City Council · 2021-11-13

Looks like we've got some additional, uh, people watching in.

All right, uh, it is 12 noon and time to go ahead and start our meeting.

I'd like to read a statement first.

This is a notice of an all-electronic meeting.

Everybody should mute their Their computers, if they would. Notice of an all-electronic meeting and opportunity for public participation. Pursuant to Mayor Richard F. Brunt's proclamation dated November 1st, 2020, the Orem City Council meeting on November 10th, 2020— this is actually November 13th—

will be an all-electronic meeting.

There will be no anchor location for the meeting. The city cannot ensure the recommended minimum of 6 feet of social distancing for meeting participants at the usual anchor location in the Orem City Council chambers. Therefore, holding the meeting at the City Council chambers would present a substantial risk to the health and safety of those who may be present at the meeting and may contribute to the spread of COVID-19. There will be no Public access to the Orem City Council chambers. Those desiring to view or participate in the meeting must do so electronically and also can call in.

To view the meeting, please go to orem.org/meetings.

To make a comment, please submit your comments through orem.org/comments. Written comments will be accepted before and during the meeting. All written comments will be, will be entered into the record and forwarded to each City Council member for review. Written comments will also be read aloud during the live meeting when it's required by law or when time permits. As technology permits, the City Council may also accept oral comments. Once an item has been voted on, that item will be closed to additional comments. Thank you for your cooperation during these challenging times. I now would like to call the meeting to order. We have one scheduled item, which is an ordinance targeted residential picketing, and we'll turn the time over to Steve Earl.

Okay, thank you, Mayor, Mayor and City Council members.

We have brought before you today a proposed ordinance dealing with targeted residential picketing, as the Mayor indicated. This is designed to address a problem that we have seen in Orem to a limited extent so far, but also in other Utah cities and frankly in places around the country.

And that problem is having protesters or picketers gather in front of a particular residence for the purpose, express purpose, of demonstrating or protesting against an occupant of a particular residence, hence the name targeted picketing. As you can imagine, having a number of protesters outside your home could be intimidating, can be disturbing, can maybe even appear threatening. It also potentially exposes people in the house to speech that is really unwanted.

You might say that they are a captive audience, essentially, and they are maybe subject to chanting or sloganeering or signs or even just nonverbal messages that, that are unwelcome to them. United States Supreme Court has recognized that a person's right to feel safe and secure in their home is an important governmental interest. that the government, including the city, has a significant interest in protecting. And so, and the Supreme Court has previously held that a municipality or other governmental entity can enact an ordinance to prevent people from engaging in targeted picketing, provided that it's done within reasonable contours.

Basically, the courts require that any such ordinance be narrowly tailored.

That is to say that it doesn't prohibit more speech than is necessary to address the problem. And, and so we have to recognize at the same time that sidewalks and streets, including in residential areas, are considered traditional public fora, which means that people have a right generally to demonstrate and protest, exercise their free speech rights.

But you have—

so you have basically competing interests. You have the rights of people to express themselves and the rights of people to feel secure and safe in their own homes. And so the proposed ordinance that we have before you is designed to essentially establish what's known legally as a reasonable time, place, and manner restriction on the exercise of speech on the streets and sidewalks.

And essentially what it says is that it's unlawful to picket in front of a target house, if you will, or within 100 feet of a target house.

And picketing, as you can see in the proposed ordinance, is basically defined as stationing or posting of one or more persons to apprise the public vocally or by standing or marching with signs, banners, sound amplification devices, or other means of an opinion or message, or to presence or gathering of a person or a group of people for a demonstration or protest. So the violation for doing that would be a Class B misdemeanor. And just to emphasize, it does not take away people's rights to protest or demonstrate outside of that prohibited area. So that is what we're bringing to you today. And if you have any questions, I'd be happy to address those.

So Steve, a question for you.

The ordinance reads 100 feet from a person's house. Is that from the lot line or from the actual physical house?

Yeah, it actually says the lot line. I may have misspoken, said the house, but it actually is the lot line.

