DocketNumber: NO. PD-0893-14; NO. PD-0894-14
Citation Numbers: 491 S.W.3d 733
Judges: Alcala, Hervey, Johnson, Keasler, Keller, Meyers, Newell, Richardson, Yeary
Filed Date: 12/9/2015
Status: Precedential
Modified Date: 1/12/2023
OPINION
delivered the opinion of the Court
On October 6, 2012, appellants, Joey Darrell Faust and Ramon Marroquin, while protesting at a gay pride parade, each disobeyed a police officer’s order to not cross a skirmish line, resulting in their arrest for the offense of Interference with Public Duties under Texas Penal Code Section 38.15(a)(1).
BACKGROUND
Appellants, Faust and Marroquin, along with several other members of the Kingdom Baptist Church, were protesting at a
Sergeant Genualdo testified during the bench trial that he first came in contact with Faust before the parade started. He asked Faust and the Kingdom Baptist Church members to join with other protesters to “have them in one area so they could still do their demonstration but just co-locate them.” Sergeant Genualdo testified that the purpose of controlling the groups was “[t]o prevent a breach of, the peace.” He said that they “were trying to make sure that there were no physical altercations that took place.” When he first asked Faust if his group would move, Faust “declined,” and Sergeant Genualdo said “okay.” Sergeant Genualdo then moved along with his team to another location along the parade route where they “maintain[ed their] position throughout the duration of the parade as it went by.” Sergeant Genualdo testified that, as the end of the parade was passing the officers, there were “some crowds of civilians” walking down Main Street behind the parade. At that time, Sergeant Rachel De-Hoyos and Lieutenant Glen Verrett ordered Team One and Team Five to form a police skirmish line. The officers’ intent was to block off the southbound direction on Main Street in order to temporarily prevent the Kingdom Baptist Church members from going further south. The police were trying to “maintain a space” between the church members and the “trail end” of people supporting the parade in order to avoid any confrontation that could escalate into violence between the two groups. Sergeant' Genualdo emphasized that the skirmish line “was not intended to be permanent.” He stated that it was “a delay and [the church members] were going to be allowed to proceed southbound once we determined there was a safe time distance between the two.”
Appellant Faust encountered Sergeant Genualdo at the skirmish line. ■ Sergeant Genualdo testified that he “held out his arms, and told [Faust] he couldn’t proceed any further for the time being.”
On cross examination, Faust’s counsel established that other people were allowed to cross the skirmish line, but Faust was not. Sergeant Genualdo explained that this was '“due to the previous history the department has experienced with [Faust],” and that “the likelihood for violence was increased if [Faust] went and met with the trail end of the parade.” The officers wanted to “prevent that from occurring.”
' Sergeant DeHoyos testified that there were altercations between the Kingdom Baptist Church protestors and the parade supporters and participants after last year’s gay pride parade. In her police report,- which was offered into evidence by appellants as Defense Exhibit 1, Sergeant DeHoyos described the history of violence involving the Kingdom- Baptist Chürch members:
I worked.the event last year and was present and observed several breaches of the peace caused by these individuals. These protestors were a group from Kingdom Baptist Church in Venus, Tx. They, had extreme anti-homosexual views and yelled and screamed disparaging remarks at the persons attending the Gay Pride Parade. Examples that I heard were: “I hope you and your children die in a fiery crash” and “you should just go ahead and kill yourself you faggot!” Some of the statements uttered last year did provoke violence and incited at least one physical fight. Two other arrests were made when they used offensive language.7
I also had previous kn'owledge that these persons from Kingdom Baptist church often come to downtown Fort Worth on Friday and Saturday nights and “street preach.” They are well known and documented to use foul, abusive and offensive language which by its very utterance tends to incite an immediate breach of the peace. In some cases, the foul, abusive and offensive language is directed toward individuals whom they believe are homosexuals. As á result of these actions, one of their members was arrested for Assault Bodily Injury/Hate Crime Enhancement.
