Anderson, ACLU taking on Spearditch City Hall

Editor's note: Angela Anderson bought her house from this interested party in 1994. The following story appears in the Black Hills Pioneer and is republished in its entirety. 

On Oct. 9, an amendment to Spearfish’s ordinance on assemblies, parades, and processions is expected to go into effect, carving out new exceptions for protests and gatherings that exercise free speech. 

The amendment was drafted after the city received a letter from the American Civil Liberties Union (ACLU), on June 16, stating that its rules on permitting and assembling in public were likely “unconstitutional and unlikely to survive legal challenge.” The complete letter is available in its entirety on the Pioneer’s website, bhpioneer.com.

Angela Anderson was organizing a protest on behalf of the Defenders of Democracy, an unpaid, grassroots citizen group that hoped to hold a “No Kings” protest in Spearfish this spring. She had planned protests before, and said that she generally found the city’s ordinances and policies laid out in the special events handbook unclear and confusing — many of the rules seemed to have been designed for private events, parades, and fairs or festivals.

“We checked with the city police, and three different individuals were told that we did not need a permit for a protest or a rally. As long as we didn’t impede pedestrian flow or vehicle traffic, but they appreciated that we let them know about it,” Anderson said. “The police said they would not have someone present, because they were short-staffed, but if we needed help or there was something we were troubled with to just give them a call.”

Then, just nine days before the protest, Anderson received a phone call from a city official. She was told that Defenders of Democracy needed to apply for and obtain a permit before they could hold a protest on public property.

If their protest was permitted, they would have to acquire special event insurance, with a minimum coverage of $1 million, in order to gather and make their voices heard.

That didn’t pass the sniff test for Anderson, who had trained with the ACLU in Rapid City to operate as a volunteer legal observer. She reached out to the ACLU and a civil rights lawyer based in Rapid City.

“They all said the same thing. You don’t need permits. It is against First Amendment rights,” Anderson said.City Ordinance 94.01, as cited in the letter from the ACLU, had stated, “it shall be unlawful for any person to organize or hold or participate in a parade, meetings, assembly, or outdoor concert … on the streets, sidewalks, or public parks of this city, unless such activity shall have first been authorized by written permit issued by the Chief of Police.” 

That ordinance was last revised 2011. 

Samantha Chapman, an advocacy manager with the ACLU of South Dakota, told the Pioneer there are several issues with the ordinance as written.

“When it comes to free speech and expression, people have a right to gather, to protest, to demonstrate in any space that is public,” Chapman said.

The First Amendment allows for free speech and gatherings for the expression and exchange of ideas in traditional public forums — streets, sidewalks, and parks.

“The city can only place restrictions on those sorts of public demonstrations and gatherings if they are pertaining to reasonable place and time is kind of the legal standard that comes into play when there are any kind of restrictions for protests. Reasonable place and time standards mostly applied in situations where people might be, like you can’t organize a protest that is going to be disruptive of a city government function,” Chapman said. “The government can say, ‘you can’t host a protest inside the city council chambers during the city council meeting.’”

Before the city council voted to amend ordinance 1406 on Monday, it required that permit applicants provide the city with the “purpose, location, and route” of any gathering — protests included.

Policies outlined in the event handbook, which was last amended in January, noted that the city could deny permits based on an applicant’s “performance regarding previous permit conditions.”

The letter from the ACLU states, “Considering past behavior when determining whether to grant or deny a permit application vests a municipality with too great discretion to survive constitutional scrutiny.”“We don’t want to have, in general, the government deciding who gets to protest and who shouldn’t, but even more so we don’t want to have one single individual responsible for determining who gets to protest,” Chapman said, citing the powers that the old ordinance granted to the police chief to issue or deny permits. 

City Attorney David Knox told the Pioneer, the application process has previously, and will continue to move through multiple city departments. 

“Oversight of the permitting process is not changing. Applications will continue to be reviewed by a number of departments internally, including finance, police and fire, parks and recreation, public works and city administration,” Knox said. “The parks and recreation department has a special events assistant that has helped administer the permitting process for some time, and the department will maintain copies of permits and applications. The revisions to the ordinance help align the ordinance and current practice.”

In its letter, the ACLU pointed out to city that policies in the special events handbook that seemed to deviate from the ordinance. 

Ordinance 94.06 required applicants to apply for a permit at least five days before a protest or event. The handbook asked that permits be submitted “no less than 60 days before the proposed event.”

