IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0893-14
NO. PD-0894-14
JOEY DARRELL FAUST, Appellant
v.
THE STATE OF TEXAS
RAMON MARROQUIN, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
R ICHARDSON, J., delivered the opinion of the Court in which M EYERS, J OHNSON,
K EASLER, H ERVEY, and A LCALA, JJ., joined. J OHNSON, J., filed a concurring opinion.
Y EARY, J., filed a concurring opinion. K ELLER, P.J., filed a dissenting opinion.
N EWELL, J., filed a dissenting opinion.
OPINION
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
Faust & Marroquin Opinion — 2
Texas Penal Code Section 38.15(a)(1).1 After a consolidated bench trial, each appellant was
convicted and sentenced to two days’ confinement in the Tarrant County Jail and assessed
a $286 fine. Appellants appealed their convictions, asserting that Section 38.15(a)(1) had
been unconstitutionally applied to them in violation of their First Amendment rights.2 The
Second Court of Appeals agreed with appellants and reversed their convictions. For the
reasons discussed herein, we hold that Section 38.15(a)(1) was not unconstitutionally applied
to appellants. Therefore, we reverse the decision of the Second Court of Appeals, and we
order that the trial court judgments be reinstated.
BACKGROUND
Appellants, Faust and Marroquin, along with several other members of the Kingdom
Baptist Church, were protesting at a gay pride parade in downtown Fort Worth. Members
of the Kingdom Baptist Church had a history of being involved in physical altercations at
previous gay pride parades. Having been informed of such history of violence, the Fort
Worth Police Department assigned several teams of police officers from the Zero Tolerance
Unit as tactical response to control the crowd, maintain peace, and handle any physical
1
T EX. P ENAL C ODE § 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
uncontroverted that appellants heard and purposely disobeyed the police officers’ order.
2
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. C ONST., 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).
Faust & Marroquin Opinion — 3
altercations that might occur. Sergeant Paul Genualdo headed one of the tactical response
teams.
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 DeHoyos 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
Faust & Marroquin Opinion — 4
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.”3 Faust asked Sergeant Genualdo if he was being detained, and Sergeant
Genualdo told Faust that he was not being detained, and that he was free to proceed in any
direction other than southbound down Main Street “at that time.” 4 Sergeant Genualdo then
testified that Faust “began to physically berate [him], told [him] that [he] was working for
a lesbian, told [him] that [he] needed to put earrings and a bow in [his] hair,” and referred
to Sergeant Genualdo as “a fag.”5 Faust told Sergeant Genualdo that “he was going to cross
the line and [Sergeant Genualdo] had better not try to stop him or he was going to sue [him].”
Faust then crossed “two or three feet past the skirmish line into the street,” at which time
3
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.
4
Again, Sergeant Genualdo communicated that the skirmish line would be temporary.
5
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.
Faust & Marroquin Opinion — 5
Sergeant Genualdo placed Faust under arrest for Interference with Public Duties and charged
him with violating Texas Penal Code Section 38.15(a)(1). Although neither appellant was
charged with Disorderly Conduct, Officer Genualdo testified that he believed that language
used by Faust violated the Disorderly Conduct statute and was indicative of the language that
Faust had used throughout the day.6 Officer Genualdo testified that he was not concerned
about Faust expressing his religious views. Rather, Officer Genualdo’s testimony reflected
his belief that Faust would likely direct the same type of language toward the parade
supporters that he had used toward Officer Genualdo, which, in Officer Genualdo’s mind,
was language that was prohibited under the Disorderly Conduct statute because it would have
likely incited violence.
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
6
T EX. P ENAL C ODE §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.”
Faust & Marroquin Opinion — 6
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 Church 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 knowledge 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 a result
of these actions, one of their members was arrested for Assault Bodily
Injury/Hate Crime Enhancement.
In her police report, Sergeant DeHoyos also described how appellants were interfering
with the police officers’ exercise of their duties during this year’s gay pride parade:
. . . 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
7
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.
Faust & Marroquin Opinion — 7
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. ARR1/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.
Marroquin 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 ARR1/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 guarantee his
safety if he did. Foust [sic] said, “I didn’t ask you to do that.” . . . Genualdo
Faust & Marroquin Opinion — 8
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 and current conduct of the
members of the Kingdom Baptist Church, because the officers were concerned for the safety
of both the protestors and the parade supporters and participants.8 Sergeant DeHoyos stated
that, because of the problems appellants and other members of the Kingdom Baptist Church
caused the year before, at that same location, the police were trying to prevent commingling
of the people attending the parade and the Kingdom Baptist Church protestors so that they
could avoid any physical altercations. She explained,
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
8
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.”
