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Berkeley mask ban violates city ordinance
by Section
Friday Aug 3rd, 2018 11:39 PM
The Berkeley police and city manager released a set of rules prior to the anti-fascist protest on Sunday. There is a clause banning masks in Ohlone Park and Civic Center Park. This clause violates the urgency ordinance passed by city council.
There was a special city council meeting back on July 31, for an urgency ordinance allowing the city manager and police to set rules for the upcoming protest. During the meeting, it was stated that the city manager and city attorney were not going to ban face masks or coverings. Council member Kate Harrison emphasized that such a ban would violate civil rights, and asked for special language in the ordinance that made it clear that facial coverings would not be prohibited.

Mayor Jesse Arreguin re-clarified that the city manager and the chief of police had no intention to enforce a ban facial coverings. The mayor and council agreed to a clause saying the ordinance's authorization would not extend to prohibitions on facial coverings or other clothing. This language was put under section 13.45.020. There was no objection by any council member, any staff member, or by anyone representing the police to the addition of such a statement.

Even though section 13.45.020 was put into public record, today (August 3) the city police department issued a warning that non-religious and non-medical facial coverings would be banned in Ohlone Park and Civic Center Park this Sunday. This ban violates the ordinance passed by city council.

Looking at the text of the police's document, the mask ban only applies to Ohlone Park and Civic Center Park, and doesn't appear to apply to the streets or sidewalks. However, as the police have already shown intent to break the council's ordinance, they might possibly arrest people for wearing masks outside park boundaries.

City government assured people they would not be targeted for wearing masks. The issue of facial coverings of any sort was specifically addressed during the meeting, and special language was added to the ordinance to ease concerns. As agents of city government, the city manager and police should not be threatening to arrest people who plan to protect their identities against doxing, harassment, and death-threats.

Protesters who plan to wear masks should keep a printed copy of the urgency ordinance on them at all times. Section 13.45.020 should be underlined, highlighted, or printed in bold. Protesters should also consider bringing signs that read "SECTION 13.45.020", or have the full text of the section written out on poster board. The text of the ordinance should be explained to all ACLU or NLG legal observers.

Comments  (Hide Comments)

by Tracy Rosenberg
Saturday Aug 4th, 2018 10:07 AM
Can you provide links to documents to support what you are claiming here? Because if there is factually a violation of municipal ordinance by city staff, that is a misdemeanor offense and Berkeley residents should be in court.

I don't think that is the case because the municipal ordinance section you are citing 13.45.020 refers to streets and sidewalks during unpermitted events and the police document you describe refers to a mask ban in parks, which are not streets and sidewalks.

What is the language the City Council inserted into the ordinance text regarding no prohibition on masks?

Please provide links. If there is factually a violation of a municipal ordinance, then action can be taken.
admin_rule-parks_8_5_18.pdf_600_.jpg
City Manager Dee Williams-Ridley, August 3, 2018: "Wearing of a mask, scarf, bandana or any other accessory or item that covers or partially covers the face and shields the wearer's face from view, or partially from view, is prohibited in Civic Center Park and Ohlone Park on August 5, except for coverings worn due to religious beliefs, practices or observances, or medical necessity."

-----------

FULL ONLINE STATEMENT BELOW (OFFICIAL "ADMINSTRATIVE RULE" ATTACHED):

City Manager's Office
Press Contact: Matthai Chakko, (510) 981-7008

RULES IMPOSED FOR SELECT CITY PARKS, STREETS ON AUG. 5.
Designed to allow peaceful expression of free speech

Berkeley, California (Friday, August 03, 2018) - To ensure the peaceful expression of free speech, the City of Berkeley will temporarily prohibit sticks, pipes, poles and anything else that can be used for a "riot" on Sunday August 5 at two city parks.

In addition, there will also be temporary rules prohibiting various weapons on streets and sidewalks within a defined area.

Anyone violating these rules will be subject to citation and arrest.

These rules are intended to assist those wishing to peaceably express their First Amendment Rights. There are concerns that the motivation behind some of the August 5 events is to mark and revive violent conflicts that occurred during protests in Berkeley in 2017, both on the University of California campus and in City parks and streets. The 2017 events drew large crowds, including masked agitators who started fires, destroyed property, and engaged in violent confrontations with those endorsing opposing viewpoints.

