Faust v. State

OPINION

delivered the opinion of the Court

On October 6, 2012, appellants, Joey Darrell Faust and Ramon Marroquin, while protesting at a gay pride parade, each disobeyed a police officer’s order to not cross a skirmish line, resulting in their arrest for the offense of Interference with Public Duties under Texas Penal Code Section 38.15(a)(1).1 After a consolidated bench trial, each appellant was convicted and sentenced to two days’ confinement in the Tarrant County Jail and assessed a $286 fine. Appellants appealed their convictions, asserting that Section 38.15(a)(1) had been unconstitutionally applied to them in violation of their First Amendment rights.2 The Second Court of Appeals agreed with appellants and reversed their convictions. For the reasons discussed herein, we hold that Section 38.15(a)(1) was not unconstitutionally applied to appellants. Therefore, we reverse the decision of the Second Court of Appeals, and we order that the trial court judgments be reinstated.

BACKGROUND

Appellants, Faust and Marroquin, along with several other members of the Kingdom Baptist Church, were protesting at a *737gay pride parade in downtown Fort Worth. Members of the Kingdom Baptist Church had a history of being involved in physical altercations at previous gay pride parades. Having been informed of such history of violence, the Fort Worth Police Department assigned several teams of police officers from the Zero Tolerance Unit as tactical response to control the crowd, maintain peace, and handle any physical altercations that might occur. Sergeant Paul Genualdo headed one of the tactical response teams.

Sergeant Genualdo testified during the bench trial that he first came in contact with Faust before the parade started. He asked Faust and the Kingdom Baptist Church members to join with other protesters to “have them in one area so they could still do their demonstration but just co-locate them.” Sergeant Genualdo testified that the purpose of controlling the groups was “[t]o prevent a breach of, the peace.” He said that they “were trying to make sure that there were no physical altercations that took place.” When he first asked Faust if his group would move, Faust “declined,” and Sergeant Genualdo said “okay.” Sergeant Genualdo then moved along with his team to another location along the parade route where they “maintain[ed their] position throughout the duration of the parade as it went by.” Sergeant Genualdo testified that, as the end of the parade was passing the officers, there were “some crowds of civilians” walking down Main Street behind the parade. At that time, Sergeant Rachel De-Hoyos and Lieutenant Glen Verrett ordered Team One and Team Five to form a police skirmish line. The officers’ intent was to block off the southbound direction on Main Street in order to temporarily prevent the Kingdom Baptist Church members from going further south. The police were trying to “maintain a space” between the church members and the “trail end” of people supporting the parade in order to avoid any confrontation that could escalate into violence between the two groups. Sergeant' Genualdo emphasized that the skirmish line “was not intended to be permanent.” He stated that it was “a delay and [the church members] were going to be allowed to proceed southbound once we determined there was a safe time distance between the two.”

Appellant Faust encountered Sergeant Genualdo at the skirmish line. ■ Sergeant Genualdo testified that he “held out his arms, and told [Faust] he couldn’t proceed any further for the time being.”3 Faust asked Sergeant Genualdo if he was being detained, and Sergeant Genualdo told Faust that he was not being detained, and that he was free to proceed in any direction other than southbound down Main Street “at that time.”4 Sergeant Genual-do then testified that Faust “began to physically berate [him], told [him] that [he] was working for a lesbian, told [him] that [he] needed to put earrings and a bow in [his] hair,” and referred to Sergeant Gen-ualdo as “a fag.”5 Faust told Sergeant *738Genualdo that “he was going to cross the line and [Sergeant Genualdo] had better not try to .stop him or he was going to sue [him].” Faust then crossed “two or three feet past the skirmish line into, the street,” at which time Sergeant Genualdo placed Faust under arrest for Interference with Public Duties and charged him with violating Texas Penal Qode Section 38.15(a)(1). Although neither appellant was charged with Disorderly Conduct, Officer Genualdo testified that he believed that language used by Faust violated the Disorderly Conduct statute and was indicative of the language that Faust had used throughout the day.6 Officer Genualdo testified that he was not concerned about Faust expressing his religious views. Rather, Officer Genualdo’s testimony reflected his belief that Faust would likely direct the samé type of language toward the parade supporters that he-had'used toward' Officer Genualdo, which, in Officer Genualdo’s mind, was language that was prohibited under the Disorderly Conduct statute because it would have likely incited violence.