... During the parade, the Kingdom Baptist Church group stayed in the 100-300 blocks of Main.St. We received numerous complaints from persons attending the parade about the hateful speeches being uttered by this group but at this time they were complying with the law and were not violating any city ordinances,
When the parade ended, the majority of the persons attending the parade began to walk South on Main St. towards the area where the festival was being held. From my experience last year, I knew that this was when the majority of the volatile conflicts occurred between the Kingdom Baptist Church group and the persons who were attending the parade. In order to keep a breach of the peace from occurring and to ensure the safety of both the parade attendees and the Kingdom Baptist Church group, I ordered Zero Tolerance Officers to form a skirmish line at 300 Main and keep the Kingdom Baptist Church group away from the parade attendees.
... I initially had four officers on the east side of the street and had-to call for additional ZT Officers as the Kingdom Baptist Church group was attempting to push through our skirmish line. AKRl/Marroquin and another unidentified black male stepped off the curb line and were physically attempting to push through the line. I had to push them back and told them-to get back on the curb. Marroquin continually attempted to break through the line, and I had to push him back at least four times. Officer Medders, Officer Gray and Officer Johnson also had to push him back. Marroquin kept asking if he was being detained and I told him' he was not detained,: but he could not walk past me. I told him he could walk back the other direction. I told him if he went past me I could not guarantee his safety, he told me “I didn’t ask you to watch for my safety” and attempted to walk past me -and I pushed him back again. Marro-quin again attempted to push past myself and- Officer Gray by forcing his shoulder between the two of us. This action was interfering and disrupting me from exercising and performing my duty to keep a breach of the peace from occurring as imposed by law. I then arrested ARRl/Marroquin for Interference with Public Duties of a Peace Officer.
Shortly after this occurred, Sergeant Genualdo encountered ARR2/Foust [sic] on- the West side of the street. Sergeant Genualdo told me that Foust [sic] tried to cross the street southbound. Sergeant Genualdo told him he could not go any further_ Sergeant Genualdo told him that he couldn’t guar-aritee his safety if he did. Foust [sic] said, “I didn’t ask you to do that.” ... Genualdó told him he could not cross and had to extend his arm to keep Foust [sic] from passing. Foust [sic] then said “I’m . only going to let you detain me for-a few more minutes and then you arrest me if you want to.”- Foust [sic ] then attempted to walk past Sergeant Genualdo. This action was interfering and disrupting Sergeant Genualdo from exercising and performing his duty to keep a breach of the peace from occurring as imposed by law.
Sergeant DeHoyos testified that it-was not their intention “to prevent anyone from expressing Christian views or any type of religious views.” They were simply “attempting to prevent a breach of the peace, mainly being disorderly conduct, or in a worst-case scenario, riot.” The skirmish-line was implemented, based on past
I wasn’t so concerned about once they got to the 900 block, because last year we were able to contain them fairly well and just had to endure the constant aberration [sic ]. But it’s that — that gap from where we held them initially to the 900, so basically those six blocks, my concern was in those six blocks, what would happen there because that’s where the problems occurred the previous year. That’s where, as they were commingling, you had people attending the festival and the parade and you had people from the Kingdom Baptist Church, as they were both moving down, that’s where the altercation occurred and that’s what we were trying to prevent.
Sergeant DeHoyos testified at trial that Marroquin tried to cross the row of police officers by attempting to push through the skirmish line. When Marroquin tried to push his way across the skirmish line, he, too, was arrested for Interference With Public Duties in violation of Section 38.15(a)(1).
