                      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,


                                          4
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




                                        5
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,


                                          7
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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