Trespassing Persons on Public Property and Best Practices Dealing with Protestors: Flagler Beach City Attorney’s Memo

The following is a memo written by Flagler Beach City Attorney Drew Smith and attorney Abby Osborne-Liborioon on Aug.6, in response to Flagler Beach Police Chief Matt Doughney’s request for clarity on the city’s authority to trespass individuals from public spaces. The request and the memo are consequences of the wrongful arrest of a man outside the Funky Pelican in March. The man was on the sidewalk and had not interfered with the restaurant’s clientele. The memo is analyzed, with city commissioners’ reactions, here: “Flagler Beach City Attorney Recommends New Ordinance Limiting Trespassing Authority in Public Spaces.”

MEMORANDUM

TO: Chief of Police, Matt Doughney

FROM: D. Andrew Smith, III; Abby Osborne-Liborio

RE: Trespassing Persons on Public Property & Best Practices Dealing with Protestors

DATE: August 6, 2025

ISSUES:

Based on Florida law and relevant case law, the following issues have been addressed in the instant memorandum:

1. How should Flagler Beach Police Department (“FBPD”) handle people who are legally and peacefully asserting their right to free speech on public property? Can such people be trespassed from public property?
2. Are there any types of speech which are not constitutionally protected by the right to free speech?
3. Specifically relating to public parks, can FBPD trespass people from this public property to address other violations?

BRIEF ANSWER

1. People who are peacefully exercising their right to free speech, including those protesting, on public property should not be trespassed. Best practices include but are not limited to, presume the speech is protected, avoid discriminating based on the message being conveyed, communicate, use minimal force, and always remain professional and calm.
2. Yes. Certain types of speech are not constitutionally protected which include: 1) words of incitement or true threats; 2) fighting words; and 3) obscene speech. Therefore, if a protestor engages in any of the previously mentioned type of speech, they are not protected by the First Amendment. If someone is engaging in unprotected speech or illegal behavior then they may be cited and/or arrested for an applicable statute. For example, if someone is intoxicated and behaving in a manner which creates a public disturbance, they may be charged with “public intoxication.”
3. While court cases recognize a jurisdiction’s authority to trespass individuals from public parks, such authority should be used with caution and restraint. 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.

FACTS

On March 2, 2025, FBPD responded to a call from an employee of the Funky Pelican who requested the removal of a gentleman standing on the public sidewalk in front of the establishment

and “harassing guests.” The employee additionally requested FBPD to trespass the gentleman. When FBPD arrived on scene, the officers approached the gentleman and after speaking to him to obtain additional information, requested that the gentleman move, to which the gentleman declined. After back-and-forth discussion between FBPD and the gentleman, the gentleman was subsequently arrested for trespassing. As a result, FBPD requested information regarding best practices for dealing with those on public property, specifically whether a trespass is appropriate, and how to move forward in such situations.

DISCUSSION

1. How should Flagler Beach Police Department (“FBPD”) handle persons who are legally and peacefully asserting their right to free speech on public property? Can such persons be trespassed from public property?

As a preliminary matter, speech includes words, written or oral, symbols, and expressive conduct. The level of protection someone’s speech has depends on where the speech takes place.¹ For purposes of this memorandum, the focus will be on speech that takes place on traditional public forums. Traditional public forums include public streets, sidewalks, and public parks.²

Next, it is important to understand why people on public property, specifically streets and/or sidewalks, should not be trespassed even if asked to leave. Pursuant to Section 810.09(1)(a), Florida Statutes, trespass on property (other than a building) is defined as:

“A person who, without being unauthorized, licensed, or invited, willfully enters upon or remains in any property other than a structure of conveyance:

1. 1. As to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation as described in s. 810.011; or

1. 1. If the property is the unenclosed curtilage of a dwelling and the offender enters or remains with the intent to commit an offense thereon, other than the offense of trespass, commits the offense of trespass on property other than structure or conveyance.”