Faust & Marroquin Opinion — 9
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.’”9 Appellants urged the following arguments before the trial court: (1)
prior events are not a basis for “prior restraint” of speech;10 (2) apprehension of disturbance
is not enough to overcome the right to freedom of expression;11 (3) where “prior similar
9
Defendant’s Memorandum Brief at 2 (citing to State of Texas v. Fine, 330 S.W.3d 904, 910
(Tex. Crim. App. 2011)).
10
Id. at 6 (citing to Carroll v. President of Princess Anne, 393 U.S. 175, 180, 182, 185 (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.”
11
Id. at 7 (citing to Tinker v. Des Moines Independent Community School District, 393 U.S.
503, 508 (1969)). Tinker involved a lawsuit seeking an injunction against enforcement by school
Faust & Marroquin Opinion — 10
activity led to or involved instances of violence,” the “law is clear that First Amendment
activity may not be barred;”12 (4) Government is “to punish it [wrong conduct] after it occurs
rather than to prevent the First Amendment Activity;”13 and (5) the proper way for
government to deal with “potential and actual violence is for government to ensure an
adequate police presence . . . and to arrest those who actually engage in such conduct, rather
than suppress legitimate First Amendment conduct as a prophylactic measure.” 14 Appellants’
counsel argued orally that “arresting them for attempting to cross the street when other
members of the public were permitted is absolutely unconstitutional.” Appellants’ counsel
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.
12
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.”
13
Id. (citing to Collins, 110 F.3d at 1371-72).
14
Id. at 9 (citing to Collins, 110 F.3d at 1372).
Faust & Marroquin Opinion — 11
concluded by arguing that, as to each appellant, “this was an unconstitutional arrest and the
charges that have been brought are based on an unconstitutional application of this statute
to these facts.” In response, the State argued that “the officers were performing a lawful
duty, trying to prevent a breach of the peace. These defendants both have a history of
inciting a breach of the peace at this very parade in the past couple of years and the officers
were trying to maintain order and peace.”
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 saying 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 cannot 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-speech
case, 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 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 y’all’s cases.
Faust & Marroquin Opinion — 12
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.15 The Second
Court of Appeals agreed, finding that, “[b]y 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.” 16 The appellate
court held that the police skirmish line was an unconstitutional infringement upon appellants’
right of free speech. The appellate court held that, “[t]he prohibition against crossing the
skirmish line ‘must be judged against the stringent standards we have established for
restrictions on speech in traditional public fora.’”17 The court further 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 government
interest.”18 The appellate court held that the police skirmish line “was not narrowly tailored
15
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).
16
Id.
17
Faust, 2014 WL 2611186, at *2 (quoting Frisby v. Schultz, 487 U.S. 474, 481 (1988)).
18
Id. at *3 (citing to Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45
(1983)).
Faust & Marroquin Opinion — 13
to serve the government’s interest in public safety.”19 The appellate court believed that
precluding all members of the church from exercising their First Amendment rights based
on their affiliation with the church was “far too broad a limitation.”20 Although agreeing that
the police were not required to wait until violence erupted before stepping in, the court of
appeals found that “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.”21 The court of appeals reversed the
appellants’ convictions. It held that, by restricting appellants from crossing the police
skirmish line due to their status as members of the Kingdom Baptist Church, while allowing
other members of the public who were not members of the church to cross the line, the police
officers acted in violation of appellants’ First Amendment rights. Thus, said the court,
arresting appellants for Interference with Public Duties when they disobeyed the police
orders to not cross the skirmish line was an unconstitutional application of Section
38.15(a)(1).
THE STATE’S PETITION AND THE ARGUMENTS OF THE PARTIES
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
19
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”).
20
Id. at *4 (citing to Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)).
21
Id. at *4.
Faust & Marroquin Opinion — 14
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).22
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.23
22
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?
23
“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).
Faust & Marroquin Opinion — 15
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.24 When reviewing the constitutionality of a statute, we presume
that the statute is valid and that the Legislature acted reasonably in enacting it.25
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.”26 Appellants urge this Court to affirm the
24
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).
25
Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002).
26
T EX. P ENAL C ODE § 38.15(a)(1) (emphasis added).
Faust & Marroquin Opinion — 16
appellate court’s decision that, since appellants were convicted under Section 38.15(a)(1) for
interfering with a police skirmish line that violated their First Amendment rights and, as
such, was not an order issued under authority “imposed or granted by law,” Section
38.15(a)(1) was unconstitutionally applied to them.
