Carlsbad deserves proactive leadership that is committed to putting our residents first, that centers our residents' voices and quality-of-life in every decision made, with a strong, unifying vision for Carlsbad that is rooted in our past, while looking forward to our future.
We don't think this is right.
Dear Carlsbad,
There are times when we disagree. We believe that the diversity of our opinions make us strong, but some folks are threatened by different opinions and are becoming increasingly divisive in their rhetoric, push-back, and the narratives they are forwarding in an election year.
Thank you for standing with us to continue to communicate compassionate, kind messages of COMMUNITY COLLABORATION and BOLD HOPE worthy of our great city!
Council recently passed an ordinance to authorize temporary restrictions for events where it is "reasonably anticipated" that conflict or "non-peaceful behavior" will occur.
Below you will find the nuances behind my vote, as noted in my last newsletter.
You can watch a video of my comments on this agenda item #18 here.
How I voted: "NAY"
Total vote count: 4-1 (adopt ordinance as written)
Why I voted "NAY":
As I stated during discussion of the ordinance, I would have supported the ordinance if my colleagues had agreed to remove 1 of the 3 newly proposed restrictions. I made a motion to remove the anti-mask portion of the ordinance, but it did not receive a second. I therefore voted "NO" on the ordinance.
Summary:
Given the rise of protests, demonstrations, and rallies since late 2016, there has been a rush to place ordinances on local municipalities' books, and pass State legislation, that would allow local and State law enforcement the ability to proactively restrict behavior and actors who may escalate toward violence to person and property.
This ordinance authorizes the City Manager, upon recommendation of the Chief of Police, to issue restrictions during certain events, particularly demonstrations and protests.
There are 3 proposed restrictions in this ordinance. You'll find my opinion of each, based on case law, existing California law, analysis and response to proposed 2018 California legislation, and constitutional analysis in italics below. I will be focusing on "B" for my "Why I voted NAY" analysis.
A. Prohibiting weapons at demonstrations and protests (completely reasonable).
->>B. Prohibiting concealment of identity via the wearing of masks (constitutionally/legally problematic).
C. Authorizing the designation of assembly areas for event participants (reasonable).
In recent memory, Carlsbad has had only one large-scale demonstration: The march against Measure A (Caruso/Mall on the Agua Hedionda Lagoon) in 2015. When I asked staff if there were any other protests, rallies, demonstrations they were aware of that I might not be, I was told there was one time when pro-life demonstrators showed up at the Carlsbad Village Faire with signs of dead fetuses and incendiary messaging that was reported to city officials as disturbing to Faire-goers. While I do not agree with the use of such graphic and upsetting images in a space where children are present, I have a very strong commitment to protect first amendment rights in public spaces and public forums to the extent of my abilities as a public official. This is true whether or not I agree with the message, the tone, and/or the ideological position.
I agree with 2/3 of this ordinance, but my analysis and research of restriction "B" (Prohibiting concealment of identity via the wearing of masks), led me to make a motion to pull that one restriction from the ordinance in order to alleviate the potential for exposure to the City. It is a litigation risk and opens us up to costly lawsuits, as illustrated in trial after trial across the country.
The spread of anti-mask laws is constitutionally problematic, especially given the extension of intrusive surveillance (e.g. License Plate Readers) on the public. Staff commented that this portion of the ordinance was meant to “prevent” potential crime. This is problematic (as illustrated in multiple legal cases throughout the US) for both the 1st and 14th amendments to the Constitution. The assumption of violence prior to action violates the presumption of innocence and suppresses the legitimate exercise of natural and legal rights of the citizens by threat of legal sanction for the benefit of a specific group.
In addition, California law already exists that makes it illegal to wear a mask during the commission of a crime (CA PC 185). The proactive, preventative Carlsbad restriction in this ordinance would have a "chilling effect" on demonstrators for whom taking a political stance or position would be detrimental to their occupations or social standing in a community. The anti-mask restriction would also allow police to arrest masked persons not committing a crime, which would lead to disparate treatment based on the message of the demonstrator, as has been argued effectively to kill 2018 anti-mask legislation proposing to do the same state-wide.
The US Supreme Court has upheld the First Amendment right of citizens to communicate and congregate anonymously in several cases. With the increased and extensive use of surveillance technology in Carlsbad, along with the ordinance's lack of definition of what constitutes a reasonable expectation that persons attending an event intend to engage in non-peaceful behavior, I could not support this ordinance without the removal of the anti-mask restriction.
