ACLU Letter on Park Closure

Boulder County ACLU ___________________________________________________________________________
AMERICAN CIVIL LIBERTIES UNION of COLORADO
Boulder County Chapter
Judd Golden, Chair
303-442-6355
juddgolden@hotmail.com

December 22, 2011

Jane Brautigam, City Manager
City of Boulder
Box 791
Boulder, CO 80306

Sent Via Email - parksclosurerule@bouldercolorado.gov brautigamj@bouldercolorado.gov

Re: Parks Closures regulation 8-3-3.G(11).

Dear City Manager Brautigam,

The Boulder County Chapter of the ACLU of Colorado strongly opposes the proposed
emergency regulation, Parks Closures regulation 8-3-3.G(11). It is an unnecessary infringement
upon political speech, assembly, due process and the Takings Clauses of the US and Colorado
Constitutions, and lacks proper grounds for an emergency ordinance.

The City of Boulder should adhere to its reputation as a progressive government. The
ACLU urges the City to abandon this ill-conceived and retaliatory proposal. Instead, the City
should continue to remain tolerant and accommodating of the historic local demonstration of
citizens across the nation who are petitioning the government for redress of grievances.

Enacting a regulation that inhibits the Occupy Wall Street protesters’ political speech and
rights to assembly, as well as the rights of other persons who wish to continue to enjoy these free
and open public spaces, violates fundamental principles of individual liberty. It is reminiscent of
the dark days of our nations past when officials closed public facilities to all rather than comply
with court-ordered desegregation.

The ACLU has been zealous in its defense of the rights of the thousands across the nation
participating in this movement. In Colorado, we are monitoring police response in Denver, have
provided observers with Know Your Rights materials at Occupy Boulder and Occupy Denver,
have launched an investigation regarding a rise in police force and possible abuse at the Occupy
Denver site, and have requested after-action reports detailing police actions from the Denver
Department of Public Safety and the Colorado State Patrol.

The proposed Parks Closures regulation does not address any real harm that could not
be addressed through less restrictive means. It violates the right to political speech, expression

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and assembly guaranteed under the 1st and 14th Amendments to the US Constitution, and the
Colorado Constitution, which guarantees these rights to the people in Article II:
Section 24. Right to assemble and petition. The people have the right peaceably to
assemble for the common good, and to apply to those invested with the powers of
government for redress of grievances, by petition or remonstrance.
Section 25. Due process of law. No person shall be deprived of life, liberty or
property, without due process of law.

The Parks Closures prohibits individuals who are not pedestrians or bicyclists “to go
upon or remain in any park, parkway, recreation area, or open space between the hours of 11 p.m.
and 5:00 a.m.” While content-neutral on its face, it is obvious that the intent is to inhibit the
political speech and rights of assembly of those who wish to engage in political speech or simply
peacefully assemble to petition the government for redress of grievances in our public parks and
open spaces between 11 p.m. and 5 a.m.

A government regulation that impedes freedom of speech and particularly political
speech, must “demonstrate that the recited harms are real, not merely conjectural, and that the
regulation will in fact alleviate these harms in a direct and material way." See, e.g., Turner
Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994).

The alleged harm that this Parks Closures regulation proposed to address is conjectural
at best. Allowing Boulder’s vast public parks and open space lands to continue to be open
between the hours of 11:00 p.m. and 5:00 a.m. will preserve, protect and extend the rights of the
public that have been enjoyed for decades. Continuing to keep these public spaces open to all far
outweighs any possible public safety or land use preservation benefit. Any alleged illegal activity
that threatens public safety or public property can be dealt with on an individual basis as is the
case with all other law enforcement actions.

Additionally, this regulation would allow for enforcement against a large group of
people beyond those who possibly may seek to exercise their political speech and assembly
rights, and could possibly violate some Boulder ordinance. This includes those who are walking
through a public space who stop to tie their shoe, or sit down to take a break on their journey, or
simply decide to wander or sit peacefully. Similarly, those who engage in hiking, mountain
biking and other outdoor activities at night would be subject punishment under this regulation.

This regulation may also constitute an unlawful taking under the Takings Clause of the 5th
Amendment and Sections 14 and 25 of Art. II of the Colorado Constitution. The proposed Parks
Closures regulation states that “Any personal property found within the area subject to Closure or
Emergency Closure may be considered abandoned property and may be removed or disposed of
by the city.”

Because the Boulder Revised Municipal Code does not define “personal property” under
this regulation, law enforcement may confiscate personal valuable property directly from the
rightful owner with no apparent process, or right to object, reclaim or compensation. Few acts by
government are more offensive to our concept of freedom and liberty.

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The City of Boulder, and any government, may not seize personal property without just
compensation and due process of law. This “emergency” proposal gives law enforcement
unlimited discretion that is likely to be exercised in a discriminatory and selective manner. The
property of an occupy demonstrator likely would be targeted; would the telescope of a midnight
stargazer also be seized? A narrower definition would not cure this unlawful and punitive
proposal.

Finally, the City of Boulder lacks grounds to adopt an emergency ordinance in the current
matter. B.R.C. §1-4-6 allows for the adoption of an emergency rule where exigent circumstances
exist. B.R.C. § 1-4-6 states in pertinent part:

A rule may become effective immediately if the adopting authority finds that the
public health, safety, or welfare requires immediate effectiveness of the rule and
states the reasons for such finding.

Here, no exigent circumstances exist. Few if any Occupy demonstrators have stayed
overnight in Boulder’s vast open space lands or public parks. Most overnight protesters have
occupied County land. Those protesters largely have complied with the law; those who have been
in violation have most often been warned by officials or were provided with accommodation so
they can continue their political protests. This ill-conceived effort fails to state adequate grounds
that require an emergency regulation. As stated, if ordinance violations do occur, they can be
dealt with as they arise.

The City of Boulder should not impose a broad restriction on rights, freedoms, and civil
liberties that would have such a detrimental impact on its citizens and is so overly-broad in its
scope. The ACLU respectfully requests that the City of Boulder not enact this unnecessary
proposed regulation.

Thank you for considering our views.

Sincerely,

/s/ Deniece Kuwahara

Board of Directors of the Boulder County ACLU
By Deniece Kuwahara, Chapter Board member

CC:
Colorado ACLU
Boulder City Council [council@bouldercolorado.gov]
Boulder City Attorney {carrt@bouldercolorado.gov]
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