Open Carry schools city on free speech

Posted Tuesday, Jul. 15, 2014  comments  Print Reprints

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Members of the Open Carry Tarrant County gun rights group (or at least their attorneys) have taken Arlington (or at least its attorneys) to the woodshed on how to write and enforce an effective ordinance and defend it in court.

U.S. District Judge Reed O’Connor has issued a preliminary restraining order stopping from enforcing its ordinance against members of the group distributing literature, including pocket-sized copies of the Constitution, at major intersections.

And a reading of O’Connor’s opinion shows it wasn’t even a close fight.

Arlington presented no evidence at a hearing on the matter and didn’t cross-examine Kory Watkins, Open Carry’s local coordinator.

In his order, O’Connor gave Arlington a whipping. Streets and sidewalks provide a traditional public forum for the exercise of free speech rights, he said, and Arlington can’t easily take that away.

While Arlington is right to assert a strong interest in pedestrian and traffic safety, the judge wrote, it must do more than just lay claim to that interest in the abstract. The city must “show the validity of its asserted interest and the absence of less intrusive alternatives.”

“While Arlington need not wait for accidents to justify safety regulations,” O’Connor wrote, the city did not support its safety claim.

The Arlington ordinance, as revised in May at least in part because of the open-carry group’s activities, bans people from using streets, sidewalks or medians “for the purpose of an exchange” with motorists within 500 feet of certain major intersections or within 1,000 feet of highway interchanges.

With no evidence as to how those distances were determined, the judge ruled that they were broader than necessary and burdened free speech rights.

Finally, a state law that allows firefighters and other city employees to solicit charitable contributions at intersections provides an exception that casts doubt on Arlington’s safety claims, O’Connor wrote.

Arlington will have a chance to fully defend its ordinance at a trial on the merits of Open Carry Tarrant County’s case. As things stand now, its prospects are not good.

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