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Motion to Dismiss in the State of Florida v. Kevin Wood Case
IN THE COUNTY COURT
BAY COUNTY, FLORIDA
CASE NUMBER 00-00644 MMA
Plaintiff,
STATE OF FLORIDA
vs.
Defendant.
KEVIN E. WOOD,
MOTION TO DISMISS
COMES NOW the Defendant, KEVIN E. WOOD, by and through his undersigned attorney, and pursuant to Florida Rules of Criminal Procedure 3.190(c)(4), respectfully moves this Court for the entry of an order dismissing the criminal charges filed against the Defendant in this cause, and as grounds therefore, the Defendant would show the Court that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the Defendant. The facts and law upon which this motion is based are as follows:
THE FACTS
On February 5, 2000, at approximately 7:30 p.m., Kevin Wood was arrested at the Panama City Mall by officers of the Panama City Police Department, who charged the Defendant with trespass, in violation of Fla.Stat. §810.08, based on a complaint by security personnel employed by the Panama City Mall.
At the time of the alleged offense, Kevin Wood was doing what he had done on a number of previous occasions. He was walking through the common area of the mall speaking to people about his candidacy for public office and asking those people who were willing to speak to him if they would sign a petition to place his name on the ballot. Prior to the time of his arrest, Mr. Wood had obtained a number of signed petitions from various people he met in the mall, including some employees of the mall. Until he was approached by the mall security personnel prior to this arrest, no one had told the Defendant that he could not solicit petition signatures in the mall. Immediately prior to his arrest, Mr. Wood was approached by mall security personnel and Panama City police officers, and at that time he was told that solicitations of petition signatures in the mall violated the policies of the mall and that he would have to leave. At that time, Mr. Wood attempted to discuss with the mall personnel, and then with the police, his constitutional right to seek signatures for his petition for political office. At no time did Mr. Wood refuse to leave the mall. He did, however, ask the police to give him a written trespass warning. At that point, he was arrested. The conversations between Mr. Wood and the mall's security personnel and the police were recorded by Mr. Wood.
The Panama City Mall is the only enclosed shopping mall in Bay County. It is situated within a triangle of three of the most prominent roadways in Bay County: Highway 231, Highway 77, and 23rd Street. The mall covers many acres of property, and like most shopping malls, the buildings which contain the retail stores and shops have their primary entrances on the inside, toward the common walkway areas. Surrounding the mall building are many acres of parking area owned by the Panama City Mall. Public sidewalks are adjacent to the roadways that boarder the mall property; however, very few of the people who frequent the mall travel those sidewalks, because they go from their chosen parking place directly into the mall, and then directly back to their vehicles. The mall has approximately 100 stores, plus restaurants, arcades, and a movie theater.
Since its inception, the mall has been the site of a wide variety of community activities. Some of them are hosted by the mall merchants to increase traffic of potential customers through the mall, such as contests with prizes for the public, sidewalk sales held in the common walkway areas, and candy give-aways at Halloween. Other events are sponsored by the mall management itself in order to draw the public to the mall, such as car shows, craft fairs, and the arrival of Santa Claus and the Easter Bunny on those holidays. Because of great numbers of people who frequent the mall, it has also been the chosen location for many other community events such as telethons for Jerry's Kids and Children's Miracle Network, beauty pageants, annual truck raffles by the Lion's Club, Bay County Youth Soccer registration, free legal services by the Bay County Bar Association, Red Cross blood drives, and lots more.
Beyond all of the types of activities discussed above, the Panama City Mall is utilized by many people as a public meeting location. Lots of people go to the mall to meet other people or to just stroll through the mall. Young people particularly use the mall as a place to meet their friends, and because of the controlled climate, lots of people get their exercise by walking around the mall. The Panama City Mall claims that it had posted its policies regarding public use of the mall; however, Defendant asserts that such policies were not prominently posted because he never saw them. In any event, the published policies read as follows:
ATTENTION:
To Promote Customer Safety & Enhance Everyone's
Shopping Enjoyment, Mall Policy Prohibits The Following:
- Congregating in or otherwise blocking pedestrian areas
- Loitering, horseplay, or loud/offensive language
- Fighting, boisterous or any unsafe behavior
- Portable radios
- The use of photo or video cameras without Management permission
- The use of illegal drugs
- The consumption or possession of alcohol except in designated areas
- Any illegal or criminal activity
- Remaining on mall property after closing (Ruby Tuesday & Theater patrons excepted)
VIOLATORS WILL BE REQUIRED TO LEAVE THE PROPERTY.
ARGUMENT
I. THE DEFENDANT'S CONDUCT WHICH CAUSED HIM TO BE ARRESTED WAS CONSTITUTIONALLY PROTECTED ACTIVITY; THEREFORE, PROSECUTION OF THE DEFENDANT UNDER THE STATE TRESPASS LAW IS CONSTITUTIONALLY IMPERMISSIBLE.
