volume37_issue1.pdf

LEGAL BULLETIN LOS ANGELES POLICE DEPARTMENT LEGAL AFFAIRS DIVISION-LEGAL UNIT February 21, 2013 Volume 37, Issue 1 EXPRESSIVE ACTIVITY ON PRIVATE PROPERTY Non-Union Labor Expressive Activities Occasionally, officers receive radio calls to a shopping center, mall, or individual store to remove pe...

LEGAL BULLETIN LOS ANGELES POLICE DEPARTMENT LEGAL AFFAIRS DIVISION-LEGAL UNIT February 21, 2013 Volume 37, Issue 1 EXPRESSIVE ACTIVITY ON PRIVATE PROPERTY Non-Union Labor Expressive Activities Occasionally, officers receive radio calls to a shopping center, mall, or individual store to remove persons engaged in expressive activities such as protest/picketing, solicitation of money, or the solicitation of signatures. The persons contacted frequently say that they have a constitutional right to engage in such activities on the private property in question. This Legal Bulletin will clarify the proper response for an officer or supervisor called to such a location. Legal Analysis The right to engage in expressive activity at a privately owned shopping establishment is intimately tied to the nature of the property in question. The California Constitution (Article 1, Section 2) protects peaceful expressive activity carried on in the common areas of large, privately owned retail shopping centers.' The California Supreme Court found that because large retail shopping centers have effectively taken the place of and possess many of the characteristics of a town square (ie. gathering spots, places where people congregate to be entertained or to meet others and spend time), they can be an essential and invaluable forum for exercising the rights of free speech. In such locations, the private property owner must allow peaceful expressive activity in common areas, but may impose regulation of the time, place, and/or manner of the activity. However, not all stores or shopping centers are the equivalent of a large, retail shopping center triggering the rule allowing expressive activity. There have been many decisions of the California Courts of Appeal that have refused to extend the above rule to stand-alone stores, ' Robbins v. Pruneyard Shopping Center (1979) 23 Cal. 3 rd 899; Pruneyard Shopping Center v. Robbins (1980) 447 U.S. 74 Volume 37, Issue 1 — Expressive Activity on Private Property stores located in smaller shopping centers, or "modest retail establishments." 2 In these situations, individuals do not have a State constitutional right to engage in expressive activities on the sidewalk/walkways immediately outside the doors to these stores, or around the "apron areas" of the stores themselves. Supermarkets, "big box" stores and home improvement stores are examples of stores where this rule has been applied. Application Where the expressive activity is being engaged in on private property which is not the common areas of a large, retail shopping center, officers may be asked by the property owner, store owner, security, or person in authority representing management, to remove or arrest such persons. As in all such situations, the primary goal of the police is to keep the peace. But if the person(s) refuses to leave, officers should advise the relevant party of a private person's arrest for trespass if the need arises. In the common areas of large, retail shopping centers, once again the primary goal is to keep the peace. While persons are allowed to engage in expressive activities in these areas, they are subject to reasonable time, place, and manner restrictions. Where a person violates one of the property owner's time, place or manner rules/regulations - this scenario is best classified and handled as a civil dispute. As such, officers should not attempt to give legal advice, but instead advise both parties to seek their own legal counsel or assistance from the courts. Union Expressive Activities Currently, there are two California laws which protect peaceful labor picketing: Section 527.3 of the Civil Code (aka the "Moscone Act"), and Labor Code Section 1138.1. Each section restricts what would otherwise be a court's ability to issue injunctions prohibiting expressive activity, and the protections apply whether the labor activity occurs on public or private property. So, even though the union does not possess a First Amendment right to engage in expressive activity on the store's private property, the California Legislature has granted them a statutory right to do so. The California Supreme Court has recently upheld these two statutes, which means that unions engaged in labor picketing may do so on the walkways and near the doorways of privately owned stores, as long as the activity is peaceful, does not block ingress/egress to the store, and does not break any other law. Arrests may be made where persons are disrupting normal business operations or picketing in a non-peaceful manner. As in all labor picketing situations, officers and supervisors should immediately contact Labor Relations Section for guidance and advice prior to taking action. If you have questions regarding this Legal Bulletin contact the Legal Unit, Legal Affairs Division, at (213) 978-8300. Trader Joe's Co. v. Progressive Campaign, Inc. (1999) 73 Cal. App. 4 th 425; Costco Companies v. Gallant (2002) 96 Cal. App. 4 th 740; Albertson 's Inc, v. Young (2003) 107 Cal. App. 4 th 106, 110; Van v. Target Corp. (2007) 155 Cal. App. 4 th 1375, 1382) 2 EXPRESSIVE ACTIVITY ON PRIVATE PROPERTY SHORT FORM CHEAT SHEET LOCATION TYPES Common Areas of Large Malls: Have Seating & Amenities that Encourage Lingering Common Areas Of Strip Malls: Have Seating & Amenities that Encourage Lingering Stand Alone Stores (Including those in Strip Malls): Walkways Directly in Front of Stores Stand Alone Stores (Including those in Strip Malls): Apron Areas Stand Alone Stores (Including those in Strip Malls): Parking Lots Permissible: Reasonable Owner Rules Ok. Permissible: Reasonable Owner Rules Ok. Not Permissible: Owner/Manager May Exclude Not Permissible: Owner/Manager May Exclude Call Labor Relations Unit for Further Direction Permissible: Reasonable Owner Rules Ok. Permissible for Peaceful Picketing and Patrolling Permissible for Peaceful Picketing and Patrolling Peaceful Picketing and Patrolling Permissible ACTIVITY TYPES • Non Union Activity Union Activity Permissible: Reasonable Owner Rules Ok. Prohibited Conduct: It remains unlawful to commit a breach of the peace, threaten violence, interfere with the operation of a business, block the ingress or an egress to a business or commit any other crime. For more information or advice regarding this cheat sheet, please call the Los Angeles Police Department Labor Relations Section at: (213) 486-0410.