Jeff Gray Charges Dismissed: SAO7 Memo Found "No Evidence" to Support March 14, 2016 Trespassing Arrest on Public Sidewalk

Ben Rich, Jr., Assistant State's Attorney for the Seventh Judicial Circuit, wrote an impressive legal memorandum Monday, April 25, 2016 explaining why all charges were being dismissed against Jeff Gray, photojournalist-activist for peaceful picketing on the sidewalk in front of his son's school, with a sign stating "First Amendment is Not a Crime." Days later, dismissal of charges still not covered by St. Augustine Record, which gave arrest page-one treatment after having a bulletin on its website March 14, 2016. Wonder why the Record is so slow to report the news? Civil rights violating arrest of Jeff Gray was by deputies of controversial St. Johns County Sheriff DAVID SHOAR, at behest of St. Johns County School Supt. JOSEPH JOYNER and louche lawyer FRANK D. UPCHUCH, III. JOYNER has endorsed SHOAR's re-election.

Record is in bed with SHOAR, having refused to investigate or to cover misconduct by SHOAR since 2005.

Delighted that our local State's Attorney's office here in St. Johns County dismissed all charges against First Amendment hero Jeff Gray.

Dismissal still not reported in The St. Augustine Record, long a pal of School Superintendent JOSEPH JOYNER, Ed.D. and Sheriff DAVID SHOAR, whom JOYNER has endorsed.

Good news: Our 7th Circuit State's Attorney's office is now following at least one part of the National District Attorney's Association National Prosecution Standards, preparing a written memo explaining the dismissal.

[The State's Attorney's office did not follow the National Prosecution Standards before and did not distribute copies of it when I asked last year. No such NDAA-recommended criminal case closing memo was prepared in other cases, including Chief Assistant State's attorney CHRISTOPHER FRANCE's questionable dismissal of a domestic violence case involving ex-Mayor FRANK CHARLES, the Republican former St. Augustine Beach Mayor, after shooting a young man in the testicles and not calling 911) -- FRANCE only wrote a memo after I requested records on the case, the year after the case was dropped.]

Here's the full text of the memo written by Assistant State's Attorney Ben Rich, Jr. on Monday, April 25, 2016, inter alia explaining why the State of Florida has dismissed all charges against videojournalist-activist Jeffrey Marcus Gray, arrested by St. Johns County Sheriff's deputies at the behest of St. Johns County School Board in retaliation for First Amendment protected activity:

R.J. LARIZZA STATE ATTORNEY
4010 LEWIS SPEEDWAY BUILDING A, SUITE 
2022 ST AUGUSTINE, FL 32084 
PHONE: (904) 209-1620 FAX: (904) 209-1621
April 25, 2016
MEMO: JEFFREY MARCUS GRAY / MM1600558 AGENCY CASE #: SJSO16OFF002880

