On May 12, 2016, the Ninth Circuit Court of Appeals ruled on the December 2014, injuction granted by U.S. District Judge David Bury granted to members of Occupy Tucson and Occupy Public Land groups, 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 City of Tucson appealed Bury’s order and last week, a panel of three justices: Reinhardt, Tashima, and Callahan vacated the injunction and remanded the case back to Bury.
The justices found that because the City amended the offending ordiances, they remanded the case back to Bury to “determine whether a revised preliminary injunction is appropriate, in view of the amended ordinances.”
Bury’s ruling was “limited to protect” the occupiers’ “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 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.”
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 allowed a person to have only a blanket, bedroll, and nonalcoholic beverage, when sitting or lying on the sidewalk.
The City amended the ordinances and they became effective on January 8, 2016. They now define “obstruction.” Between 7 a.m. and 10 p.m., the ordinances maintain the pre-amendment blanket ban: any item placed on the sidewalk is deemed an obstruction in violation of the ordinance. Between 10
p.m. and 7 a.m., an item is an obstruction unless:
1. The item(s) or object(s) are, in aggregate, four (4) cubic feet or smaller; and
2. The item or object is personally attended by its owner; and
3. The item or object is not affixed in any manner; and
4. The item or object is placed at least five feet (5′) back from the edge of the sidewalk that is adjacent to the street, and
5. Where the sidewalk is wider than eight feet (8′), the item or object is placed only within the three feet (3′) of width of the portion of the sidewalk that is furthest back from the adjacent street.