State v.

Warden
The Defendant was arrested and charged with violating T.C.C. 21-3 (7)
(igniting a fire in a park) on February 4, 2008. He filed a Motion to Dismiss
based upon First Amendment grounds. Oral argument occurred on January
8, 2010. For the reasons stated below the Court grants the Defendant's
Motion.

The relevant facts are not disputed. The Defendant has strong disagreement
with local officials response to immigration/border related issues. To
publicly express these concerns on February 4, 2008 he set fire to a Mexican
flag in the City of Tucson's "Library Park". He invited media to attend the
event. Subsequently he was arrested by TPD officers who already were on
scene and cited for violating TC 21-3 (7) and field released.

The Defendant asserts his act of burning a Mexican flag was political
expression protected by the First Amendment of the United States
Constitution.1 The State argues the Defendants arrest was not the result of
his political speech but rather for violation of a long-standing city code
provision applicable to all.

Library Park is a public park located in downtown Tucson near the offices of
various governmental authorities. It is frequently the site of political protests
and demonstrations. It is a classic example of a "traditional public forum”
which has " ... immemorially been held in trust for the use of the public, and,
time out of mind has been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions." Perry Education
Association v. Perry Local Educators, 460 U.S. 37, 44-46 (1983).

1
The Defendant is the self-proclaimed "notorious Mexican flag burner" and has
previously engaged in similar activity in a city park. At that time the City Attorney found
his actions to be legal. See Attachment A (provided by Defense counsel during oral
argument.) The State did not object to the Courts review of the document.
 Free expression, under the First Amendment, receives its highest
level of constitutional protection when the expression occurs in a traditional
public forum. Although intentionally provocative and distasteful to many
M r. Warden's act of attempting to burn a Mexican flag is political speech
entitled to the protection of the First Amendment. Texas v. Johnson, 491
U.S. 397, 418 (1989).

Mr. Warden, however, was not arrested for burning a flag but rather
for violating TCC 21-3 (7) which prohibits igniting or attempting to ignite a
fire a fire within any park area except "under such rules and regulations as
may be designated by the director.”2

During oral argument the State's attorney observed although Warden

was prohibited from burning the Mexican flag (or any other object) in the
park he was free to do so elsewhere. He noted, even within a park, there are
public "barbecue pits" or grills where burning is permitted.

The ability of Mr. Warden to burn a flag elsewhere appears

illusionary. There are no fire pits or grills at Library Park, Armory Park or
other park immediately adjacent to the downtown area. Likewise other
provisions of the Tucson City Code prohibit individuals from burning a flag
on a sidewalk, public right of way or virtually any other public or private
location within the City.

T.C. 11-5 states in relevant part, "The burning of garbage, rubbish,

trash ... and any other articles in open fires, bonfires, incinerator or burning
devices, or in any other manner, outside of a regular building and within the
city is hereby prohibited except as specifically permitted."

2
There is nothing in the record suggesting the Defendant's actions constituted reckless burning
(A.R.S.13-1702), disorderly conduct (A.R.S.2904
) or criminal damage (A.R..S.
13-1602).
 The State contends T.C. 21-3 (7) is lawful on its face, content
neutral and any limitation placed on Wardens speech is a reasonable and
legitimate time, place and manner regulation. Outdoor Systems Inc. v.
Mesa, et al, 997 F. 2d 604, 612 (9th Cir. 2003).

Defense counsel concedes the ordinance is facially valid but

contends it is over broad and unconstitutional as applied to Mr. Warden.
Over breath occurs when a statute designed to prohibit activity not
constitutionally protected " ... includes within its scope activities
protected by the First Amendment." State v. McLamb, 188 Ariz. l, 9, 932
P. 2d 266 (App. 996). Where, as here, facial validity is conceded, the
constitutional analysis occurs on a "case by case basis". Id. 188 Ariz. at
l0.

Clearly the ordinance is not designed to limit constitutionally

protected speech. Likewise there is no indication in the record the
Defendant was targeted for his political views. Nonetheless, under the
facts of this case, application of the ordinance is overbroad. Because of
the interplay between the two ordinance's (T.C. 21-3 (7) and 11-5) the
Defendant's otherwise lawful activity is essentially prohibited. This is the
very essence of over broad. For this reason the Court grants the
Defendant's Motion.