A. DEFENDANT'S CONDUCT WAS CONSTITUTIONALLY PROTECTED ACTIVITY.
The First Amendment to the United States Constitution guarantees freedom of speech, the right to peaceably assemble, and the right to petition the government. Those rights are protected from infringement by state governments by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Under Article I, Section 4, of the Constitution of the State of Florida, Florida citizens are guaranteed freedom of speech, and in Article I, Section 5, their rights to peaceably assemble and petition are protected. Furthermore, under Article I, Section 23, Florida citizens have a right of privacy, that is, the right "to be let alone and free from governmental intrusion into the person's private life . . . ."
When Kevin Wood walked through the Panama City Mall speaking with people about his political campaign and asking them to sign a petition to have his name placed on the ballet, he was exercising his right of free speech, freedom of assembly, freedom to petition, as well as his right of privacy. The United States Supreme Court has stated that a State, by denying freedom of thought and speech, denies due process of law. Palko v. State of Connecticut, 302 US 319, S.Ct. 149, 82 L.Ed. 288 (1937). In a case in which the Supreme Court stated that prior restraints on speech and publication are the most serious and least tolerable infringements on First Amendment rights, the Court stated that it is "no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment of invasion by State action. Nebraska Press Association v. Stuart, 427 US 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), quoting Near v. Minnesota, ex rel. Olson, 283 US 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).
In 1972, the United States Supreme Court considered a case involving a city ordinance prohibiting school picketing. In determining that the ordinance was unconstitutional, the Court explained how the First Amendment limits governmental power and the importance of the protected freedom to our society:
But, above all else, the First Amendment means that government has no power to restrict expressions, because of its message, its ideas, its subject matter, or its content . . . to permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship."
Police Department of the City of Chicago v. Mosley, 408 US 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).
The First Amendment to the United States Constitution was particularly designed to protect political speech. Jeffries v. Harleston, 21 Fed.3d 1238, (2nd Cir. 1994), was a case in which a Black Studies professor for City College of New York sued the university claiming that his free speech rights had been violated when he was removed from his department chairmanship after he gave a controversial off-campus speech. The Court concluded that the professor's removal violated the First Amendment and in doing so, it said, "central to our constitutional democracy is the right to speak on political or social matters without fear of retribution by the government."
The United States Supreme Court has recognized the special importance of the First Amendment to political speech:
And if it be conceded that the First Amendment was "fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people, Roth v. United States , 354 US 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d. 1498, then it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.
Monitor Patriot Company v. Roy, 401 US 265, 271, 91 S.Ct. 621, 625 (1971). Applying this holding to the present case, the Court must conclude that, because Kevin Wood was conducting a political campaign, his activity must be given the fullest protection of the First Amendment.
In the case of Clean-up '84 v. Heinrich, 759 F.2d 1511 (11th Cir. 1985), a political action committee brought suit challenging the constitutionality of a Florida Statute prohibiting solicitation of signatures on petitions within 100 yards of a polling place on election day. The Eleventh Circuit Court of Appeals affirmed the district court's holding that the statute in question was unconstitutionally over broad on its face, and in doing so, it also agreed that "asking a voter to sign a petition is protected speech." That is precisely what Kevin Wood was doing in the Panama City Mall.
The exercise of the right to petition is a form of democratic expression at its purest. This fundamental right is recognized in the First Amendment to the United States Constitution which states that Congress shall make no law abridging the freedom to petition the government for a redress of grievances. In Florida, the right to petition is not only protected under the United States Constitution, but also under the Florida Constitution, a fact which has been recognized by our courts. Article I, §5, Fla.Const. Krivanek v. Takeback Tampa Political Committee, 603 S.2d 528, 2d DCA (Fla. 1992).
B. CONSTITUTIONALLY PROTECTED ACTIVITY MAY ONLY BE PROHIBITED WHEN THERE IS A COMPELLING GOVERNMENTAL INTEREST.
In an action in which a political party challenged sections of the California Elections Code banning primary endorsements by political parties and imposing restrictions on internal policies of political parties, the United States Supreme Court ruled that when a state statutory provision burdens First Amendment rights, it must be justified by a compelling state interest. "If the challenged law burdens the right of political parties and their members, it can survive constitutional scrutiny only if the State shows that it advances a compelling state interest." Eu v. San Francisco County Democractic Central Committee, 498 US 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). See also, Federal Election Commission v. Massachusettes Citizens for Life, Inc., 479 US 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986).
