DNC ‘Protest Decriminalization’ Bill to Be Amended Over First Amendment Concerns

By Dustin Slaughter

Editor’s note: On June 23rd, Mayor Jim Kenney signed into law this ordinance with the amendment intact.

The city’s lauded ‘protest decriminalization’ bill introduced by the Kenney administration ahead of July’s Democratic National Convention – and on the heels of a MacArthur Foundation grant which the city hopes will assist in reducing Philadelphia’s jail population – will be amended before it goes up for a vote due to First Amendment concerns, The Declaration has learned.

A spokesperson for Councilwoman Helen Gym confirmed yesterday that she has asked to include in the bill “an explicit protection for purely First Amendment activities.”

Councilman Curtis Jones, who co-sponsored the bill at the request of the Kenney administration, and who chairs the public safety committee , indicated he is in favor of the amendment. It is expected to be added today.

In its current form, the proposed legislation would penalize activity commonly associated with protests as civil offenses, giving police the option to fine demonstrators $100 instead of arresting and charging them criminally.

Here’s the rub: the state’s statute dealing with ‘Obstructing highways and other public passages’ includes the following clause, which civil rights attorneys in Philly have largely relied on for defending their clients’ First Amendment activity:

“No person shall be deemed guilty of an offense under this subsection solely because of a gathering of persons to hear him speak or otherwise communicate, or solely because of being a member of such a gathering.”

While the city’s proposed ordinance includes the state code’s language nearly verbatim, the above passage is excluded entirely in the current bill.

Officials from the Philadelphia Police Department, Managing Director’s Office, and city Law Department helped craft the bill, according to Kenney spokeswoman Lauren Hitt.

“We also gave the proposed legislation to Courts, DA & [Public] Defenders before it was submitted so they could request changes if they wanted,” she said.

City spokesperson Mike Dunn called the omission “an oversight”, adding that the administration will support today’s amendment.

Lloyd Long III, a Philadelphia attorney who has represented defendants and plaintiffs in numerous civil rights cases, characterized the ordinance as being a “’round-up’ clause.”

“It allows police to take speakers and listeners into custody and clear the streets. After realizing that charges cannot stand under the Crimes Code because of the above clause, all that needs to be done to ‘justify’ the detainment is to issue a ticket under the ordinance.”

His firm reviewed the bill yesterday and brought their concerns to the attention of Council members.

A 2013 National Lawyers Guild report noted that ‘special ordinances’ have become “common practice for cities hosting [National Special Security Events].”

The report also notes that these ordinances frequently “institute a special permitting process for political demonstrations, designate security perimeters, and restrict specific items and actions within those perimeters.”

Editor’s note: In the interest of full disclosure, Dustin Slaughter is employed at Mr. Long’s firm.

Read the bill below:

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