On cross examination, Faust’s counsel established that other people were allowed to cross the skirmish line, but Faust was not. Sergeant Genualdo explained that this was '“due to the previous history the department has experienced with [Faust],” and that “the likelihood for violence was increased if [Faust] went and met with the trail end of the parade.” The officers wanted to “prevent that from occurring.”

' Sergeant DeHoyos testified that there were altercations between the Kingdom Baptist Church protestors and the parade supporters and participants after last year’s gay pride parade. In her police report,- which was offered into evidence by appellants as Defense Exhibit 1, Sergeant DeHoyos described the history of violence involving the Kingdom- Baptist Chürch members:

I worked.the event last year and was present and observed several breaches of the peace caused by these individuals. These protestors were a group from Kingdom Baptist Church in Venus, Tx. They, had extreme anti-homosexual views and yelled and screamed disparaging remarks at the persons attending the Gay Pride Parade. Examples that I heard were: “I hope you and your children die in a fiery crash” and “you should just go ahead and kill yourself you faggot!” Some of the statements uttered last year did provoke violence and incited at least one physical fight. Two other arrests were made when they used offensive language.7

I also had previous kn'owledge that these persons from Kingdom Baptist church often come to downtown Fort Worth on Friday and Saturday nights and “street preach.” They are well known and documented to use foul, abusive and offensive language which by its very utterance tends to incite an immediate breach of the peace. In some cases, the foul, abusive and offensive language is directed toward individuals whom they believe are homosexuals. As á result of these actions, one of their members was arrested for Assault Bodily Injury/Hate Crime Enhancement.

*739In her police report, Sergeant DeHoyos also described how appellants were interfering with the police officers’ exercise of their duties during this year’s gay pride parade:

... During the parade, the Kingdom Baptist Church group stayed in the 100-300 blocks of Main.St. We received numerous complaints from persons attending the parade about the hateful speeches being uttered by this group but at this time they were complying with the law and were not violating any city ordinances,

When the parade ended, the majority of the persons attending the parade began to walk South on Main St. towards the area where the festival was being held. From my experience last year, I knew that this was when the majority of the volatile conflicts occurred between the Kingdom Baptist Church group and the persons who were attending the parade. In order to keep a breach of the peace from occurring and to ensure the safety of both the parade attendees and the Kingdom Baptist Church group, I ordered Zero Tolerance Officers to form a skirmish line at 300 Main and keep the Kingdom Baptist Church group away from the parade attendees.

... I initially had four officers on the east side of the street and had-to call for additional ZT Officers as the Kingdom Baptist Church group was attempting to push through our skirmish line. AKRl/Marroquin and another unidentified black male stepped off the curb line and were physically attempting to push through the line. I had to push them back and told them-to get back on the curb. Marroquin continually attempted to break through the line, and I had to push him back at least four times. Officer Medders, Officer Gray and Officer Johnson also had to push him back. Marroquin kept asking if he was being detained and I told him' he was not detained,: but he could not walk past me. I told him he could walk back the other direction. I told him if he went past me I could not guarantee his safety, he told me “I didn’t ask you to watch for my safety” and attempted to walk past me -and I pushed him back again. Marro-quin again attempted to push past myself and- Officer Gray by forcing his shoulder between the two of us. This action was interfering and disrupting me from exercising and performing my duty to keep a breach of the peace from occurring as imposed by law. I then arrested ARRl/Marroquin for Interference with Public Duties of a Peace Officer.