In the case of Tinker v. Des Moines Independent Community School District, 393 US 503, 89 S.Ct. 733 (1969), the Supreme Court held that where there was no proof that the exercise of freedom of expression (wearing black armbands to protest the Vietnam war) would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition against such expression could not be sustained under a constitutional challenge. In doing so, the Court stated:
Under our Constitution, free speech is not a right that's given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech connected activities in carefully restricted circumstances, but we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom. Id. at 513.
In a case in which members of a Jewish organization sought to conduct demonstrations in front of the Russian Mission to the United Nations, the Second Circuit Court of Appeals expounded on the balancing test, which is required in considering First Amendment freedoms against governmental interests:
The balancing process which is required in these situations was best described by Justice Blackmun: "Although American constitutional jurisprudence, in the light of the First Amendment, has been zealous to preserve access to public places for purposes of free speech, the nature of the forum and the conflicting interests involved have remained important in determining the degree of protection afforded by the Amendment to the speech in question." Leahmon v. City of Shaker Heights, 418 US 298, 302-303, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974). Concerned Jewish Youth v. McGuire, 621 F.2d 471 (2d Cir. 1980).
In Florida, in a case involving retaliatory actions taken to punish a nurse for posting fliers on a hospital bulletin board with respect to membership in an independent nursing group, the Florida Supreme Court found that such action by the hospital was an impermissible abridgment of the nurse's First Amendment rights, and in doing so, the Court said "State action impinging on free speech and association will not be sustained unless the government interest asserted to support such impingement is compelling." Hitt v. North Broward Hospital District, 387 So.2d 482, (Fla. 4th DCA 1980), quoting Talley v. California , 362 US 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960).
It is well settled under Florida law that the Florida constitutional right of privacy is a fundamental right that demands a compelling state interest standard. Krischer v. McIver, 697 So.2d 79 (Fla. 1997); City of North Miami v. Kurtz, 653 So.2d 1025 (Fla. 1995), rehearing denied, certiorari denied 516 US 1043, 116 S.Ct. 701, 133 L.Ed.2d 658; Mozo v. State, 632 So.2d 623, (Fla. 4th DCA 1994), rev. granted 640 So.2d 1108, approved 655 So.2d 1115, rehearing denied; Shapiro v. State, 696 So.2d 1321 (Fla. 4th DCA 1997), rev. denied 701 So.2d 868; State v. Presidential Women's Center, 707 So.2d 1145, (Fla. 4th DCA 1998). The Florida Supreme Court has acknowledged the generally held theory that "people have an inherent right to petition their government for a redress of grievances. Hope v. City of Gainesville , 355 So. 2d 1172 (Fla. 1978).
C. USE OF STATE TRESPASS LAW TO ABRIDGE CONSTITUTIONAL FREEDOMS CONSTITUTES STATE ACTION.
The State may contend that the Constitutional claims of the defendant cannot stand in this case because the action to have him ejected from the mall property under the claim of trespass was initiated by employees of the Panama City Mall; and, therefore, not "state action" which is prohibited by the Fourteenth Amendment. However, such an argument should not be permitted to deprive the defendant of his constitutional challenge in this case. In the first place, the defendant is faced with criminal charges prosecuted by the State, based on an arrest made by police officers employed by the City of Panama City. Batchelder v. Allied Stores International, Inc., 445 N.E.2d 590 (Mass. 1983). Secondly, under the Florida Constitution, there is nothing to indicate that a citizen's freedom of speech, right to assemble, right to petition and right to privacy, are protected only from State action. Finally, in other cases, when shopping mall security guards work in concert with police officers to deny a citizen his freedom, the courts of this state have concluded that the action was taken "under color of state law." Barton Protective Services, Inc. v. Faber, 745 So.2d 968 (Fla. 4th DCA 1999).
D. THE PANAMA CITY MALL IS QUASI-PUBLIC PROPERTY.
Although there is no argument that the common area within the Panama City Mall is privately-owned property, it is quasi-public because of the nature of its use. In the case of Corn v. Florida, 332 So.2d 4 (1976), the Florida Supreme Court upheld a trespass conviction against a defendant who had carried on in a mall in a boisterous manner. In that case, the Court described the mall as "property 'quasi-public' in the nature of its use." Id. at 8. In another trespassing case, the Fifth District Court of Appeal stated:
Certainly shopping centers are quasi-public places which must be open to the public on a non-discriminatory basis, but the owner of such a mall does not lose all control over its private ownership interest.
State v. Woods, 624 So.2d 739 (Fla. 5th DCA 1993).
Courts in other states have gone further to explain the important public nature of shopping malls. In 1983, the Massachusettes Supreme Court considered a case very similar to the present case, where a candidate for public office brought an action against the owner of a shopping center in which he challenged the shopping center's policy prohibiting candidates from soliciting signatures in the shopping center's mall in support of ballot access. Batcheleder v. Allied Stores International, Inc., 445 N.E.2d 590 (Mass. 1983). In that case, the court stated that the shopping center was the most favorable site in the Sixth Congressional District for obtaining signatures of voters in that district, and the court went on to state that "shopping malls, a recent and growing form of retail merchandising, function in many parts of this state as much as the 'downtown' area of a municipality did in earlier years." Id. at 92.