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.”27 The testimony by Sergeants Genualdo and
DeHoyos shows that the officers were performing such duty when they set up the skirmish
line with the purpose of temporarily separating two groups with drastically conflicting views,
and that appellants interfered with that duty when they disobeyed the officers by intentionally
crossing the skirmish line after being told not to. In imposing a duty upon peace officers to
“preserve the peace,” Article 2.13 further cautions that, “to effect this purpose, the officer
shall use all lawful means.” Appellants’ constitutional challenge is to the lawfulness of the
means used by the police in performing their duty to preserve the peace—the skirmish line.
27
T EX. C ODE C RIM. P ROC. art. 2.13.
Faust & Marroquin Opinion — 17
That was the claim raised by appellants before the trial court, that was the claim raised and
addressed on direct appeal, and that is the claim we address today.28
Public streets and sidewalks are traditional public forums.29 Picketing and marching,
if peaceful and orderly, are entitled to First Amendment protection as methods of
28
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 enough so as to ‘let the trial judge know what he wants, why he thinks himself
entitled to it, and do so clearly enough for the judge to understand him at a time when the trial court
is in a proper position to do something about it.’” Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.
App. 1992)). The trial court and the State understood the relief appellants were seeking and the basis
for their claim for relief.
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.
29
See Hill v. Colorado, 530 U.S. 703, 715 (2000).
Faust & Marroquin Opinion — 18
expression.30 There is no dispute that appellants had a First Amendment right to express their
views in a public forum. And, they were allowed to do so. The First Amendment forbids the
government from regulating speech in ways that favor some viewpoints or ideas at the
expense of others.31
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.’”32 We hold that the purported restriction in question
30
Gregory v. Chicago, 394 U.S. 111, 112 (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.
31
Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984). The First
Amendment prohibits laws that abridge freedom of speech. U.S. C ONST., 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 (2003).
32
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citing to Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293 (1984)). Relying upon Madsen v. Women’s Health Center,
512 U.S. 753 (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.
Faust & Marroquin Opinion — 19
here—the police skirmish line—was a reasonable restriction on the time, place, and manner
of protected speech because the skirmish line met the above three requirements. Therefore,
we hold that the temporary skirmish line was a lawful means to effect the police purpose of
preserving the peace at the gay pride parade.33
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
injunctive 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 governmental interests of protecting a woman’s freedom
to seek lawful medical or counseling services in connection with her pregnancy, ensuring public safety
and order, promoting the free flow of traffic on public streets and sidewalks, and in protecting the
property rights of all citizens. The Supreme Court upheld some of the restrictions in the injunction
order and struck down others as too broad. Id. at 776. However, there is a distinction between
analyzing First Amendment challenges to an injunction, which is a “judicial remed[y] for proven
wrongdoing,” Id. at 778 (dissenting opinion, J. Stevens), and analyzing a First Amendment challenge
to a police skirmish line, which is a government imposed restriction pursuant to statutory authority.
In any event, even under the stricter Madsen standard, the police skirmish line did not burden more
speech than necessary to accomplish its goal. The goal was to assure a peaceful end to the parade
festivities by creating a temporary time gap between the Kingdom Baptist Church protestors, who were
known to have caused violent confrontations at prior gay pride parades, and the trail end of the parade-
goers and participants. The church members had been permitted to express their religious views along
the parade route as the parade passed by them, and they would have been permitted to continue
expressing their views once the potential for violent confrontations had diminished. The “burden” to
the church members was a delay in their ability to communicate their message in all directions (they
were permitted to go in any other direction other than one). Even under the Madsen standard, we
would not find that speech was burdened more than necessary for the police to accomplish their goal.
33
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 contact 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, T EX. P ENAL C ODE §42.01(a)(1). The government
may prohibit speech or conduct which has a tendency to incite or produce immediate violence. See,
Faust & Marroquin Opinion — 20
1. Content Neutral
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.”34 The officers’ purpose in setting up and enforcing the skirmish line
is the controlling consideration.35 A regulation that serves purposes unrelated to the content
of the protected speech is deemed content neutral, “even if it has an incidental effect on some
speakers or messages but not others.”36 In fact, regulations restricting speech are found to
e.g., Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (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 (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” or “had been carrying signs or using speech that could incite violence,” then
those people would also be prohibited from crossing the skirmish line. Therefore, to the extent that
the skirmish line was issued to prevent confrontations that might arise from appellants’ use of speech
tending to incite an immediate breach of the peace, and thus not protected under the First Amendment,
such regulation does not implicate appellants’ First Amendment rights.
34
Id.; Hill v. Colorado, 530 U.S. 703, 719 (2000) (quoting from Ward, 491 U.S. at 791).
35
Ward, 491 U.S. at 791.
36
Id. at 791.
