Federal judge upholds Sacramento curfew in Occupy lawsuit

Published: Wednesday, Jul. 11, 2012 - 12:07 am | Page 1B
Last Modified: Wednesday, Jul. 11, 2012 - 8:02 am

The Occupy Sacramento movement, which was kicked out of Cesar Chavez Plaza during late night and early morning hours, challenged that action as unconstitutional in federal court. Now it has been kicked out of there, too.

U.S. District Judge Morrison C. England Jr. ruled Tuesday that the city of Sacramento's ordinance imposing curfews in parks without a permit "is … valid time, place and manner restriction."

Further, he ruled, lawyers for the Occupy movement failed to provide evidence that supports their contention the ordinance is being applied specifically to their client in an unconstitutional fashion.

England's 30-page opinion grants the city's motion to dismiss Occupy's lawsuit on legal grounds and closes the book on the constitutional challenge at the trial court level.

The protest, which began in October, is part of a nationwide movement targeting "corporate greed" and other grievances. It has now moved across the street from the plaza to City Hall's lawn, which is not a park.

Reached Tuesday night, Occupy attorney Mark Merin said he was not aware of the opinion so could not comment on its precise contents. He said, however, it is not that much of a surprise given England's expressed skepticism in November that there was any contravention of free speech and assembly.

"We think it's important that people with grievances come together and air them," Merin said. "All government officials see that as a threat to the status quo and their own positions.

"But the movement will rise again, perhaps in a different form. The will of the people to decide important issues – not just who's raising the most money in a political campaign – won't be permanently suppressed."

England said the situation in Sacramento differs from other cities, such as Nashville, Tenn., and Trenton, N.J., where Occupy demonstrators sought court intervention when officials enacted prohibitions after the demonstrators showed up on public land.

In contrast, the judge said, Sacramento's curfew ordinance "predates the Occupy Sacramento demonstrations by roughly 30 years, (and) there is no allegation that the city was not enforcing it prior to Oct. 6, when plaintiffs began congregating in the park, and there is evidence that the city has been consistently enforcing the ordinance since the demonstrations started."

Quoting a 1984 U.S. Supreme Court opinion, England said that some regulations "normally have the purpose and direct effect of limiting expression but are nevertheless valid."

In the local case, he said, Occupy lawyers have not alleged that the city is keeping protesters out of the plaza overnight because of their message. He found that there is no "content-based purpose behind" the ordinance and that it is "content-neutral."

He also found the ordinance meets the constitutional standard of being narrowly tailored to serve a substantial government interest. He cited the city code's statement that the ordinance's purpose "is to promote the safety, comfort, and convenience of the public's use and enjoyment of any park."

England was dismissive of Occupy's argument that it has been denied free expression. "For 18 to 19 hours a day, plaintiffs may engage in their activities in the park. After park hours, for five or six hours a night, (they) may continue … on the streets and sidewalks or other public fora."

Finally, he said, the city code "includes adequate guidelines to appropriately limit the park director's discretionary authority" to organize after-hours events and issue permits.

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