Although not expressly stated, this statute is not intended to apply to people on purely public places, such as a sidewalk, who are engaging in speech. As stated in the cited statute, when someone commits the act of “trespass,” they are entering property without permission and the trespasser is aware by posted notice or verbal communication that their presence is not authorized. Due to public forums being freely open and accessible to the public, permission to enter such spaces is generally presumed and therefore a person can’t commit a “trespass.”³ Additionally, when a police officer responds to complaints for trespass and subsequently issues a warning and/or arrests a person for trespass, they are acting as the property owner’s designee.⁴ Even though the City “owns” the public property such as streets and sidewalks, the City does so in trust of the public.⁵ As such, trespass is generally not appropriate in dealing with people on public property and never appropriate to deal with those engaging in free speech.

Finally, the right to free speech is protected by both the United States Constitution and the Florida Constitution. The First Amendment to the United States Constitution, includes the right to free speech by way of incorporation through the Fourteenth Amendment’s Due Process clause, which has made the right applicable to the states.⁶ Florida provides further protection in its constitution which states that no law which abridges or restrains the freedom of speech may be passed.⁷ Speech that takes place on public forums receives the most protection and deference in the law.⁸ As such, below is an outline of best practices FPBD should utilize when confronting those peacefully exercising their right to free speech on public property, including those protesting.

1. 1.​Presume the Speech is Protected.

The First Amendment of the U.S. Constitution guarantees the freedom of speech and assembly. Although there are certain situations where speech is not protected, discussed below, those situations are rare and therefore, the presumption should be to believe the speech is protected.

1. 2.Avoid Discriminating Based on the Message Being Conveyed.

In certain situations, the messages being conveyed may be bothersome, seem inappropriate, contain foul language and/or be directed at law enforcement itself. However, the speech is still highly likely to be protected. This is especially important to remember if the speech is directed at law enforcement. Just within the past couple of years a Federal Court protected speech in which the speaker called law enforcement names using coarse and profane language.⁹ Therefore, in such situations it is important to remember not to discriminate based on the message being conveyed

3. ​Communicate.

Communication is key. FBPD must communicate:

1. • Each other – if an officer believes that inappropriate actions may or are being taken, that officer should communicate with the other officer in an attempt to resolve a situation and if necessary, to prevent further escalation or in situations where all officers present need advice, with their superior.
   • The complainant (if applicable) – it is important to communicate with the person complaining so that a) it can be explained to the complainant that a person on public property generally has rights to free speech which FBPD has no authority to interfere with; and b) so the complainant understands that FBPD is doing their duty by responding to the complaint and taking appropriate steps in an attempt to remedy the situation.
   • The Speaker – FBPD must communicate with the speaker. In such communications, FBPD should first attempt to hear the speaker out and engage in meaningful communications. This does not necessarily mean listening to their message but instead is a way for FBPD to humanize themselves so the speaker feels more comfortable. In these communications, FBPD should explain why they are present (ex: they received various complaints) and request the speaker remove themselves from the premises. However, if the speaker refuses to do so FBPD cannot remove such person nor should they attempt to find an alternative way (such as the trespass here) to remove the speaker from the premises. At that point, FBPD should always write a report documenting their interaction. FBPD may choose to remain on scene at a distance to monitor the situation and ensure that the situation doesn’t escalate.
   • Legal counsel – if a situation arises in which it was unclear whether a speaker was engaging in lawful speech on public property, FBPD should request the advice of counsel. The advice likely will not be contemporaneous with the event taking place, but such situations can be used as examples for appropriate response training in future situations.

1. 4. ​Use Minimal Force.

Next, if force is needed, law enforcement absolutely must use the least amount of force necessary. FBPD 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 ¹⁰ In

¹⁰ See Police Exec. Research Forum, The Police Response to Mass Demonstrations: Promising Practices and Lessons Learned, 71 (2018), https://www.policeforum.org/assets/PoliceResponseMassDemonstrations.pdf

general, arrests, detentions, and excessive force should not be the response to those peacefully exercising their rights to speech and assembly.¹¹

1. 5.Always Remain Professional and Calm.

