Flagler Beach Police Chief Matt Doughney has requested an internal affairs investigation of the two officers who arrested a man on a trespassing charge simply for holding a sign outside the Funky Pelican restaurant at the pier, and City Manager Dale Martin has ordered that all city employees receive training, “specifically the re-familiarization of the rights of citizens and the responsibilities of serving as a representative of local government,” according to a release the city issued late this morning.
The Flagler County Sheriff’s Office is conducting the internal affairs investigation. Neither the investigation nor the training order extend to Funky Pelican employees, who triggered the arrest. Calls, texts and an email to Ray Barshay, owner of the Funky Pelican since 2011, were not returned before this article initially published. The Funky Pelican is a private business operating in the city-owned property adjacent to the Flagler Beach pier, itself public property.
Jeff Gray is a 55-year-old resident of St. Augustine and a free-speech activist who documents his encounters and occasional confrontations with law enforcement and others as he exercises his speech rights. He does so on a YouTube channel called HonorYourOath Civil Rights Investigations. He was standing on the public sidewalk outside the Funky Pelican mid-morning on March 2, holding a sign that read “God bless homeless vets.” A Funky Pelican employee called police, asking to have him trespassed. (See: “Man Holding ‘God Bless Homeless Vets’ Sign on Public Sidewalk Outside Funky Pelican Arrested on Armed Trespassing Charge.”)
Two Flagler Beach Police Department officers–Emmett Luttrell and Sgt. Austin Yelvington, the supervisor on duty–arrested Gray and took him to the Flagler County jail after he refused to move, saying he had the right to exercise his free speech. In available video evidence, he was at no point on the non-public side of the sidewalk.
The arrest caught public attention and provoked outrage. The State Attorney’s office on Thursday dropped the felony charge of armed trespassing against Gray. The State Attorney’s swift action, along with city officials’ responses and the reactions of some of the city’s commissioners all lend credence to Gray’s contention–and video evidence–that the arrest was wrongful at at one point unnecessarily violent. It also reflects the city’s defensive posture, now that it may face a lawsuit. While the charge has been dropped, “I seriously doubt the legal process is over,” Martin said.
Gray now has the public record of an arrest on a felony charge, and videos disseminated on his behalf have made an issue of the rough way he was handled during his arrest
“The arrest of Mr. Gray was wrong and I as a commissioner apologize for the injustice he was subjected to,” Commissioner Rick Belhumeur said this morning. “All of our police officers should know the law relating to public access areas. Additionally, emotions should never play a part when dealing with the public at large. We as commissioners are required to complete four hours of ethics training every year, maybe we should implement something similar with the police department specific to public access.”
Commissioner Eric Cooley said he was still gathering information “and appreciate the quick response from the City Manager regarding additional training for all employees and to the Police Chief for his action steps taken so far,” he wrote in a text. “When unfortunate circumstances happen, the most important thing a City can do is acknowledge and strive for better. So far, in my opinion the course of action taken by city management reflects that. I understand the rationales behind Mr. Grey’s media. Protecting everyone’s rights is both an educational and moral responsibility and I trust that with everyone’s focus, scenarios like this will never happen again.”
A combination of private and police body cam videos of the incident detail much of it.
“I have a gentleman outside of our restaurant at Funky Pelican, has like a homeless man sign, and I’d just like him trespassed, please,” a Funky Pelican employee is heard in one video tell a law enforcement dispatcher. The dispatcher asks her what Gray was doing. “He is harassing all of our guests and he is standing out front,” the employee tells her. It’s not clear how Gray could have been harassing “all of our guests” from a sidewalk. There is no record of guests complaining to police.
At one point the Funky Pelican’s general manager went outside with a sign of his own, and tells Gray: “I’m a veteran also, and I don’t understand why you’re doing it in front of this business.”
