Federal judge strikes down arbitrary Tucson ordinance

U.S. District Judge David Bury granted a preliminary injunction to members of Occupy Tucson and Occupy Public Land, who alleged that they have been denied overnight use of the city parks and are being harassed in the use of the public sidewalk in violation of their First Amendment rights. The federal judge’s ruling is “limited to protect” their “free exercise of rights under the First Amendment” for conduct, including protest speech audible to passers-by, display of signs conveying a political message, and dissemination of political literature.

In his ruling issued late last week, Bury wrote, “The preliminary injunction does not apply to preclude the City from acting to protect the public health or safety nor adopt reasonable time, place, and manner restrictions under the First Amendment.”

The judge also noted that the actions by the activists may not be protected, but “that question remains to be answered through the adjudication of this case. This case is not about whether the City is discriminating against the homeless, pursuant to the 3-B Policy, by denying them unfettered use –for whatever reason, of the sidewalks to sit or lie on after 10 pm until 7 am. This case is only about the Plaintiffs’ rights under the First Amendment and their equal right to exercise those rights free from harassment.”

In its continuing efforts to control speech, commerce and nearly every other aspect of life in the 8th poorest metropolitan area in the country, the City of Tucson came up with a grand scheme: the 3-B Policy. That policy allows a person to have only a blanket, bedroll, and nonalcoholic beverage, when sitting or lying on the sidewalk.

In February 2014, Bury ruled that the City’s park ordinance was constitutional because the “City’s park ordinance was based in part on the sidewalk ordinance allowing for the free exercise of First Amendment rights.” Judge Bury noted, “The Court reasoned that a permit fee did not preclude indigent citizens from exercising First Amendment rights because free speech could be had on the public sidewalks. The Court’s February 2014 ruling appears to have shifted Plaintiffs’ activities from the city parks to the city sidewalks, and the City’s enforcement efforts followed.”

(Read entire Order here):

According to the Order:

The City asserts any item placed anywhere on the sidewalk is an obstruction, but it developed the 3-B Policy in an abundance of caution to accommodate the First Amendment by allowing anyone to sit or lie on the sidewalk anytime. In this way, police officers can avoid having to make the difficult determination as to whether someone who is sitting or lying on the sidewalk is exercising First Amendment rights.

“[The 3-B Policy items], in particular, allow a person to conduct First Amendment activities supported by basic necessities of food and water, clothing for inclement or difficult weather, and shelter.” In other words, the 3-B Policy provides an objective standard for defining obstruction.

The 3-B Policy is, however, no more or less objective than the 5 foot/8 feet provisions set out in TCC § 11-36.2. And, the City misses the important point that it needs the 3-B Policy because obstruction is not defined in the ordinances it seeks to rely on….

“If a statute provides ‘no standards governing the exercise of . . . discretion,’ it becomes ‘a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.’” Id. (quoting Papachristou v. Jacksonville, 405 U.S. 156, 170 (1972)).

Except for the express 5 foot/8 feet standards provided for in TCC § 11-36.2(b)(4) when the sidewalks are being used in the daytime for First Amendment activities, the TCC sidewalk ordinances contain no standards nor definition for “obstruction.” The City ignores an express standard, provided by the City Council for applying to all First Amendment activities conducted downtown during the day, in favor of defining “obstruction” pursuant to the 3-B Policy, which appears uniquely tailored to homeless people.

While the City suggests the 3-B Policy is designed to allow First Amendment activities, but when applied to homeless individuals it does the exact opposite. Homeless people have nowhere to store their personal items and must keep their personal items with them at all times, even when exercising their First Amendment rights.

As applied to the homeless population, the 3-B Policy arguably precludes their free expression of First Amendment rights, especially because the park-closure ordinance closes the parks to them at night. The sidewalk is the exclusive venue available to the Plaintiffs to conduct a 24-hour vigil. Most importantly, the 3-B Policy eviscerates the 5 foot/8 feet standard expressly applicable to Plaintiffs’ First Amendment conduct “between the hours of 7:00 a.m. and 10:00 p.m.”

The City offers no reason why the more restrictive standard, the 3-B Policy, should apply to First Amendment rights exercised at night.

It is undisputed that the Plaintiffs comply with the 5 feet/8 feet requirements found in TCC § 11-36.2. Plaintiffs seek a preliminary injunction only in respect to their right to exercise their First Amendment rights on the public sidewalks in compliance with sidewalk ordinance Sec. 11-36.2(b)(4) by leaving open a 5 foot path and at least 8 feet from any doorway or business entrance.

“The Preliminary Injunction applies only to Plaintiffs’ free exercise of First Amendment rights on the sidewalk which runs from Broadway to Congress and boarders the VDA Park adjacent to Church Ave,” reads the judge’s ruling.

"The City has “chosen” to treat 12 feet of sidewalk adjacent to Church Avenue from Broadway to Congress as sidewalk, subject to sidewalk ordinances, not the park-closure ordinance. The City has painted a line on the sidewalk to delineate the 12 feet it considers to be public sidewalk. The City treats areas of the sidewalk where public tables, chairs, and garbage receptacles are located as subject to the park closure ordinance." Bury Order
“The City has “chosen” to treat 12 feet of sidewalk adjacent to Church Avenue from Broadway to Congress as sidewalk, subject to sidewalk ordinances, not the park-closure ordinance. The City has painted a line on the sidewalk to delineate the 12 feet it considers to be public sidewalk. The City treats areas of the sidewalk where public tables, chairs, and garbage receptacles are located as subject to the park closure ordinance.” Bury Order

The City of Tucson is enjoined as follows:

1. Applying the 3-B Policy as a basis for an arrest, physical or by citation, or to threaten arrest on the basis of the 3-B Policy.

2. Applying the 3-B Policy as a basis for seizing or threatening to seize personal property.

3. Applying the 3-B Policy to define obstruction; obstruction shall be defined in accordance with TCC § 11-36.2 which allows the free exercise of First Amendment rights, including free exercise of religion, speech and assembly; provided, however, that the person sitting or lying on the public sidewalk remains at least eight (8) feet from any doorway or business entrance, leaves open a five (5) foot path and does not otherwise block or impede pedestrian traffic.

4. Seizing any personal property that in good-faith does not appear to be abandoned.

5. Closing any area of the sidewalk, pursuant to the park closure ordinance TCC § 21-3(7) without posting it as closed to all citizens. Sidewalk shall be defined as: “an area for walking along the side of the road.”

Jon McLane, a plaintiff in the suit said that he, “hopes this ruling will clear the way in getting the City of Tucson to deal honestly and constitutionally on this issue from here on out.”

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