Implied Consent
LONG STORY SHORT:
“The Government, like any private landowner, may preserve the property under its control for the use to which it is lawfully dedicated.”
~Sheets v. City of Punta Gorda, Florida, No. 2:2019cv00484
“It
follows that the Government has the right to exercise control over
access to the [government] workplace in order to avoid interruptions to
the performance of the duties of its employees.” Id. at 805-06.
~Sheets v. City of Punta Gorda, Florida, No. 2:2019cv00484
5 Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir. 1990) (noting preliminary injunctions of legislative enactments “must be granted reluctantly and only upon a clear showing”).1. ReasonablenessFirst, Sheets did not demonstrate the Ordinance is unreasonable. To survive a First Amendment challenge, the Ordinance must be reasonable. Summum, 555 U.S. at 470. Reasonableness “must be assessed in light of the purpose of the forum and all the surrounding circumstances.”Bloedorn, 631 F.3d at 1231 (quoting Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 809 (1985)). Because the government chooses how wide to swing open the gate of a limited public forum, it may allow access only to certain speakers based on their identity. Id. ( citingPerry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 49 (1983)). So “a speaker may be excluded . . . ‘if he is not a member of the class of speakers for whose especial benefit the forum was created.’” Id. (quoting Cornelius, 473 U.S. at 806). Importantly, a restriction “need not be the most reasonable or the only reasonable limitation” to withstand a constitutional challenge. Cornelius, 473 U.S. at 809. “The Government, like any private landowner, may preserve the property under its control for the use to which it is lawfully dedicated.” Sentinel Commc’ns Co. v. Watts, 936 F.2d 1189, 1201 (11th Cir. 1991) (internal quotation marks and citation omitted). Likewise, a government “workplace, like any place of employment, exists to accomplish the business of the employer.” Cornelius, 473 U.S at 805. “It follows that the Government has the right to exercise control over access to the [government] workplace in order to avoid interruptions to the performance of the duties of its employees.” Id. at 805-06.
Sheets v. City of Punta Gorda, Florida, No. 2:2019cv00484 - Document 45 (M.D. Fla. 2019)
Likewise, a government “workplace, like any place of employment, exists to accomplish the business of the employer.”
“It follows that the Government has the right to exercise control over access to the [government] workplace in order to avoid interruptions to the performance of the duties of its employees.” Id. at 805-06.
******************************************************************************
~~~~~~~~like any private landowner~~~~~~~~~~~
*******************************************************************************
Sheets v. City of Punta Gorda, Florida, No. 2:2019cv00484
**************************************************************
~~~~~~~~like any place of employment~~~~~~~~~~~~~
********************************************************
Sheets v. City of Punta Gorda, Florida, No. 2:2019cv00484
*******************************************************************************
~~~~the Government has the right to exercise control over access~~~~~
*******************************************************************************
Sheets v. City of Punta Gorda, Florida, No. 2:2019cv00484 1st Amendment Auditors keep making the claim that Sheets V City of Punta Gorda was simply an Injunction that was dismissed, and some even claim Sheets himself dismissed it, (which was not the case) and since the case was dismissed, all the information within the case is no longer relevant, and all the interpretations of the law that I have referenced from Sheets are in fact no longer valid since the case was dismissed... Somehow, they seem to be claiming that all prior laws and prior cases mentioned and referenced in this case were magically reversed when this case got dismissed... therefore.. naturally, I am just a big stupid head.. to which, I do mostly agree... except for the part about Sheets v City of Punta Gorda.
“The Government, like any private landowner, may preserve the property under its control for the use to which it is lawfully dedicated.”
~Sheets v. City of Punta Gorda, Florida, (No. 2:2019cv00484)
Likewise, a government “workplace, like any place of employment, exists to accomplish the business of the employer.”
~Sheets v. City of Punta Gorda, Florida, (No. 2:2019cv00484)
“It follows that the Government has the right to exercise control over access to the [government] workplace in order to avoid interruptions to the performance of the duties of its employees.”