At the close of the State’s evidence the State rested, and then the defense rested. At that time appellants’ defense counsel presented to the trial court a Motion for Judgment, along with a Memorandum Brief in support of such motion. In their brief, appellants acknowledged that “[a]n ‘applied’ challenge to a law can only be brought ‘during or after a trial on the merits.’ ”
• The trial court denied appellants’ Motion for Judgment and found both Faust and Marroquin guilty of the offense of interference with public duties. Before sentencing Appellants, the trial court judge explained his ruling as follows:
I want to start' by faying that I am not a person who will sit up here and defend a police state.’ I don’t think that’s what we had here. I like for the police to follow the rules that everyone else does. I have probably granted more motions to suppress in cases, maybe than any other judge in this courthouse, because of that. However, I think the police in this case, in your cases, were performing a legitimate function, and it is not my intention here to say that you and your group cahnot express your views. You’re certainly protected by law in that expression of views, whatever it is. I don’t see this as a free-speéch. casé, I see this as a maintaining public order case. 'We’ve got to have rules in our society or it’s going to be chaos. And I’m not going to sit here and say, well, gosh, we should wait until there’s :a brawl in the street before the police take*742 action, because we don’t want that. You can’t stand up in the middle of a crowded theatre and, yell fire for that very reason. There’s got to be order in our society' or we don’t have society, anymore, So that’s the approach I’m taking on /all’s cases.
THE COURT OF APPEALS’ DECISION
Appellants’ sole issue raised on direct appeal was that “they were detained based on speculation of the content of their future speech in violation of their First Amendment rights,” and thus. Section 38.15(a)(1) was unconstitutionally applied to them.
We granted the State’s petition for discretionary review to address whether the court of appeals erred in determining that the police officers’ skirmish line had been ordered in violation of appellants’ First Amendment rights, and thus appellants’ conviction for disobeying such an order was an unconstitutional application of Section 38.15(a)(1).
Appellants seek to have this Court uphold the decision of .the Second Court of Appeals, arguing that the conduct of the police in precluding appellants from crossing the skirmish line, while letting other members of the public cross said line, was an unconstitutional infringement upon appellants’ rights of free speech and assembly. Appellants claim that because the skirmish line had no lawful purpose, the application of Section 38.15(a)(1) to crossing the skirmish line was unconstitutional.
The State asserts that appellants’ restraint under Section 38.15(a)(1) was pursuant to a valid, content-neutral regulation, and that appellants were not arrested because of their expressive activity, but as a result of their disobedient behavior and failure to comply with the lawful orders of law enforcement officers. The State argues that appellants had no right under the First Amendment to disobey the orders of law enforcement officers on the basis that the officers were acting in violation' of appellants’ constitutional rights.
ANALYSIS
The Constitutionality of Section 38.15(a)(1) “As Applied” to Appellants Depends Upon the Constitutionality of the Police Skirmish Line
An “as applied” challenge to the constitutionality of a statute asserts that a statute, although generally constitutional, operates unconstitutionally as to the claimant because of his particular circumstances.
A person commits the offense of Interference With Public Duties under Section 38.15(a)(1) “... if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with: (1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.”
We begin by examining more closely the language of Section 38.15(a)(1), as it applies to this case. Appellants were found guilty of interfering with the peace officers while they were “performing a duty or exercising authority imposed or granted by law.” Peace officers have a duty, under Article 2.13 of the Texas Code of Criminal Procedure, “to preserve the peace within the officer’s jurisdiction.”
However, restrictions that have an effect on protected speech may nevertheless be allowed under certain circumstances. The Supreme Court has held that, “even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided [1] the restrictions ‘are justified without reference to the content of the regulated speech, [2] that they are narrowly tailored to serve a significant governmental interest, and [3] that they leave open ample alternative channels for communication of the information.’ ”
In determining content neutrality, we look to whether the police order to not cross the skirmish line had the purpose of regulating appellants’ speech “because of disagreement with the message it conveys.”
While any governmental attempt to censor appellants’ expressions of their beliefs would raise serious First Amendment concerns, it is clear that the officers intended to prevent direct and close confrontation between appellants and the parade-goers in order to promote safety, not to stifle appellants’ expressions of their beliefs. The officers’ testimony showed' they had no interest in imposing their own views on appellants. Their testimony reflects concern for the preservation of order and protection of the public. The officers’ concern for public safety extended only to the goal of ensuring that no violence would erupt between the Kingdom Baptist Church members and the parade supporters and participants. Therefore, we find that the skirmish line was content neutral, even though it may have had the incidental effect of temporarily hindering appellants’ ability to deliver their message to the parade-goers.