The events of 2017, occurring on February 1, March 4, April 15, April 27, August 27, September 14 and September 24-27, required a substantial police response, including mutual aid. During many of these events, participants came armed with metal pipes, baseball bats, lengths of 2"x 4" lumber spiked with nails, bricks, pepper spray, mace, daggers, combat shields, poles, axe handles, hatchets, helmets, masks, and similar items. Fights broke out and numerous people were seriously injured at some of the events.

The items that will be banned in Civic Center and Ohlone parks include:

Metal Pipes
Lengths of lumber or wood (any size)
Wooden dowels
Poles or staffs
Baseball bats or sticks modified for use as a weapon
Glass bottles or metal cans modified for use as a weapon
Bricks
Rocks
Pepper or bear spray (OC spray)
Mace
Knives or daggers
Firearms
Shields
Axes, axe handles, or hatchets
Ice picks
Razor blades
Tasers
Improvised explosive devices (IEDs)
Spray cans
Fire works
Smoke canisters
Dynamite
Heavy-gauge chain
Torches, lanterns or other devices that use fire or fuel
Slingshots
Any other item that is generally considered an "implement of riot" that can be used as a weapon

Additionally, in Civic Center Park and Ohlone Park on August 5, signs and flags must be held by hand, and may not be affixed to any pole or stick. Wearing of a mask, scarf, bandana or any other accessory or item that covers or partially covers the face and shields the wearer's face from view, or partially from view, is prohibited in Civic Center Park and Ohlone Park on August 5, except for coverings worn due to religious beliefs, practices or observances, or medical necessity.

On August 5, 2018, a number of items will be prohibited from being brought by any person into a defined area of Berkeley bounded by Sacramento Street to the west, Piedmont Avenue to the east (between Dwight Way and Bancroft Way) and Oxford Street to the east (between Hearst Avenue and Bancroft Way), Dwight Way to the south, and Delaware Street to the north (except between Shattuck and Avenue and Oxford Street, where Hearst Avenue will mark the northern boundary). The items include:

Bricks
Rocks
Billy clubs
Poles, sticks, staffs, dowels or baseball bats modified for use as a weapon
No flags, signs, or banners mounted on poles, boards, sticks, or staffs unless affixed to a building or non-movable structure
Pepper or bear spray (OC spray)
Mace
Knives or daggers
Firearms
Shields
Axes, axe handles, or hatchets
Ice picks
Tasers
Improvised explosive devices (IEDs)
Fireworks, firecrackers, explosives
Dynamite
Torches, lanterns or other devices that use fire or fuel
Slingshots
Any other item that is generally considered an "implement of riot" that can be used as a weapon.



Copies of the two Administrative Rules for Aug 5, can be found at:

Restrictions and Prohibitions in Civic Center Park, Willard Park and Ohlone Park for August 5, 2018
Restrictions and Prohibitions in Defined Area of Berkeley for August 5, 2018

For peaceful protesters, there are a number of things people can do to stay safe. Separate yourself from people committing violence. Doing so not only keeps you safe, it prevents criminal acts from being done under the cover of a peaceful crowd. That allows police to focus on criminal acts.

The City will work to safeguard our community while facilitating the peaceful expression of the First Amendment. If anyone commits a crime in our community, we will work with the community to identify, investigate and prosecute suspects. That applies both during and after the event.

###
by George Lippman
Sunday Aug 5th, 2018 12:52 AM
Thanks for raising this issue. I'll try to clarify.

The situation is identical to last year. The authority for the ban on facial coverings in parks (expanded this year from one park to two) is drawn not from the "urgency ordinance" but from a separate, pre-existing parks ordinance and one governing city buildings. The new language in the urgency ordinance states “This authorization would not extend to prohibitions on facial coverings.” So the language does not prohibit a ban on coverings, it just says you can't use this authority to prohibit them.

I believe the ban is legal, but that it is unconstitutional. This has been made clear to the City, but it will not prevent them from enforcing it, as they did last year.

My beef is that I believe the Chief dissimulated, or told a half-truth, to the Council, saying in response to Kate Harrison's expressed concern about the constitutionality of the ban that he would not use the ordinance as the legal basis for it. He also denied that there were rules against masks last year, which is based on the same half-truth. I would call this insubordination and disrespect for his superiors, the elected leadership, but again, this will not prevent you from getting the law enforced on you.

One last thing, there is an exception for religious and health-related facial covering. Given the possibility of chemical weapons being in the air, I think people would be justified in using medical masks. Just please don't use them to conceal your identity while committing violent asks. Even the constitution won't protect you there....

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