Was SEIU’s Picketing Illegal, Whether or Not They Trespassed?

As I understand it, the SEIU picketing of the Bank of America executive’s residence took place in Montgomery County, Maryland. As it happens, that county has an ordinance that provides, “A person or group of persons must not picket in front of or adjacent to any private residence,” with “picket” defined as “to post a person or persons at a particular place to convey a message.” There are some exceptions (for marching without stopping at any particular home, picketing when the home is “the occupant’s sole place of business,” and picketing during a “public meeting,” which in context seems to refer to a meeting held within the house); but none of these apply here. Also, I think that the ordinance as it’s worded is content-neutral and therefore constitutional, since the classifications relate to what the home is being used for, and not to the content of the picketers’ speech.

[UPDATE: Meant to include this paragraph, but then completely forgot; thanks to David Gerstman (Soccer Dad) for the reminder:] I think this ordinance is also applicable in incorporated towns or cities in the County, since Montgomery County is the same sort of art. IX-A charter county as Prince George’s County, which was held to have such power: “countywide legislation may operate equally in all municipalities throughout the county,” whether or not the municipality has an ordinance on the subject. But I’m not completely sure, especially given this story. If you know which municipality, if any, the picketing took place in, please let me know so I can check the local municipal code; likewise, please let me know if you know more than I do about Maryland home rule law, and whether a county’s ordinances are valid within incorporated municipalities in the county. What I write below assumes that the place was directly controlled by the County Code.

It does seem, from the ordinance’s provision that “Section 32-17 applies to any violation of this Section,” that a person may not be charged with violating the ordinance “unless the arresting officer has first warned the individual of the violation and the individual has failed or refused to stop the violation.” I don’t know whether this was done at the picketing site. But even if the SEIU picketers can’t be legally charged with violating the ordinance because of this, it does seem to me that their picketing did violate the law, and they could rightly be faulted for it even if not prosecuted for it.

It’s also possible that the violation of the ordinance can help establish the elements needed for a civil claim, but much depends on Maryland law. California law, for instance, provides that civil lawsuits may be brought for violations of municipal ordinances (see Part VI of this opinion), but that might not be so elsewhere; the “per se negligence” doctrine generally allows lawsuits based on violations of statutes or ordinances, but only in cases involving damage to person or property.

I doubt that the picketing itself — setting aside the possibility of trespass, a separate matter — suffices to constitute actionable intentional infliction of emotional distress, intrusion upon seclusion, or private nuisance, even if it’s a violation of a city ordinance, at least unless it’s repeated; the bar for those torts is generally set pretty high. But if there was a trespass, the defendants’ violation of the ordinance even when they weren’t trespassing might well influence the decision on a punitive damages award. See Kaplan v. Prolife Action League of Greensboro, 431 S.E.2d 828 (1993), for an example of a case rejecting the emotional distress claim but holding that a private nuisance claim might be possible, though in a situation involving oft-repeated picketing. For a debate on the applicability of the invasion of privacy / intrusion upon seclusion tort to residential picketing, see Valenzuela v. Aquino, 853 S.W.2d 512 (Tex. 1993).