The Brea City Council tabled a controversial proposed protest ordinance until next month after receiving opposition from the public and a letter from the American Civil Liberties Union that warned of potential First Amendment violations.
“We received some thoughtful and detailed comments,” Mayor Glenn Parker said just before the start of the meeting. “I believe that we should consider this new information further before considering action at any future council meeting. As a result, I recommend we table this item to our January 16th meeting.”
People in the audience immediately shouted out “why?” after Parker gave the announcement.
“I think I explained that clearly,” Parker said, adding that the comments from Tuesday’s meeting will be “considered by us when we deliberate at our January meeting.”
City Attorney James Markman said the October protest that led to a driver running his car into protesters in downtown Brea, coupled with increasing violence at protests around the country, spurred the city to draft the ordinance.
“That resulted in an incident where it could’ve been really bad if somebody stepped on the accelerator really hard,” Markman said of the October immigration protest.
Markman also said the city is trying to find a balance of rights between protesters and shoppers in the downtown Brea area filled with businesses and the location of the district Congressional office of Rep. Ed Royce (R-Fullerton). Markman agreed with many people’s comments from earlier in the meeting that downtown Brea is “a terrible location for that office.”
“So we came up with this ordinance that would harmonize the right to speech … with safety protection and stopping the interference of people going into businesses and running their businesses,” Markman said.
The proposed ordinance would require protesters to get a permit from the city, pay an undefined application fee and pay a “departmental service charge” for “actual fire safety and traffic control costs incurred by the city in connection with a public assembly.”
A protest application could be denied if the applicant hasn’t paid a past service charge. That charge would not include cost of the Brea Police, according to the proposed ordinance.
Some of the other provisions in the ordinance would include a ban on wood longer than one foot in length, plastic or metal pipes, “a sign, poster, plaque, or notice that is not constructed solely of a cloth, paper or cardboard material less than one-quarter inch in thickness” and gas masks.
Protesters wouldn’t be allowed to light candles or torches either.
Markman said the ordinance is based on case law.
“It’s based on federal case law. That list … that included the cardboard, that list is right out of the city of Los Angeles that was approved by the Federal courts,” Markman said. “Every sentence is based in case law.”
“We’re trying to give them (the city) defensible positions and we think the present draft is completely defensible under case law,” Markman said, which immediately drew jeers from the audience.
Even though the council didn’t decide on the ordinance, they heard public comment for over an hour and a half from an audience that packed the council chambers, with many lined up against the back wall as they waited their turn to speak. The council dais was flanked by three police officers, one officer in the hallway and at least four more outside in the city hall plaza.
Nearly everyone who spoke Tuesday night was against the proposed ordinance.
Brea resident and north vice chair of the OC Democratic Party, Jeff LeTourneau, said it’s ironic everyone in the chambers pledged allegiance to the flag and that the city is considering the ordinance.
“... Asking us to pledge allegiance to what that flag stands for and the paramount thing it stands for is our right to have freedom of speech and political activity and freedom of expression. So, how ironic it is that we are here tonight,” LeTourneau said. “I think what we have here is a solution in search of a problem.”
There was only one person who supported the ordinance.
“Ever since President Trump got elected, protesting has been out of control in this country,” Peggy Westerfeld said. “I love my city, I love my shops here. I think we as Brea residents should have the freedom to be able to shop … and go about our business … without fear of protestors.”
Fullerton resident Sam Jammal, also a Democratic challenger for Royce’s seat, said Royce’s office is in a bad location and suggested he relocate. Jammal said the ordinance not only affects Brea residents, but everyone in the 39th Congressional district who wants to protest Royce.
“By taking that away you’re doing a disservice not to just citizens here, but all across the region,” Jammal said. “As a civil rights lawyer by training, I can’t find anything right about this [ordinance]. It violates Supreme Court precedent. It violates the Ninth Circuit precedent … Dump it in the trash and throw it away. Don’t bring it back again.”
The ordinance drew the ire of Brea resident and attorney Greg Diamond, who said the ordinance would have a chilling effect on free speech because the ordinance is too vague and allows for “arbitrary and capricious enforcement.”
“You can have concealed weapons in Orange County. So, you're actually looking at a situation where having a handgun on Birch Street would be okay, but for cardboard thicker than this: jail time! That will get you on the late night talk shows if you pass this next month,” Diamond said, as he slammed a cardboard box on the podium.
Diamond also called the October protest incident a “heckler’s veto” and the ordinance would put the blame on the protesters.
“Now if that happened, under your ordinance, the person protesting could be docked for the money for responding to the person who hit them with the car.”
Spencer Custodio is a Voice of OC reporter who covers south Orange County and Fullerton. You can reach him at firstname.lastname@example.org.