Excluding Public from Area of Homeless Encampment Sweeps Violates the First Amendment
From Martinez v. City of Fresno, decided Tuesday by Judge Dale Drozd (E.D. Cal.):
In their complaint, plaintiffs allege the following…. [Defendant City of Fresno sometimes engages in] routine [homeless] encampment sweeps. These systematic sweeps and other abatement activities involve law enforcement and other city officials forcing unhoused residents to leave their resting and sleeping places by threatening criminal citation, arrest, and the destruction or seizure of their property….
Fresno Municipal Code § 10-616 … in pertinent part states as follows, with the underlined language being newly added:
(b) City employees or a contractor retained by the City may enter upon private or public property to abate the nuisance pursuant to the provisions of this article. No person shall obstruct, impede or interfere with any officer, employee, contractor or authorized representative of the city whenever such person is engaged in the work of abatement, pursuant to the provisions of this article, or in performing any necessary act preliminary to or incidental to such work or authorized or directed pursuant to this article.
(1) To protect the health and safety of the public and city employees while an abatement is in progress, city employees or a retained contractor may designate a restricted area by erecting a barrier or cordon off an area of public or private property where an abatement is taking place. No person shall enter the restricted area without express authorization from city employees or contractor on site conducting the abatement.
(2) Subject to particular restrictions mandated by safety concerns or emergency procedures, prior to any abatement taking place at an occupied location, those persons providing services to the occupants or advocating on their behalf shall be permitted a reasonable time to make contact with the occupants and assist prior to the area being secured as provided herein;
(3) Unauthorized entry into the restricted area or other violation of this section shall be punishable either as a misdemeanor for intentional violations, or as an administrative citation with administrative penalty of up to $250 pursuant to Section 1-308, at the election of the City Attorney; prior to any person being cited for either a misdemeanor or administrative citation, first a verbal warning shall be provided to vacate the area with opportunity to comply.
[A] narrowly tailored time, place, and manner content-neutral restriction on speech is one that does not burden substantially more speech than is necessary to achieve a substantial government interest. “It must ‘target and eliminate no more than the exact source of the “evil” it seeks to remedy.'”
Section 10-616(b)(1) of the amended ordinance offers what appears to be a time, place, and manner restriction. Section (b)(1) states that during an abatement, city employees may designate a restricted area and “[n]o person shall enter the restricted area without express authorization from city employees” conducting the abatement. Section (b)(3) then adds that any unauthorized entry into the restricted area “shall be punishable either as a misdemeanor for intentional violations, or as an administrative citation with administrative penalty of up to $250.” On its face, this language may appear content-neutral….
[But d]efendant’s justification for the amended ordinance is at best vague and at worst completely undefined. The ordinance itself states that the restrictions provided for therein are intended: “[t]o protect the health and safety of the public and city employees while an abatement is in progress.” However, defendant has offered no examples of specific health or safety concerns placed at risk
Article from Reason.com