A planned protest in front of Mayor Bob Frutos’s house on Thursday will not be stopped by City officials according to the City Attorney’s office when asked about the Burbank Municipal Code banning picketing at private residences.
Supporters of Tinhorn Flats announced through social media that they would gather at 5 pm on May 13 and March two blocks to the residence of the Mayor.
Looking at the Burbank Municipal Code, there is a provision that bans picketing private residences that had been updated back in 1990:
5-3-303: PICKETING PRIVATE RESIDENCES:
Purpose: This section is enacted in order to protect and preserve the enjoyment of the citizens of Burbank in their homes and dwellings and to protect and preserve the feeling of well being, tranquility, and privacy in the home. The Council finds that the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants and has as its object harassing of such occupants.
Picketing of Residences and Dwellings: It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual. [Added by Ord. No. 3206, eff. 10/27/90.]
When contacted through email if the City was going to enforce the ordinance, the City Attorney Amy Albano said that there were mitigating factors in regards to enforcement, “The application of First Amendment principles is very nuanced. The BMC Section in question is exactly like the one upheld by the Supreme Court in 1988 based on a facial challenge only. The issue is about what this ordinance prohibits and how is it enforced. In this case, the protesters were on a public sidewalk, which is a traditional public forum, and their protest concerned political speech and a public figure, which are highly protected areas of speech.
The local ordinance prohibits picketing in front of a residence; so, the question is what does such a prohibition encompass? The obvious answer is a single protestor, or many, cannot stand in front of one residence protesting. Based on case law, however, the ordinance does not prohibit picketing in residential areas and the Supreme Court itself recognized the right of people to picket up and down any residential block.
As such, how does all this effect the protestors on the public sidewalk outside of a Council Member’s residence? First, protesters are permitted along the block. Second, if the police are at a protest, their primary purpose is to keep the peace, rather than to stop any protected speech activity. If the police were to interfere with the protest, we would expect the police to inform the protestors that they need to keep moving up and down the block and not to stay in one place.”
Of course, there are also other factors that have to be taken into consideration. It also shows how the effects of the pandemic have not only caused the situation that Tinhorn Flats has fought but on the other side how law enforcement has had to deal with real-world situations.
According to Albano, “The Prosecutor Unit of the City Attorney’s Office have protocols in place with the police department on when the police should arrest versus cite and release for a misdemeanor. These protocols were implemented in response to the pandemic and the court’s response to it. This type of misdemeanor would not warrant arrest, but rather a cite and release.”
Not only has the pandemic caused new policies in law enforcement, but the recent election of L. A. County District Attorney George Gascon has also complicated manners.
“Because of potential conflict of interest since a council member is a victim, our office would not be able to prosecute this violation. In such a situation the matter would be referred to the District Attorney’s Office for filing,” said Albano. “One must recognize, however, the current sentiment of the District Attorney has been to decriminalize many misdemeanor offenses, which is also the direction of the courts. This because it is unlikely a misdemeanor case would be filed against protestors.
During last year’s civil unrest, the District Attorney, as well as local City Attorneys, like Burbank, did not prosecute protestors for protesting or breaking curfew. The decisions not to prosecute were made because of the First Amendment aspects of the protests.”
This was the case this past December when a person was slashed and sent to the hospital. Police later arrested two people and the case was submitted to the District Attorney’s office who has declined to press charges. There Is little else Burbank can do.
With the residence located on a major street (Buena Vista) and the protest happening at a peak traffic time, it will be a logistical nightmare to both monitor the protest, while keeping traffic moving and motorist safe.
Several cities across the County have voted “No Confidence” in the newly elected L.A.County District Attorney. Burbank has not taken up the issue.
Ralph’s has not returned a phone call as to whether the protesters have permission to use their parking lot for staging or if they support the protest.
Protesters have also picketed the residence of Councilmember Constantine Anthony recently.
There is no plan at this time for the City Council to modify or drop the ordinance from the Municipal Code.