In Oregon, in 1996, a state appellate court summarized the law on this issue in that state, and in the process, it showed how shopping malls have replaced traditional areas where people congregated in times past to exercise their freedom of speech:
In summary, the Court noted in [Lloyd Corporation Ltd. v. Wiffen, 773 P.2d 1294 (Oregon 1989)] that shopping malls are a part of American life where large numbers of people go. They provide a modern-day substitute for the town square where citizens would congregate for more than just commercial purposes. Employing a similar rationale in State v. Cargill [citation omitted], we noted:
"When the people adopted the initiative and referendum, there were ample opportunities to collect signatures. Parks, town squares and courthouses were common gathering places, and store entrances were usually directly off public sidewalks. The people could meet and conduct their legislative business on public property.
Today, the situation has substantially changed. Parks and courthouses are not the only, nor even primary, foci of modern life. Many people who seldom go to those places now congregate at shopping centers." Wabban, Inc. v. Brookhart , 921 P.2d 409 (Oregon Appeal 1996).
E. CONSTITUTIONAL RIGHTS OF FREEDOM OF SPEECH, TO ASSEMBLE, TO PETITION, AND TO PRIVACY, MAY NOT BE ABRIDGED ON QUASI-PUBLIC PROPERTY WITHOUT A COMPELLING REASON.
Several courts have held that individuals may exercise their free speech rights on private property. In a number of these cases, the result is justified because the shopping malls or other private property have become the functional equivalent of town squares where political speeches were once given. The first case to resolve the conflict between free expression and private property ownership was Marsh v. Alabama, 326 US 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). In that case, a Jehovah's witness was arrested while distributing religious literature on a sidewalk in the town of Chickasaw, Alabama. Having remained on the property after being told to leave, she was arrested, and subsequently convicted of trespass. The town was a "company town," which was owned by a private corporation. The Supreme Court began its analysis by noting that if Chickasaw had been an ordinary town, it would have been constitutionally impermissible for the town to forbid Marsh from distributing religious literature. In ruling that the mere fact of private ownership of the property did not settle the question, the Court said, "the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." Id. at 506. When the Court balanced the owner's interest against the "preferred position" given to First Amendment freedom, the owners rights had to give way. Id. at 509.
The next supreme court case in this context was Amalgamated Food Employees Local Union 590 v. Logan Valley Plaza, 391 US 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), which involved peaceful picketing by union members against a large, non-union supermarket located in a shopping center in Pennsylvania. A state court had entered an injunction requiring the union members to confine their activities to a location over 100 yards from the store. The Supreme Court summarized the problem as follows:
The case squarely presents . . . the question whether Pennsylvania's generally-valid rules against trespass to private property can be applied in these circumstances to bar [the union members] from [the store and the parking lot that adjoined it]. It is clear that if the shopping center premises were not privately owned, but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was a municipality. [citations omitted] Streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely. Id. at 315-16.
Citing Marsh, supra, the Court noted that it had previously held that under some circumstances property which is privately owned may, at least for First Amendment purposes, be treated as though it were publicly held. Id. at 316. Analyzing the similarities between the business area in the Marsh case and the shopping center of Logan Valley Plaza, the Court said:
We see no reason why access to a business district in a company town for the purpose of exercising First Amendment rights should be constitutionally required, while access for the same purpose to property functioning as a business district should be limited simply because the property surrounding the "business district" is not under the same ownership. Here, the roadways for vehicular movement within the mall and the sidewalks leading from building to building are the functional equivalents of the streets and sidewalks of a normal municipal business district. Id. at 319. Thus, the Court concluded that the union picketers were entitled "to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put. Id. at 319-20.
The next relevant Supreme Court case was Lloyd Corp. v. Tanner, 407 US 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). In that case, anti-war protestors wanted to distribute handbills in a shopping mall. A federal district court found that the mall was the functional equivalent of a public business district and that, in light of Marsh and Logan Valley, the mall could not wholly foreclose people from coming onto its property and exercising their First Amendment rights. Tanner v. Lloyd Corp., 308 F.Supp.128 (Dist. of Oregon 1970). The United States Court of Appeals for the Ninth Circuit agreed. Tanner v. Lloyd Corp ., 446 F.2d 545 (9th Cir. 1971). On certiorari, the Supreme Court declined to extend the doctrine in Marsh and Logan Valley to the mall property. Here the Court held that there had been no dedication of the mall's privately owned and operated shopping center to public use so as to entitle the respondents to exercise First Amendment rights there that were unrelated to the center's operation, and that the mall property did not lose its private character and its right to protection under the Fourteenth Amendment merely because the public is generally invited to use it for the purpose of doing business with petitioner's tenants.
