Keeping I.C.E. Safe in a Privately-Owned Freezer: Using Trespass Law to Circumvent First Amendment Protest Protections

By: Jarrett Field

The First Amendment protects the ability to engage in free speech, including protest, in public forums, government owned spaces like parks and sidewalks, provided that protesters do not interfere with movement or block access. In order to limit speech that takes place in such a manner, the government must narrowly tailor their restrictions on speech to serve a compelling governmental interest. This is often called strict scrutiny, and is the highest standard the judiciary uses to evaluate government action, thereby putting a high bar in place to protect First Amendment rights in this case. Owners of private spaces, on the other hand, are able to limit free speech and give orders to leave the premises, the violation of which may constitute trespass. This limits the conflict between property rights and free speech rights that would ensure were there no limitations on where protests could take place. Property owners, particularly businesses, have a legitimate interest in being able to control the actions of guests on their premises, especially when protest might threaten to disturb the regular conducting of business.

But what if the government utilized the enhanced ability of private property owners to limit free speech in order to shield controversial offices and activities from protest? Couldn’t the government form symbiotic relationships with private real estate owners to curtail disfavored speech against its practices under the guise of protecting the business interests of the real estate owner?

On July 31, 2018, ten people were arrested on violation level trespassing charges in connection with a protest against the U.S. Immigration and Customs Enforcement (“ICE”)office located at 401. S. Salina Street, in Syracuse New York. The protesters hoped to serve a representative of ICE with an eviction notice as part of the protest, telling ICE that their organization is unwelcome in Syracuse because of its hostile treatment of immigrants.  The protesters alleged, via an “Eviction Notice” that was read aloud during the protest, that the organization had engaged in kidnapping Syracuse residents, separated children from their families, and that ICE represents “the worst racist white nationalism, xenophobia, and the prison industrial complex,” among other things. The building, now known as Dey’s Plaza and owned by Robert Doucette who is described as a “pioneer in the downtown revitalization efforts in Syracuse,” is an apartment building that in addition to its ICE office, houses a coffee shop and a bank, among other things. Protesters entered and stood in the lobby of the building, gathering near the entrance to the ICE office itself, well past the entrances to the businesses in the lobby.

Doucette, the landlord of an agency accused of becoming a deportation force under the Trump administration and breaking up families of law abiding undocumented immigrants, has proudly boasted that Syracuse has “embraced the immigrants, the outcasts, the refugees, and we still do.” The dissonance would be striking, if the rationale for taking on ICE as a tenant didn’t make perfect sense.

Doucette’s pro-immigration posturing makes perfect sense for Syracuse, which voted overwhelmingly for Hillary Clinton in 2016. Doucette may not be a politician, but he is a businessman. The same video in which Doucette professes his support for immigrants originally contained a shot of a sign supporting Independent Ben Walsh for mayor of Syracuse. The shot was met with controversy for taking a political stance, and was later removed. Ben Walsh has shied away from referring to Syracuse as a “sanctuary city” which he refers to asa “political term without any real meaning.” Doucette and Walsh have worked together on projects before, and Doucette is open about his support for Walsh for mayor. More importantly for Doucette, his chances at obtaining tax breaks for renovations to Dey’s Plaza, which previously received no support from the Syracuse Industrial Development Agency, might now have a shot, because the board’s makeup has shifted with Walsh as mayor.

Regardless of his motivations, with Doucette as ICE’s landlord, the Onondaga County District Attorney’s Office alleges that agents of the building were able to authorize police to remove protesters from the building that did not comply with an order to leave. According to the DA’s office, the arrested protesters refused the order to vacate, and were thus arrested for trespass. The protesters were charged only with violation level trespass under New York Consolidated Penal Law 140.05. Violations are the lowest level of offense in New York, and are not technically crimes. Defendants facing these types of charges are typically offered Adjournment in Contemplation of Dismissal (“ACD”), because the offense is relatively minor. An ACD is essentially an offer by the prosecution to drop the pending criminal charges should certain conditions be met by the defendant, such as not being re-arrested. The protesters in this case, however, were not offered ACD. It may be worth noting that Syracuse District Attorney William Fitzpatrick is a Republican who has come under fire previously for allegedly breaching professional guidelines in his decision to endorse Derek Shepard for local legislature during a GOP primary. DA Fitzpatrick has also gone on the record saying that criminal enforcement resources would be better spent elsewhere, “not [on] some privileged people that graduated from some ivy league school that are in their 60’s, reminiscing about the good old days when you could smoke dope on the corner and protest this stuff.” If that’s the case, why hasn’t Fitzpatrick offered the defendants ACD, so that the resources could be spent elsewhere? Or better yet, why not drop the charges altogether, given the potential chilling effect prosecuting the case may have on First Amendment free speech?

The government is prohibited from restricting speech based on its content under the First Amendment. This means the government can’t unilaterally prevent protests of government offices in public forums, such as a sidewalk immediately outside of a government building, just because they don’t like the protest. But housing a controversial government office, like an ICE office, inside of a privately-owned building affords an opportunity to create substantial distance between the office itself and the protest, and arrest any protester that enters the private property under the expanded ability of private property owners to revoke the privilege of the protesters to stay in the space if they are being disruptive. This creates an enormous incentive for all government offices that might be subjected to protest to be stashed away in unmarked rooms of private buildings. Local government benefits from this protest-proofing, and the private building owners stand to benefit from gaining friends in high places.

Trespass charges may be relatively simple, as they are in New York, where a person can be guilty of trespass for knowingly remaining in premises after a lawful order to vacate has been given. But pressing trespass charges for the protest of government offices in a private building overlooks the serious policy concerns at hand. Allowing for convictions on charges like these provides a path for a government immune to protest, with the ability to convict and punish any protesters who get too close. Trespass during protest charges, like the ones in Syracuse, need to be analyzed carefully in light of the First Amendment, and the possible consequences to the right to peaceably assemble. Again, certainly business owners need to be able to go about their business without undue interruption or disturbance by others, but perhaps additional duties are taken on when a building owner accepts a government office as a tenant. There’s a reasonable expectation such an office, especially when it is controversial, might be subject to protest, and a peaceful assembly in the lobby of such a building does nothing to prevent the normal business activity of other businesses in the building. The compromise is to balance the competing interests—does the disturbance caused by protesters and its effect on local businesses outweigh the First Amendment right to free speech and peaceable assembly?

This sort of determination could be handled by courts on a case-by-case basis. Where protesters engage in violence, the balance ought to weigh in favor of the businesses. In cases where protesters actively blocked travel through shared hallways, thereby preventing would-be patrons from accessing businesses, the balance ought to weigh in favor of the businesses. But where protesters demonstrate peacefully without blocking access to nearby businesses, or might reasonably be bypassed by use of another entrance, the First Amendment rights ought to win out. Trespass charges, in these situations, ought to be defeated by claim of a First Amendment right. Attempts to evict protesters, furthermore, ought to be met with serious scrutiny, especially where a government office is involved.