The appellate court acknowledged that the police skirmish line was content neutral because of the officers’ testimony that the skirmish line was set up due to concern for public safety. The court noted that, “[b]ecause the skirmish line was' directed at the possible secondary effects of the church group’s speech, we look to whether the skirmish line was narrowly tailored to serve a significant governmental interest.”
2. Narrowly Tailored To Serve Á Significant Governmental Interest
A regulation is narrowly tailored if “the means chosen are not substantially broader than necessary. , to achieve the government’s interest.”
The appellate court held that the skirmish line was not narrowly tailored to serve the government’s interest in public safety because all members of the Kingdom Baptist Church were barred from proceeding down the street merely because of their association with the church. However, we find that, while a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interest, it need not be the least restrictive or least intrusive means of doing so.
The government has a significant interest in ensuring public safety and order.
The officers’ decision to prevent all members of the Kingdom Baptist Church from crossing the skirmish line was reasonable in light of the information they had received about previous instances of violent confrontations erupting between church members and gay pride parade supporters.
3. Ample Alternative Channels Of Communication Open
This final requirement is “easily met,” so long as the guideline “continues to permit expressive activity” and “has no effect on the quantity or content of that expression.”
CONCLUSION
We therefore hold that the police skirmish line was a lawful exercise of police authority. Although it was a governmental restriction on protected speech, the skirmish line was reasonable because it Was justified without reference to the content of the regulated speech, it was narrowly tailored .to serve a significant governmental -interest, and it left open ample alternative channels for communication of appellants’ views. Therefore, we hold that the skirmish line did not violate appellants’ First- Amendment rights. We agree with the sentiment expressed by the trial court judge — that appellants literally crossed the line, from engaging in purportedly protected speech, to physically interfering with a lawful police ■ order. Therefore, we hold that Section 38.15(a)(1) was not unconstitutionally applied to appellants. We sustain the State’s third .and fourth grounds for review. In view of our disposition, we need not resolve the State’s first two grounds. We reverse the decision of the court of appeals and order that the trial court’s judgments be reinstated.
Johnson, J., filed a concurring opinion.
. Tex. Penal Code § 38.15(a)(1) provides that "[a] person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with: (1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.” It is uncontro-verted that appellants heard and purposely disobeyed the police officers’ order.
. The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech, ... or the right of the people peaceably to assemble....” U.S. Const., amend. I. The First Amendment right to freedom of speech applies to the states by virtue of the Fourteenth Amendment. See Ex parte Thompson, 442 S.W.3d 325, 334 (Tex.Crim.App.2014).
.Appellants have placed great emphasis on the argument that the police officers did not communicate the temporary nature of the skirmish line to appellants, leaving them to interpret the skirmish line as a permanent suppression of their right to continue to communicate their views to the parade-goers. However,- Sergeant Genualdo's testimony that he told Faust that they were being delayed “for the time being” is indicative that the ‘ temporary nature of the skirmish line was indeed communicated to Faust.
. Again, Sergeant Genualdo communicated that the skirmish line would be temporary.
. Other than this brief mention during Sergeant Genualdo's testimony that he was being "physically berated,” there was no evidence to suggest that Faust had any physical contact with Sergeant Genualdo. Faust was not charged with assaulting a police officer.
. Tex Penal Code § 42.01(a)(1) provides that "[a] person commits an offense if he intentionally or knowingly: (1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its Very utterance tends to incite an immediate breach of the peace,”
. Sergeant DeHoyos testified at trial that she, too, believed the words used by the Kingdom Baptist Church members in protest at the prior year’s gay pride parade were words that were likely to incite the immediate breach of the peace in violation of the disorderly conduct laws.
