Flagler Beach City Attorney Recommends New Ordinance Limiting Trespassing Authority in Public Spaces

Flagler Beach’s city attorney is recommending that the city adopt an ordinance clarifying when, where and why police may trespass an individual from public property, on the very rare occasions when they may, how much restraint police must exercise when interfering with a person’s speech (a lot), and what due process must be afforded the individual targeted.

The recommendation is part of a seven-page memo City Attorney Drew Smith, with attorney Abigayl Osborne-Liborio, wrote Police Chief Matt Doughney on Aug. 6, at Doughney’s request, following police officers’ wrongful arrest of a man standing with a sign on the public sidewalk outside the Funky Pelican restaurant at the pier last March. 

An independent investigation by the Flagler County Sheriff’s Office found Flagler Beach Police Sgt. Austin Yelvington to have overstepped his authority when he arrested Jeff Gray after an employee of the Funky Pelican asked police to trespass Gray. Gray had not been on Funky Pelican property. He was holding a sign supporting veterans, outside the restaurant. Contrary to the employee’s claim, there was no evidence that Gray was harassing people. 

The police officers, the city attorney’s memo states, should have explained to Funky Pelican staff that Gray was exercising his First Amendment rights, was not breaking the law, and could not be trespassed. 

In fact, that’s what officer Emmett Luttrell did, when he was first at the scene. When Yelvington arrived, Yelvington decided to arrest Gray once Gray refused to move, even though Gray was not being disruptive. 

Notably, the investigator, Cmdr. Georeg Bender, contacted the Funky Pelican to schedule witness interviews on March 27. “I advised who I was and what my purpose was for calling and was immediately hung up on,” Bender reported in his investigation. Bender met with a Funky Pelican manager on May 20. The manager declined to provide a statement. The Funky Pelican is a private business leasing public property: the facility belongs to the city. 

Bender also requested training files for Flagler Beach’s police officers. He did not receive them. Yelvington told him he did not recall any First Amendment training before the incident. “Looking back, he realizes now it was not right,” Bender wrote of Yelvington’s action. (You can hear Bender’s 18-minute interview with Yelvington here. Yelvington was represented by Kyle Totten, a former investigator.) 

“People who are peacefully exercising their right to free speech, including those protesting, on public property should not be trespassed,” the memo states. Florida law gives even more protection to speech than does the First Amendment, the memo notes, with speech in public forums, including sidewalks and public parks, receiving “the most protection and deference in the law.” 

Flagler Beach commissioners welcomed the memo. “Our legal counsel did a great job outlining this memo to ensure we don’t have another issue like we did with Mr. Grey, who was peacefully exercising his First Amendment right,”  Commission Chair James Sherman said. 

“As a lawyer,” Commissioner Scott Spradley, whose practice is in Flagler Beach, said, “I feel the memo represents very sage advice by the city attorney. I feel he did an excellent job not only of stating the law on the three points he made, but also in giving practical advice to the city on both how to implement the law, but also to act with restraint  on any action that the city would consider.”

Spreadey, along with Commissioner Rick Belhumeur, said codifying the memo’s recommendations in an ordinance would be wise, “to tie up loose ends.” 

In sum, the memo states, first, that people peacefully exercising the right to free speech on public property, including demonstrators or protesters, “should not be trespassed.” Speech must be presumed to be protected. Authorities may not discriminate based on the content of the speech: “Example: a ‘Fuck the Police’ sign is not deemed offensive or considered fighting words,” the memo states. Gray happened to be holding a small sign that expressed support for veterans, in plain, inoffensive language. 

Notably, in the early years of the Biden administration, a group of maga Republicans used to gather weekly at the corner of State Road A1A and State Road 100, a short distance north of the Funky Pelican, with obscene signs insulting the president and his supporters. Police never interfered with the demonstrators. 

Second, certain types of speech are not constitutionally protected, the memo states, but it’s a high bar. The speech would have to incite imminent and real threats (humorous or hyperbolic political speech doesn’t count), it must be obscene (though clearly more obscene than the signs on A1A), or it must include “fighting words.” Individuals may be arrested for creating a public disturbance, as drunk people are at times. 

Third, “While court cases recognize a jurisdiction’s authority to trespass individuals from public parks, such authority should be used with caution and restraint,” the memo states. “Additionally, if the City desires to use trespass to aid in the enforcement of other laws within public parks, the City should consider adopting an ordinance providing clear due process protections to individuals who may be trespassed.”

The memo summarizes the incident of March 2 before elaborating on the legal reasoning and setting out practical approaches. The memo emphasizes communications–between officers, with whoever may have lodged a complaint (to educate them on the law), with the individual targeted, with the city attorney if necessary. 

“If force is needed, law enforcement absolutely must use the least amount of force necessary,” the memo states. The Flagler Beach Police Department “should use the principle of proportionality in determining the appropriate response to the actions and mood of the person and/or crowd, and should actively be mindful of any actions which may increase tensions by using more gear and equipment than necessary. In general, arrests, detentions, and excessive force should not be the response to those peacefully exercising their rights to speech and assembly.” 

Calm and professionalism must prevail at all times, the memo states. In the Gray incident, both officers remained calm, but Yelvington’s professionalism faltered when he became snide with Gray, and at one point, based on body cam evidence, used unnecessary force to push Gray into the patrol car. 

Martin, the city manager, forwarded the legal memo to the city commissioners on Monday. Doughney had disseminated the memo to his ranks on Aug.7. “Please read the memorandum and familiarize yourself with its content, as this important information provides guidance by our legal counsel,” he told his officers. The memo was entered into a database “for future reference,” Doughney wrote.