Finally, it is important to remain professional and calm. FBPD training materials and policies should be strictly adhered to at all times. Citizens are far more likely to cooperate when they believe that law enforcement is perceived as fair, respectful, and restrained in their interactions and responses.¹²

1. Are there any types of speech which are not constitutionally protected by the right to free speech?

Although there is a Constitutionally protected right to free speech, it is not absolute and without its limits.¹³ Certain categories of speech are not included in the protections afforded by either the Florida or Federal Constitution. Those categories of speech are as follows:

1. 1.Words of Incitement

Words of incitement are words that are “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”¹⁴ To constitute as “words of incitement” is a very high bar. The issue is that the speaker must actually intend for lawless action and therefore case law suggests there is generally not enough evidence to prove this point.

1. 2.​Fighting Words or True Threats

Fighting words are “those which by their utterance inflict injury or tend to incite an immediate breach of the peace.”¹⁵ In other words, they are intended to provoke a response beyond speech. However, words alone are generally insufficient. Again, the bar has been set very high for what is considered to fall within “fighting words” and generally speech is protected even if it’s undertone may seem of an incitement nature.

True Threats are “’those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’”¹⁶ The speaker doesn’t need to necessarily intend to carry out the threat.¹⁷ The focus is on the fear that it brings to the person it is directed at.¹⁸ For example, direct threats to kill someone would be considered a true threat. It is important to note that political jokes or hyperboles are not considered true threats.¹⁹ Example: a “Fuck the Police” sign is not deemed offensive or considered fighting words.

1. 3. ​Obscenity

Obscene speech is speech that essentially offends the average person because of its sexual message and lacks any artistic, literary, political, or scientific value.²⁰ This category of speech often encompasses issues of nudity or sexual conduct. Such speech would include distributing material which depicts nudity to minors.

Although there are categories of speech which remain unprotected. It is important to remember that the standard of what is “unprotected” is high and the presumption should be that the speech is protected. If in the rare occasion, there is an instance in which you believe one’s speech falls under one of these categories and there is a specific state statute that is appropriate, you may take reasonable action.

1. Specifically relating to public parks, can trespass be used to address other violations?

As previously discussed, public parks are considered a public forum.

Trespass in public parks may be addressed under Section 810.09, Florida Statutes.²¹ As discussed previously, parks are considered a public forum and, within posted hours, are open to the public. Therefore, to have a conversation about trespass there must be some other violation of law or park rules. While many police departments use trespass to prevent repetitive violations, departments should use caution when invoking trespass here. Trespass warnings carry with them the prohibition from returning to the property for a period of time. Given that public parks are open to the public, the prohibition on entering a park could in some cases be viewed as a punitive measure out of scale with the violation that gave rise to the trespass.

If a violation is observed at a public park, the first action should be to address the specific violation without resort to trespass. If the violation is repeated again afterwards, only then should trespass even be considered. In such cases, the trespass is being used to protect the park property and park users from a recurring violation of law. The trespass is a last resort not a first resort.

In recent years, several jurisdictions that use trespass within public parks and properties have adopted codes providing clear rules and standards for when and how to trespass on public parks and properties. Those ordinances often include a number of violations within a defined period of time (for instance, three (3) violations in a six (6) month period) that must occur before a trespass is issued. Those ordinances also often provide additional due process protections for the person being trespassed that allow for an appeal to be heard by the City regarding the prohibition from

returning to the property. The City may want to consider such an ordinance as it would provide additional clarity both to police officers and the public.