~Sheets v. City of Punta Gorda, Florida, (No. 2:2019cv00484)
Trespass and Public Buildings
A person commits first-degree trespass when he or she “without
authorization . . . enters or remains . . . in a building of another.” G.S. 14-159.12(a).
But aren’t members of the public “authoriz[ed]” to enter public
buildings? And given that public buildings belong to all of us, do they
even count as buildings “of another”? In other words, is it possible to
commit a trespass in a public building?
Public buildings aren’t always open to the public.
For example, you can’t walk into a public kindergarten class in the
middle of the day just to assess the quality of instruction. You can’t
amble up to the Governor’s Mansion at 2:00 a.m. on a Tuesday and let
yourself in. And you can’t conduct your own inspection of the state’s
correctional facilities whenever you choose. You’re not “authoriz[ed]”
to do those things, because “[i]t is not the case that all property
owned by the government is ‘open to the public.’ Certain areas of
publicly-owned buildings may be restricted from public use by a locked
door or a front desk, much like the common areas of privately-owned
buildings.” People v. Barnes, 41 N.E.3d 336 (N.Y. Ct. App.
2015) (affirming a trespass conviction based on a defendant’s presence
in the lobby of a public housing building). See also Wilson v. State,
504 S.W.3d 337 (Tex. Ct. App. 2016) (observing that “governmental
entities have the same rights as private property owners to control
their properties, so long as the entity’s policies are not employed as a
subterfuge for illegal discrimination”).
Public buildings don’t belong to individual members of the public. Just
as public employees don’t work for any individual taxpayer (no matter
how often a taxpayer tells an employee “I pay your salary”), public
buildings don’t belong to any individual member of the public.
Therefore, government buildings are property “of another” for purposes
of the trespass laws. As one Texas court put it, “[i]n a case involving
public grounds, the State satisfies the burden of the ‘of another’
element of the criminal-trespass statute by proving, beyond a reasonable
doubt, that the complainant has a greater right of possession of the
property than does the accused.” Wilson v. State, 504 S.W.3d 337 (Tex. Ct. App. 2016).
While closing public buildings to the public generally is not
controversial, those in charge of public buildings should be cautious
about banning specific individuals. Based on the above, it’s
clear that a person may be charged with trespassing when he or she
enters a public building that is closed to the public generally, either
on a permanent basis (like a prison or a research facility) or at
certain hours (like a government office building that closes overnight).
See, e.g., United States v. Powell, 563 A.2d 1086 (D.C Ct.
App. 1989) (defendants could properly be prosecuted for trespassing on
property owned by a municipal transit authority when they refused to
leave a metro station after hours).
Things get more complicated when someone in charge of a public
building wants to ban a specific individual from the building while
allowing other members of the public to access the building. For
example, if a person appears in the office of a local tax collector and
is disruptive or threatening, the tax collector may wish to bar the
person from returning. This sort of circumstance raises all sorts of
possible legal issues, some of which are outside my expertise. So,
without any claim to completeness, the following ideas may be worth
considering:
- Have a good reason. There should be a good reason for
banning the person, and everyone who is similarly situated should be
treated the same way. Courts seek to “protect all citizens against
capricious and arbitrary enforcement of the unlawful entry statutes by
public officials so that an individual’s otherwise lawful presence on
public property is not conditioned upon the mere whim of a public
official.” Eric C. Surette, Burden of proving statutory elements of criminal trespass—Showing of trespass on public property, Am. Jur. Trespass 193.
- Provide some opportunity for the person to be heard before being banned.
There is at least some authority suggesting that banning a person
without any opportunity to be heard about the ban implicates procedural
due process. See Seum v. Osborne, 348 F.Supp.3d 316 (E.D. Ky
2018) (“The unequivocal and permanent ban imposed on [the plaintiff] was
sufficiently individualized to trigger due process protections . . .
