A gun-rights group is preparing to take Arlington back to federal court over newly proposed rules that regulate where pedestrians can distribute literature or collect donations from motorists at intersections.
On Tuesday, the Arlington City Council is set to formally approve an amendment to the sidewalk ordinance that would ban people from stepping into the roadway to interact with motorists at any intersection controlled by a traffic signal. The change was prompted after a federal judge blocked Arlington from enforcing a more restrictive version of the ordinance, adopted by the council in May, that prohibited pedestrians from interacting with motorists from sidewalks or curbs along specific busy intersections and roadways.
“From the city’s perspective, we have to walk a tightrope. On the one hand, it’s critical that we protect public safety. On the other hand, it’s critical that we protect First Amendment rights. We want to do both things,” Assistant City Attorney Robert Fugate said. “We think this ordinance is a common-sense ordinance. It applies to every intersection controlled by a traffic signal. It’s easy for the police officers to understand. It’s easy for residents to understand.”
But an attorney representing Open Carry Tarrant County said the changes are not acceptable. The group filed a federal lawsuit against Arlington in May, saying the city’s ordinance violated their First Amendment rights to free speech by preventing members from handing out literature and pocket-sized Constitutions to motorists during public demonstrations.
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Two months later, U.S. District Judge Reed O’Connor issued a restraining order that blocked the city from enforcing the ordinance, writing that Arlington “has a number of less restrictive means of achieving its stated goals.”
“The judge sent us a signal that we needed to revise our ordinance. We took that seriously,” said Fugate, adding that the language in Arlington’s ordinance comes from an ordinance in League City that was deemed acceptable by the Fifth Circuit Court of Appeals.
Under the proposed rules, pedestrians could hand out literature or collect money from the sidewalk or an unpaved shoulder but not from the street or the median. Violators could face up to a $500 fine.
Warren Norred, an attorney representing Open Carry Tarrant County, said that Arlington’s newly proposed revisions are still not satisfactory and that the group is prepared to go back to court to protect residents’ free speech.
“The peaceful transfer of documents between people should always be legal,” Norred said.
Wanting equal rules
One of the main issues is that the city’s ordinance does not apply to firefighters, who are allowed under state law to stand in the roadway to collect donations for their annual Fill the Boot campaign to benefit the Muscular Dystrophy Association. Norred said the city should write an ordinance allowing other groups to do so as well as long as they follow the same rules firefighters do, which include carrying insurance and letting the city know when and where the activities are scheduled.
“What the city is saying is that if you are not a state employee, then you can’t go into the street under any circumstances to hand someone a pamphlet. But if you are a state employee, you can dance in the street while you collect coinage,” Norred said. “We want everyone to work under the same rules.”
Norred said another acceptable option would be for the city to allow pedestrians to step into the street to interact with motorists when the traffic light is red and vehicles are not moving. The proposed ordinance does not apply to intersections with stop signs.
City officials say the point of the revisions is to improve public safety. Texas leads the nation in pedestrian fatalities, and Arlington has seen 32 pedestrians killed since Jan. 1, 2009, Fugate told City Council members.
“You can’t get into the roadway. It’s a public safety issue,” said Councilman Jimmy Bennett. “The number of pedestrians being killed because they were in or around roadways is alarming. It is undeniable that it occurs.”
‘We’re all grown-ups’
Four residents spoke in opposition at the Oct. 14 council meeting where the ordinance amendments received initial approval in a 7-1 vote.
“In my view, this ordinance would infringe on the liberty and freedom of our citizens to exercise their rights,” said Drew Johnson, a resident not affiliated with Open Carry Tarrant County. “In terms of safety, I don’t think we need an ordinance to tell people to be safe in the roadways. I don’t think that is the government’s job to tell people how to walk down the street.”
Open Carry member Chris Donawho suggested that City Council members should pay for the city’s legal costs.
“We’re going to have to go to court again over this. This is a gross misappropriation of taxpayer money,” Donawho said. “I don’t think the people of this city should have to pay for it. We’ve already shown you guys it was unconstitutional the first time. Rehashing it from what I can tell is restricting the First Amendment to the right lane of traffic only is no less unconstitutional than the failed ordinance.”
Kory Watkins, the local coordinator for the Open Carry group, thanked the council for its “hard work and efforts” but said the ordinance still needs improvement.
“The main role of government is to protect our liberty and freedom. We’re all grown-ups. We can take care of ourselves as far as safety goes,” Watkins said. “If I want to hand somebody something and they are asking for it, I should have the right to do that.”
Councilman Robert Rivera voted against the proposed revisions, just as he did when the council amended the ordinance back in May, when he cited concerns about free speech.
This report contains material from the Star-Telegram archives.