ADDITIONAL NOTES REGARDING TRESPASSING FROM PUBLIC PARKS:

1. If FBPD issues a verbal warning of trespass to people who are present after hours, but who were not engaged in any illegal activity, FPBD cannot prevent such persons from being present when the park is open during normal hours.²²
2. Before issuing any trespass (or warning) that the park has proper signage stating the park hours.²³
3. Even if a person is found to be in a park after hours and unless an officer has reasonable suspicion that criminal activity is being conducted, FBPD should not investigate to determine whether such person is also engaged in criminal activity.²⁴

CONCLUSION

Although the law recognizes a municipality’s authority to issue trespass violations on public property, such violations should be issued sparingly and only after careful consideration. Speech alone does not give rise to a violation that would support trespass. Even in cases in which an exception to First Amendment protections applies, it is the fact that there was more than just speech occurring that justifies the exception. Parks, sidewalks, and roads are all open to the public. The public has a right to enter them. Restricting that right requires just cause and due process. If trespass is being considered upon a public property, some other violation of law or regulation must have occurred. In any encounter upon public property officers are encouraged to focus on the underlying violation first. Only if proper steps to address the underlying violation prove unsuccessful in correcting the violator’s behavior upon the public property should trespass be considered.

[Notes]

¹ Watrous v. State, 325 So. 3d 1017, 1018 (Fla. 2nd DCA 2021) (explaining that several factors alters the First Amendment analysis, including forum).

² Is Social Media a Public Forum?, CivicPlus, (May 19, 2022), https://www.civicplus.com/blog/sma/is-social- media-a-public-forum/.

³ See Section 3 of the instant Memorandum which addresses limited exceptions with regard to public parks.

⁴ Rodriguez v. State, 29 So. 3d 310, 312 (Fla. 2nd DCA 2009) (“Property owners and lessees give officers authority to issue such warnings in hopes that trespassers will either (1) comply with the officers’ requests to leave and actually depart the premises or (2) remain on the property, thereby authorizing the officers to arrest for a misdemeanor committed in their presence.”).

⁵ Hall, Timothy L., Public Forum Doctrine, EBSCO (2022), https://www.ebsco.com/research-starters/law/public- forumdoctrine.

⁶ See generally Gitlow v. New York, 268 U.S. 652 (1925).

⁷ Fla. Const. Art. I, § 4.

⁸ Ledford v. State, 652 So. 2d 1254, 1256 (Fla. 2nd DCA 1995).

⁹ See generally Wood v. Eubanks, 25 F.4th 414 (6^th Cir. 2022).

¹¹ Id.

¹² Edward R. Maguire & Megan Oakley, Harry Frank Guggenheim Found., Policing Protests: Lessons from the Occupy Movement, Ferguson & Beyond: A Guide for Police 9–10 (2020), https://www.hfg.org/wp- content/uploads/2021/06/PolicingProtests.pdf.

¹³ Fox v. Hamptons at Metrowest Condominium Association, Inc., 223 So. 3d 453, 457 (Fla. 5^th DCA 2017).

¹⁴ Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).

¹⁵ Brown v State, 358 So. 2d 16, 18 (Fla. 1978).

¹⁶ Virginia v. Black, 538 U.S. 343. 359 (2003).

¹⁷ Id at 360.

¹⁸ Id.

¹⁹ See generally Watts v. United States, 394 U.S. 705 (1969).

²⁰ See generally Miller v. California, 413 U.S. 15 (1973).

²¹ See above for statutory language.

²² K.J. v. State, 107 So. 3d 523, 524 (Fla. 4th DCA 2013) (explaining that officers who did not witness a person committing a crime when the park was closed, did not justify the officer requiring the person to stay out of the park when the park was open).

²³ K.S. v. State, 840 So. 2d 1116, 1117 (Fla. 1st DCA 2003) (explaining that the State failed to provide evidence that there was proper postage of hours which is a required element of trespass).

²⁴ Mussallam v. State, 133 So. 3d 568, 569 (Fla. 2nd DCA 2014) (explains that PD having a “hunch” about criminal activity did not warrant an investigate stop and detention, even if in a high crime area).