Either time constraint, Chapman said, could bar protected, spontaneous speech and ignore the fact that “timing is of the essence in politics.”

“The First Amendment protects your right to protest in response to breaking news. Meaning, immediately. The city could put that five-day requirement in place; however, they would not be able to legally or lawfully stop a protest coming together in response to breaking news,” Chapman said.In the case of the localized “No Kings” and “Make Good Trouble” protests Anderson helped organize, there was plenty of time to potentially fill out a permit application. That isn’t always the case when it comes to the exercise of free speech. 

“During this current, second Trump administration, the speed at which huge sweeping changes to the way that our government functions and operates are being rolled out is pretty consequential,” Chapman said.  “A lot of things are changing very rapidly every single day, so in order to keep up with the news cycle, there is no possible way that any protest group could comply with a 60-day advanced notice.”

Anderson said her group tried to comply with the insurance requirement laid out in the special events handbook.

“We tried to get event insurance. It wasn’t possible; a number of us searched on national sites as well as locally. It is just not something that we could get. The vendor they listed in the handbook would not give us insurance for this protest,” Anderson said.

According to the ACLU, federal appellate courts have already struck down, “nearly identical insurance and indemnification requirements.”

Chapman said she is concerned that barriers to obtaining insurance and permitting requirements might prevent citizens from protesting , picketing, or assembling for a common cause.   

“We have concerns that protestors will be denied permits, or that people will assume that they are not going to be able to get a permit, therefore they won’t protest, so that will have a chilling effect,” Chapman said.On June 16, Chapman signed the letter addressed to the city council, city attorney, police chief, and mayor that closed by stating “For all of these reasons, the ACLU has grave concerns about the First Amendment rights of Spearfish citizens.”

After two weeks, she had not heard back from the city.

In reaching out again, Chapman offered to help revise the ordinance — an offer the city did not accept, she said. Instead, the city independently altered Ordinance 1406. The first reading of the amended ordinance happened on Sept. 2. The special events handbook is now in the editing process, so that changes can be made to reflect the updated ordinance, Knox said.

“The city has seen a significant increase in the number of Special Events this year - including longstanding events like the Five-O and Downtown Friday Nights, and more recent events like the Camaro Rally. In addition to events like these that require reservation of public spaces and coordination of public services, historically there have been periodic public assemblies in the city, some of which did not seek a permit,” Knox said. “The city has not interfered with or restricted such public assemblies. However, with an uptick in the number of special events this year and the number of assemblies in recent months – both locally and nationally – the city decided to review the current process and ensure the ordinance would clearly exempt such assemblies and would provide adequate advanced notice for larger events that place demands on city services.”

Now, public assemblies are exempt from permit application and insurance requirements. It defines public assemblies as “any meeting, demonstration, picket line, rally, or gathering of persons for a common purpose, whether spontaneous or as a result of prior planning, in or upon the street, sidewalk, or other public grounds in a place open to the general public.”The amended ordinance then goes on to say that, “no permit is required for a public assembly which will not interfere with the normal flow” of traffic.

Planned public assemblies that expect to see more than 25 people “should submit a permit application for informational purposes only to assist the city in scheduling or coordinating services for the assembly.”

Anderson said it is often difficult to determine how many people will attend a rally or protest. One of the “No Kings Day” protests held earlier this year saw nearly 400 people in attendance.

“There is still an element of uncertainty because you should get an event permit, but you don’t have to,” Anderson said. “The city police are not the ones that grant the permit, it’s through the city, but it has it go through the city and now the parks and rec department.

It is really a mess, and they’re really still somewhat trying to control what we say and when we do it.”

She said that was why she felt strongly about reaching out to the ACLU, her city council representative, and city staff to address the ordinance in the first place.

“The reason why we all persisted in following through with these ordinances was, we were doing these protests and they were planned, but it was so unclear within the ordinances and the handbook that we all felt it was our civic responsibility to make sure that this got clarified for everyone,” Anderson said.

She said she does plan to keep the city in the loop and does understand the need to maintain public safety.

“We will of course, inform the city police that we are having this so that they can be aware and be available,” Anderson said. “The police have been very helpful.”Chapman said the amended ordinance is not perfect, but it has greatly improved the city’s policy from a legal perspective.

“Overall, we think it’s a huge improvement. We see this as a big win for the citizens of Spearfish and anyone in Spearfish who wants to express themselves. It is a victory for free speech. There are some lingering small issues that ultimately none of which are bad enough or serious enough that we feel further action is needed at this time,” Chapman said.