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Lawyer asks judge to toss trespassing charge against Calif. man

October 20, 2017

An attorney for a California man arrested during a protest last month of an annual Fiesta de Santa Fe event is calling on a judge to throw out trespassing charges, accusing city police of violating his client’s First Amendment rights by hauling him off the Plaza, a public space.

The motion, filed Thursday by attorney Todd Coberly, is just the latest argument in an ongoing debate over the city’s handling of the Sept. 8 Entrada — a controversial re-enactment of conquistador Don Diego de Vargas’ 1692 reconquest of Santa Fe — and a raucous demonstration against it. Native American activists have protested the pageantry for years, saying its script whitewashes Spanish colonialism.

The city, expecting this year’s protest of the event to be larger than those in the past, tried to confine protesters to a “free speech zone” just off the Plaza. The effort has raised questions about whether the city can legally suspend free speech rights on the historic square.

Police arrested eight people involved in the demonstrations, mostly on charges of trespassing on the Plaza or adjacent streets.

Officers arrested California resident Julian Rodriguez, for example, as he was walking across the Plaza, away from the protests.

Coberly argues in his motion that the misdemeanor trespassing charge violates Rodriguez’s First Amendment rights because the city-owned Plaza is a public park.

City officials have maintained that the Santa Fe Fiesta Council, which organizes the Entrada, had a permit for the Plaza during the event, giving the council the right to restrict access.

“It’s their event, it’s their Plaza,” a police spokesman said at the time. “So they can make the rules.”

Coberly disagrees.

“The First Amendment to the U.S. Constitution prohibits the City from prosecuting Mr. Rodriguez with criminal trespass based on the whims of the Santa Fe Fiesta Council,” he says in the motion.

He cites a series of similar cases around the country in which police sought to keep religious or political activists out of public spaces during special events.

After the city of Columbus, Ohio, for example, kicked a man carrying a religious sign off a public street during an arts festival, a federal appeals court ruled that the government could not “claim that one’s constitutionally protected rights disappear because a private party is hosting an event that remained free and open to the public.”

In another case, officials in Panama City Beach, Fla., booted a man distributing leaflets from a public park during a motorcycle rally.

As in Santa Fe, city officials there claimed the event’s organizers had the right to kick out whomever they wanted.

But a court rejected that claim, saying that when a “private actor is granted the unlimited discretion to suppress speech, whether based on its viewpoint, content or anything else, the public forum is eviscerated. It loses its essence. It ceases to be a place dedicated to the free and open exchange of ideas.”

The Santa Fe Plaza, Coberly argues, is just such a place.

Moreover, Coberly says police violated Rodriguez’s right to due process because he could not have known that visiting the public park would amount to trespassing — particularly during an event billed as free and open to the public.

Rodriguez ended up spending the night in the Santa Fe County jail after his arrest. He has since left New Mexico with the court’s permission. His case is set for a hearing before Municipal Judge Virginia Vigil in November.

Asked about the motion, a city spokesman said, “We’re reviewing the motion, but remain confident that we acted well within the law in the interest of public safety, and look forward to making our argument in court.”

Of the eight people arrested during the protest, seven are facing misdemeanor trespassing charges in Municipal Court.

Police had filed felony charges against one of the protest’s organizers, Jennifer Marley, accusing her of striking two officers with signs, but prosecutors dismissed the charges last week in the Santa Fe County Magistrate Court. The district attorney has several months to decide whether to bring the case to a higher court.

Contact Andrew Oxford at 505-986-3093 or aoxford@sfnewmexican.com. Follow him on Twitter @andrewboxford.