2012 DNC protesters and police

Protesters and police at the 2012 Democratic National Convention in Charlotte, NC.

Debra Sweet / Flickr

Why the ACLU is fighting Philly’s new DNC protest restrictions

Updated Friday, June 17 at 3 pm; correction appended

Mayor Jim Kenney’s administration has tightened the rules for protesting during the Democratic National Convention in July. The Pennsylvania branch of the American Civil Liberties Union would like to know why.

The group faxed a four-page letter to the Kenney administration Wednesday morning, stating that it is “deeply troubled” by indications that officials “seem to be setting the City up for conflict with protesters” during July’s Democratic National Convention. The city expects upwards of 30,000 demonstrators during the week of the event.

The letter, based on face-to-face meetings between the ACLU and city officials, as well as emails obtained last night by Billy Penn, revealed that “new positions articulated by the Law Department raise serious First Amendment issues.”

In a statement released Wednesday evening, the administration said in part that they “were extremely disappointed that the ACLU has created unnecessary distrust of the City’s plans regarding demonstrators in the interest of garnering national media attention. The ACLU claims to have sent this letter to reduce public confusion, but in reality, they released this letter to the media at the same moment they sent it to the City, giving the City no opportunity to respond.”

The city has not yet responded to the ACLU, according to the organization’s Deputy Legal Director Mary-Catherine Roper.

So what’s changed? New restrictions on marches down Broad Street and throughout Center City; access — but not overnight access — to a recently-designated “protest zone” at FDR Park across the street from the Wells Fargo Center; and a lack of clarity about whether outside law enforcement agencies, including the State Police, will be under the command – and subject to the policies and directives – of the Philadelphia Police Department.

No Permits for Center City? No Marching

First: demonstrators may be in for trouble with police should they march down Broad Street without a permit, as well as march anywhere in Center City during rush hour.

One significant change to the city’s previous stance involves their refusal to issue any permits for marches down Broad Street (a common thoroughfare for seemingly countless demonstrations that have occurred in the past). Importantly, Broad Street will become a one-way street during the convention, to ease traffic from Center City to the Wells Fargo Center While Ed Rendell told reporters that Broad Street would be one way during parts of the Democratic National Convention, Hitt now says that’s no longer the case.

The letter goes on to challenge another policy change that would restrict rush hour marches throughout Center City too, characterizing the reversal as “particularly concerning when combined with the City’s unwillingness to state publicly that it will not seek to punish protesters merely for protesting without a permit.”

Kenney spokesperson Lauren Hitt confirmed that protests in Center City during rush hour would not be permitted, in order to avoid impeding emergency vehicles. This is a stark departure from pre-convention policy. She also told Billy Penn yesterday evening there would be no ban on permitted marches down Broad Street “outside of Center City.”

In emails provided by the ACLU however, city attorney Valerie Robinson makes very clear that no permits for Broad Street marches would be issued by the city at all – rush hour or no.

“With respect to marching down Broad Street, the City does not intend to issue any permits for marches,” wrote Robinson on June 9th. In the same email, the city defines rush hour as 7 a.m. to 9 a.m. and 3 p.m. to 6 p.m.

But late Wednedsay, the administration suddenly changed course on a Broad Street ban.

“I want to be clear about the City’s stance on Broad Street demonstrations,” wrote Hitt in an email to Billy Penn. “There is no ban. The email you refer to from Valerie Robinson about the city’s policy on Broad Street demonstrations is outdated.”

That would be a significant policy reversal in less than one week.

Molly Tack-Hooper, a staff attorney with the Pennsylvania ACLU, said last night that the lack of clear policies is precisely why they wrote to Kenney.

“This is the third articulation of the Broad St. rules that we’ve heard in one week from the City. One week ago, the Law Department said there will be no permits issued for marches down Broad St. Yesterday, Kenney’s spokesperson said that there is only a prohibition on marches down Broad St. in Center City and that permits may be issued for Broad St. outside of Center City.

Hitt also told the Inquirer yesterday that Broad Street permits were being “evaluated on a case-by-case basis, but that there are no blanket ban on demonstrations on Broad Street.”

And during all of this confusion, should an “illegal asssembly” (read: unpermitted march) get rounded up and hauled away, they wouldn’t go to any of the city jails currently operating.

And if an “illegal assembly” was rounded up and hauled away, they wouldn’t go to any of the city jails currently operating.

That’s because storied Holmesburg Prison will be reopened in the event of mass arrests, according to Hitt, who stressed that just because the facility is being prepared specifically for the Convention doesn’t mean they “plan to engage in mass arrests.”

“We are only preparing the facility so that if a worst-case-scenario does occur, arrested individuals aren’t placed in general population.”

No Sleeping in FDR Park

And then there’s the matter of demonstrators camping overnight in FDR Park. According to the ACLU, previous meetings between Philadelphia police and the organization produced an understanding that police would “not expend resources to clear FDR Park at night,” meaning protesters would not be kicked out of the park.

Hitt confirmed that the city would in fact be restricting access to the park “due to health and safety concerns for prospective campers,” but would be extending its hours until 10 p.m., and that officials would “respectfully ask those who attempt to camp in FDR to relocate.”

The city said it planned to provide “numerous resources to ensure [protesters’] health and safety, including misting tents, water and restrooms.”

According to the park’s Facebook page however, the space closes at 9 p.m.

Is There a Lawsuit Brewing?

There are also concerns that the city may be bracing themselves for a lawsuit, according to an individual involved with the negotiations between the city and ACLU, who requested anonymity. Those concerns stem from the fact, evidenced in the letter, that up until recently, ACLU attorneys had been meeting and communicating directly with Managing Director Michael DiBerardinis’ Office, Philly Police, and Secret Service. That relationship has changed since last year though.

“The City Law Department recently asked that we stop communicating directly with city agencies and instead direct all inquiries through it,” the letter states. Yesterday night, the ACLU also provided an email confirming that the Law Department requested that the ACLU communicate with city attorneys instead of reaching out to various agencies.

“Also, just a reminder, please reach out to us and not our clients with any questions you may have or information you may require,” stated Robinson in an email dated June 3rd.

Will Philly Police run the show?

Wednesday’s letter to Kenney also sought clarification on what the police’s command structure would look like.

“It is vital that the public understands to what extent the law enforcement officers providing DNC-related security in Philadelphia will be under the City’s control and bound by the City’s policies, such as the PPD policy against infiltration of protest groups, or PPD policies restricting officers’ interference with civilians’ attempts to record or photograph the police.”

That policy refers to a landmark 1993 directive that prohibits Philly police infiltration of political activity without written permission from the Managing Director and a Deputy Police Commissioner. Would this policy apply to outside agencies under the command of the police department? Police recently confirmed in a Right-to-Know response that this policy is still in effect.

“State and federal law enforcement agencies are not legally bound by the PPD’s policies, however, given that we are working in coordination with these groups we don’t expect them to stray outside the scope,” Hitt said.

The letter concludes in part by urging officials to ensure “that Philadelphia lives up to its reputation as the birthplace of liberty in America.”

These new revelations present a very different picture of how, until now, local officials had indicated they would deal with street protests during the convention. A recent Inquirer editorial trumpeted a new council ordinance introduced by the administration that seemed to take a soft-handed approach to demonstrations (although that bill is expected to be amended over some First Amendment concerns).

Correction: This piece originally inadvertently promoted ACLU PA’s Deputy Legal Director. Also, Ed Rendell told reporters that Broad Street would be one way during the convention; Kenney administration officials now say their thinking has changed.

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