The Saratoga Springs Police Department has issued an appearance ticket instructing Lexis Figuereo to appear in court for failing to apply for a "demonstration declaration" for the May Day Rally for Palestine held on May 1, 2024, in the city. The news coverage and editorials shrilly and inaccurately presented this as an arrest and as an assault on Figuereo's freedom of speech. The editorial in the May 22, 2024, Daily Gazette is emblematic.
The Founding Fathers thought that the citizens' right to gather in public places to air their grievances was so vital to a free society that they included it in the very first amendment of the new nation's Bill of Rights.
So Saratoga Springs officials – who have a long and negative history dealing with protests and who have been chided for their oppressive tactics — might want to consider the Founders' intentions before they go pressing charges against pro-Palestinian demonstrators for marching without a permit on May 1.
Daily Gazette
This is from Figuereo's attorney, Mark Mishler:
"It seems particularly outrageous, considering all that has happened in the past several years, including the blistering report from the Attorney General's Office, which found a pattern of policy on the part of officials in the city of Saratoga Springs of interfering with the First Amendment protected rights of Mr. Figuereo in particular, as well as other leaders and activists within Saratoga BLM," he said. "It's somewhat mind boggling how the city of Saratoga Springs, how anybody in any official capacity in the city of Saratoga Springs, could fail to understand that they are proving again, the truth of what the Attorney General's Office has found already, which is that they are out to violate and interfere with First Amendment protected rights of Saratoga BLM and others. So I guess we will see where this goes."
Attorney Mark Mishler To The Daily Gazette
The fact that the demonstration proceeded without any intervention should make it abundantly clear that no one's rights to gather or to speak were interfered with. Not only did the police not stop the demonstration, but they provided security for the demonstrators by redirecting traffic as they marched down Broadway.
The appearance ticket does not deny Mr. Figuereo his right to free speech or to organize or participate in demonstrations as this news coverage would have the public believe.
It is essential to understand that there is no penalty for demonstrating per se as long as the participants do not violate the prohibitions set out in the city code or other city, state, or federal laws.
The appearance ticket has nothing to do with denying Mr. Figuereo his right to speak or to organize a demonstration.
The Requirement For A Demonstration Declaration
The pertinent city code (Section 2, chapter 98) was established in 2005, long before Black Lives Matter came into existence.
The city code requires a group to provide the city with what is called a "demonstration declaration" if it wishes to demonstrate. This form advises the city of the details of the planned event, such as when and where the demonstration will take place and its duration, so the police and fire departments can be prepared.
If the person responsible for organizing the event fails to apply for the declaration, they are subject to a potential fine of $250.00 and/or fifteen days in jail.
The application for a "demonstration declaration" is free. Council members review it to see if they have any issues or requests for further information. As long as the form is correctly filled out, it is uniformly approved.
This process had never been controversial before the pre-planned Saratoga BLM demonstrations and the pop-up demonstration by The Proud Boys. Groups organizing demonstrations have routinely met this requirement.
Unfortunately, the cover sheet for the declaration form is mistitled Procedures For Demonstration Permit, which contributes to the confusion. There are no permits involved!
If the media had done due diligence, they would have found that the coversheet for the declaration form included the following language:
98.1B: No person, corporation, partnership, or other entity shall hold or cause to be held any demonstration without first filing a declaration required by this chapter.
The declaration is simple and requires only a few minutes to complete. There are no fees involved. While it is true that the prior administrations did not enforce this, it is a reasonable requirement, as will be explained later in this post.
In other words, there was no penalty for the demonstration. The penalty was prompted by Mr. Figuereo's insistence on ignoring his responsibility as the apparent organizer to submit the form.
The information requested in the "declaration" is not frivolous. The city must plan for staffing and other logistics to ensure a safe event. The event organizers must also acknowledge that they have read and understood all the prohibitions (such as no weapons, alcohol, etc.) and other issues for which they are responsible (possibly clean up after the event, for instance)
Filling out and delivering this form is nothing remotely onerous. Escalating this to an attack on the Constitution is absurd. It is grim that the news coverage of the reckless accusations made by Figuereo and his lawyer was so grossly uncritical.
The Declaration Cover Sheet And Form
As an aside, as a civil libertarian I have questioned the inclusion of the question, "Do you plan on having guest speakers? If yes, what topics you are promoting?" It has been explained to me, though, that this information is helpful in anticipating and preparing for what kind of counter-demonstrations might occur.
Duplicitous Cries from Lex
"It's disgusting," Figuereo said. "If we were openly committing a crime in front of the police, why didn't they arrest us then?"
Lexis Figuereo in the May 22, 2024, Times Union
Readers may be familiar with BLM's previous complaints that the city fails to de-escalate situations involving their interaction with demonstrators. It should be evident that trying to issue a citation (there is a distinction between an arrest and a citation, which will be discussed later in the post) to Figuereo during the demonstration would have risked a confrontation, which the police prudently wanted to avoid.
There is also much to be said for the prudence and caution shown by Chief Tyler and his officers. As there was no immediate danger, they took the time to carefully consider what violations, if any, were appropriate to prompt a citation.
Rather than allowing Figuereo and his colleagues to exploit their respective news organizations to vilify the city, the media needed to consider all the issues properly in their reports and commentaries.
Arrest Versus Citation
Wendy Liberatore's Times Union report repeatedly sensationally and incorrectly claimed that the Saratoga Police were going to arrest participants in the May 1 demonstration. No such action was planned nor executed. A custodial arrest involves taking the alleged perpetrator into custody. A citation, or appearance ticket, notifies an individual that they must appear in court to answer whatever violation they are charged with. The police action was to issue a ticket, not an arrest. The TU has not printed a correction.
A violation does not constitute a criminal act. A speeding ticket is a violation. Illegally parking is a violation. Failing to apply for a "demonstration declaration" is a violation in this case. It is considered to be a minor matter. A person who commits a violation can answer truthfully on a job application that they have never been convicted of a crime.
A judge might not even fine or jail Mr. Figuereo but could merely admonish him to apply for declarations before organizing future demonstrations.
No Leader?
The city code makes the individual organizing a demonstration responsible for submitting the "demonstration declaration" form. In the news stories, Mr. Figuereo and his colleague Samira Sangare deny that Figuereo was the event organizer. I don't know what constitutes legal proof of who the organizer of the event was. In the case of the Daily Gazette, the photos accompanying the stories show Figuereo prominently leading the marchers, addressing the participants with a bullhorn, and leading them in chants. The Saratoga BLM Facebook page also featured a post, "Calling all students workers and community members....to stand in solidarity with the Palestinian people" in Congress Park on May 1. Figuereo has repeatedly been identified as the leader of Saratoga BLM. I am not a lawyer, but it does appear there is plenty of documentation of his role in organizing and leading the demonstration.
The Court Will Decide
When Mr. Figuereo finally appears in court, there will be no room for bravado and drama. Ironically, he will find himself in a situation eerily like Donald Trump's, where he will have to sit uncomfortably as the court reviews the facts and the law. We will have to wait to see the outcome.
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