. Sergeant DeHoyos testified that the police were concerned about protecting "not only the parade-goers, but the protestors themselves,” because there was the "possibility of violence being used against them also.”
. Defendant’s Memorandum Brief at 2 (citing to State of Texas v. Fine, 330 S.W.3d 904, 910 (Tex.Crim.App.2011)).
. Id. at 6 (citing to Carroll v. President of Princess Anne, 393 U.S. 175, 180, 182, 185, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968)). Carroll involved a lawsuit brought by the county and the town to restrain members of a political party from holding rallies. The Supreme Court set aside the ten-day order imposing the restraint, but not because the Court addressed “the thorny problem of whether, on the facts of this case, an injunction against the announced rally could be justified.” The Court acknowledged that prior restraints on protected speech bears “a heavy presumption against its constitutional validity.” However, the Court also noted that this presumption can be overcome with the proper “procedural safeguards designed to obviate the dangers of a censorship system.”
. Id. at 7 (citing to Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)). Tinker involved a lawsuit seeking an injunction against enforcement by school officials of a regulation prohibiting the wearing of black armbands by students in protest of the Vietnam War. The Court noted that "apprehension of disturbance is not enough to overcome the right to freedom of expression.” Under the facts of that case, we would agree. The “apprehension of disturbance” under the facts of Tinker is notably different from the police officers’ concern for public safety based on the church members’ history of violence that was present in this case.
.Id. (citing to Collins v. Jordan, 110 F.3d 1363, 1372 (9th Cir.1996)). Collins involved a class action lawsuit brought against police officials by those arrested for demonstrating after the Rodney King verdict was announced. The plaintiffs’ First Amendment claims were to the effect that the police had unlawfully banned all demonstrations and unlawfully arrested'.those who refused to disperse. The court held that the occurrence of limited violence and disorder on one day is not a justification for banning all demonstrations on the following day. Again, this case is distinguishable on the facts. Collins involved a complete ban on expressive activity. That was not what occurred here. Appellants were not banned from expressing their views. The prior history of violence was relevant information that caused the police to, rightfully, be on heightened alert. It was only near the end of the parade route — after appellants had been allowed to fully voice their views in protest throughout the duration of the gay pride parade — that the police decided to temporarily create a time and space separation between two groups in their effort to keep the peace, As we explain herein, such restriction fell within the noted exception ■ allowing for such restraint. In fact, the court in Collins acknowledged that, under certain circumstances, a “time-limited ban” could be lawful, depending on whether the police had “reliable information that organized violence of a serious nature is about to occur.”
. Id. (citing to Collins, 110 F.3d at 1371-72).
. Id. at 9 (citing to Collins, 110 F.3d at 1372).
. Faust v. State, Nos. 02-13-00222-CR, 02-13-00223-CR, 2014 WL 2611186, at *2 (Tex.App.-Fort Worth, June 12, 2014) (mem. op,, not designated for publication).
. Id.
. Faust, 2014 WL 2611186, at *2 (quoting Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)).
. Id. at *3 (citing to Perry Educ. Ass’n v. Perry Local Educators’ Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)).
. Id. at *3 (noting that "[a]ll members of the church were barred from proceeding down the street regardless of whether they had previously assaulted parade-goers or not, whether they were yelling profanity or threatening words or not, or whether they were even protesting at all”).
. Id. at *4 (citing to Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)).
. Id. at *4.
.The State's petition presents four grounds for review:
1. Did the Second Court of Appeals err in implicitly holding that citizens can use the First Amendment to the United States Constitution as a shield to disobey lawful orders of law enforcement and forcibly cross a police skirmish line set up at a gay pride parade in Fort Worth, Texas, when those measures by law enforcement are taken to preserve the peace and the safety of the public?
2. Notwithstanding that police action may infringe on a citizen’s First Amendment rights, does a citizen have a right to disobey orders of a police officer, forcibly breach a skirmish line imposed, and interfere with the officer’s duties?
