It was also a little more than five years ago, and the passing of Sept. 11 and "homeland (in)security" have both taken their toll on free speech and free assembly.
Here in Tucson, these rights are facing a new challenge in the form of a draft document called "Chapter 20, Motor Vehicles and Traffic, Article XII, Use of City Roadways for Assemblies--Section 20-550," otherwise known as the "Safe Assembly Ordinance."
This ordinance, at first glance, appears reasonable. But is it necessary?
During a visit to City Councilwoman Carol West to discuss this issue, she waved her right arm expansively in front of her. "Anyone could be picketing out there," she offered, "as long as they stay out of the streets. I'm glad to have a chance to clear up this issue, because we're not out to impinge on anyone's rights." She quickly stated that the ordinance only requires a permit when a march or protest uses a lane in the roadway. "We need the ability to assign officers to keep people safe," she explained.
"There are at least two red flags in this ordinance for me," she continued. "To apply 48 hours ahead is very hard to do. And the fact that it prohibits morning and evening rush hour times is, I know, not conducive to getting one's message out to the largest number of people."
How about the chilling effect of submitting the permit to the chief of police? "We're open to other ideas," she said.
While she supports some guidelines for police conduct, she stopped short of prohibiting officers from less-than-lethal weapons or the bullying tactics often used on nonviolent protesters in Tucson. "We can't tell the police how to do their business," she insisted.
Oh yes, we can and should, believes Keith McHenry, a well-known and seasoned activist. As co-founder of Food Not Bombs, he has worked locally with several social justice groups opposing the invasion of Iraq and recently became a member of West's community focus group on the ordinance.
"The application process, sadly, has in the past become a way of placing blame on the people they are against," asserts McHenry. "Police or agent provocateurs can disrupt the march and get the permit holder in trouble."
Indeed, section 20-561 of the ordinance states: "... for all purposes under this article, the permit holder is the person organizing and conducting the assembly. ..." Agent provocateurs (officers posing as protesters) are a well-known element in our activist community. The most notorious example is when one was "outed" by a lawyer at a peaceful Women in Black rally three years ago.
A possible suggestion to mitigate this concern is have an organization's name be put on the permit instead of an individual's. According to Assistant Police Chief Roberto Villasenor, who is assigned to this ordinance process, "It is my understanding that there has to be a responsible party on the permit application, but I do not believe this would make them criminally liable for the actions of others at an event ... unless, of course, they directly facilitated or assisted with the criminal acts."
City attorney Mike Rankin is also taking a close look to insure that the ordinance is legal and doesn't expose the city to liability. He, like West, is reluctant to support an establishment of rules regarding police conduct at marches and protests. In response to McHenry's idea that a "Code of Ethics" for police be included in the ordinance, Rankin says, "We can't tell the police not use pepper spray."
It remains to be seen how this balancing act will unfold. Both West and McHenry say they encourage and invite public participation in this process. Carol West can be contacted at 791-4687; Keith McHenry can be reached at 770-0575.