So if we have in, in a cul-de-sac protesters, but they are 100 feet from the lot line. That still allows a lot of space in the cul-de-sac for a demonstration to occur.

That's right.

Yeah, so it doesn't completely take away by any means people's right to demonstrate or protest.

They just can't focus it right by a particular target house.

It certainly doesn't make his neighbor's life any better, though.

Uh, that is true. The neighbors obviously still have to endure some of that, but you know, they—

since if they're not the target of that picketing, it's probably a little less of a threat or intimidation factor for them.

Brent, can you weigh in on whether or not that's true?

No, I've never experienced it, but I'm just guessing.

No, I asked Brent if he could weigh in.

Oh, I'm sorry.

I'm sorry.

Well, I think this is just a Tool or ordinance that our public safety can use if it becomes necessary. By no means is it intended to, you know, stop the— I guess the message they want to get across, but I think it— The way I understand it, it's more of a not direct in someone's driveway or right at the tip of the driveway, and they can You know, from this, apparently you can, you can still voice your concern a few feet down the road or maybe just outside the cul-de-sac. Is that possible, Steve?

Yeah, protesters could still gather and protest, you know, 100 feet away from the property line of the target residence. Should, should point out still that there are other tools as well. You know, if protesters If protesters are becoming disorderly, they can be cited for disorderly conduct still.

So what we're really talking about is the right of people to peaceably assemble and demonstrate. So if it gets out of hand, then there are other ordinances that could be enforced.

Do we have any leeway with larger, longer than 100 feet away, farther than 100 feet away?

Probably not. This is, this is probably about the maximum you're going to want to go. The reason for that is once you start going beyond that level, you, you run a greater risk that a court's going to say you're really extending that boundary longer than it needs to be to protect the occupants of a target home. So the courts have—

12 miles, so it wouldn't be inside the city limits.

Yeah, unfortunately, the courts haven't really given us a bright line of what's legally acceptable and what's not. So, but, but a lot of court opinions have exercised caution in drawing those lines and, and have urged governments not to draw those too broadly, or they're at risk of being held unconstitutional.

Steve? I think part of this is, is you're saying you can protest, but it has to be some orderly— if there is an orderly protest, so it doesn't get out of control. We're not saying you can't come in the cul-de-sac. Right. Yeah, and it just, just, just something that can be used to possibly break them up or scoot them back or whatever.

Well, again, it's really designed to protect, to protect the target of a protest, you know, to protect a person in their home to be free from that kind of intimidation, you know, those kinds of threats. It's not really designed to protect a neighborhood from the annoyance or the inconvenience of a demonstration or protest. And courts recognize that because we have free speech rights, that sometimes means that people have to put up with some inconvenience and some annoyance.

I understand. I understand.

And Mayor, just as a reference point, this is Greg Stevens.

Yes, Greg.

City ordinance also has a 100-foot limitation.

Okay.

Peaceful demonstration, peaceful. Does that allow for yelling, screaming, chanting, singing, sign waving?

You know, as I mentioned earlier, potentially, probably our next enforcement tool if a protest is getting out of hand would be a disorderly conduct violation.

So the standard would be, is, is, are people in the protest becoming disorderly to the point of violating disorderly conduct statutes. And at that point, enforcement action could be taken if they are.

Steve, is there any kind of noise ordinance that, that we have that can, you know, tone it down a little bit? Is that possible?

Yeah, we do, we do have a disturbing the peace ordinance. And so potentially, that's another tool that could be used. The difficulty is that the standards in that ordinance are fairly—

are quite subjective. And so, you know, it typically has got to be pretty bad for somebody to be able to be cited under disturbing the peace.

Probably it's going to be easier—

we've brought in our prosecutors in this discussion, and they seem to think that it will be easier to prosecute individuals under disorderly conduct rather than disturbing the peace.

Okay.

Thank you.

I have 2 questions. First of all, will the police mark off 100 feet or have set up a barrier where the people have to go, or will that just be as they'll just see who shows up? Secondly, do we have free speech zones in Orem, and if so, where are they?