“Because I feel like it. Because I served in the military, I swore an oath to uphold and defend the constitution, and I have a right to do it right in front of this business or anywhere on this public sidewalk,” Gray tells him. Gray describes the general manager’s sign as saying something to the effect that people shouldn’t give Gray money, though Gray wasn’t soliciting.
When officer Luttrell arrives, his body cam footage shows Gray standing on the sidewalk, close to the curb, in front of the Funky Pelican. He declines to provide his identification (as he is entitled to), and asks the cop whether he sees him harassing anybody, as was claimed.
Inside, employees tell the officer that Gray has been writing on the restaurant’s outside chalkboard (the restaurant invites people to do just that) and explain that they’d asked Gray to just move down the sidewalks a short distance. They insist on having him trespassed if he keeps standing on the sidewalk. The officer says he can trespass him from the Funky Pelican itself, but notes, correctly: “What he’s doing is technically, there’s no, he’s not breaking any laws,” but he would try to get him to move down.
At that point nothing improper has happened. Luttrell has gone by the book, aware that the most he can do is ask, but not require Gray to move down: The officer knew at that point, as did the employees, that there was no legal reason to ask Gray to move.
The officer tells Gray that he would trespass him from the Funky Pelican (though even that is legally questionable since Gray was never in the Funky Pelican: it would amount to an arbitrary trespassing), and asked him to move down. Again, Gray declines, at that point providing his first name. “I just prefer to stand here.”
Yelvington, the supervising sergeant, arrives, and tells him the police can trespass him from the pier.
“You cannot trespass me from a public sidewalk,” Gray tells Yelvington, saying he’d have to be taken to jail otherwise, though he’d prefer not to be. Yelvington again tells him he can trespass him, after asking him to leave. Gray declines, and Yelvington handcuffs him. “All you had to do was move one way or the other, 50 feet, 25 feet,” the other officer tells him–again, without providing a reason, the sidewalk being the same in front of the restaurant’s door, along its chalkboard, or elsewhere on the boardwalk.
“Arresting a man for freedom of speech on public property,” Gray says as an officer adjusts his handcuffs.
“Yup. Yup,” Yelvington says. “Let me guess. You’re going to sue me, take me to court, have me arrested, have me fired, the whole nine yards, ain’t you. You do realize we do this every day, This ain’t our first [inaudible], right?”
“All you had to do was respect my civil rights. All you had to do was respect my civil rights,” Gray says, as he is being moved into the patrol car’s back seat. “Have a seat,” the officer tells him. When he sits down, facing out, he tells them he can’t fit in (Gray is a large man: the jail’s record has him at 6’1, 200 pounds). Yelvington tells him he’s going to have to, and shoves him with one hand on Gray’s left shoulder and another forcefully cramming his head in: there is no effort to ease Gray into the car, though his size is not an affectation. Gray described it as “excessive force” that left him bruised.
Gray was more complimentary of the sheriff’s jail staff, describing them as “cool” and “nice,” though he described the “embarrassment and degradation of being stripped down,” and being naked in front of others.
Gray was legally carrying a firearm, which is why his trespassing charge was raised to a felony. Bodycam footage shows one of the officers taking the magazine out of the weapon and unchamber its bullet, all within a few feet of heavy traffic, with the weapon at times pointing in A1A’s direction. It’s also not clear why a large portion of the bodycam footage is muted.
Gray has been criticized for provoking confrontations, but his actions are no different than the systematic tests that–for example–Florida’s First Amendment Foundation sponsored once a year around Florida, when reporters and volunteers would swarm into public agencies to test their adherence to open-record laws. “I’ve been arrested on a public sidewalk multiple times,” Gray tells James Madison Audits, a YouTuber who does similar work and has accompanied Gray on previous, similar occasions. But it was the first time he was arrested on a felony.
Correction: A previous version of this article incorrectly identified Sgt. Yelvington by a different first name, which referred to a different Yelvington who was also in local law enforcement. Austin Yelvington has been with the Flagler Beach Police Department for more than a dozen years.
