BIRMINGHAM — The city of Birmingham has settled a lawsuit filed last month that includes a beefed-up First Amendment policy and a hefty payout.
In a statement released Aug. 27, Birmingham announced that it had settled the civil rights suit filed in late July by the American Civil Liberties Union on behalf of 38-year-old Beth Delaney, a member of the Southeast Michigan Animal Rights Team. The suit alleged that Delaney’s First Amendment rights were violated when Birmingham police officers arrested her while she was protesting for animal rights on the streets of downtown Birmingham Dec. 15, 2012.
According to the ACLU, Delaney, who was reportedly handing out leaflets to pedestrians, was arrested as a result of a Birmingham loitering ordinance that requires demonstrators to keep moving. When she asserted her right to free speech, she was handcuffed and taken to the police station, where she was charged with loitering.
The city acknowledged that officers had made a “good faith mistake,” and the misdemeanor loitering charge against Delaney, punishable by up to 90 days in jail, was dropped.
“Birmingham police have always pressured us to keep moving because of this basic loitering ordinance, but I never thought I would be arrested and charged with a crime,” said Delaney in a prepared statement released July 25, when the suit was filed. “I think it’s important to speak out when our free speech is threatened because, if we let it go, it could happen anytime and to anyone.”
Birmingham Deputy Chief Mark Clemence said he stands by his officers’ actions, since the “keep moving” policy was, at the time, a misunderstood rule in the department.
“There was a belief in the past that in order to protest, they had to keep moving. That was not the case, though that was routine; that’s what most officers believed. If you did stop, you would be considered blocking the sidewalk,” he said.
Clemence suggested that the misunderstanding stems from past incidents involving the former Jacobson’s department store in Birmingham, where fur protestors would handcuff themselves to the building.
“When they did that, they weren’t moving, per say. I kind of think that’s where that came from,” he said.
As part of the settlement, the city has agreed to pay Delaney $10,000 in damages and an additional $10,000 in court expenses and attorney fees. The city has also pledged to develop and distribute a written First Amendment policy to Birmingham officers, clarifying the city’s position that peaceful protestors are allowed to demonstrate on city sidewalks as long as they’re not blocking pathways or building entrances.
The clarified First Amendment policy has been discussed with officers, and it will be again at shift meetings conducted Nov. 15-Dec. 15. That action in itself should be considered a win for Delaney, as well as the ACLU, according to Dan Korobkin, staff attorney with the ACLU of Michigan.
“The take-home point here is that the city has agreed to adopt a new free speech policy. Under the new policy, protesters are allowed to stand on public sidewalks to express their views, and they’re not required to keep moving,” said Korobkin. “This is a total victory for the First Amendment, for anyone who wants to protest on a public sidewalk, for Beth and her group and, really, for the constitution.”
Clemence said that Birmingham police officers have already been made aware of the First Amendment policy, and it will be revisited in the fall, as well, per the parameters of the settlement.
“As soon as the city attorney saw the problem, we immediately had in-service training. As part of the settlement agreement, we agreed to go over it a second time,” said Clemence. “I’m confident they know what the policies are now, but it never hurts to go over things.”
Korobkin noted that the settlement still needs to be approved and signed by Judge Stephen Murphy of the U.S. District Court before it’s completely final.