We don't have specific free speech zones per se, but typically, again, public sidewalks and public streets are considered to be traditional public forums, which is basically the courts will protect people's right to exercise free speech on public sidewalks and public streets, basically any public sidewalk or public street. As far as what the police would do, yeah, I would, I would encourage them to know where that 100-foot barrier is. I don't know that they're going to set up barriers. I don't know what their enforcement plan is exactly, but they definitely should know where that 100-foot line is so that if people are protesting or demonstrating inside that, they're able to know exactly that they've crossed the line.

So, Jamie, would you be able to work with our police chief on that to maybe plan ahead on where that 100 feet is?

Yeah, so our, our, our police department, Chief Adams and his team, as he communicated with you yesterday, has put together a strategy to specifically respond to what they anticipate will be a residential situation on Sunday. You know, I think this, this ordinance is an additional tool. I think they are going to try and achieve compliance before they You know, make full use of an ordinance like this. And so I'm not necessarily sure if it is prudent to just kind of mark a 100-foot kind of line in the cul-de-sac, but rather just have a conversation with those that are in attendance to say, we do have an ordinance, this is what it says. And we would ask you to comply.

Yeah, everyone should know where the 100 feet is prior to getting there. If there's a large crowd, they will just move forward right up to the lot lines.

So I think that needs to be communicated and enforced.

To some degree, it's almost like akin to this whole mask discussion. The moment you draw a line somewhere and somebody crosses the line, or the moment you require somebody to wear a mask and somebody doesn't, then there's an expectation of enforcement. And our goal here is not to necessarily enforce, but educate and essentially maintain the peacefulness of the neighborhood while at the same time allowing individuals to exercise their First Amendment rights.

If—

well, I think for the governor and his family, it's important that we hold that 100-foot—

And the governor and his security detail will be advised of the ordinance that the city has passed so that his security detail that's on hand and specifically charged with protecting the interests of the governor's personal property, they'll be advised of that, as will other individuals when our officers have conversations with them. I know Chief Adams has dialed into the call. The conversation that Josh and I have had has been similar to what Councilmember Sumner was talking about, just making this an additional tool and resource that our officers in the department can use in the event there is a problem, but not necessarily emphasizing it to the point where we want to cite individuals and essentially draw more frustration or more, make more of a situation than there already is.

Chief Adams, do you want to make a comment?

No, I would concur with everything that Jamie said. Those are our concerns, is that we create a line for them to encroach on. Basically inviting the escalation of any activities, and not only just here, but, but in the future. I don't anticipate that this event on Sunday is going to be necessarily a big deal for us to have to deal with, but, you know, this ordinance and how's this ordinance going to affect us if this is a more volatile situation, more volatile crowd in the near future, or you know, several years down the road.

So will you be letting them know that it's the 100 feet that they need to stay back?

Yeah, we right now we're going to have no trespassing signs posted at every residence. And then the 100-foot thing will— yeah, we'll provide notice of that.

It's for the governor's safety and his family. I think that should be enforced and That line should be drawn. I think the protesters frankly will adhere to that and not have a problem, but they need to know about it and they need to see where that's at.

Mayor, yes, I just want to say on this last protest, I think it was Monday, I didn't see any of the protesters go into his yard. or go beyond the public place where they can voice their opinion. So I—

But 100 feet from his lot line is actually past the lot line of your house.

Yeah, yeah, it is. But I guess what I'm saying, on the most part, they were peaceful. They were just loud and obnoxious and sending a message to the governor and anybody else, I guess, that could hear it in the cul-de-sac. But on the whole, they, they weren't a violent group. I mean, they were loud and in people's faces, in our public safety people's face, and, you know, saying some not nice things and I think the blowhorn kind of got to everybody a little bit, but it is what it is. Yeah. So anyway, I'm sure it'll— I'm sure Chief Adams has a strategy on this, and hopefully it's just a lot of talk and no action, or little action.

Is there one scheduled for this evening as well as one for Sunday?

I don't know of one. Maybe— I don't know.