Faust & Marroquin Opinion — 21
be content neutral when they are directed to the secondary effects of a speaker’s conduct as
opposed to the content of the speech itself.37
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.” 38 We agree with this
37
City of Renton v. Playtime Theatres, 475 U.S. 41, 47-48 (1986).
38
Faust, at *2-3.
Faust & Marroquin Opinion — 22
statement, hold that the skirmish line was content neutral, and next look to whether the
skirmish line was narrowly tailored to serve a significant government interest.39
2. Narrowly Tailored To Serve A Significant Governmental Interest
A regulation is narrowly tailored if “the means chosen are not substantially broader
than necessary to achieve the government’s interest.”40 In order to demonstrate that a
challenged restriction is narrowly tailored, the government must demonstrate that the
restriction “serve[s] a substantial state interest in ‘a direct and effective way.’” 41 Absent such
proof, a restriction may not be sustained if it provides only ineffective or remote support for
the government’s purpose.42 Thus, a regulation is not narrowly tailored when it does not
sufficiently serve those public interests that are urged as its justification.43
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
39
See, e.g., Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (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”).
40
Ward, 491 U.S. at 800.
41
Edenfield v. Fane, 507 U.S. 761, 773 (1993) (citing to Ward v. Rock Against Racism, 491
U.S. at 800).
42
Id. at 770.
43
United States v. Grace, 461 U.S. 171, 181 (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).
Faust & Marroquin Opinion — 23
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.44 Rather, the
narrow tailoring requirement is met “so long as the . . . regulation promotes a substantial
government interest that would be achieved less effectively absent the regulation.” 45
The government has a significant interest in ensuring public safety and order.46 “It
is a traditional exercise of the States’ police powers to protect the health and safety of their
citizens.”47 Police officers have lawful authority to maintain public safety, particularly when
crowds of people are gathered, and there is the perceived possibility of a riot or other threat
to public safety.48 A government must have some ability to protect from harm a speaker, the
audience, and public and private property near the place of a potentially hostile speech
environment.49 The Supreme Court has clearly expressed the importance of public safety in
44
Ward, 491 U.S. at 798.
45
Id. at 799 (citing to United States v. Albertini, 472 U.S. 675, 689 (1985)).
46
See, e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994); Heffron v. Int’l Soc’y
for Krishna Consciousness, Inc., 452 U.S. 640, 650 (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 (1997) (noting that
maintaining peace and public safety is a significant government interest).
47
Hill v. Colorado, 530 U.S. 703, 715 (2000).
48
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.”
49
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 protection of participants, innocent onlookers, and others in the
vicinity”).
Faust & Marroquin Opinion — 24
noting that, “[w]hen clear and present danger of riot, disorder, interference with traffic upon
the public streets, or other immediate threat to public safety, peace, or order appears, the
power of the State to prevent or punish is obvious.” 50
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.51 Officer DeHoyos was clear that the skirmish line was implemented
because the officers were concerned for the safety of both the protestors and the parade
supporters and participants.52 The officers’ goal in preventing potentially dangerous
confrontations had the highest probability of being achieved by creating a temporary
separation of time and space between the two groups. Absent this physical separation, a
nonviolent and peaceful end to the parade might not have been achieved. Moreover, the fact
50
See, e.g., Feiner v. New York, 340 U.S. 315, 320-21 (1951) (citing to Cantwell v.
Connecticut, 310 U.S. 296, 308 (1940)).
51
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.
52
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).
Faust & Marroquin Opinion — 25
that a confrontation had not yet occurred is irrelevant.53 The police officers were required
to assess the situation, and their decision that it presented a potential danger, even though a
confrontation had not yet occurred, was a reasonable one. Thus, we find that the police
officers narrowly tailored the restriction to serve a significant governmental interest.54 We
next look to whether there were ample alternative channels of communication left open to
appellants.
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.”55 The
officers did not attempt to ban any particular manner or type of expression. They did not
53
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.”).
54
Citing to Cox. v. Louisiana, 379 U.S. 536, 551 (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, 71 S.Ct. 312 (1951)). This case does not
involve anything close to such a blanket prohibition on protected speech.
55
Ward v. Rock Against Racism, 491 U.S. at 802 (“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.”).
Faust & Marroquin Opinion — 26
restrain appellants’ movement in any direction except one.56 The officers told appellants that
they were free to proceed anywhere other than southbound at that time. Sergeant Genualdo’s
testimony indicated that he communicated to Faust that the skirmish line was “for the time
being.” Therefore, appellants were free to continue their protesting in all directions except
for one, and would have been free to proceed down that restricted avenue after a temporary
wait. We find that appellants had ample alternative channels of communication open to
them.
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
56
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.”
Faust & Marroquin Opinion — 27
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.
DELIVERED: December 9, 2015
PUBLISH