Shortly after this occurred, Sergeant Genualdo encountered ARR2/Foust [sic] on- the West side of the street. Sergeant Genualdo told me that Foust [sic] tried to cross the street southbound. Sergeant Genualdo told him he could not go any further_ Sergeant Genualdo told him that he couldn’t guar-aritee his safety if he did. Foust [sic] said, “I didn’t ask you to do that.” ... Genualdó told him he could not cross and had to extend his arm to keep Foust [sic] from passing. Foust [sic] then said “I’m . only going to let you detain me for-a few more minutes and then you arrest me if you want to.”- Foust [sic ] then attempted to walk past Sergeant Genualdo. This action was interfering and disrupting Sergeant Genualdo from exercising and performing his duty to keep a breach of the peace from occurring as imposed by law.

Sergeant DeHoyos testified that it-was not their intention “to prevent anyone from expressing Christian views or any type of religious views.” They were simply “attempting to prevent a breach of the peace, mainly being disorderly conduct, or in a worst-case scenario, riot.” The skirmish-line was implemented, based on past *740and current conduct of the members of the Kingdom Baptist Church, because the officers were concerned for the safety of both the protestors and the parade supporters and participants.8 Sergeant DeHoyos stated that, because of the problems appellants and other members of the Kingdom Baptist Church caused the year before, at that same location, the police were trying to prevent commingling of the people attending the parade and the Kingdom Baptist Church protestors so that they could avoid any physical altercations. She explained,

I wasn’t so concerned about once they got to the 900 block, because last year we were able to contain them fairly well and just had to endure the constant aberration [sic ]. But it’s that — that gap from where we held them initially to the 900, so basically those six blocks, my concern was in those six blocks, what would happen there because that’s where the problems occurred the previous year. That’s where, as they were commingling, you had people attending the festival and the parade and you had people from the Kingdom Baptist Church, as they were both moving down, that’s where the altercation occurred and that’s what we were trying to prevent.

Sergeant DeHoyos testified at trial that Marroquin tried to cross the row of police officers by attempting to push through the skirmish line. When Marroquin tried to push his way across the skirmish line, he, too, was arrested for Interference With Public Duties in violation of Section 38.15(a)(1).

At the close of the State’s evidence the State rested, and then the defense rested. At that time appellants’ defense counsel presented to the trial court a Motion for Judgment, along with a Memorandum Brief in support of such motion. In their brief, appellants acknowledged that “[a]n ‘applied’ challenge to a law can only be brought ‘during or after a trial on the merits.’ ”9 Appellants urged the following arguments before the trial court: (1) prior events are not a basis for “prior restraint” of speech;10 (2) apprehension of disturbance is not enough to overcome the right to freedom of expression;11 (3) where “pri- *741or similar activity led to or involved instances of violence,” the “law is clear that First Amendment activity may not be barred;”12 (4) Government is “to1 punish, it [wrong conduct] after it occurs rather than to prevent-the First Amendment Activity;” 13 and (5) the proper way for government to deal with “potential and actual violence is for government to ensure an adequate police presence ... and to arrest those who actually engage in such conduct, rather than suppress ■ legitimate First Amendment conduct as a prophylactic measure.”14 Appellants’ counsel argued orally that “arresting them for attempting to cross the street when other members of the public were permitted is absolutely unconstitutional.” Appellants’ counsel concluded by arguing that, as to each appellant, “this was an unconstitutional arrest and the charges that have been brought are based on ah unconstitutional application of this statute to these facts.” In response, the State argued that “the officers were performing a lawful duty, trying to prevent a breach of the peace. These defendants both have a history of inciting a breach of the peace at this very parade in the past couple of years and the officers were trying, to maintain order and peace.”