3. Did the Second Court of Appeals err in failing to conduct a proper "as applied” First Amendment analysis when it concluded that the Fort Worth Police Department's action in constructing a skirmish line at a gay pride parade violated the First Amendment to the United States Constitution?
4.Did the Second Court of Appeals err in concluding that the skirmish line set up by the police department during the Fort Worth Gay Pride Parade was not a reasonable action as to "time, place or manner” under the First Amendment to the United States Constitution?
. "The issue in these cases is not and never has been the language-of Section 38.15(a)(1). It has always been its application to crossing the skirmish line, which had no lawful purpose,” ' Appellant's-Brief on the Merits, at 12, Faust v. State, Nos. 02-13-00222-CR, 02-13-00223-CR, 2014 WL 2611186 (Tex.App.-Fort Worth June 12, 2014) (mem. op., not designated for publication).
. See State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex.Crim.App.2011); Gillenwaters v. State, 205 S.W.3d 534, 536 n.3 (Tex.Crim.App.2006).
. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex.Crim.App.2002).
. Tex. Penal Code § 38.15(a)(1) (emphasis added).
. Tex.Code Crim. Proc. art. 2.13.
. We do not perceive a preservation-of-error issue here. It has been clear from day one that appellants were raising a constitutional “as applied” challenge. Appellants argued before the trial court that they were challenging the constitutionality (i.e., the lawfulness) of the skirmish line, and they raised that claim on appeal. Had the trial court agreed with appellants and rendered a judgment of acquittal, perhaps the State could have raised a valid argument that its right to appeal should not be foreclosed by such a ruling; the trial court might have erred had it granted an acquittal, as opposed to a dismissal, since the basis for relief was a constitutional challenge. See, e.g., Cain v. State, 855 S.W.2d 714, 715 n. 2 (Tex.Crim.App.1993). But see, Flores v. State, 245 S.W.3d 432, 443 (Tex.Crim.App.2008) (Cochran, J., concurring) (“There is only one remedy for either the trial or appellate court: dismiss the indictment and enter an acquittal because the defendant was convicted under an unconstitutional application of an otherwise valid penal statute.”). However, since the trial court did not enter an acquittal, that scenario is not before us.
In Freeman v. State, 340 S.W.3d 717, 730 (Tex.Crim.App.2011), the appellant raised an “as applied” constitutional challenge on appeal. This Court held that defendant’s bare request for an acquittal, without articulating a reason, was not enough to preserve error of his constitutional claims. Appellant did not specify that his complaint was of the constitutionality of Texas Penal Code Section 19.03, Id. In this case, however, appellants’ request for acquittal made at the close of all the evidence clearly and unambiguously articulated the basis for the relief sought from the trial court judge.
In Resendez v. State, 306 S.W.3d 308, 312-13 (Tex.Crim.App.2009), this Court held that "no technical considerations or forms of words” are required to preserve an error for appeal, and a party must only "be specific
In this case, appellants did not specifically request an "instructed verdict.” After the State closed, and after appellants rested, defense counsel brought a motion for judgment "finding that the arrest and prosecution under this law, as applied to these facts, they are not guilty." Therefore, we do not believe that there was a failure on appellants’ part to preserve their right to appellate review of their constitutional "as applied” challenge.
. See Hill v. Colorado, 530 U.S. 703, 715, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).
. Gregory v. Chicago, 394 U.S. 111, 112, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969) (holding that convictions for Disorderly Conduct could not be sustained where defendants had not been disorderly). Appellants place great emphasis on the precedential value of the Gregory case. However, the defendants in Gregory were arrested for Disorderly Conduct with regard to the manner in which they held their demonstration. The Supreme Court made it clear that "[defendants] were charged and convicted for holding a demonstration, not for a refusal to obey a police officer.” We find this distinction significant since, in this case, appellants were charged and convicted for refusal to obey a police officer.
. Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). The First Amendment prohibits laws that abridge freedom of speech. U.S. Const., amend. I. The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. See Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).
. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (citing to Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). Relying upon Madsen v. Women's Health Center, 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), the dissenting opinion views the police skirmish line as more of an injunction than a general statute or ordinance, which would mean that a more stringent application of general First Amendment principles should be applied. In Madsen, a civil action, the Supreme Court focused on the relief sought by the plaintiff. The Court drew a distinction between injunctions and statutes because injunctions "can be tailored by a trial judge to afford more precise relief.” 512 U.S. at 765, 114 S.Ct. 2516. Its “close attention to the fit between the objectives of an injunction and the restrictions it imposes on speech is consistent with the general rule, quite apart from First Amendment considerations, ‘that injunc-tive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.’ ” Id. (internal citations omitted). Thus, said the Court, "our standard time, place, and manner analysis is not sufficiently rigorous.” Id. In Madsen, using the stricter standard, the Court examined each contested provision of the court’s injunction order to see if it burdened more speech than necessary to accomplish the valid gov
. We reviewed the appellate court’s decision under the same assumption — that the officers were regulating protected speech. However, Sergeants Genualdo and DeHoyos both testified that they believed that appellants, while protesting at the gay pride parade, had used language that was not protected speech, but rather was language prohibited under the Disorderly Conduct statute. Although the officers did not arrest appellants for Disorderly Conduct, they expressed concern that, if appellants were' allowed to proceed past the skirmish line and come in, close coptact with the parade-goers as they all gathered at the end of the parade, appellants were likely to use language that would tend to incite an immediate breach of the peace. Speech used in a "public place,” that is "abusive, indecent, profane, or vulgar,” and that, “by its very utterance tends to incite an immediate breach of the peace,” is prohibited under the Disorderly Conduct statute, Tex. Penal Code § 42.01(a)(1). The government may prohibit speech or conduct which has a tendency to incite or produce immediate violence. See, e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (holding that New Hampshire's statute prohibiting "fighting words” in public forums was constitutional because "[a] statute punishing verbal acts, carefully drawn so as to not unduly impair liberty of expression, is not too vague for a criminal law.”); Cantwell v. Connecticut, 310 U.S. 296, 309-10, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (holding that personal abuse and epithets-were not -"in any proper sense communication of information or opinion safeguarded by the Constitution and its punishment as a criminal act would raise no question under that instrument”). Although the specific language used by Faust, about which Sergeant Genualdo testified as the kind of speech tending to incite violence, came after he ordered Faust to not cross the skirmish line, Sergeant Genualdo also testified that such language was “indicative of ..[Faust’s],behavior during the course of the day.” The appellate court made the threshold decision that, because, the officers would not allow the members of the Kingdom Baptist Church to go,past the skirmish line, while allowing others who were not members of the Kingdom Baptist Church to proceed past the line, the officers implicated appellants’ First Amendment rights. However, the motives of the police in setting up the skirmish line were not based on curtailing the church’s message, but rather were directed toward maintaining public safety, Sergeant DeHoyos explained that if other parade-goers, not affiliated with the church, had been using “fighting words”
. Id.; Hill v. Colorado, 530 U.S. 703, 719, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quoting from Ward, 491 U.S. at 791, 109 S.Ct. 2746).
. Ward, 491 U.S. at 791, 109 S.Ct. 2746.
. Id. at 791, 109 S.Ct. 2746.
. City of Renton v. Playtime Theatres, 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).
. Faust, at *2-3.
. See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (holding that "[f]or the state to enforce a content-based exclusion it must show that its regulation is necessary-to serve a compelling state interest and that it is narrowly drawn to achieve that end”).
. Ward, 491 U.S. at 800, 109 S.Ct. 2746.
. Edenfield v. Fane, 507 U.S. 761, 773, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (citing to Ward v. Rock Against Racism, 491 U.S. at 800, 109 S.Ct. 2746).
. Id. at 770, 113 S.Ct. 1792.