The Lloyd case is very clearly distinguishable from the present case against Kevin Wood. An important and relevant distinguishing fact is that the people who wanted to distribute handbills in the Lloyd Shopping Center had a reasonable alternative means to get their message to the public because there were "public streets and sidewalks adjacent to but outside the center," and some of the stores in that shopping center opened directly on the outside public sidewalks. Lloyd, at 551 and 553. The stated rationale for the Court's decision shows that the question of reasonable alternative access was important to the Court:
The situation at Lloyd Center was notably different. The central building complex was surrounded by public sidewalks, totaling 66 linear blocks. All persons who enter or leave the private areas within the complex must cross public streets and sidewalks, either on foot or in automobiles. When moving to and from the privately owned parking lots, automobiles are required by law to come to a complete stop. Handbills may be distributed conveniently to pedestrians, and also to occupants of automobiles, from these public sidewalks and streets. Indeed, respondents moved to these public areas and continued distribution of their handbills after being requested to leave the interior malls. It would be an unwarranted infringement of property rights to require them to yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication existed. Such an accommodation would diminish property rights without significantly enhancing the asserted right of free speech.
Lloyd at 566-567. Kevin Wood had no reasonable alternative access to the people who frequented the Panama City Mall but to try to speak with them inside because, as stated above, the public streets and sidewalks around this mall are separated by a wide zone of private parking area owned by the Panama City Mall.
Another distinguishing fact is that the people in Lloyd wanted to pass out handbills, but Kevin Wood was trying to get people to sign a petition to have him placed on the ballot for public office. Although both activities are protected under the First Amendment, the political speech of a candidate for public office should be accorded the most protection that the Constitution can offer. Another distinction is that the people in Lloyd were passing out pieces of paper, and the shopping center could have argued that there was a question about litter, but in the present case, the Panama City Mall has no such complaint against Kevin Wood. In fact, there is not a single thing that they can say to indicate that he disturbed the mall's customers or interfered with the business in any way.
Even though four justices dissented from the majority opinion in Lloyd, the State in our present case might have been able to argue that the Lloyd decision precluded the defendant's constitutional defense in this case; however, Lloyd was not the last word on the subject.
In 1980, the United States Supreme Court decided the case of Pruneyard Shopping Center v. Robins, 447 US 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), in which a shopping center owner appealed from a judgment of the California Supreme Court holding that the California Constitution permitted individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public was invited. Taking its cue from the Lloyd case, the shopping mall argued that the State's Constitutional provisions violated the shopping centers owner's property rights under the Fifth and Fourteenth Amendments to the United States Constitution or his free speech rights under the First and Fourteenth Amendments. In affirming the ruling of the California Supreme Court, the Court stated:
It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to the taking without just compensation or contravene any other Federal Constitutional provision.Id. at 81.
The Court held that California's Constitutional provision, as construed to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, did not violate the shopping center owner's property rights under the Fifth and Fourteenth Amendments, nor his free speech under the First and Fourteenth Amendments. Id. at 74. The Court justified its holding as follows:
Here the requirement that appellants permit appellees to exercise State-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement on appellants' property rights under the Taking Clause. There is nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center. The PruneYard is a large commercial complex that covers several city blocks, contains numerous separate business establishments, and is open to the public at large. The decision of the California Supreme Court makes it clear that the PruneYard may restrict expressive activity by adopting time, place and manner regulations that will minimize any interference with its commercial function. Appellees were orderly, and they limited their activities to the common areas of the shopping center. In these circumstances, the fact that they may have "physically invaded" appellants' property cannot be viewed as determinative.Id. at 83-84.
In Pruneyard, the Court was dealing with a California Constitutional provision that provided as follows:
Article I, §2. Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press. Article I, §3. People have the right to . . . petition government for redress of grievance.
The Court distinguished its ruling in the case from its ruling in the Lloyd case, by stating that "our reasoning in Lloyd, however, does not . . . limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the federal government. Pruneyard, supra, at 81.
Following the Pruneyard decision, state courts from around the nation have addressed the issue of whether constitutional freedoms, as guaranteed by the State's Constitution, can be exercised on private property. Overwhelmingly, those courts have upheld the rights of citizens to engage in orderly exercise of their state constitutionally guaranteed rights of free speech, free assembly, and other equivalent activities on private property held open to the public. In Batcheleder v. Allied Stores International, Inc., 445 N.E.2d 590 (Mass. 1983), the Massachusettes Supreme Court held that a candidate had a right under the Massachusettes Constitution to solicit signatures in a shopping center's mall area in support of his nomination to public office. The Court noted that it was concerned in that case with ballot access which it deemed to be "of fundamental importance in our form of government because through the ballot the people can control their government." Id. at 595. The court went on to analyze the rulings of the various states in this context, and it indicated that "a majority of the state courts that recently have considered rights under State Constitutions to engage in orderly free speech, free assembly, or electoral activity on private property held open to the public have recognized such a right." Id. at 594.
