Over the summer, U.S. District Judge Reed O'Connor sided with Open Carry Tarrant County's Kory Watkins and struck down as unconstitutional an Arlington city ordinance banning people from distributing literature -- in his case copies of the Constitution -- to passing motorists. According to a brief prepared by the city attorney's office, the fallout was swift and disastrous.
"Within two weeks of Judge O'Connor's ruling on July 14, 2014, the City of Arlington received a request from a little league baseball team seeking permission to solicit donations on Cooper Street in the City of Arlington," the brief says. "The little league team sought to raise money for a little league trip by handing out bottled water on Cooper Street as a method for soliciting donations."
Next thing you know, the Girl Scouts will be wanting to hawk their absurdly delicious cookies from the Interstate 30 shoulder. A chilling prospect on its face, but in case the thinness of the line between gun-toting libertarians passing out Constitutions and Girl Scouts distributing cholesterol-laden desserts didn't sufficiently alarm the Arlington City Council, the city's lawyers provided some gruesome traffic statistics. Over the past four-and-a-half years, 625 pedestrians have been run over in Arlington. Thirty-three of them died.
It's not clear that any of the deaths involved people handing out literature. The 7-month-old baby killed along Cooper Street in May doesn't appear to have been doing so. But the sheer volume of pedestrian accidents convinced city officials that an ordinance barring pamphleteers from wandering out into the street was desperately needed.
"We've realized there's an epidemic of pedestrian injuries in our country," assistant city attorney Robert Fugate told the council on Wednesday night before it considered a scaled-back version of the ordinance struck down over the summer. "The most recent data shows that Texas is the number one state in the nation for pedestrian deaths. We're ahead of New York, we're ahead of California, we're ahead of Florida."
In an attempt to address Judge O'Connor's First Amendment concerns, the city has tweaked some things. Under the previous ordinance, open-carry activists were barred from handing out Constitutions to anyone inside of a car, period. Under the new ordinance, they are free to do so long as they stay on the sidewalk. The city borrows the new language from League City, Texas, whose ordinance passed muster with the 5th U.S. Circuit Court of Appeals, which decided in 2007 that it was content-neutral and not an unconstitutional infringement on speech.
Watkins, who was uncharacteristically measured in his critique of the council on Wednesday, said the tweaks were a good first step but urged members to "try to make it even a little more better."
If you like this story, consider signing up for our email newsletters.
SHOW ME HOW
You have successfully signed up for your selected newsletter(s) - please keep an eye on your mailbox, we're movin' in!
"The main role of government is to protect our liberty and freedom," Watkins says. "We're all grown ups, and we can take care of ourselves as far as safety goes."
Fellow open-carrier/cop-watcher Jacob Cordova was more loquacious. He leaned forward on the dais, the better to have a man-to-man conversation with the council.
So I'm here against the amendment. I can't even understand it, which is definitely government right there. I can't even -- I can read this thing and I'm like 'What did that say?' You know?
"I mean we've been to federal court already the judge said you guys violated our constitutional rights, here we are back again. Do we really want to go back to federal court again? That was kind of embarrassing for the city. The city's kind of under some embarrassing moments with the Arlington police hit and run with no arrests the other day, you know, it's kind of embarrassing with the raid on the organic vegetable garden and the steroid incident right now that the Arlingon PD is under. The city -- it's gotta be embarrassing right now.
"Come on. really? We're just handing out constitutions, you know. The firefighters do it. I was a firefighter in the Air Force, so can I have an exclusion please? I was a military firefighter. I served in Osan, Korea, Aviano, Italy and Talil, Iraq. I was a firefighter, why can't I do it, you know? Hand out constitutions. Can I get an amen?" [Cordova turns and elicits a mousy "Amen" from the back of the auditorium while the council sits stony faced.]
"So I guess it's not the government's job to keep the citizens safe. I don't know where it says that in the Constitution or the oath -- I don't know if you guys took an oath to the Constitution, but I'm an oath-keeper. Oathkeepers.org if you want to check it out. We take an oath to the Constitution. We're the guardians of the republic. Not a democracy -- sorry Mr. Bennett [turns to Councilman Jimmy Bennett]. Yeah, check out the oathkeepers. We take a serious oath to the Constitution.
"I'm in inactive reserve right now, and it's not your guyses job to keep us safe. In fact, there's not enough checks and balances going on right now because here were are once again right after federal court, you know. We know you're going to vote unanimously. We packed this house before. Obviously nobody's coming tonight, but you know what? Uh, it's just getting tiring.
The Arlington City Council approved the new ordinance on a 7-1 vote. Councilman Robert Rivera, who between this and his opposition to red-light cameras is establishing himself as a one-man libertarian caucus, was the lone dissenter.