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Officials: On Plaza, permit-holders can make the rules

SANTA FE, N.M. — Who lays down the law on Santa Fe’s historic Plaza during permitted events?

Last Friday, it appears to have been the Santa Fe Fiesta Council.

By holding the permit to stage the annual Santa Fe Fiesta celebration on the Plaza, a public park, they get to make the rules, city officials say. And that’s why eight people there to protest last week’s Entrada, a re-enactment of the Spanish re-occupation of Santa Fe 12 years after the 1680 Pueblo Revolt, were charged with criminal trespass.

Police estimate that about 200 people showed up to protest the performance, which at the last minute was moved up two hours from its scheduled time “in the interest of public safety.”

Protesters, which included many from Native American advocacy groups, say the Entrada is not only an inaccurate account of history, but also a celebration of one culture’s conquest of another. They say the Entrada is racist and want it abolished.

Event organizers call the Entrada a religious event – which raises other questions about the constitutionality of the city’s financial support of the Fiesta – and is a celebration of the moment when the indigenous people, who had occupied the land for centuries, and Spanish conquistadors agreed to live together in peace.

That moment passed and, a year later, when Don Diego de Vargas returned with a caravan to resettle the territory, there was plenty of violence as the pueblo people resisted. Last Friday’s protest showed that more than 300 years later, there are still conflicts that haven’t been resolved.

One of the people arrested, Julian Rodriguez Jr. of Pola, Calif., claims he wasn’t there to protest. All he wanted was a pork sandwich and to listen to some music, but he was arrested for trespassing on “fiesta grounds without having in his possession written permission of the owner or person in control of the property thereof,” according to a criminal complaint.

“When somebody holds a permit for the Plaza, it essentially becomes private property,” police spokesman Greg Gurulé said the day of the protest.

Todd Coberly, the attorney representing Rodriguez, said that’s absurd.

“What? You need written permission from the Fiesta Council to be on the Plaza during Fiesta?” he asked. “How can a public space be transformed to private property? It just seems bizarre that the police are saying whoever attends the Fiesta needs written permission.”

Not an exact science

Thousands of people attended the Fiesta celebration last weekend, an event free to the public. It’s unclear how many of them, if any, had written permission from the Fiesta Council to attend.

Rodriguez was reportedly on the Plaza wearing a headband and was asked by police to remove it. He did, but put it back on while he was walking away and was arrested.

The day before the performance of the Entrada, Santa Fe city government issued a press release saying that private organizations holding permits for events on city property can request that police ban certain items at the event “in the interest of public safety.” While not mentioning headbands, “gang colors” and “masks” were among the items the Fiesta Council wanted banned.

City code designates eight permitted events to be held on the Plaza each year, two of them Santa Fe Fiesta events. The Fiesta holds an arts and crafts market Labor Day weekend and the Fiesta itself a week later.

Other events covered under the code are the Challenge New Mexico Arts and Crafts Show, the Fourth of July pancake breakfast, the Indian and Spanish markets, the contemporary Hispanic Market, and the Girls’ Inc. Arts and Crafts Show.

City officials couldn’t cite another instance in which organizations requested items be banned from the Plaza during a permitted event.

SFPD Chief Patrick Gallagher

“This is the first time that’s come up,” said Santa Fe Police Chief Patrick Gallagher. “I think the experience of last year kind of prompted that.”

The letter requesting items to be banned came from Fiesta Council President Dean Milligan. His letter says the list of items it wanted banned came at the request of SFPD.

Bullhorns were another item the Fiesta Council wanted banned this year. Protesters used bullhorns to lead chants at the 2016 protest, which was smaller in scale, attracting about 50 demonstrators. Gallagher said the bullhorns startled horses that were a part of the pageant last year, creating a safety concern. Horses were not included in the Entrada performance this year.

Gallagher said groups granted permits on city property get to have a say about who and what is allowed on the Plaza, just as they would if someone got a permit to Frenchy’s Field to hold a birthday party.

But where do you draw the line as to what or who can be restricted?

“If it were (banning) African-Americans, we would tell them no, we’re not going to do that,” he said.