Oregon has addressed the issue more than once. In 1989, the Supreme Court of Oregon decided Lloyd Corp. Ltd. v. Wiffen, 773 P.2d 1294 (Ore. 1989), in which an owner of a shopping mall tried to enjoin persons from entering the mall to gather signatures for an initiative and referendum process, but the court held that the balance of interest required that such persons be allowed to peacefully solicit signatures in the mall or on its walkways so long as they did not substantially interfere with the commercial activity on the premises. Four years later, the same court addressed the proginy of that case in Lloyd Corp. Ltd. v. Wiffen, 849 P.2d 446 (Ore. 1993), in which it again said that prohibiting the gathering of signatures on initiative petitions in the common area of a large shopping center would impinge on the citizens' constitutional rights. That same year, the Court addressed State v. Dameron, 853 P.2d 1285 (Ore. 1993) in which a defendant was convicted of criminal trespass for petitioning on the outdoor sidewalks of a shopping center. Although the Court confirmed the conviction on different grounds, the Court held that the State Constitution granted a right to citizens to gather petition signatures on private property which was held open to the public.
In Commonwealth v. Tate, 432 A.2d. 1382 (Pa. 1981), the Supreme Court of Pennsylvania reversed a trespass conviction against defendants who had distributed leaflets outside a private college's building while the director of the Federal Bureau of Investigation was speaking at a public symposium at the college. The Court held that the college could not, consistent with rights of freedom of speech, assembly and petition, exercise the college's right of property by invoking a standardless permit requirement in such a manner as to prevent the defendants from presenting their point of view by distributing leaflets in an area normally open to the public. That court concluded that a state, may in certain circumstances, reasonably restrict rights to possess and use property in the interest of freedom of speech, assembly and petition.
In Cologne v. Westfarms Associates, 442 A.2d 471 (Conn. 1982), a state chapter of the National Women's Organization, sought to enjoin owners of a shopping center from prohibiting use of the common areas of the mall for soliciting signatures supporting the Equal Rights Amendment to the United States Constitution. The Connecticut Supreme Court held that the proposed solicitation of signatures by the women's organization was protected by the State Constitutional guarantees of free speech and right to petition and, therefore, the owners of the shopping mall would be enjoined from preventing or interfering with the organization's solicitations.
In State v. Schmid, 423 A.2d 615 (N.J. 1980), the New Jersey Supreme Court considered a case in which the defendant was convicted of trespass on university property which was predominantly private for distributing political literature upon its campus. In reversing the conviction, the Court concluded that:
The State Constitution furnishes to individuals the complimentary freedoms of speech and assembly and protects the reasonable exercise of those rights. These guarantees extend directly to the governmental entities as well as the persons exercising governmental powers. They are also available against unreasonably restrictive or oppressive conduct on the part of private entities that have otherwise assumed a constitutional obligation not to abridge the individual exercise of such freedoms because of the public use of their property.Id. at 628.
In Alderwood Associates v. Washington Environmental Council, 635 P.2d 108 (Wash. 1981), the Supreme Court of Washington, in light of Pruneyard, acknowledged that the Federal Constitution established the minimum degree of protection of civil liberties which a state must follow; however, a state may construe the provisions of its own Constitution to confer greater protections than its Federal counterparts and that this was particularly necessary "where controlling Federal principles have not changed with the evolution of our society . . . ."
The specific constitutional issue presented to this Court has apparently never been determined by any Florida appellate court; however, the Florida Supreme Court has repeatedly cited the Pruneyard decision with approval, and it has clearly recognized that Florida courts are not bound by construction of the Federal Constitution in interpreting the State Constitution and that Florida is not precluded from granting its citizens greater safeguards than are provided under the Federal Constitution. State v. Kinchen, 497 So.2d 21 (Fla. 1985); Rose v. Dugger, 508 So.2d 321 (Fla. 1987); In re T.W., a Minor, 551 So.2d 1186 (Fla. 1989); Sapp v. State, 697 So.2d 581 (Fla. 1997). On the matter of the right to privacy, Florida courts have consistently said that the State Constitutional right of privacy is much broader in scope than its Federal counterpart, and while the Federal Constitution represents the floor for basic freedom, the State constitution represents the ceiling. VonEiff v. Azacri, 720 So.2d 510 (Fla. 1998); Singletary v. Costello, 665 So.2d 1099 (Fla. 4th DCA 1996); State v. Conforti , 668 So.2d 350 (Fla. 4th DCA 1997); Berkeley v. Eisen, 669 So.2d 789 (Fla. 4th DCA 1997); State v. Presidential Women's Center, 707 So.2d 1145 (Fla. 4th DCA 1998).
