For nearly a month now, Occupy Sacramento activists have been cleared from the park on a nightly basis. Now three Sacramento area attorneys are representing them, led by Mark Merin, who will receive an award on Thursday night from the Vanguard in Woodland, as Vanguard Outstanding Attorney of the Year.
The City of Sacramento has been unusual in that they have insisted in clearing the park on a nightly basis and have arrested those who have not complied. Most cities, like Davis, have simply allowed protestors to camp and take up residence in the park.
In the complaint filed by attorneys Mark Merin, Jay-Allen Eisen and Robert Buccola, the attorneys write: “Since early October, persons participating in ‘Occupy Sacramento’ have gathered in Cesar Chavez Park, in downtown Sacramento across from City Hall and, in a demonstration of grassroots democracy, have organized committees, assemblies and teach-ins centered around the profound economic inequality in this country and the deterioration of our way of life.”
They continue: “People are being drawn to the Occupy Sacramento gatherings but Defendant CITY OF SACRAMENTO and its city manager have steadfastly refused to permit Occupy Sacramento to remain in Cesar Chavez Park past 11:00 p.m. on weekdays and midnight on weekends, and have forced those associated with Occupy Sacramento to evacuate the park, arresting those who, insisting on their constitutional rights to peacefully assemble and engage in free speech, refuse to leave the park on the ground that they are violating section 12.70.090 of the Sacramento City Code which sets park hours. To date 79 people have been arrested, among them plaintiffs in the within complaint.”
They claim that the city code is “unconstitutional” and they request “a temporary restraining order and a preliminary injunction against its enforcement on the principle ground that it confers unfettered discretion on the Defendants to interfere with Plaintiffs’ constitutional rights of freedom of assembly and of speech.”
The code in question, Sacramento City Code § 12.72.090, prohibits people “from remaining in Cesar Chavez Park and engaging in political protest, political speech and other constitutionally protected activity after 11:00 p.m. and before 5:00 a.m. each week day, and after midnight and before 5:00 a.m. on weekends.”
According to this morning’s Sacramento Bee, city officials have declined comment about the lawsuit. “They have previously maintained that the park curfew falls within the city’s legal right to limit gatherings, political or otherwise.”
Earlier in the cycle, the Sacramento District Attorney’s office declined to file state code charges against “Occupy Sacramento protestors, who were arrested for refusing to disperse after being ordered to do so by law enforcement for staying in Cesar Chavez Park after hours.”
The District Attorney’s Office concluded: “Conduct occurring in the park is not a violation of Penal Code 409 (failure to disperse from an unlawful assembly). In order for a violation to occur, there must be an unlawful assembly, which is defined as two or more people, who assemble together to commit a crime or to do a lawful act in a violent manner.”
They continue, “The assembly must turn into actual violence, or must present a clear and present danger that violence will immediately occur.”
However, police reports made it clear that the arrestees were “passive resistors” and cooperative. “The potential theory of prosecution that Occupy Sacramento is assembled to commit the crime of staying in the park after hours is not supported by the fact that they remain in the park all day protesting something unrelated to park hours,” the DA’s office argued.
They concluded: “The violation of the park hours ordinance is incidental to the protest. Therefore, the cases were referred to the Sacramento City Attorney’s Office for review under the City Code violation of 12.72.090 (remaining or loitering in parks during certain hours prohibited), a more appropriate charge for these cases.”
The cited a couple of legal scholars who believe that this lawsuit will hinge on whether the participants can show they have been singled out for disparate treatment.
Carlton Larson, professor at UC Davis School of Law: “If they could show that lots of other people are violating the curfew and they were being singled out because the people don’t like what they have to say, then they have a good case.”
According to the Bee, Mr. Merin said that a number of groups have been allowed to stay beyond the curfew but he declined to name any.
His argument is that “the arbitrary nature of the ordinance made it unconstitutional on its face.”
“The ordinance itself gives untrammeled discretion to the director of the parks,” he said.
“It’s not appropriate for the police and the city manager to dictate what causes can go beyond curfew and what causes can’t,” said attorney Bob Buccola at a press conference on Tuesday. “It’s absolutely unconstitutional.”
In a letter from Attorney Mark Merin last week, he said, ” To date, you have prohibited any assembly at the Park after hours set by the Police Chief in consultation with the City Manager. In the face of repeated attempts to explain to you the importance of occupying the park, even if for symbolic speech only, you have articulated no reasons for closure which outweigh the First Amendment importance of keeping the Park open for free assembly and speech.”
“Clearly, it is a peaceful movement which is opening crucial public dialogue in a time of economic and political crisis,” he wrote.
He added, “Your City Attorney correctly stated that free speech may be subjected to reasonable time, place and manner restrictions. However, a blanket prohibition on the use of the Park after certain hours, in view of the national movement of which Occupy Sacramento is a part, and the symbolic importance of a round the clock occupation, is simply not reasonable.”
“You have the opportunity to demonstrate leadership, understanding, and compassion, and to decide to permit Occupy Sacramento supporters to remain in the Park after hours, subject to conditions which can easily be agreed to by the parties, for example, limiting the activities and number of people permitted to remain overnight, ensuring park conservation and maintenance, as well as accommodation of competing, scheduled uses of the Park,” Mr. Merin wrote.
—David M. Greenwald reporting
The real issue for Mayor KJ, who has been noticeably absent from the last few meetings, and the council, is allowing camping under any circumstances, since it is city policy to discourage homeless campers under the same ordinance . We’ve been awfully embarrassed since that Oprah show, and now use police resources to roust the campers and clear the camps almost daily . Mark has been a very effective advocate for the city’s homeless population and has a pretty good W/L against the city .