Nothing that we've been advised of.

Okay, any other comments or questions about the ordinance?

I think just one more comment.

I think—

at least I'm hoping some— the nature of the day, Sunday, I think that will keep some away, but I guess only time will tell. Thank you.

Mayor, if I may too, I just want to express appreciation to Chief Adams and his team. They are in the process of meeting with the neighbors, having conversations, letting them know kind of the delicate balance that we need to maintain. Obviously respectful of their neighborhood while at the same time mindful of the First Amendment. And an appropriate team will be there to respond if necessary. Our desire, and I think the desire of Chief Adams, is that this is something that we allow to peaceably take place. But we also, as a city, are mindful of that particular neighborhood and have been meeting with them individually to suggest to them Hey, we are concerned. We are going to be there. We don't necessarily want to make a huge presence because we don't want to— want this situation to turn into a big public display of, you know, aggression or opposition, but we're going to be there just to make sure that your interests are protected.

Jamie, just that— can I add one thing? I've talked to a couple of neighbors after Chief Adams' team talked to them, and they felt really good about that, knowing that the public safety is aware of everything and that they'll be okay. And it's, you know, it'll— they're just on their side and they're there to support the residents. So I think that was a very, very wise and good move for Chief Adams to Talk to each individual neighbor in that cul-de-sac.

We appreciate that, Chief, very much. Any other comments or questions? All right, well, I would like to move that the—

Mayor, I do have a comment. This is Terry. I'm concerned about that we're passing this 2 days before this event.

Where—

but, but I also can— I also live in a cul-de-sac, and I think I would be very concerned if on Sunday, Sunday, when my grandchildren trying to come to my house, if there's 200 people out, out in my yard. I'd be very nervous about that. So I understand that completely. I just— But I'm also hearing kind of what Jamie's saying. I don't know if we want to If we have this emergency meeting and pass this 2 days before the event, that certainly will be public information. And also drawing the line for the 100 feet, I think those things are just setting us up for— I prefer that we do this like when I think Brent was saying, maybe when there's the new, you know, the new Sheriff is in with Governor Cox, and now we don't have anybody in Orem. I'm just, I'm a little bit concerned about, I don't want us to make this a big deal and make us a target of something where we haven't had a problem other than the annoyance, and we're gonna have plenty of police there. You know, I've got some conflict about doing this 2 days before.

Anyway.

Sure, I understand that. One thing that I've looked at is the governor does live in our city.

There are legal ways to pass a targeting ordinance, and I know the governor usually has his family over for Sunday dinner.

Yeah.

His kids and his grandkids. So we want to make sure that we ensure his safety and, and peace and be able to enjoy his house with his family. So I understand what you're saying. I feel comfortable with what we're doing and feel like we should move ahead with it.

So a question for Steve Earle. Steve, there's also, I guess, an issue if we're passing an ordinance that targets a certain group. Is that correct, or is that not a concern?

Not a certain— we're not targeting a certain group. Where this is a generally applicable ordinance and it applies—

For all the public.

Now and hereon.

So, you know, it's not directed at any specific viewpoint or position or anything like that. This applies to anybody who wants to target or, you know, focus their demonstration on a single home, no matter what position or viewpoint those people are trying to express.

Okay, let's go ahead.

I'd like to make a motion that the City Council enact Section 9-2-15 of the City of Orem Code related to targeted residential picketing. Is there a second?

Second.

Okay, let's go ahead and vote.

We'll start with Jeff Lampson.

Jeff, are you there?

I'm here, just muted. Aye.

Okay.

Terry Peterson?

Aye.

Debbie Laree?

Aye.

Brent Sumner?

Aye.

Tom McDonald?

Aye.

Dave Spencer?

Aye.

And Mayor Brunstad, I vote aye as well.

The ordinance passes. Appreciate everyone coming on for our session today.

I move that we go ahead and adjourn with no further business.

Is there a second?

Second.

Okay, all in favor say aye.

Aye.

Our meeting's adjourned.

Thank you.

Thank you, everyone.