In 1979, the Florida Supreme Court addressed a similar type of situation in Downer v. State, 375 So.2d 840 (Fla. 1979), in which women were prosecuted for violating the trespass statute when they conducted a "consumer inspection" of a hospital's maternity facilities. In doing this, they entered the nursery and the post-partum area of the hospital without permission and against hospital regulations. The Court concluded that, although the hospital was a public health facility to which members of the public had an implicit invitation to enter, the hospital was "clearly entitled to reasonably restrict the access of the general public to this area in order to prevent noisy disturbance and possible spread of germs to mothers in active labor and their newly-born children. Id. at 844. That case is, however, easily distinguishable from the present case, in that there was clearly a compelling interest for the hospital to prohibit access to its nursery and post-partum area; whereas, no such compelling interest arises which would allow Kevin Wood to be prohibited from exercising his constitutional rights in the Panama City Mall.
In 1987, the Florida Attorney General entered an opinion on the question of whether a church which serves as a polling place could limit access to its property to voters but give enforceable trespass warnings to individuals collecting signatures on petitions for causes with which the church did not agree. Citing Clean-Up '84 v. Heinrich, supra, the Attorney general opined that the collection of signatures would be constitutionally protected activity and that, provided that the collection was conducted in a peaceful, orderly and non-disruptive manner, the individuals could set up tables or displays. Fla. Op. Atty. Gen. 87-5.
In consideration of the issue of exercising constitutionally protected rights on private property, it is certainly relevant to note that the Florida Legislature has enacted various laws which indicate a specific intent to protect the rights of freedom of speech, freedom of assembly, and the rights of a candidate for public office to present his views, even to the extent of regulating the use of privately owned property. Homeowner's associations may not "unreasonably restrict any parcel owner's right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak in common areas and recreational facilities" belonging to the association. Fla. Stat. §617.304. Mobile home owners have a right to have candidates appear and speak in the common areas of the mobile home park over the objection of the owner of the park, Fla. Stat. §723.055, and condominium owners have the same right with respect to the common areas of a privately owned condominium. Fla. Stat. §718.123. These statutes are very clear indications that our lawmakers in Florida have elevated the constitutional freedoms of speech and assembly, as well as the rights of a candidate for public office, to the level that such rights may be exercised on private property, subject to reasonable restrictions and providing that the procedure for their exercise is peaceful and orderly.
If the Court looks anywhere for guidance on how it should address the Constitutional claims of Kevin Wood, it should consider the manner in which the California Supreme Court handled its decision in the Pruneyard case. The reason that case should carry so much weight as persuasive authority for our case is that the language of the California constitution, which guarantees its citizens their right of freedom of speech, is almost identical to Article I, §4 of the Florida Constitution. It would be a shameful slap in the face of every Florida citizen for this Court to conclude that the people of the State of California have greater individual liberties than the people of the State of Florida, although the applicable provisions of their State Constitution and ours are almost identical.
The primary reason why this Court should dismiss the Trespass charge against the defendant is that the particular conduct in which he was engaging, and for which he was arrested, is the very type of activity which is most entitled to protection under the rights of free speech, free assembly, and right to petition. As a candidate for public office who was soliciting signatures so that he could be placed on the ballot to give voters a choice in the upcoming election, he was engaging in the purist form of constitutionally protected activity. There was absolutely no intrusion on the business affairs of the Panama City Mall. He was not passing out handbills, so there was no concern about littering, although passing out handbills is constitutionally protected First Amendment activity. Florida Gulf Coast Building Trades Council, AFL-CIO, 252 N.L.R.B. 99 (1980). He was not engaging in any loud, boisterous, or obnoxious activity which would have disturbed the customers of the mall, although Florida's First District Court of Appeal has stated that "a privilege exists as a matter of law to engage in reckless or even outrageous conduct if there is sufficient evidence that shows the defendant did no more than assert legal rights in a legally-permissible way." Rivers v. Dillards Department Store, Inc., 698 So.2d 1328 (Fla. 1997).
By a variety of state statutes which protect candidates for public office in Florida, the State legislature has demonstrated the significant public interest in allowing candidates to participate in the electoral process. In Florida, a candidate for public office is considered to be a public servant with regard to protections provided a candidate from corrupt influence, harm, or threats of harm. Fla. Stat. §838.014(4); §838.021(1999). Harming a candidate is a second degree felony under Florida law. Fla.Stat. §838.021(3)(a), and threatening a candidate with harm is a third degree felony. Fla.Stat. §838.021(3)(b). Such harm does not include just physical harm, but any other "loss, disadvantage, or injury" to the candidate affected. Fla.Stat. §838.014(3).
