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Anti-war protesters demand apology from Mesa

by Gary Nelson - Apr. 13, 2012 07:45 AM

The Republic | azcentral.com

A group of anti-war protesters is asking Mesa to apologize for police actions outside the Feb. 22 Republican presidential debate.

Their attorney, Dianne Post, wrote a six-page letter to Mayor Scott Smith, City Council members and other city officials complaining that police violated their rights by repeatedly asking them not to use a bullhorn.

In the letter, Post seeks an apology but does not threaten a lawsuit because no one was arrested. The request stands, she told The Republic, even though a reporter pointed out that Post used an outdated Mesa noise ordinance in making many of her arguments.

Two members of Veterans for Peace, Richard A. Smith of Phoenix and William Clark of Mesa, addressed the council on April 2 to reiterate the demand for an apology. Richard Smith said they would press their case at the council's April 23 meeting if the city does not respond.

The scene outside Mesa Arts Center was raucous that afternoon as candidates prepared for the nationally televised debate.

Protests were not allowed on the arts center grounds, which had been leased by the Arizona Republican Party and CNN. But Heston Silbert, an assistant Mesa police chief, said protesters had free access to the rest of downtown.

Veterans for Peace and the End the War Coalition set up on the southwestern corner of Main and Center streets as did other groups.

A large and loud contingent of Ron Paul supporters essentially took control of the middle of the intersection, at times drowning out everyone else in the vicinity.

A few yards east on Main Street, a city-sanctioned rock band was playing. On the north side of Main, more music poured from a restaurant's loudspeakers.

Against this backdrop, Richard Smith, a Vietnam-era Navy veteran, used a bullhorn as he denounced Rick Santorum, Newt Gingrich and Mitt Romney, three of the four GOP candidates in the debate, for their alleged willingness to attack Iran.

A 27-minute YouTube video shows a Mesa policeman approaching Smith shortly after he began speaking and telling him, "You cannot use an amplified device." Chants from the Ron Paul supporters make the conversation barely audible.

A few minutes later, Smith was threatened with arrest after he again used the megaphone. At that point, he stopped, but other members of the group then began using it to chant slogans.

Police approached for a third time and told them to stop.

Each time they approached the group, Post argued that the police were selectively enforcing the noise ordinance to silence a message that was not popular with the GOP, while louder noisemakers on Main Street were going unhindered.

"We have the right to speak, we have the right to be heard," Post said.

"It's a violation of the Constitution, it's a violation of the First Amendment rights."

At times, the anti-war protesters chanted loudly as police officers tried to explain their position.

Arizona Republic reporter Jim Walsh, who was monitoring events at the intersection, said other groups desisted when police asked them to stop using bullhorns.

When Clark spoke to the City Council on April 2, he noted it was one day past the 42nd anniversary of his being severely wounded in Vietnam.

The retired Marine Corps sergeant said the Mesa Police Department generally does a commendable job, "but in this case at the Republican debate, they were somewhat out of line."

The protesters do not personally need an apology, Clark said, "but I think it's important that we get one to ensure that protesters and people exercising their freedom of speech in the city of Mesa are able to do that without being harassed or any kind of threat by the police as long as they're abiding by the law."

Councilman Dennis Kavanaugh said he believes Smith and Clark raised "valid issues" about police conduct and suggested that the Police Department meet with them.

Silbert, who monitored the scene that day from a command post, said police were mindful of First Amendment rights as they spoke with protesters.

"We have to provide an environment that allows people to be able to gather peacefully and to be able to enjoy the entirety of the occasion and the event, and we always have to balance that with the First Amendment of the Constitution," Silbert said.

"We try to be very flexible with that, but we have to find a balance so that expression is not to the point of disorderly or disruptive."

He denied Post's assertion that police censored speech because of its content.

"The officers are unbiased regardless of what group it is," he said.

"Our marching orders beforehand were be patient, be reasonable, but we're going to have zero tolerance for anything that could lead to an escalation or any kind of violence," Silbert said.

"Kudos to our officers for having the professionalism and the patience and restraint to be mindful and judicious about whether to take law-enforcement action."

Mayor Smith believes the police acted properly.

"I don't sense that there was any kind of effort to silence someone," Smith said. "I get it that maybe there's some things we could have done better."

He said Mesa is not ignoring the protesters' complaints, because the city is always reviewing how to handle potentially disruptive situations.

But he said, "I don't know whether an apology is warranted in any situation like this. It's tough to balance people's First Amendment rights because you have one side arguing you should allow us to use bullhorns, all that kind of thing, and you have someone else saying, 'Wait, you're drowning out my rights.' "

Smith added, "It's a fuzzy line sometimes, and we do the best we can. ... We don't believe that the winner of free speech should go to the person who has a better PA system."

Noise ordinance

Mesa's noise ordinance, adopted in 2009, prohibits "any loud, unnecessary or unusual noise that is excessive, disruptive and/or annoying" or that disturbs the peace and quiet of "a reasonable person of normal sensibilities or special event."

Using amplifying devices, according to the ordinance, may fall into that category, but the law does not include a blanket prohibition on them.

Also in the category of noises that could be deemed offensive is "malicious or willful shouting, yelling, screaming or any other form of raucous vocalization by a person or group of people."

The ordinance instructs police to seek voluntary compliance before issuing a civil citation. Penalties include a $250 fine for a first violation and $2,500 fines for third or subsequent violations.

The ordinance does not provide for the arrest of offenders. But Arizona law says "unreasonable noise" can be cause for arrest on a misdemeanor charge of disorderly conduct.