownasPaul
ThePosterFormerlyKnownasPaul topcommenter

So what else is new?  This is a typical response by the City government when they perceive that barbarians are gathering at the foot of the castle walls.

TheRuddSki
TheRuddSki topcommenter

Some of the most violent people I've ever personally encountered were "peace activists", but I fully support their right to dance on the highway.

holmantx
holmantx topcommenter

Please don't dress up in clown suits then waive loud red signs in the faces of pilots while hauling ass on freeways at breakneck speeds.

Can we at least agree up to this point?

Seriously - don't you think it might end up with twisted metal and tons of steel with all that red meat infused within it to be a bit . . . off-putting?

Don't ask me to clean it up.

d-may
d-may

The city of Dallas needs a real whistle blower that works in IT to copy all of the servers and dump them onto wikileaks.

Gangy
Gangy

That's the way Dallas City Attorney office does business.  Why does the Dallas City Council not fire those in charge of this office?

cvaz
cvaz

@RTGolden1 You sure love the word idiocy. (hint: use a thesaurus )

holmantx
holmantx topcommenter

@WylieH

HIghway Beautification Act controls all signage and wallscapes within 600 feet of the freeways.  TxDoT has threatened the City they will stop matching funds if wallscape ads are within the federal mandated restriction zone.  

City lawyers have denied sign permits to the guy who owns the Pearlstone Grain Elevator (across from Fair Park at 2nd Ave).  He had a contract with Toyota (big truck) and then Nike for a massive swoosh. 

The City said their hands were tied.

doublecheese
doublecheese

@WylieH So the guy dressed up like the Statue of Liberty break dancing in front of Liberty Tax doesn't get more attention than a billboard?  Someone should let those guys know.

holmantx
holmantx topcommenter

@TheRuddSki

Give Chance a Piece.  That's all I'm asking.  

And I wanna be Chance.

This is the main difference between Peace Activists and Pacifists.

The Activists are just so . . . angry.

becoolerifyoudid
becoolerifyoudid

@Gangy As long as they bury the bodies in the right spot, the City Council is satisfied with the City Attorney.

TheRuddSki
TheRuddSki topcommenter

@holmantx

If the angry energy is directed, focused, organized, then the angry signage looks more consistent and of higher quality.

And conveniently two-sided for diversity of thought i.e., "END ALL WAR" on one side and "SMASH ISRAEL!!" on the other.

Matching t-shirts are a huge plus at a big peace rally - so participants don't accidentally assault a friendly - and It looks more grass-rootyish.

holmantx
holmantx topcommenter

@TheRuddSki

see, this is why I like Tea Partiers.  They accessorize so politely.  They color-coordinate.


and they pick up after themselves..  

TheRuddSki
TheRuddSki topcommenter

@holmantx

Red, white, blue and yellow-flagged.

The tea-partiers pick up after the party just to cheat union maintenance crews out of their overtime, leading to food insecurity in those households.

holmantx
holmantx topcommenter

@TheRuddSki

food insecurity.

good one.

losing control of the language in style.  I like it.

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