COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00222-CR
JOEY DARRELL FAUST APPELLANT
V.
THE STATE OF TEXAS STATE
NO. 02-13-00223-CR
RAMON MARROQUIN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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1
See Tex. R. App. P. 47.4.
Appellants Joey Darrell Faust and Ramon Marroquin were found guilty of
interfering with public duties, for which the trial court set punishment at a $286
fine and two days’ confinement in the Tarrant County Jail. See Tex. Penal Code
Ann. § 38.15(a)(1) (West 2011). We reverse.
Background Facts
Appellants are members of the Kingdom Baptist Church. On October 6,
2012, a gay pride parade was held in downtown Fort Worth. Faust, Marroquin,
and other church members went to protest the parade. The Fort Worth Police
Department had teams of police officers from the Zero Tolerance Unit along the
parade route to control the crowd and act “as a tactical response” to any physical
altercations that might occur. The teams were apprised of a history of Kingdom
Baptist members being involved in physical altercations at previous parades.
Team Five, led by Sergeant Paul Genualdo, was positioned at the
intersection of Main and Second Street. Before the parade began, Genualdo
approached Faust and the Kingdom Baptist group and asked if the group would
move and join another protesting group so that the protestors would be in one
area. Faust declined. Genualdo left and moved his team to Main and Third
Street.
After the official parade ended, some members of the public continued
walking down the parade route. Two of the Zero Tolerance teams, Team Five
and Team One, led by Sergeant Rachel DeHoyos, formed a line in the street
blocking traffic on Main Street to maintain space between the parade and the
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protestors “to further prevent any confrontation.” Genualdo testified that the
protestors would be allowed to continue down Main Street “once [the unit]
determined there was a safe-time distance between the two [groups].” Other
members of the public were allowed to cross the police line.
Faust approached the police line, and Genualdo told him he could not go
down Main Street. Faust told Genualdo that he “didn’t agree with that,” and
asked if he was being detained. Genualdo told him no, that “he could go any
other direction, east, west[,] or north, but he wasn’t going southbound at that
time.” Faust told Genualdo that he “was working for a lesbian, . . . that [he]
needed to put earrings and a bow in [his] hair, and . . . referred to [him] as a fag.”
Despite Genualdo’s warnings that he was not allowed to cross, Faust crossed
the police line. Genualdo arrested Faust. Around the same time, Marroquin
attempted to push through the line of officers, and he was also arrested.
Faust and Marroquin were both charged with interference with public
duties. See id. (making it an offense if a “person with criminal negligence
interrupts, disrupts, impedes, or otherwise interferes with . . . a peace officer
while the peace officer is performing a duty”). Both pleaded not guilty. After a
bench trial, the court found both Faust and Marroquin guilty and set punishment
at a $286 fine and two days’ confinement in the Tarrant County Jail. They
appealed.2
2
The cases were consolidated for purposes of this appeal.
3
Discussion
In their sole issue, Appellants argue that they were detained based on
speculation of the content of their future speech in violation of their First
Amendment rights and therefore penal code section 38.15(a)(1) is
unconstitutional as applied to them.
We first address the State’s argument that Appellants’ First Amendment
rights are not implicated in this case because they were arrested for interfering
with a peace officer, not for their speech. Genualdo testified that when the Zero
Tolerance teams formed the skirmish line, they told the individuals, whom they
had previously identified as members of the Kingdom Baptist Church, that they
were not allowed to cross. Police officers specifically targeted the church group
because of their previous history with violence resulting from their vehement
rhetoric against homosexuality. Genualdo testified that other people were
permitted to cross through the skirmish line “[b]ecause they were not members of
that church [and] they were not members of the group that were historically
causing problems.” DeHoyos also testified that other members of the public
were allowed to pass through the street “[b]ecause they were not part of the
Kingdom Baptist Church.” In short, the only people who would be arrested for
crossing the skirmish line were the church members because they were the only
people who were told they could not cross. And the only reason they were told
they could not cross was because of the group’s history of inciting violence, not
for their current actions. Peaceful and orderly demonstrations “in public places,
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particularly streets, sidewalks, and parks, are extended [F]irst [A]mendment
protection.” Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 205
(Tex. 1981). By targeting the Kingdom Baptist Church members for restraint
based solely on their history of violence induced by their abusive speech, the
police officers necessarily implicated the group’s First Amendment rights.
The prohibition against crossing the skirmish line “must be judged against
the stringent standards we have established for restrictions on speech in
traditional public fora.” Frisby v. Schultz, 487 U.S. 474, 481, 108 S. Ct. 2495,
2500 (1988). The United States Supreme Court has explained,
For 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. . . . The state may also
enforce regulations of the time, place, and manner of expression
which are content-neutral, are narrowly tailored to serve a significant
government interest, and leave open ample alternative channels of
communication.
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S. Ct.