Gallagher said police preparations for the Entrada protest were made with the advice and consent of the City Attorney’s Office. That also included a so-called “free speech zone” at the northeast corner of the Plaza. Its purpose was to allow for demonstrators to exercise their First Amendment rights and have their voices heard, while keeping them separated from people who came to attend the Entrada performance.

The police chief said he has had experience – with some degree of success – with free speech zones, which he preferred to call “protest areas,” while serving as a New York City police officer.

Gallagher said that one of the strategies for trying to keep the peace during last Friday’s protest was to separate demonstrators from Fiesta attendees in terms of both time and space. Police took measures to try to keep protesters physically separated from attendees and the stage on which the Entrada was performed. Two rows of fencing separated the audience from the stage, with police officers occupying the space between.

That, too, was done based on the experience of last year.

“We were concerned about confrontations,” Gallagher said. “Last year, tensions ran pretty high.”

The police chief said that by no means is policing protests an exact science. “We’re always looking for ways to improve,” he said. And while arrests were made this year, as opposed to last year when no one was cited, Gallagher said the plan was a success in that no one got hurt.

With the violence that erupted in Charlottesville, Va., during a protest that turned deadly last month fresh on their minds, that was a major concern. Eighty Santa Fe police officers, as well as officers from other law enforcement agencies, were on hand for the protest.

“For the most part, the plan was able to be effected,” he said.

Moving the time of the pageant up two hours helped create separation in time. One lone protester heckled the Entrada performance for the first 15 minutes or more before other demonstrators gradually showed up, and only a few dozen had arrived by the time the performance ended.

It wasn’t until after the performance was over that police began to move protesters to the protest area at the intersection of Palace and Washington avenues. When some refused to be confined, they were arrested for trespassing. Protesters then split up, some of them marching through neighboring streets. When they returned to the Plaza by way of Lincoln Avenue, more arrests were made, including that of Jennifer Marley, a protest organizer and member of The Red Nation. While the other seven arrested were charged just with misdemeanor criminal trespass, Marley was also cited for two felony counts of battery on a police officer, as well as disorderly conduct.

In a ‘fact-finding phase’

Last November, an alliance of criminal defense lawyers in Santa Fe was formed to represent people participating in peaceful protests. They are representing the “Entrada 8” arrested last week, each of whom pleaded not guilty earlier this week.

One of the attorneys, Dan Cron, said Thursday that their cases are now in the discovery phase.

“Basically, it’s a fact-finding phase. We are going to need to find out from the city structurally how they had things set up so we can compare that with case law to see how the structure used by the city squares with the First Amendment right for freedom of expression,” he explained. “How that whole process was set up is going to be the crux of the case.”

The American Civil Liberties Union, which advocates for individual rights and liberties covered under the U.S. Constitution, also has its eye on what occurred last Friday. It has been involved in various lawsuits around the country challenging free speech zones, contending that in some cases they are used to repress the voice of protesters by keeping them out of sight and earshot.

A spokesman for the ACLU in Albuquerque echoed Cron in saying it was currently in fact-finding mode regarding last week’s protest.

“We’re going through the fact-finding process, researching the legality and looking into whether civil rights may have been violated,” ACLU spokesman Micah McCoy said. “But right now we are so early in the process, our staff attorney is not comfortable making proclamations about that right now.”

When asked, attorneys Cron and Coberly both said it was possible that the charges against the defendants could be dropped, but neither is counting on it.

“There’s always that chance,” Cron said. “From our point of view, we’re seeking to gather information and meet with the prosecution to see if it’s possible to reach a resolution everyone can live with.”

Several messages left with city of Santa Fe attorneys were not returned this week. City spokesman Matt Ross said it’s possible they would not want to talk because the ACLU is looking into the possibility of filing a lawsuit. The city’s policy is to not talk about threatened or pending litigation.

During a Wednesday City Council meeting, District 2 City Councilor Joesph Maestas asked City Manager Brian Sndyer to arrange a “debriefing” on last week’s arrests so that he and other city councilors could gain a better understanding of what rights are granted to groups that receive permits for events on city property and prohibitions regarding protests.