November 7, 2011
Occupy Movements and the First Amendment: Update on Atlanta and Sacramento
Two new noteworthy lawsuits raising First Amendment issues have been filed against the cities of Atlanta and Sacramento by "Occupy" protesters. We've previously discussed the Ft Myers, Florida & Dallas, Texas litigation here, as well as the unique public-private nature of NYC's Zuccotti park here, the anti-mask arrests in NY here.
The Atlanta complaint filed in federal district court seeks an injunction of Atlanta ordinance section 110-60 that prohibits the use of parks after 11.00pm and before 6.00am. The ordinance itself contains an exception "if the person has a festival or assembly permit for consecutive days and is performing duties not possible during the normal festival or assembly hours." The complaint also alleges that the Mayor signed an executive order allowing Occupy Atlanta protesters to stay in Woodruff park until November 7, 2011, but on October 25, 2011, the police department arrived in riot gear and horseback and arrested 52 protesters, all of whom were charged with a violation of §110-60. The complaint alleges that the action singles out political speech while allowing other activities including commercial ones; as a content restriction the ordinance does not survive strict scrutiny.
A. No person shall remain or loiter in any public park:
1. Between the hours of midnight Friday or Saturday and five a.m. of the following day; and
2. Between the hours of eleven p.m. Sunday through Thursday and five a.m. of the following day.
B. The prohibitions contained in subsections (A)(1) and (A)(2) of this section shall not apply:
1. To any person on an emergency errand;
2. To any person attending a meeting, entertainment event, recreation activity, dance or similar activity in such park provided such activity is sponsored or co-sponsored by the department of parks and community services or a permit therefor has been issued by the department of parks and community services;
3. To any person exiting such park immediately after the conclusion of any activity set forth in subsection (B)(2) of this section;
4. To any peace officer or employee of the city while engaged in the performance of his or her duties.
C. The director, with the concurrence of the chief of police, may designate extended park hours for any park when the director determines that such extension of hours is consistent with sound use of park resources, will enhance recreational activities in the city, and will not be detrimental to the public safety or welfare. The prohibitions contained in subsections (A)(1) and (A)(2) of this section shall not apply to any person present in a public park during extended park hours designated pursuant to this subsection.
D. The chief of police, with the concurrence of the director of parks and community services, may order any park closed between sunset and sunrise when he or she determines that activities constituting a threat to public safety or welfare have occurred or are occurring in the park and that such closing is necessary to protect the public safety or welfare. At least one sign designating the sunset to sunrise closing shall be installed prominently
in the park. When a park is ordered closed between sunset and sunrise, it is unlawful for any person to remain or loiter in said park during said period.
There were arrests in Caesar Chavez Park and the plaintiffs also request that enforcement of the ordinance be enjoined. The plaintiffs claim that the law violates the First Amendment. Again, the exceptions to the law as well as the discretion without specific standards are highlighted.
Both of these ordinances could prove troublesome to their respective cities. The Sacramento ordinance allows permits and the discretion afforded to the city to allow night time use "consistent with sound use of park resources, enhance recreational activities in the city, and will not be detrimental to the public safety or welfare" seems susceptible to arbitrary use. Evidence of previous permits or waivers could enhance the claim. The Atlanta ordinance seems more narrow, but the Mayor's alleged executive order and then its violation could prove especially problematical under the First Amendment.
Again, perhaps as in Dallas, there can be a negotiated settlement, and the problems of Oakland can be avoided.
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