Federal judge finds Tucson failing to protect citizens, free speech

In a ruling delivered by federal court Judge David Bury, in the case of Tucson’s homeless pod people, the City of Tucson was found to be failing to protect its residents. The City had hoped the judge would do the job of removing the homeless from camping downtown because City leaders lacked the political will to do so.

The City had asked for a Preliminary Injunction claiming that the pod people would not likely prevail on the merits of their case “because: 1) they are not engaged in protected activities; 2) Plaintiffs cannot obstruct the sidewalk even when engaged in protected activities, and 3) the City can seize any personal property if it is obstructing the sidewalk or has been abandoned.”

The judge denied the City’s request and wrote in response, “The City believes that as a matter of law, a person cannot engage in expressive conduct on a continuous basis. “At some point, a person has to put down a picket sign and eat, sleep, think, rest use a restroom, talk to a friend, or play; and these activities are not traditional expressive conduct. The City is wrong.”

However, the judge found that “this 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 noted that the 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 p.m. until 7 a.m. This case is only about the Plaintiffs’ rights under the First Amendment and their equal right to exercise those rights free from harassment.”

The judge enjoined the City from:

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.

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

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.

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

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.”

The judge concluded:

Plaintiffs are likely to prevail on the assertion that they are not obstructing the sidewalk while exercising First Amendment rights if they leave a 5 foot path open on the sidewalk and keep 8 feet open in front of business entrances. The sidewalk ordinance, TCC Sec. 11-36, allows Plaintiffs to sit or lie on the sidewalks when engaging in First Amendment protected activities in the daytime as long as a 5 foot path is left unobstructed on the sidewalk and 8 feet is left open from any doorway or business entrance. The City offers no explanation why this ordinance is not applicable to Plaintiffs’ First Amendment activities, around the clock. Expressly, the ordinance applies in the daytime, and the City offers no reason why the same standard should not apply at night. The Court enjoins the City from applying the 3-B Policy, defining “obstruction” as sitting or lying on a sidewalk with more than a backpack, beverage, or blanket, when the sidewalk is being used to exercise First Amendment rights. The Court finds that Plaintiffs show a reasonable probability of success on the merits of its constitutional challenge to the City’s enforcement practices pursuant to the 3-B Policy. There are serious questions going to the merits, including whether it overly burdens Plaintiffs’ First Amendment rights, has a discriminatory effect on homeless people, or is a harsh enforcement tool aimed against a particular group of people, i.e., the homeless.

A preliminary injunction against the 3-B Policy will resolve Plaintiffs’ concerns regarding arrests and seizure of personal property, except under circumstances where the City deems property abandoned and when made or threatened for conduct occurring beyond the arbitrarily designated 12 feet of sidewalk, which includes the sidewalk area where public tables, chairs and garbage receptacles are located.

For purposes of the preliminary injunction, the Court defines “public sidewalk” as “an area for walking along the side of the road.” In the event the City intends to close areas falling outside this definition at night, such as where the tables and garbage receptacles are located, it must do so for all citizens.

The City’s failure to delineate closed park areas for all to see and understand raises questions of whether police are selectively enforcing the park closure ordinance.

In the Ninth Circuit, the Fourth and Fourteenth Amendments protect homeless persons from government seizure and summary destruction of their “unabandoned,” but momentarily unattended, personal property. Lavan v. City of Los Angeles.“Because homeless persons’ unabandoned possessions are ‘property’ within the meaning of the Fourteenth Amendment, the City must comport with [] due process requirements if it wishes to take and destroy them.

The City fails to distinguish Lavan as solely a discussion of the summary destruction of personal property seized by the City of Los Angeles. See Watters v. Otter, 955 F. Supp.2d 1178, 1189 (Idaho 2013) (in Lavan, the seizure was lawful but the immediate destruction of the property was not). Accurately described, the Lavan court couched its discussion of the lack of due process, Fourteenth Amendment concerns, in terms of “even if” the seizure of the property would have been deemed reasonable had the City held it for return to its owner instead of immediately destroying it, the City’s destruction of the property rendered the seizure unreasonable.” Lavan, 693 F.3d at 1030.

Lavan is instructive in relationship to Plaintiffs’ Fourth Amendment challenge to Plaintiffs’ seizure of property for being “abandoned.”

In the Ninth Circuit, the Fourth Amendment protects two types of expectations, one involving “searches,” the other “seizures.” A seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.

Then, Plaintiffs need not show a reasonable expectation of privacy, but only a possessory interest in the property seized by the City. Id. at 1027-28. To determine whether such an interests exists, the courts look to “existing rules or understandings that stem from an independent source such as state law-rules or understandings. Id. at 1031. Arizona law recognizes the right of ownership of personal property; ARS 1-215(29) provides: “personal property’ includes money, goods, chattels, dogs, things in action and evidences of debt.”

Lavan was NOT about a constitutionally-protected property right to leave possessions abandoned on public sidewalks. Id. at 1027. The case was about whether homeless persons instantly and permanently lose protected property interests in their possessions by leaving them momentarily unattended in violation of a municipal ordinance. The court held they do not, and the City can not treat “unattended” personal property of homeless persons differently than it treats an unattended car parked in a “no parking” zone. Id. at 1032. Describing the evidence in Lavan as including “a  number of occasions when the City seized Appellees’ possessions, Appellees and other persons were present, explained to City employees that the property was not abandoned, and implored the City to not destroy it,” id. at 1025, the court held: “The City did not have a good-faith belief that Appellees’ possessions were abandoned.” Here, Plaintiffs present evidence that the City has seized personal property when a homeless person is not physically present and laying claim to property during a sweep, even when the item was not abandoned; “the items were either claimed by someone or some individual near the items at the time of seizure notified Defendants the individual was watching the items until the owner returned.” The video recording offered by Plaintiffs shows a person informing police that he is watching personal property for others, and he identifies three people by name, but police seize the personal property of the absent persons, and one person actually returns just after the seizure to find her personal property, including blanket, seized by police.

Under Lavan, the City must distinguish between personal property that is abandoned or simply left unattended or in the attendance of another person. Only property that in good faith appears to be abandoned is subject to seizure.

The Court finds the Plaintiffs have shown a likelihood of prevailing on the claim that police are harassing protestors by seizing personal property that is not abandoned.

Plaintiffs admit the City does not summarily destroy property. The City presented testimony at the hearing that procedures exist by which Plaintiffs may secure the return of their personal property. The preliminary injunction will not reach the question of destruction of seized property.

In the Ninth Circuit, irreparable injury occurs whenever a government entity’s actions violate the Constitution, even for minimal periods of time. Sammartano v. First Judicial District Court, 303 F.3d 959, 973 (9th Cir. 2002) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976). The Court grants a preliminary injunction limited to protect Plaintiffs’ free exercise of rights under the First Amendment for conduct, including protest speech audible to passers-by, display of signs conveying Plaintiffs’ political message, and dissemination of political literature. This does not mean that this conduct is in fact protected conduct under the First Amendment. 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 p.m. until 7 a.m. This case is only about the Plaintiffs’ rights under the First Amendment and their equal right to exercise those rights free from harassment.

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