Tresa Baldas

Detroit Free Press

Silencing her political views was bad enough, Jean Vortkamp says.

But when a police officer kicked the sidewalk chalk out of her hand — in a city that claims to be home of the world's longest Hopscotch — the lifelong Detroiter refused to be silenced.

In a free speech case that pits sidewalk chalkers against law enforcement, Vortkamp has filed a complaint with the Detroit Public Schools Police Department, alleging one of its officers assaulted her and violated her free speech rights when he kicked the chalk out of her hand during a May 2 rally for DPS teachers.

Vortkamp, a tutor and staunch opponent of emergency managers, was in the middle of writing the words "Charter School" in front of the Fisher Building when a tall man in jeans, gray shirt and a baseball cap strolled up and kicked the chalk loose from her right hand. The incident was recorded on video by a Free Press photographer.

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"I stood up and he said something like, 'You shouldn't be doing that,' " Vortkamp recalled. "I tried walking away from him. He didn't seem like a happy person, so I thought I better just get away from him. A nice lady who looked like a teacher said, 'Leave her alone. She's just writing with chalk.' "

Vortkamp was trying to write: "Audit Snyder's DPS EAA Charter School Blanch-Kelso" but she got cut off while writing 'Charter.'

"You can go to jail, for messing up the ground," the officer is heard telling Vortkamp on the videotape. "I don't appreciate you writing on the ground ... don't you know not to do that?"

The DPS officer has not been publicly identified.

DPS officials said the case is under investigation and issued this statement:

"Detroit Public Schools expects its employees to treat each other and those they interact with in their capacity as District employees with all due respect. The May 2 incident is currently being thoroughly investigated by the Detroit Public Schools Police Department. We expect the investigation to be completed by the end of the month. All appropriate actions will be taken following the findings of the investigation."

Vortkamp, who has contacted the American Civil Liberties Union, believes the law is on her side. She argues chalk writing is protected by the First Amendment.

So do constitutional law experts, who note that if cities welcome events like DetroitHopscotch — an annual event that covers a 3.75-mile stretch of Detroit in sidewalk chalk — then protesters deserve the right to chalk their political messages, too.

"If a police officer would not kick the chalk out of the hand of a 10-year-old girl, he can’t kick the chalk out of the hand of a person using chalk to write a protest message," said Michael J. Steinberg, legal director of the ACLU in Michigan. "There's no question that it would be unconstitutional for a city to prohibit (chalking) simply because the person is writing a protest message."

Steinberg said the ACLU is reviewing Vortkamp's case. Having seen the video, he said: "I thought it was an undercover officer abusing police power."

When it comes to chalking rights, there is no definitive ruling from the courts. Over the last decade, several federal courts across the country have ruled in chalking cases — sometimes weighing in favor of the chalkers, other times law enforcement.

In Michigan, for example, a federal judge in 2013 sided with a Flint woman who wrote "My love, my everything. Kisses," in sidewalk chalk outside a jail, where her boyfriend was being held. Flint police arrested her for defacing public property, but a federal judge concluded that it was unreasonable to arrest someone over a love message that can disappear after a rainfall.

In a similar case in Florida, a federal judge held that Orlando police wrongfully arrested a homeless protester for chalking political slogans on a city sidewalk. The defense had argued that because the city had previously encouraged messages of civic pride on city sidewalks, then the protester's slogan's should be allowed, too.

On the flip side, federal judges in New York, Washington, D.C., and Minnesota have upheld chalking bans on aesthetic grounds, concluding that governments can avoid visual blight while still allowing people to express their views on public property through other avenues, such as banners, signs or leaflets. For example, chalking is not allowed across the street from the White House or at a county government plaza in Minnesota. In both cases, the courts allowed the bans on aesthetic grounds.

Detroit does not have a specific anti-chalking ban. But according to Detroit police, chalkers technically could be ticketed under a statewide malicious destruction of property law that makes it illegal for anyone to destroy or injure someone's property. This can include sidewalk chalkers — though police said they could not recall anyone getting ticketed in Detroit for writing or drawing on a city sidewalk in recent history.

Detroit does have a graffiti ordinance that makes unlawful to "damage, deface or mutilate any exterior surface of any building, premises, or structure on any private or public property" through "carving, graffiti, marking or painting." It never mentions chalk, unlike Ann Arbor's graffiti ordinance, which specifically states: "Chalk marks on sidewalks are not graffiti."

Detroit's definition of graffiti is this: unauthorized drawings, lettering, illustrations, or other graphic markings on the exterior of a building, premises, or structure which are intended to deface or mar the appearance of the building, premises, or structure.

Constitutional law expert Robert Sedler, a Wayne State University law professor, said a key in enforcing chalking bans is making sure that they are content neutral. Municipalities cannot allow some messages but prohibit others, he stressed. And in places where chalking is prohibited, the public still needs to be able to express their views, whether it be through signs or leaflets, he said.

"The streets are a public forum, where citizens have a right to protest, a right to speak, a right to carry signs," Sedler said, noting the right to chalk gets a little fuzzy because "there's a valid interest in aesthetics."

As for Vortkamp's case, Sedler noted that a vandalism ordinance or defacing public property argument could be made by law enforcement. But he questioned the officer's actions.

"It's terrible that he kicked her," Sedler said. "All he had to do is say, 'Please don't do this.' "

Vortkamp, meanwhile, hopes DPS will better train its police officers so that this doesn't happen again — especially to a student, she stressed. She also wants the officer to be disciplined and evaluated. And she wants an apology.

"When someone kicks you when you're on the ground, they're telling you that they're better than you," Vortkamp said. "I think that anyone who makes someone a victim owes them an apology."

Contact Tresa Baldas: tbaldas@freepress.com