Boulder County ACLU

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AMERICAN CIVIL LIBERTIES UNION of COLORADO Boulder County Chapter Judd Golden, Chair 303-442-6355 juddgolden@hotmail.com

December 22, 2011 Jane Brautigam, City Manager City of Boulder Box 791 Boulder, CO 80306 Sent Via Email - parksclosurerule@bouldercolorado.gov brautigamj@bouldercolorado.gov Re: Parks Closures regulation 8-3-3.G(11). Dear City Manager Brautigam, The Boulder County Chapter of the ACLU of Colorado strongly opposes the proposed emergency regulation, Parks Closures regulation 8-3-3.G(11). It is an unnecessary infringement upon political speech, assembly, due process and the Takings Clauses of the US and Colorado Constitutions, and lacks proper grounds for an emergency ordinance. The City of Boulder should adhere to its reputation as a progressive government. The ACLU urges the City to abandon this ill-conceived and retaliatory proposal. Instead, the City should continue to remain tolerant and accommodating of the historic local demonstration of citizens across the nation who are petitioning the government for redress of grievances. Enacting a regulation that inhibits the Occupy Wall Street protesters political speech and rights to assembly, as well as the rights of other persons who wish to continue to enjoy these free and open public spaces, violates fundamental principles of individual liberty. It is reminiscent of the dark days of our nations past when officials closed public facilities to all rather than comply with court-ordered desegregation. The ACLU has been zealous in its defense of the rights of the thousands across the nation participating in this movement. In Colorado, we are monitoring police response in Denver, have provided observers with Know Your Rights materials at Occupy Boulder and Occupy Denver, have launched an investigation regarding a rise in police force and possible abuse at the Occupy Denver site, and have requested after-action reports detailing police actions from the Denver Department of Public Safety and the Colorado State Patrol. The proposed Parks Closures regulation does not address any real harm that could not be addressed through less restrictive means. It violates the right to political speech, expression

and assembly guaranteed under the 1st and 14th Amendments to the US Constitution, and the Colorado Constitution, which guarantees these rights to the people in Article II: Section 24. Right to assemble and petition. The people have the right peaceably to assemble for the common good, and to apply to those invested with the powers of government for redress of grievances, by petition or remonstrance. Section 25. Due process of law. No person shall be deprived of life, liberty or property, without due process of law. The Parks Closures prohibits individuals who are not pedestrians or bicyclists to go upon or remain in any park, parkway, recreation area, or open space between the hours of 11 p.m. and 5:00 a.m. While content-neutral on its face, it is obvious that the intent is to inhibit the political speech and rights of assembly of those who wish to engage in political speech or simply peacefully assemble to petition the government for redress of grievances in our public parks and open spaces between 11 p.m. and 5 a.m. A government regulation that impedes freedom of speech and particularly political speech, must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." See, e.g., Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994). The alleged harm that this Parks Closures regulation proposed to address is conjectural at best. Allowing Boulders vast public parks and open space lands to continue to be open between the hours of 11:00 p.m. and 5:00 a.m. will preserve, protect and extend the rights of the public that have been enjoyed for decades. Continuing to keep these public spaces open to all far outweighs any possible public safety or land use preservation benefit. Any alleged illegal activity that threatens public safety or public property can be dealt with on an individual basis as is the case with all other law enforcement actions. Additionally, this regulation would allow for enforcement against a large group of people beyond those who possibly may seek to exercise their political speech and assembly rights, and could possibly violate some Boulder ordinance. This includes those who are walking through a public space who stop to tie their shoe, or sit down to take a break on their journey, or simply decide to wander or sit peacefully. Similarly, those who engage in hiking, mountain biking and other outdoor activities at night would be subject punishment under this regulation. This regulation may also constitute an unlawful taking under the Takings Clause of the 5th Amendment and Sections 14 and 25 of Art. II of the Colorado Constitution. The proposed Parks Closures regulation states that Any personal property found within the area subject to Closure or Emergency Closure may be considered abandoned property and may be removed or disposed of by the city. Because the Boulder Revised Municipal Code does not define personal property under this regulation, law enforcement may confiscate personal valuable property directly from the rightful owner with no apparent process, or right to object, reclaim or compensation. Few acts by government are more offensive to our concept of freedom and liberty.

The City of Boulder, and any government, may not seize personal property without just compensation and due process of law. This emergency proposal gives law enforcement unlimited discretion that is likely to be exercised in a discriminatory and selective manner. The property of an occupy demonstrator likely would be targeted; would the telescope of a midnight stargazer also be seized? A narrower definition would not cure this unlawful and punitive proposal. Finally, the City of Boulder lacks grounds to adopt an emergency ordinance in the current matter. B.R.C. 1-4-6 allows for the adoption of an emergency rule where exigent circumstances exist. B.R.C. 1-4-6 states in pertinent part: A rule may become effective immediately if the adopting authority finds that the public health, safety, or welfare requires immediate effectiveness of the rule and states the reasons for such finding. Here, no exigent circumstances exist. Few if any Occupy demonstrators have stayed overnight in Boulders vast open space lands or public parks. Most overnight protesters have occupied County land. Those protesters largely have complied with the law; those who have been in violation have most often been warned by officials or were provided with accommodation so they can continue their political protests. This ill-conceived effort fails to state adequate grounds that require an emergency regulation. As stated, if ordinance violations do occur, they can be dealt with as they arise. The City of Boulder should not impose a broad restriction on rights, freedoms, and civil liberties that would have such a detrimental impact on its citizens and is so overly-broad in its scope. The ACLU respectfully requests that the City of Boulder not enact this unnecessary proposed regulation. Thank you for considering our views. Sincerely, /s/ Deniece Kuwahara Board of Directors of the Boulder County ACLU By Deniece Kuwahara, Chapter Board member CC: Colorado ACLU Boulder City Council [council@bouldercolorado.gov] Boulder City Attorney {carrt@bouldercolorado.gov] Media