Question
HYPOTHETICAL The Mall (TM) is a regional shopping center located in the city of Fort Baffle in the State of Confusion. The primary geographic area
HYPOTHETICAL
The Mall (TM) is a regional shopping center located in the city of Fort Baffle in the State of
Confusion. The primary geographic area served by The Mall includes Fort Baffle and
numerous other communities in the northern part of Confusion. The Mall has about 150 retail
stores, anchored by three large department stores, a home improvement 'big box store', a 'big
box' sporting goods store and a 'big box' store specializing in seasonal outdoor equipment
such as skis, snowboards, wake boards, water skis and other types of season-specific gear.
The Mall covers an area of about 200 acres, and Conundrum Street, a public roadway, runs
across the edge of Mall property about 200 yards from the property line separating a parking
structure from The Mall buildings. There is a 'skybridge' over Conundrum Street that connects
the parking structure to The Mall. A bus stop utilized by both City busses and shuttles owned
and operated by The Mall sits adjacent to the parking structure, protected from the weather by
the skybridge. The City busses that utilize this stop run on routes that cross Mall property on
Conundrum Street but that otherwise serve routes that run to various parts of the City.
The Mall property includes parking for approximately 7000 vehicles and features a small
amusement park with rides for children ages 5-15 run by The Mall. The total area of The Mall
is nearly 1.5 Million square feet, of which about 250,000 square feet are common areas which
include a "food court" with common dining areas, restrooms, corridors with seating areas,
fountains and various plants and other decorations. There is a central 'courtyard' area with a
large fountain and where seasonal events (such as pictures with Santa Claus) are held and
where local school groups are invited to perform from time to time.
Although The Mall accounts for nearly The Mall and its common areas are open to the public
without charge, except for the amusement park rides which are offered on a pay-per-ride basis
or for which a day pass may be purchased. The Mall has regular hours that vary seasonally.
No purchase is necessary for members of the public to utilize the common areas, though there
is a fee of $5/day for parking in any of The Mall's parking areas.
The Mall has a "no solicitation" policy described by management as a "strict prohibition on
controversial activities, political activities, distribution of literature or handbills or solicitation of
any kind" on Mall property, including parking areas.
Despite this policy, The Mall has permitted a variety of activities by numerous groups that
include using common areas at The Mall to disseminate the groups' messages. Voter
registration events conducted by the county are held several times per year in various common
areas. Events saluting the armed services and service members have been permitted from
time to time. Local schools are permitted to display student art and to have their choirs, bands
and chamber orchestras perform in the 'courtyard', and various youth groups including scouts
and sports teams are commonly permitted to conduct fundraising and recruitment events in
various common areas and to distribute literature about their programs. The Salvation Army is
permitted to have its bell ringers at the entrances and in other high traffic areas during the
holiday season, and there are several city and county offices within The Mall, including a police
substation regularly staffed by four uniformed officers and two plain clothes detectives who
respond to calls both at The Mall and in the adjoining parts of the city. These officers also
commonly walk the corridors and outdoor walkways of The Mall while on duty. The Mall also
employs a private security company.
The Mall was substantially remodeled and renovated with work completed in September, 2020.
The project included improvements to drainage and roadways on The Mall property, including
a major renovation of Conundrum Street as well as rebuilding the entrances to The Mall's
parking facilities and the City roadways adjoining these entrances. These improvements were
paid for in large part by funding from the City's development department, streets department
and parks department which is responsible for installation and maintenance of medians and
walkways adjacent to city streets, including those on Conundrum Street.
In November, 2020 Tommy P. Culiar, a well known local resident with a reputation for extreme
and controversial political and social views, rode a City bus to the stop on Conundrum Street
outside The Mall structure. P. Culiar had with him roughly 20,000 pamphlets advocating
granting voting rights to marsupials in order to, "combat the systemic discrimination against
kangaroos' right to carry their young in a pouch instead of a pram." P. Culiar began distributing
his materials and engaging people around the bus stop and slowly made his way up the stairs
to the skybridge and eventually into The Mall's main building. Other than possibly causing
some doubt about his mental health, P. Culiar was not disruptive or aggressive, nor did he act
in a threatening manner.
Officer Blart of The Mall's security service came across P. Culiar in a Mall corridor and advised
P. Culiar that passing out the literature was political activity prohibited by The Mall's 'no
solicitation' policy. Blart asked P. Culiar to leave and advised him he would be subject to arrest
for trespassing if he did not do so. P. Culiar complied with the request, returning to the bus
stop on Conundrum Street where he continued distributing his literature and engaging with
those willing to hear his message.
About an hour later, Blart was patrolling the skybridge and observed P. Culiar at the bus stop.
Blart immediately radioed the duty officer at the police substation in The Mall and requested
backup for "a high-risk contact with a trespasser." P. Culiar saw Blart approaching and
immediately ran into the parking structure where he was quickly lost among the thousands of
cars. P. Culiar continued distributing his literature in the parking structure until about 45
minutes later when Blart along with Officer Ovr Zealous, one of the plain clothes city officers,
rounded a corner and bumped into P. Culiar. Blart immediately grabbed P. Culiar and
attempted to subdued him. Zealous identified herself as a police officer and showed her
badge. P. Culiar did not resist and was peacefully arrested for trespass pursuant to the City's
trespass ordinance. P. Culiar was held briefly at The Mall police substation for processing and
then escorted off of Mall premises and released. P. Culiar's trial on the trespass charge
remains pending due to a huge backlog in the court due to shutdowns and other docket
interruptions due to a pandemic.
QUESTION: Assume that instead of The Mall as described in the hypothetical that
instead P. Culiar is at a "big box" store called, oddly enough, The Box Store (TBS, which in this
case does not refer to the cable network founded by Ted Turner). TBS is situated next to a
vast parking lot and occupies most of a large tract of land bounded on all four sides by public
roadways. There are some other businesses located along two edges of the tract which TBS
occupies most of. Turkey Ted's (a local sandwich shop), Burgers N Such, Tony's Taco Oasis
and Nicolas Flamel's Fine and Fancy Funnel Cakes all occupy spaces along these edges as
do various offices and several small retail stores (one that specializes in prams shaped like
marsupial pouches). TBS store has a sign that reads:
NO SOLICITING OR DISTRIBUTION OF LITERATURE, PAMPHLETS OR ANY OTHER
WRITTEN MATERIAL
Kindly refrain from distributing literature or written materials of any kind on these premises.
Violation of this policy will result in you being treated as a trespasser and asked to leave, and
failure to comply may result in arrest and / or civil action being taken against you.
Thank you for your cooperation.
Is P. Culiar free to distribute his literature on the premises of TBS, or is TBS's position that he
will be trespassing if he distributes his literature a legitimate claim? Support your position with
specific principles from the cases cited before the hypothetical.
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