In Florida, a candidate exercises official public discretion when deciding if, when, where, and how to communicate with the public, how to obtain candidate petition forms from registered voters, or how to aid citizens in registering to vote or update their current registrations. Fla.Stat., §838.021(1)(a). It is a felony offense to interfere with a citizen's right to register to vote or to interfere with the general exercise of voting rights or to otherwise corruptly interfere with the election process. Fla. Stat. §104.021(2).
Beyond the Constitutional provision guaranteeing the right to petition, Florida's Legislature has emphasized the importance and right of the people to petition:
The legislature finds that the operation of open and responsible government requires the fullest opportunities to be afforded to the people to petition the government for the redress of grievances and to express freely their opinions on legislative action. [emphasis added] Further, the legislature finds that preservation of the integrity of the governmental decision-making process is essential to the continued functioning of an open government. ... Fla. Stat. §11.044
Voting rights are protected under applicable Federal law, and under the pertinent statute, the word "vote" includes "all action necessary to make a vote effective including, but not limited to, registration or other actions required by State law prerequisite to voting, casting a ballot, and having such ballot counted and included in the appropriate totals of votes cast with respect to candidates for public office and propositions for which votes are received in an election . . . ." 42 USC, §1971. In the present case, Kevin Wood was clearly in the pre-election qualification process of a candidate for public office in Florida. In addition to soliciting signatures to qualify as a candidate for public office, he was also engaged in registering people to vote. Such activity deserves the strongest protection of the law. It is absolutely essential to the fundamental freedom of the citizens of Florida that the State not be permitted to interfere with this electoral process by prosecuting a candidate for public office under the trespass law who was engaged such activity.
II. DEFENDANT DID NOT COMMIT TRESPASS.
Florida Statutes, §810.08(1), provides as follows:
Whoever, without being authorized, licensed, or invited, wilfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee of the premises, or by a person authorized by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance. [emphasis added]
In the present case, Kevin Wood did not violate the trespass statute, because after the mall security guard and the police instructed him to cease soliciting petition signatures in the mall or leave the premises, he did not refuse to do so. The State may contend that there was such a refusal because the defendant did not immediately depart from the mall premises; however, such an argument should not be persuasive. Mr. Wood did ask for a written trespass warning (presumably so that he could seek an injunction against such an abridgement of his constitutional rights), and he attempted to explain to the arresting police officer and the security guards that he had a constitutional right to solicit ballot petitions in the common area of the mall under the Pruneyard decision and the Constitution of the State of Florida. A citizen has a legal right to verbally oppose or challenge police actions without risking arrest. Wright v. State, 586 So.2d 1024, 1030-31 (Fla. 1991); Jones v. State, 584 So.2d 190, 191 (Fla. 5th DCA 1991); Robbins v. City of Miami Beach, 613 So.2d 580, 581 (Fla. 3rd DCA 1993); K.Y.E. v. State, 557 So.2d 956 (Fla. 1st DCA 1990).
At the time of his arrest, Kevin Wood was engaging in constitutionally-protected activities. He had done nothing to disturb the business interests of the mall or its commercial tenants, and he was simply attempting to explain to those who sought to prohibit his exercise of freedom, that the law of Florida and of the United States give him the right to engage in that activity. Such conduct does not constitute trespass under the laws of this State.
If two gentlemen waiting on their wives to complete their shopping should find themselves seated beside one another at one of the benches in the common area of the mall, and if those gentlemen should strike up a conversation that included their concerns about how various public officials were exercising their duties, there would be no question that such conversation was constitutionally-protected speech. Any attempt by the mall to use the State's criminal trespass law to prohibit those gentlemen from having their political discussion would be summarily dismissed by the court. Likewise, this Court should not allow the criminal trespass law to be used against the defendant, who, as a matter of fact, was doing nothing more in the Panama City Mall than engaging in private political conversations with citizens who were willing to talk to him. That is not a crime.
WHEREFORE, for all the foregoing reasons, the Defendant respectfully prays that this Court will enter an order dismissing the criminal charges pending against the Defendant in this cause.
PATRICK J. FAUCHEUX, ESQUIRE
Faucheux & Jones, P.A.
Florida Bar No. 0273104
845 Jenks Avenue
Panama City, FL 32401
Attorney for Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy hereof has been furnished by fax and mail to Bruce Bartlett, Asst. State Attorney, Fax #727-464-7392, P.O. Box 5028, Clearwater, FL 33758, on this ______ day of July, 2000.
PATRICK J. FAUCHEUX