• The trial court denied appellants’ Motion for Judgment and found both Faust and Marroquin guilty of the offense of interference with public duties. Before sentencing Appellants, the trial court judge explained his ruling as follows:

I want to start' by faying that I am not a person who will sit up here and defend a police state.’ I don’t think that’s what we had here. I like for the police to follow the rules that everyone else does. I have probably granted more motions to suppress in cases, maybe than any other judge in this courthouse, because of that. However, I think the police in this case, in your cases, were performing a legitimate function, and it is not my intention here to say that you and your group cahnot express your views. You’re certainly protected by law in that expression of views, whatever it is. I don’t see this as a free-speéch. casé, I see this as a maintaining public order case. 'We’ve got to have rules in our society or it’s going to be chaos. And I’m not going to sit here and say, well, gosh, we should wait until there’s :a brawl in the street before the police take *742action, because we don’t want that. You can’t stand up in the middle of a crowded theatre and, yell fire for that very reason. There’s got to be order in our society' or we don’t have society, anymore, So that’s the approach I’m taking on /all’s cases.

THE COURT OF APPEALS’ DECISION

Appellants’ sole issue raised on direct appeal was that “they were detained based on speculation of the content of their future speech in violation of their First Amendment rights,” and thus. Section 38.15(a)(1) was unconstitutionally applied to them.15 The Second Court of Appeals agreed, finding that, “[b]y targeting the Kingdom Baptist Church members for restraint based solely on their history of violence induced by their abusive speech, the police officers necessarily implicated the group’s First Amendment rights.”16 The appellate court, held that the police skirmish line was an unconstitutional infringement-upon appellants’ right of free speech. The appellate court held that, “[t]he prohibition against crossing the skirmish line ‘must be judged against the stringent standards we have1 established for restrictions on speech in traditional public fora.’ ”17 The court further noted that “[bjecausethe skirmish line was directed at the possible secondary effects of the church group’s speech, we look to whether the skirmish line was narrowly tailored to serve a significant government interest.”18 The appellate court held that the police skirmish line “was not narrowly tailored to serve the government’s interest in public safety.”.19 The appellate court believed that precluding all members of the church from exercising their First Amendment rights based on their affiliation with .the church was “far too broad a limitation.”20 Although agreeing that the police were not required to wait until violence erupted before stepping in, the court of appeals found that “there must have been some indication that the public’s safety was at risk beyond the history of one assault by a member of the organization who may not even have'been present at the time the skirmish line was in place.”21 The court of appeals reversed the appellants’ convictions. It held that, by restricting appellants from crossing the police skirmish line due to their status as members of the Kingdom Baptist Church, while allowing other members of the public who were not members of the church to cross the line, the police officers, acted in viola,tion of appellants’ First Amendment rights. Thus, said the court, arresting appellants for Interference with Public Duties when they disobeyed the police orders to not cross the skirmish line was an unconstitutional application of Section 38.15(a)(1). .

*743 THE STATE’S PETITION AND THE ARGUMENTS OF THE PARTIES

We granted the State’s petition for discretionary review to address whether the court of appeals erred in determining that the police officers’ skirmish line had been ordered in violation of appellants’ First Amendment rights, and thus appellants’ conviction for disobeying such an order was an unconstitutional application of Section 38.15(a)(1).22

Appellants seek to have this Court uphold the decision of .the Second Court of Appeals, arguing that the conduct of the police in precluding appellants from crossing the skirmish line, while letting other members of the public cross said line, was an unconstitutional infringement upon appellants’ rights of free speech and assembly. Appellants claim that because the skirmish line had no lawful purpose, the application of Section 38.15(a)(1) to crossing the skirmish line was unconstitutional.23

The State asserts that appellants’ restraint under Section 38.15(a)(1) was pursuant to a valid, content-neutral regulation, and that appellants were not arrested because of their expressive activity, but as a result of their disobedient behavior and failure to comply with the lawful orders of law enforcement officers. The State argues that appellants had no right under the First Amendment to disobey the orders of law enforcement officers on the basis that the officers were acting in violation' of appellants’ constitutional rights.

ANALYSIS

The Constitutionality of Section 38.15(a)(1) “As Applied” to Appellants Depends Upon the Constitutionality of the Police Skirmish Line

An “as applied” challenge to the constitutionality of a statute asserts that a statute, although generally constitutional, operates unconstitutionally as to the claimant because of his particular circumstances.24 When reviewing the cónstitu-*744tionality of a statute, we presume that the statute is valid and that the Legislature acted reasonably in enacting it.25

A person commits the offense of Interference With Public Duties under Section 38.15(a)(1) “... if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with: (1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.”26 Appellants urge this Court to affirm the appellate court’s decision that, since appellants were convicted under Section 38.15(a)(1) for interfering with a police skirmish line that violated their First Amendment rights and, as such, was not an order issued under authority “imposed or granted by law,” Section 38.15(a)(1) was unconstitutionally applied to them.

