This is a letter forwarded to me from the Chief of Police, William A. Hogan, to Gary Jackson, City Manager regarding my husband's arrest. Very interesting...
TO: Gary Jackson, City Manager
FROM: William A. Hogan, Chief of Police
SUBJECT: Wednesday’s Enforcement Action at I-240 Overpass
DATE: August 17, 2007
Please be advised that we will do a full investigation of this incident.
At this juncture we do not have all the facts but we will follow-up on
this incident to ensure that the action of the officers was lawful and
appropriate. If we find that something was not handled properly we will
take steps to rectify the issue. From what I do know there was no intent
to deprive anyone of the opportunity to exercise their right of freedom of
speech. As I currently understand the reported facts, officers were
concerned about the public’s safety and the actions were taken with that
purpose in mind.
Here is what I know about this incident. Wednesday morning a person
flagged down Officer Crisp complaining about an individual blocking the
sidewalk and/or endangering the flow of traffic on I-240. He called Sgt.
Riddle and was advised to stand by. Apparently the Police Department had
received complaints approximately two weeks ago about the same activity
with accusations that the police were doing nothing to protect the public.
After this first event another officer had contacted Curt Euler to obtain
advice on how to legally address these incidents. The original event
occurred during Bele Chere with heavy foot traffic going to and from the
event. The Department was advised that blocking the sidewalk would be the
most appropriate charge. I do not have the facts at this time to
determine if the individual arrested was in fact impeding the flow of
When I was made aware of this incident yesterday I contacted Sgt. Riddle
so I could meet with him to determine what action was taken and why we
took this action. He relayed to me that a previous event had occurred and
that legal advice was obtained. Based upon this discussion it was
apparent to me that we were not attempting to infringe upon anyone’s free
speech but to address the concern for the safety of motorists that travel
on I-240. Sgt. Riddle has reported that the individual was leaning over
the railing and hanging the sign over the side of the overpass. In my
initial review of this matter I was concerned that a sign may cause a
motorist to take his or her eyes off the road or for the sign to fall from
the hands of the sign holder and cause a distraction or block a driver’s
vision which could result in a serious traffic crash.
I asked Sgt. Riddle to contact the NC Department of Transportation and to
ask them, from their experience, what possible violations existed if a
person hung or held a sign over an overpass on a state roadway. Sgt.
Riddle obtained the appropriate information from NC DOT and the following
statute applies to these situations in an effort to keep motorists safe on
NC GS 136-18(10), entitled Powers of Commission which reads, “The said
Department of Transportation shall be vested with the following powers:
…(10) To make proper and reasonable rules, regulations and ordinances for
the placing or erections of…boards…that may, in the opinion of the
Department of Transportation, contribute to the hazard upon any of the
said highways or in anywise interfere with the same, and to make
reasonable “uses and regulations for the proper control thereof…
With this authority the Department of Transportation has established an
administrative order, 19A NCAC 2E.0415, Advertising Signs within Right of
Way. This rule states: It shall be unlawful for any person, firm, or
corporation to erect or place any advertising or other sign, except
regulation traffic and warning signs approved by the Department of
Transportation on any highway or the right of way thereof, or so as to
overhang the right of way, or to permit the erection or placing of any
advertising or other sign, as herein prohibited, on any highway right of
way which is situated over any land owned, rented, leased or claimed by
such person, firm or corporation…
I have been advised that this is a Class 1 Misdemeanor.
Today, Curt Euler has reviewed the ordinance use to take enforcement and
we will be examining the content and intent of this ordinance as part of
our internal investigation. I have included it so you can see the
potential violations under this ordinance.
After reviewing 16-1 of the City Code, person, singly or in a group, can
be charged under this ordinance if
1. The person obstructs vehicular or pedestrian traffic
(I interpret this to mean physically does not act to obstruct traffic); or
2. The person causes to be obstructed vehicular or
pedestrian traffic (i.e. some indirect act that causes vehicular or
traffic to become obstructed)
Since the City Code does not define obstruct, the plain meaning of the
word means – to hinder or prevent from progress, check, stop, also to
retard the process of, make accomplishment difficult or slow. Another
definition is to block up; to interpose obstacles; to render impassable;
to fill with barriers or impediments. Therefore, I think it is possible
\that a person’s conduct on top of a highway overpass can impede the
vehicular traffic below. However, I think the officer must state how the
person’s conduct obstructed the traffic, as opposed to, MAY obstruct
traffic. Hence, a person can use hold a sign over his or her head over
the overpass until the traffic below becomes “obstructed” or “to slow the
traffic on the highway”. If the traffic is not messed with, then I think
there is no violation of the statute.
As we move forward in investigating this matter, we will take into
consideration at a minimum the following issues:
Did our actions impede the legitimate exercise of freedom of speech?
Do our actions represent a proper balance between the public’s safety and
security when compared to the rights of an individual expressing his or
her opinion or free speech?
What is the intent of the Department of Transportations Administrative
Rules and what level of concern do they have as it relates to traffic
safety and the displaying of signs on highway overpasses?
Once we answer the above questions, we will establish a clear policy and
train personnel in the policy to ensure we have a fair and appropriate
response to similar events in the future.
Should you have further questions concerning this matter and our
investigation, please advise.
We still have yet to hear from the Asheville Police Department regarding this matter.