This memorandum reflects a review of the March 14, 2016 incident wherein Jeffrey Marcus Gray was arrested by the St. Johns County Sheriff’s Office for “trespassing within school safety zone” in violation of § 810.0975, Florida Statutes. The arrest took place on a public sidewalk just outside of St. Augustine High School located at 3205 Varella Ave., St. Augustine, Florida. Mr. Grays arrest was videotaped by a member of the St. Johns County Sheriff’s Office. The video indicates that at the time of his arrest Mr. Gray was in possession of an Apple Iphone, Canon camera with video capability, and a large sign. The sign had the following handwritten statements: “Public Records Access IS Not A Crime” as well as “The First Amendment Is Not A Crime”.  (Emphasis added).
The arrest video reflects law enforcement making contact with Mr. Gray and informing him that he was trespassing within the “500 foot school safety zone”. Law enforcement also informs Mr. Gray that he has been previously warned not trespass within the school safety zone. Mr. Gray responds to law enforcement that he is engaged in a lawful protest and not violating the law. Mr. Gray is then taken into custody and transported to the St. Johns County Jail where he was booked on one count of “trespass within school safety zone” in violation of Florida Statute § 810.0975.
Prior to the March 14th arrest of Mr. Gray outside of St. Augustine High School, the Superintendent of Schools for the St. Johns County School District as well as the Principal of St. Augustine High School delivered written trespass warnings to Mr. Gray. The written trespass warnings informed Mr. Gray that he was not authorized, licensed or invited to enter onto any property of the St. Johns County School Board and that any entry onto School Board properties would constitute a trespass. The warnings also provided that Mr. Gray was not to enter or remain within the “School Safety Zone” pursuant to Florida Statute § 810.0975. The written warnings did provide that Mr. Gray would be allowed entry onto St. Johns County School Board properties for the purposes of attending School Board meetings or other duly-noticed public meetings, to submit public records requests at the School Board headquarters, and to drop off/pick up his children. The trespass warning from the superintendent also provided that the principal could consider entry upon school property for the purpose of visiting the Mr. Gray’s child[ren]’s schools for other legitimate purposes upon advanced request.
The sidewalk where Mr. Gray is alleged to have trespassed is not St. Johns County School Board property. The sidewalk is a public sidewalk and within the 60 foot right-of-way; however, where Mr. Gray was standing at the time of his arrest was approximately 40 feet from the front doors of the St. Augustine High school. Mr. Gray was well within the 500 foot School Safety Zone as defined by F.S. § 810.0975.
Florida Statute § 810.0975 School safety zones; definition; trespass prohibited; penalty
(1) For the purposes of this sections, the term “school safety zone” means in, on, or within 500 feet of any real property owned by or leased to any public or private elementary, middle, or high school or school board and used for elementary, middle, or high school education.
(2)(a) Each principal or designee of each public or private school in this state shall notify the appropriate law enforcement agency to prohibit any person from loitering in the school safety zone who does not have legitimate business in the school safety zone or any other authorization, license, or invitation to enter or remain in the school safety zone.
(b)1. During the period from 1 hour prior to the start of a school session until 1 hour after the conclusion of a school session, it is unlawful for any person to enter the premises or trespass within a school safety zone or to remain on such premises or within such school safety zone when that person does not have legitimate business in the school safety zone or any other authorization, license, or invitation to enter or remain in the school safety zone.
2. a. Except as provided in sub-subparagraph b., a person who violates this subsection commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
b. A person who violates this subsection and who has been previously convicted of any offense contained in chapter 874 commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c)1. Except as provided in subparagraph 2., a person who does not have legitimate business in the school safety zone or any other authorization, license, or invitation to enter or remain in the school safety zone who shall willfully fail to remove himself or herself from the school safety zone after the principal or designee, having reasonable belief that he or she will commit a crime or is engaged in harassment or intimidation of students entering or leaving school property, requests him or her to leave the school safety zone commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
2. A person who violates subparagraph 1. and who has been previously convicted of any offense contained in chapter 874 commits a misdemeanor or the first degree, punishable as provided in s. 775.082 or s. 775.083.
(3) This section does not abridge or infringe upon the right of any person to peaceably assemble and protest.  (emphasis added)
(4) This section does not apply to residents or persons engaged in the operation of a licensed commercial business within the school safety zone.
F.S. § 810.0975 does have negative history. In GRAY v. KOHL, 568 F.Supp.2d 1378 (2008), a U.S. District Court in southern Florida found provisions of § 810.0975 unconstitutionally vague as to violate due process. Specifically, the Court held that “[s]ubsections 2(a) and 2(b) of § 810.0975, Florida Statutes, are declared unconstitutionally vague” and “permanently enjoined” the State of Florida and its officers from enforcing those subsections. It should be noted that GRAY v. KOHL is not controlling, but is persuasive authority.
Furthermore, review of the legislative history of § 810.0975 gives insight concerning the intent of the statute. It was the legislature’s intent in the construction of this law to protect children by creating a 500 foot buffer zone around all schools so that “persons such as drug dealers, gang members, or pedophiles” could be kept a safe distance from children while arriving to, attending, or leaving school. See also J.L.S. v. STATE, 947 So.2d 641 (Fla. 3rd DCA 2007). In the case at hand, there is no evidence that would lead one to a reasonable suspicion that Mr. Gray was engaged in any of the conduct sought to be prohibited by § 810.0975.  (Emphasis added).
In 2013, § 810.0975 was amended adding subsections (3) and (4) were made to § 810.0975. The addition of these subsections was to ensure that the 1st Amendment rights of Florida’s citizens would not be infringed upon by the enactment and enforcement of § 810.0975. Pertinent to this case is subsection (3) which permits peaceful protest within the school safety zone.
In conclusion, there is no evidence that at any point during the March 14, 2016 incident Mr. Gray entered or remained on St. Johns County School Board property after having been warned not to trespass, (emphasis added) therefore, § 810.09 (Trespass in structure or conveyance) and § 810.08 (Trespass on property other than structure or conveyance) do not apply as Mr. Gray did not enter onto the premises of St. Augustine High School or any of its structures. Second, at the time of his arrest, Mr. Gray was standing on a public sidewalk within the school safety zone holding a sign in protest. There is no evidence or testimony that could lead a person to a reasonable belief that Mr. Gray was preparing to commit a crime or was engaged in harassing students, and therefore, § 810.0975(c)1 does not apply. There is no testimony or evidence that Mr. Gray’s conduct disrupted or disturbed any of the students of St. Augustine High School on March 14, 2016. After considering all of the evidence and testimony concerning this particular incident, given the totality of the circumstances in this case, the evidence does not meet the standards established for criminal prosecution.  (Emphasis added)

BENJAMIN J RICH
ASSISTANT STATE ATTORNEY