948, 955 (1983) (citations omitted). Regulations restricting speech are content-
neutral when they are directed to the secondary effects of a speaker’s conduct as
opposed to the content of the speech itself. City of Renton v. Playtime Theatres,
475 U.S. 41, 47–48, 106 S. Ct. 925, 929 (1986). Genualdo testified that the
purpose of controlling the church group was “[t]o prevent a breach of the peace,
basically. We were trying to make sure that there were no physical altercations
that took place.” He stated that the police’s concern over the church group was
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not that they would express their religious beliefs but that they would use
profanity. DeHoyos testified that the police’s concern was
that if they were to pass with the parade-goers as they did last year,
that we would have altercations. Not necessarily them engaging in
altercations, but I didn’t know that the people attending the parade
might not lash out at them, so I felt the duty to protect not only the
parade-goers, but the protestors themselves.
Because 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 government interest. See Perry, 460 U.S. at 45,
103 S. Ct. at 955.
There is no doubt that maintaining peace and public safety is a significant
government interest. See Schenck v. Pro-Choice Network Of W. New York, 519
U.S. 357, 376, 117 S. Ct. 855, 866 (1997) (noting that the government has a
significant interest in public safety); Momentoff v. State, No. 02-12-00335-CR,
2013 WL 5967107 at *6 (Tex. App.—Fort Worth Nov. 7, 2013, no pet.) (mem.
op., not designated for publication) (noting the State’s “strong interest in ensuring
the public safety and order”) (quoting Madsen v. Women’s Health Ctr., Inc., 512
U.S. 753, 768, 114 S. Ct. 2516, 2526 (1994)). A regulation is narrowly tailored to
serve such an interest “if it targets and eliminates no more than the exact source
of the ‘evil’ it seeks to remedy.” Frisby, 487 U.S. at 485, 108 S. Ct at 2503
(quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,
808–810, 104 S. Ct. 2118, 2130–2132 (1984)). “A complete ban can be narrowly
6
tailored, but only if each activity within the proscription’s scope is an appropriately
targeted evil.” Id.
The skirmish line at issue here was not narrowly tailored to serve the
government’s interest in public safety. All 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. Although there was
evidence that the police department had received complaints about the church’s
“street preaching” many times in the past, the only evidence the church had ever
reached beyond the boundaries of protected speech was that one of their
members, Chad Sutherland, had assaulted a parade participant at the 2011
parade. There was no evidence that Sutherland was with the church members at
the 2012 parade, that any of the members present at the 2012 parade were
involved with the 2011 assault, or that any of the members present were
threatening any parade-goers with imminent physical injury. See Madsen, 512
U.S. at 774, 114 S. Ct. at 2529 (“Absent evidence that the protesters’ speech is
independently proscribable (i.e., “fighting words” or threats), or is so infused with
violence as to be indistinguishable from a threat of physical harm, this provision
cannot stand.” (citations omitted)).
DeHoyos testified that both appellants had been at the 2011 parade but
had not assaulted anyone. She testified that during the parade, police had asked
the church group to move down the street and that they had said, “thank you,
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but, no, we will not move there.” She saw the church members expressing their
views during the parade “in various places.” The police officers described the
church members’ speech as abusive but stated that their threats were limited to
“rebuking people for being gay or having gay family and that they were going to
go to hell or burn in hell if they didn’t repent their sins.”
The skirmish line prohibited all members of the church from exercising
their right of free speech merely because of their association with the church.
This is far too broad a limitation. See Ward v. Rock Against Racism, 491 U.S.
781, 799, 109 S. Ct. 2746, 2758 (1989) (stating that if “a substantial portion of the
burden on speech does not serve to advance” the ordinance’s stated goals, then
the ordinance is not narrowly tailored); Justice For All v. Faulkner, 410 F.3d 760,
770 (5th Cir. 2005) (“The ‘narrow tailoring’ inquiry, however, asks whether that
particular method burdens substantially more speech than is necessary.”).
Although we do not believe that the police were required to wait until violence
erupted before they stepped in, we do believe there must have been some
indication that the public’s safety was at risk beyond the history of one assault by
a member of the organization who may not even have been present at the time
the skirmish line was in place. See Boos v. Barry, 485 U.S. 312, 322, 108 S. Ct.
1157, 1164 (1988) (“As a general matter, we have indicated that in public debate
our own citizens must tolerate insulting, and even outrageous, speech in order to
provide ‘adequate ‘breathing space’ to the freedoms protected by the First
Amendment.’”) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56, 108
8
S.Ct. 876, 882 (1988)). Because the skirmish line was not narrowly tailored, it
was an unconstitutional infringement upon Appellants’ right of free speech. We
sustain their issue on appeal.
Conclusion
Having sustained Appellants’ issue, we reverse the trial court’s judgment
and render a judgment of acquittal.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 12, 2014
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Ramon Marroquin v. State
Combined Opinion