So the city of Sacramento will spend its limited funds on paying high cost lawyers (in the top 1%) to fight this lawsuit. Leaving less money to assist the homeless population.
Way to go Mark Merin and Occupiers!
“Way to go Mark Merin and Occupiers! “
Leaving aside your serious misunderstanding of how this is paid for, why is it on Mark Merin and the Occupiers if the Sac City Council/ Ordinance are violating the law?
J.R. makes a good point. What does Mark Merin and the Occupiers hope to gain with the law suit other than their self-promotion at the expense of the city?
The city is consistent in their policy. There is no bias displayed against the occupiers. They are treated the same as other unemployed and unwashed campers.
Years ago, homeless people “occupied” People’s Park in Berkeley for an extensive period of time. Crime in the park was high – rape, battery, drug use, etc. This went on until one could smell the park from blocks away. Finally the Health Department came in and red tagged the area and put up chain link fences all around. Every night for days, 10 garbage trucks worked to haul furniture, human waste and rotting trash out of the park. People’s Park was eventually turned into a real park, with public bathrooms, etc. However, the park is watered on a nightly basis, discouraging overnight camping.
If they want to camp in a city park, then these health issues need to be addressed and police need to be allowed to make sure that sexual predators and violent criminals do not prey on these peaceful protestors.
“If they want to camp in a city park, then these health issues need to be addressed and police need to be allowed to make sure that sexual predators and violent criminals do not prey on these peaceful protestors.”
How about they just obey the law and NOT camp in the park.
Problem solved.
“Mark Merin and the Occupiers”, sounds like a local punk band .
[quote]why is it on Mark Merin and the Occupiers if the Sac City Council/ Ordinance are violating the law?[/quote]
You and Mark Merin seem to have a serious misunderstanding of who is violating the law. You are advocating selective enforcement of bans on overnight camping, depending on whether you agree with the issue being advocated. Your position is unconstitutional. On the other hand, it is perfectly legal and constitutional to ban overnight camping as long as it is consistently enforced.
Mark Merin is bringing a useless lawsuit that has no chance of succeeding, but will cost the City of Sacramento tremendous legal fees to defend, resources that it will need to divert from providing services to the needy. Shame on him.
[quote][u][b][i] and [/u][/b][/i] they were being singled out because the people don’t like what they have to say,[/quote]
Ah, the crux of the matter…Content-based speech!
Good luck proving it…occupiers…
[quote]The goal of the “liberals”—as it emerges from the record of the past decades—was to smuggle this country into welfare statism by means of single, concrete, specific measures, enlarging the power of the government a step at a time, never permitting these steps to be summed up into principles, never permitting their direction to be identified or the basic issue to be named. Thus statism was to come, not by vote or by violence, but by slow rot—by a long process of evasion and epistemological corruption, leading to a fait accompli. (The goal of the “conservatives” was only to retard that process.) | “‘Extremism,’ or the Art of Smearing,” Capitalism: The Unknown Ideal, 178″[/quote]
Sue the government for so many liberal policies over the years if you really want to make a useful point.
It amazes me when people, like the ones responding here, think there is something wrong with people that standup when they see a wrong being done. It wasn’t long ago that freedom of speech and the right to assemble were cherished rights, things that were fought for. Some people have become so marginalized by marketing and propaganda they have forgotten. We are sold lines by politicians and the media that have been perfected to make us believe giving in to what they say is in our own best interests. Our rights have slowly been eroded over the last 30 years. Reading David’s blog has opened many eyes in the community, I don’y know if you all are part of the propaganda machine.
[quote]He added, “Your City Attorney correctly stated that free speech may be subjected to reasonable time, place and manner restrictions. However, a blanket prohibition on the use of the Park after certain hours, in view of the national movement of which Occupy Sacramento is a part, and the symbolic importance of a round the clock occupation, is simply not reasonable.”[/quote]
Why is it not reasonable to subject free speech to reasonable time, place and manner restrictions? Thus far, Merin has not shown selective enforcement…
I have very mixed feeling on this issue.
It is important to balance rights and responsibilities within a free society. Protestors have a right to freedom of speech and assembly.
Members of the surrounding community have the right to a safe, clean, peaceful environment.
One of the problems I have with some of the posts, is it seems entirely dependent on your political persuasion whether or not you feel these particular protestors rights should be honored. One of our most treasured stories of the founding of our nation is that of the original Tea Party,
The participants in which were clearly breaking the law and in a violent manner. Are any of you who criticize today’s protestors willing to say that was morally wrong?
Oakland protest turned violent, preventing working people from getting to their jobs, vandalism of businesses, assaults on police officers. Similar circumstance of preventing working people from getting to their jobs in Portland, Oregon. When protestors step on the rights of others, that is where I personally draw the line…
Medwoman, would you be so forgiving if today’s Tea Party were doing the same thing as these Occupiers, camping in restricted parks overnight, starting bonfires in the streets, keeping people from their daily commerce, etc….?
Somehow I think not.
ERM, I have a friend who had to take a day off work because of the Oakland Occupiers.
[quote]ERM, I have a friend who had to take a day off work because of the Oakland Occupiers. [/quote]
Not good… now the movement has become more about committing crime than honest protest – if it was ever about honest protest…
Themis opined: [quote]It amazes me when people, like the ones responding here, think there is something wrong with people that standup when they see a wrong being done. [/quote]
Tersely, if your volleyball inadvertently ends up on an adjacent private property you can legally obtain your property, but not illegally, by tresppassing. Thus, your remedy is to seek a legal way to get your ball back.
Here, the occupiers should be limited to legal NOT illegal methods.