[and to] demand pre-deprivation process.”).
- Don’t ban based on expressive conduct. A ban should not be
based on a person’s decision to engage in conduct protected by the First
Amendment, such as advocating for a particular point of view. If the
person is banned from a building for reasons unrelated to their
expressive conduct, they may be charged with trespassing when they
re-enter the building, even if they re-enter for the purpose of engaging
in expressive conduct. See Pentico v. State, 360 P.3d 359
(Idaho Ct. App. 2015) (arresting the defendant for trespass did not
violate the First Amendment; the defendant was prohibited from being in a
certain building that was being used temporarily to house the
governor’s offices; when he entered that area anyway, he was arrested;
he was arrested because of his unauthorized presence, not because of any
expressive activity in which he hoped to engage). For additional
discussion of some of the First Amendment issues that arise in
connection with regulating access to and conduct in courthouses in
particular, see this paper by former School of Government faculty member Michael Crowell.
- Provide a means to conduct essential business. Banning a
person from a building that houses essential government functions may be
especially challenging. People in control of such buildings may wish to
consider less restrictive alternatives to banning a disruptive person,
such as requiring the person to be escorted while in the building. See generally Moses v. Oldham, 2016 WL 11249103 (W.D. Tenn. Oct. 17, 2016) (discussing person required to be escorted while in county buildings).
“The Government, like any private landowner, may preserve the property
under its control for the use to which it is lawfully dedicated.”
~Sheets v. City of Punta Gorda, Florida, (No. 2:2019cv00484)
“[i]t is not the case that all property owned by the government is ‘open
to the public.’ Certain areas of publicly-owned buildings may be
restricted from public use by a locked door or a front desk, much like
the common areas of privately-owned buildings.” ~People v. Barnes, 41
N.E.3d 336 (N.Y. Ct. App. 2015)
As one Texas court put it, “[i]n a case involving public grounds, the State satisfies the burden of the ‘of another’ element of the criminal-trespass statute by proving, beyond a reasonable doubt, that the complainant has a greater right of possession of the property than does the accused.”
~Wilson v. State, 504 S.W.3d 337 (Tex. Ct. App. 2016).
“[t]he Government has the right to exercise control over access to the [government] workplace in order to avoid interruptions to the performance of the duties of its employees.” Id. at 805-06.~Sheets v. City of Punta Gorda, Florida, No. 2:2019cv00484
Sheets v. City of Punta Gorda, Florida, No. 2:2019cv00484
“The Government, like any private landowner, may preserve the property under its control for the use to which it is lawfully dedicated.”
Likewise, a government “workplace, like any place of employment, exists to accomplish the business of the employer.”
“It
follows that the Government has the right to exercise control over
access to the [government] workplace in order to avoid interruptions to
the performance of the duties of its employees.” Id. at 805-06.
~Sheets v. City of Punta Gorda, Florida, No. 2:2019cv00484
Adderly v. Florida, 385 U.S. 39 (1966)
The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason, there is no merit to the petitioners' argument that they had a constitutional right to stay on the property, over the jail custodian's objections, because this "area chosen for the peaceful civil rights demonstration was not only "reasonable," but also particularly appropriate. . . ." Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioners rely on, Cox v. Louisiana, supra, at 379 U. S. 554-555 and 379 U. S. 563-564. We reject it again. The United States Constitution does not forbid a State to control the use of its own property for its own lawful and nondiscriminatory purpose.
Greer v Spock|424 US 828 (1976)
"The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.
Sheets v. City of Punta Gorda, Florida, No. 2:2019cv00484
Adderly v. Florida, 385 U.S. 39 (1966) People v. Barnes, 41 N.E.3d 336 (N.Y. Ct. App. 2015)
Wilson v. State, 504 S.W.3d 337 (Tex. Ct. App. 2016).
Greer v Spock|424 US 828 (1976)
f
.jpg)