We begin by examining more closely the language of Section 38.15(a)(1), as it applies to this case. Appellants were found guilty of interfering with the peace officers while they were “performing a duty or exercising authority imposed or granted by law.” Peace officers have a duty, under Article 2.13 of the Texas Code of Criminal Procedure, “to preserve the peace within the officer’s jurisdiction.”27 The testimony by Sergeants Genualdo and DeHoyos shows that the officers were performing such duty when they set up the skirmish line with the purpose of temporarily separating two groups with drastically conflicting views, and that appellants interfered with that duty when they disobeyed the officers by intentionally crossing the skirmish line after being told not to. In imposing a duty upon peace officers to “preserve the peace,” Article 2.13 further cautions that, “to effect this purpose, the officer shall use all lawful means.” Appellants’ constitutional challenge is to the lawfulness of the means used by the police in performing their duty to preserve the peace — the skirmish line. That was the claim raised by appellants before the trial court, that was the claim raised and addressed on direct appeal, and that is the claim we address today.28

*745Public streets and sidewalks are traditional public forums.29 Picketing and marching, if peaceful and orderly, are entitled to First Amendment protection as methods of expression.30 There is no dispute that appellants had a First Amendment right to express their views in a public forum. And, they were allowed to do so. The First Amendment forbids the government from regulating speech in ways that favor some viewpoints or ideas at the expense of others.31

However, restrictions that have an effect on protected speech may nevertheless be allowed under certain circumstances. The Supreme Court has held that, “even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided [1] the restrictions ‘are justified without reference to the content of the regulated speech, [2] that they are narrowly tailored to serve a significant governmental interest, and [3] that they leave open ample alternative channels for communication of the information.’ ”32 *746We hold that the purported restriction in question here — the police skirmish line— was a reasonable restriction on the time, place, and manner of protected speech because the skirmish line met the above three requirements. Therefore, we hold that the temporary skirmish line was a lawful means to effect the police purpose of preserving the peace at the gay pride parade.33

*7471. Content Neutral

In determining content neutrality, we look to whether the police order to not cross the skirmish line had the purpose of regulating appellants’ speech “because of disagreement with the message it conveys.” 34 The officers’ purpose in setting up and enforcing the skirmish line is the controlling consideration.35 A regulation that serves purposes unrelated to the content of the protected speech is deemed content neutral, “even- if it has an incidental effect on some speakers or messages but not others.”36 In fact, regulations restricting speech are found to be content neutral when they are directed to the secondary effects of a speaker’s conduct as opposed to the content of the speech itself.37

While any governmental attempt to censor appellants’ expressions of their beliefs would raise serious First Amendment concerns, it is clear that the officers intended to prevent direct and close confrontation between appellants and the parade-goers in order to promote safety, not to stifle appellants’ expressions of their beliefs. The officers’ testimony showed' they had no interest in imposing their own views on appellants. Their testimony reflects concern for the preservation of order and protection of the public. The officers’ concern for public safety extended only to the goal of ensuring that no violence would erupt between the Kingdom Baptist Church members and the parade supporters and participants. Therefore, we find that the skirmish line was content neutral, even though it may have had the incidental effect of temporarily hindering appellants’ ability to deliver their message to the parade-goers.