. United States v. Grace, 461 U.S. 171, 181, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (noting that the section that totally banned the specified communicative activity on public sidewalks could not be justified as a “reasonable place restriction” because there was no sufficient nexus between the restriction and any public interest),
. Ward, 491 U.S. at 798, 109 S.Ct. 2746.
. Id. at 799, 109 S.Ct. 2746 (citing to United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)).
. See, e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994); Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 650, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (“As a general matter ... a State’s interest in protecting the ‘safety and convenience' of persons using a public forum is a valid governmental objective.”); Schenck v. Pro-Choice Network of W. New York, 519 U.S. 357, 376, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) (noting that maintaining peace and public safety is a significant government interest).
. Hill v. Colorado, 530 U.S. 703, 715, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).
. For example, Texas Penal Code § 42.03 provides that “a person commits an offense if, without legal privilege or authority, he intentionally, knowingly, or recklessly; (2) disobeys a reasonable request or order to move issued by a person the actor knows to be or is informed is a peace officer, a fireman, or a person with authority to control the use of the premises: ... (B) to maintain public safety by dispersing those gathered in dangerous proximity to a fire, riot, or other hazard."
. See, e.g., Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 972 F.2d 365, 375 (D.C.Cir.1992) (noting that the “government must have some leeway to make adjustments necessary for the
. See, e.g., Feiner v. New York, 340 U.S. 315, 320-21, 71 S.Ct. 303, 95 L.Ed. 295 (1951) (citing to Cantwell v. Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213 (1940)).
. The court of appeals seems to have placed little emphasis on the history of violence exhibited by members of the Kingdom Baptist Church as a justification for the police skirmish line. The court of appeals’s opinion mentioned such history of altercations only in general terms, and the court ultimately decided that an assault by one member in the past was not enough to justify the skirmish line. However, we find that there was more evidence to support the police perception of a looming threat than just one prior assault by one church member. Sergeant DeHoyos’s testimony and police report recounted several instances when the church members were known to have made extremely disparaging remarks that could incite violence and spark a breach of the peace, not only at the prior year’s parade, but on many Friday and Saturday nights in downtown Fort Worth.
. See Glasson v. City of Louisville, 518 F.2d 899, 906-07 (6th Cir.1975) (noting that police officers have a duty to protect persons exercising the constitutional right of expression).
. See ACORN v. St. Louis County, 930 F.2d 591, 596 ( 8th Cir.1991) (“The government need not wait for accidents to justify safety regulations.”). '
. Citing to Cox. v. Louisiana, 379 U.S. 536, 551, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), the dissent emphasizes that the possibility of violence between the protesters and the parade-goers was not sufficient to justify the skirmish line — the proper response to potential and actual violence is for the government to ensure an adequate police presence. Here, the police did in fact maintain a presence throughout the entire parade. And, although the temporary skirmish line was, at that particular time, more restrictive than mere police presence, it was a regulation on protected speech that was reasonable in time, manner, and.place. The church,members were not prohibited from continuing their protests, nor were they prohibited from espousing their views. The cases relied upon by the dissent involve complete suppression of speech, such as mass arrests of demonstrators who refused orders to completely disperse (Collins v. Jordan, 110 F.3d 1363 (9th Cir.1996)), and an ordinance making it unlawful to hold public worship meetings on the streets without' a permit (Kunz v. People of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951)). This case does not involve anything close to such a blanket prohibition on protected speech.
, Ward v. Rock Against Racism, 491 U.S. at 802, 109 S.Ct. 2746 ("Indeed, in this respect the guideline is far less restrictive than regulations we have upheld in other cases, for it does not attempt to ban any particular manner or type of expression at a given place or time.").
. Sergeant DeHoyos testified repeatedly that “[t]hey couldn’t cross the line — they couldn't cross that line, but you see me on video telling him he can go that way, which was back northbound, or he could have gone eastbound to Commerce Street and gone down Commerce street. He could not — I didn’t want him going southbound on Main Street.”
. "It is no defense to prosecution [for resisting arrest] ... that the arrest or search was unlawful.”
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