Tombstone Officials Cite Risk Of Violence And Aggressive Hawkers In Answer To Lawsuit

ok corral

The Tombstone Marshal’s Office threatened to arrest employees of the popular O.K. Corral reenactment show earlier this year in an effort to prevent “aggressive” hawking in the city’s historic district and reduce the prospect of violence in the city’s historic district, according to an attorney representing the city.

Tombstone Historama Corp. sued city officials in July following repeated threats by marshal’s deputies that its O.K. Corral employees would be criminally cited if they continued to engage in “walkdowns.” A walkdown involves O.K. Corral reenactors costumed as the Earps and Doc Holliday strolling along historic Allen Street prior to the start of each performance.

City officials took the position last fall that such conduct is a violation of Tombstone Ordinance 4-4-2(B)-(C) and a Class 1 misdemeanor punishable by up to six months in jail. The ordinance allows for charges the person doing the walkdown as well as the business proprietor who can also be hit with an administrative fine of up to $1,000.

The lawsuit Tombstone Historama filed argues its employees are exercising “non-commercial speech, expression, association, assembly and movement” based on Old West culture. Those employees also have freedom of speech protection under the 1st Amendment to the U.S. Constitution and under the Arizona Constitution, according to the lawsuit.

But the city’s answer to the lawsuit filed in Cochise County Superior Court last week shines a different light on what prompted Tombstone Marshal Jim Adams to threaten criminal charges in connection with the walkdowns, which the O.K. Corral had been conducting several times a day for nearly 15 years.

According to the answer, the city code necessarily “addresses the longstanding problem of aggressive solicitation of business by hawkers walking Allen Street which has and continues to pose a risk of violent altercations with other groups in public.”

The city also denied the lawsuit’s allegation that the city code fails to explain what conduct is prohibited during a walkdown, or if the mere act of a walkdown itself is illegal.

“The ordinances are not vague or overly broad,” attorney Andrew Petersen wrote for the city. “The ordinances proscribe specific conduct related to specific harms and Plaintiffs have notice of and understand the conduct prohibited by the ordinances.”

The city’s answer puts forth several affirmative defenses against liability, including insufficient or inadequate notice of claim served on the city, legislative immunity, privilege, lack of standing, and failure to state a claim upon which relief may be granted.

The next step in the litigation is for the parties and their attorneys to confer on preparation of a Joint Report and a Proposed Scheduling Order to be filed with Judge Terry Bannon.

The Joint Report to the judge must include a summary of each party’s position on the dispute as well as any agreements the parties have reached to streamline the case. In addition, the parties must provide Bannon with proposed activity deadlines to move the case toward trial.

Any trial would likely not occur until late 2023 based on the court’s current calendar.

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