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Cities in a Storm: How Cities in Texas Prepare for Protests, Disasters and Disturbances

The First Amendment of the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

First Amendment rights are held dear to all Americans and fiercely protected by our judicial system, but perhaps not by all our lawmakers. The right to assemble or protest has been exercised with increasing frequency. This past week saw a youth day of protest on climate change and many peaceful Climate Strikes took place internationally. The protests were timed to coincide with the United Nations Climate Action Summit in New York.

Cities and law enforcement agencies must be prepared and develop civil disturbance policies, procedures with a plan for mass arrest or detention. Civil Disturbance from man-made or natural emergencies, demonstrations, crowd control and crowd management all require municipal policies, police protocols and adequate law enforcement training. Cities of all sizes should prepare for demonstrations, protests or unrest and possible looting after a hurricane or similar natural disaster.

Cities and their law enforcement agencies can benefit from monitoring and should utilize social media to anticipate potential protests or gatherings. Social media can also be a useful tool that provides community members rapid updates on safe zones if needed. The downside is that social media can lead to public reaction and outcry which can go viral. Cities must be prepared to assess both the protest and public reaction.

Serious consideration, preparation, and forethought regarding the potential need to protect a city’s critical infrastructure, such as hospitals, telecommunications, public works, water, gas and electricity, during times of civil unrest should be undertaken. Even jails or detainee housing must be identified in a municipal or law enforcement response strategy. Having a plan in place for providing extra security manpower is vital to preservation, response and restoration of a community.

In addition, all cities in Texas have or should have an Emergency Management Plan (as set out in the Texas Disaster Act, Chapter 418 Government Code), and the plan should be coordinated with any Civil Disturbance and Mass Arrest Policy. Texas Department of Public Safety offers free courses to law enforcement which include topics like Community Mass Care, Mass Fatalities and Incident Response, and Tactical Emergency Casualty Care. The Texas Commission on Law Enforcement also offers training in Civil Disturbance & Riot Control.

In Texas, the legislature recently put a new law in place: the Critical Infrastructure Protection Act now found in the new Chapter 424 of the Texas Government Code effective on September 1, 2019. The new law was clearly passed with urging by oil and gas industry lobbyists and is aimed at environmental protestors. Critical Infrastructure is statutorily defined in the Penal Code Sec. 30.05(b)(7) and includes facilities that are fenced or have a clear barrier meant to exclude intruders. These include refineries, chemical plants, power plants, water treatment facilities, natural gas transmission compressor stations, liquid natural gas terminal or storage, ports, railroad switching yards, trucking and transportation terminals and the like.

Living on the Gulf Coast, I have driven by many, if not all, of these often. The new law criminalizes damage to any of these facilities and the construction sites and construction materials and equipment for building these facilities with a maximum criminal penalty of a $4,000.00 fine and up to 1 year in prison, or both. The extraordinary component of this law is the relief that can be awarded if a civil suit is filed by the owner of the critical infrastructure. Actual damages, exemplary damages, (damages meant to punish), court costs, attorney fees and mental anguish – even if an injury other than mental anguish is not shown. It is yet to be seen how mental anguish can be inflicted on the oil and gas industry, but in Texas where the cattle ranchers sued Oprah, anything can happen.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

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