The appellate court acknowledged that the police skirmish line was content neutral because of the officers’ testimony that the skirmish line was set up due to concern for public safety. The court noted that, “[b]ecause the skirmish line was' directed at the possible secondary effects of the church group’s speech, we look to whether the skirmish line was narrowly tailored to serve a significant governmental interest.”38 . We agree with this statement, hold that the skirmish line was content neutral, and next look to whether the skirmish line was narrowly tailored to serve a significant government interest.39

2. Narrowly Tailored To Serve Á Significant Governmental Interest

A regulation is narrowly tailored if “the means chosen are not substantially broader than necessary. , to achieve the government’s interest.”40 In *748order to demonstrate that a challenged restriction is narrowly tailored, the government must demonstrate that the restriction “serve[s] a substantial state interest in ‘a direct and effective way.’”'41 Absent such proof, a restriction may not be sustained if it provides only ineffective or remote support for the government’s purpose.42 Thus, a regulation is not narrowly tailored when it does not sufficiently serve those public interests that are urged as its justification.43

The appellate court held that the skirmish line was not narrowly tailored to serve the government’s interest in public safety because all members of the Kingdom Baptist Church were barred from proceeding down the street merely because of their association with the church. However, we find that, while a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interest, it need not be the least restrictive or least intrusive means of doing so.44 Rather, the narrow tailoring requirement is met “so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.”45

The government has a significant interest in ensuring public safety and order.46 “It is a traditional exercise of the States’ police powers to protect the health and safety of their citizens.”47 Police officers have lawful authority to maintain public safety, particularly when crowds of people are gathered, and there is the perceived possibility of a riot or other threat to public safety.48 A government must have some ability to protect from harm a speaker, the audience, and public and private property near the place of a potentially hostile speech environment.49 The *749Supreme Court has clearly expressed the importance of public safety in noting that, “[w]heri clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious.”50

The officers’ decision to prevent all members of the Kingdom Baptist Church from crossing the skirmish line was reasonable in light of the information they had received about previous instances of violent confrontations erupting between church members and gay pride parade supporters.51 Officer DeHoyos was clear that the skirmish line was implemented because the officers were concerned for the safety of both the protestors and the parade supporters and participants.52 The officers’ goal in preventing potentially dangerous confrontations, had the highest probability of being achieved by creating, a temporary separation of time and space between the two .groups. Absent this physical separation, a nonviolent and peaceful end to the parade might not have been achieved. Moreover, the fact that a confrontation had not yet occurred is irrelevant.53 The police officers were required to assess the situation, and their decision that it presented a potential danger, even though a confrontation had not yet ■ occurred, was a reasonable one. Thus,, we find that the police officers narrowly tailored the restriction to serve a significant governmental interest.54 We next look to whether there were ample. alternative *750channels of communication left open to appellants.

3. Ample Alternative Channels Of Communication Open

This final requirement is “easily met,” so long as the guideline “continues to permit expressive activity” and “has no effect on the quantity or content of that expression.”55 The officers did not attempt to ban any particular manner or type of expression. ' They did not restrain appellants’ movement in any direction except one.56 The officers told appellants that they were free to proceed anywhere other than southbound at that time. Sergeant'Genualdo’s testimony indicated that he communicated to Faust that the skirmish line was “for the time being.” Therefore, appellants were free to continue their protesting in all directions except for one, and would have been free to proceed down that restricted avenue after a temporary wait. We find that appellants had ample alternative channels of " communication open to them.

CONCLUSION

We therefore hold that the police skirmish line was a lawful exercise of police authority. Although it was a governmental restriction on protected speech, the skirmish line was reasonable because it Was justified without reference to the content of the regulated speech, it was narrowly tailored .to serve a significant governmental -interest, and it left open ample alternative channels for communication of appellants’ views. Therefore, we hold that the skirmish line did not violate appellants’ First- Amendment rights. We agree with the sentiment expressed by the trial court judge — that appellants literally crossed the line, from engaging in purportedly protected speech, to physically interfering with a lawful police ■ order. Therefore, we hold that Section 38.15(a)(1) was not unconstitutionally applied to appellants. We sustain the State’s third .and fourth grounds for review. In view of our disposition, we need not resolve the State’s first two grounds. We reverse the decision of the court of appeals and order that the trial court’s judgments be reinstated.

Johnson, J., filed a concurring opinion.