Arab Festival Protest Case Put to Full 6th Circuit

     CINCINNATI (CN) – Christians who proselytized with a severed pig’s head at a festival told the full 6th Circuit that their treatment at the event was unconstitutional.
     Much of the Tuesday hearing focused on whether video evidence of the attack was altered in any way, and whether that video supports the decision by the sheriff’s office in Wayne County, Mich., to eject the Bible Believers from the 2012 Arab International Festival in Dearborn.
     The federal appeals court held an en banc hearing on the case after its three-judge panel rejected the Bible Believers’ free-speech claims last year.
     Nabih Ayad, representing the Wayne County Sheriff’s Office and other municipal defendants, told the court Tuesday that video evidence – shot by the protesters – proved police “allowed [the Bible Believers] to roam freely, and when things got heated … they would disperse them.”
     Some of the “heated” events included members of the crowd pelting the Bible Believers group with bottles and rocks as the Christians, waving banners and impaled pig’s heads, warned against following a “pedophile” prophet.
     Though Ayad said several officers on horseback created a “buffer zone” when tensions reached a boiling point, Judge Alice Batchelder was skeptical.
     “Where in the video?” she asked. “I’ve watched the whole thing.”
     Ayad replied that he couldn’t say for sure because he didn’t have the video committed to memory.
     Judge Helene White continued on a line of questioning about the buffer zone. The police “created the buffer zone and left,” she said. “What did they do to stop the bottle throwers?”
     Ayad said police identified those throwing bottles and pulled them out of the crowd.
     In what would become another point of contention between attorney and judges, Ayad added that the bottle throwers “were children.”
     “There is only so much you can do to children,” Ayad said.
     Minutes later, however, Ayad contended that the police were trying only to protect public safety, as there was a “clear and present danger” to those at the festival.
     Judge White leaped on the inconsistency. “Do you see the contradiction [in] telling us ‘it’s just kids’ and now saying it was an angry mob?” she asked. “You want it both ways.”
     Ayad explained that “kids are less apt to listen to law enforcement.”
     “The point is [the police] tried to protect the Bible Believers,” the attorney added.
     White was unmoved. “I watched the whole video,” she said. “I didn’t see it.”
     Near the end of Ayad’s argument, Judge Batchelder brought chuckles to the courtroom with an admission. “I am thoroughly confused and not sure which video I watched,” she said.
     Robert Muise, representing the evangelical group led by Ruben Chavez, clarified in his rebuttal that the two videos entered into evidence both contain the same footage.
     The only difference, Muise said, is that one was upgraded to high-definition quality and divided into chapters.
     Dearborn’s 2012 Arab International Festival, an event held every year since 1995, proved to be the city’s last.
     That year sheriff’s officers warned the Bible Believers that they would be charged with disorderly conduct if they did not disperse.
     The group left, and the lawsuit followed.
     In urging the court to revive the protesters’ First Amendment case, Muise claimed letting violence quiet the voices of protesters earlier “creates perverse and dangerous incentives.”
     Muise said the actions of the sheriff’s office did not satisfy the “strict scrutiny” required when balancing the interests of public safety and free speech.
     Even though there were 35 officers and 19 reserve officers at the festival that day, only two of the bottle throwers were detained, while three verbal warnings were cited in the official police report, the attorney added.
     Judge Jeffrey Sutton questioned how to handle his “instinct” that the police “would have done the same thing if the parties in this situation were reversed.”
     Muise replied: “Switch the message if you want to, [but] it was a content-based restriction. The officers’ response should be to protect the speakers.”
     Affirming dismissal of the protesters’ case is akin to “creating a blueprint” for similar situations in the future and allowing violence to enable a “heckler’s veto,” Muise said.
     Muise agreed with the appellate judges when they questioned why the county had not created a free-speech zone to accommodate the Bible Believers.
     My clients “would have been fine with that,” Muise said, noting that such a zone helped prevent violence at the 2011 festival.
     Ayad said the county had allowed the group to roam freely among patrons at the festival because it “didn’t want to have any lawsuits.”
     In hindsight, it “probably [would have been] better to have a free speech zone,” the attorney added.
     Judge Sutton seemed surprised. “Isn’t that a pretty hurtful concession?” he asked.
     Ayad replied by asking how the Sheriff’s Office should have determined the number of people that would eventually create a problem.
     He turned to Muise and said: “If the plaintiffs have a magical formula to tell how many police to have at any given event, I’d love to hear it.”
     No timetable has been set for the court’s decision.

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