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Free Speech

Excluding Public from Area of Homeless Encampment Sweeps Violates the First Amendment

So a district court held Tuesday.


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 during abatement activities either currently or in the past. Rather, in its brief in opposition to the pending motion, defendant cites only to the allegations of plaintiffs' complaint in an attempt to identify a "substantial risk of harm" purportedly posed by its abatement actions.  Specifically, defendant merely repeats plaintiffs' allegations that the conditions at some abatement locations are unsanitary and unsafe; that the city sometimes uses heavy machinery to clear encampments while unhoused persons are nearby; and that the abatement process is "hectic and traumatic … like a tornado." Defendant sums up its conclusory assertion that a substantial government interest is at stake by pronouncing that the amended ordinance "seek[s] to address these safety risks by giving the City the discretion under certain circumstances to implement a 'buffer zone' during abatement proceedings to ensure the safety of all involved."

In short, defendant has failed to sufficiently articulate what the city's substantial interest is here. Nothing in the language of the amended ordinance or in defendant's briefing explains what health and safety related state interests are meant to be remedied by excluding the public from observing abatement activities, in particular those occurring in public places. While health and safety are certainly noble goals in general, defendant has offered no evidence, argument, or authority even vaguely suggesting how this amended ordinance promotes those goals in particular….

Although defendant now argues that the amended ordinance is intended to protect the public by fully clearing out abatement zones prior to a sweep and the asserted dangers accompanying those sweeps, both the language of the ordinance itself, as well as the reasoning presented by defendant, contradict this advanced interest. Instead, the amended ordinance and the arguments made in support of its application suggest that the intention of the ordinance is in reality simply to avoid public scrutiny….

Even if defendant had advanced a substantial government interest, the court would next be required to determine whether the amended ordinance is narrowly tailored to achieve that interest. Plaintiffs argue that § 10-616 is not narrowly tailored because it is clearly overbroad on its face and burdens substantially more speech than is necessary, thereby chilling protected speech or expression.

For example, to the extent members of the public interfere with legitimate law enforcement functions, other existing laws prohibit willful resistance, delay, or obstruction of public officers.  Plaintiffs also argue that defendant has not left open "ample alternative channels for communication" because—in light of the apparently unfettered discretion granted to city staff and contractors to "designate a restricted area"—the city "can establish a buffer zone around an encampment sweep so large as to completely sever the public from the unhoused community residing there and to completely prevent Plaintiffs and others from being able to meaningfully see or record the City's actions."

In its opposition, defendant contends that the ordinance is narrowly tailored to meet its goal of limiting safety risks during abatement proceedings because the "buffer zone" ensures the safety of all involved.  Defendant notes that, under the ordinance, plaintiffs are "expressly provided a reasonable time period to interact with individuals present in an occupied location" and that "even after a buffer zone is created, anyone can request authorization to re-enter the area."  Defendant also argues that no citation or fine will issue absent an individual's "non-compliance with a verbal warning to vacate the area." …

To begin with, defendant's arguments assume that the only risk to plaintiffs' First Amendment rights here is the potential bar on interactions between plaintiffs and the unhoused community, a risk that is alleviated according to defendant by the fact that the ordinance allows advocates access to a subject area before abatement activity starts. But restrictions on the interactions between the unhoused and plaintiffs are clearly not the only asserted infringement on plaintiffs' First Amendment rights posed by the amended ordinance.

Plaintiffs also allege in their complaint that they observe, document, and report on the city's conduct so that the public may be informed, and the city held accountable for its actions.  In this regard, the amended ordinance is not narrowly tailored and unnecessarily infringes on the First Amendment rights of plaintiffs, the press, and the public to observe and record abatement activities for the four reasons discussed.

First, the ordinance only marginally, if at all, promotes defendant's asserted interests in "health and safety," suggesting that the city's valid interests would not "be achieved less effectively absent the [ordinance.]" Here, although defendant argues that keeping the public at bay during abatement activities will make those activities easier and more efficient, defendant's interest in efficiency cannot outweigh the constitutional interests at stake.

"To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government's interests, not simply that the chosen route is easier." Other than asserting that such is the case in conclusory fashion, defendant has not offered any evidence explaining how the designating of a restricted area by erecting a barrier or cordoning off an area of public property where an abatement is taking place promotes health and safety.

Second, less intrusive measures exist by which defendant could achieve the goals it now argues it seeks to accomplish, and defendant offers no substantive rebuttal as to why the ordinance is not far too restrictive of a measure to achieve those goals. As plaintiffs point out in their briefing, nothing suggests that existing laws prohibiting interference with law enforcement activity are insufficient to achieve the same goals defendant claims to have here. See, e.g., Cal. Pen. Code § 148(a) ("[E]very person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician … in the discharge or attempt to discharge any duty of his or her office or employment … shall be punished by a fine … or by imprisonment in a county jail."). Defendant has offered no argument suggesting that it has pursued less restrictive enforcement measures nor has defendant demonstrated that employment of those measures would have been ineffective.

Third, any such ordinance must leave open ample alternative channels of communication. Defendant's amended ordinance does not do so because it completely bars public access to an abatement area. Defendant objects that the amended ordinance does leave open ample alternative channels because "in those circumstances when a restricted area is contemplated, the statute allows for [p]laintiffs to have reasonable access to occupants in the abatement area prior to it being secured."

To the extent defendant argues that § 10-616(b)(2) allows plaintiffs to access abatement locations prior to them being secured, defendant provides no standards governing the evaluation of when plaintiffs or other members of the public may be allowed to do so. Nor does defendant explain what qualifies as "secured" in the context of abatement locations. From the face of the amended ordinance, it is entirely unclear when an abatement proceeding begins, when the public is no longer allowed access to an abatement area, or when the "advocates" and "service providers" explicitly referred to in § 10-616(b)(2) are allowed "reasonable time to make contact with the occupants and assist prior to the area being secured."  Instead, the ordinance appears to grant the city and its private contractors the unfettered authority to establish an indeterminate barrier surrounding an encampment that completely severs the public from the unhoused community and their belongings, thus preventing the public and the press from being able to meaningfully observe defendant's actions during a sweep….

Fourth, the amended ordinance on its face applies to an "extraordinarily broad group of individuals," the vast majority of whom are not responsible for the alleged harms that the city seeks to remedy—i.e., the risks posed to the health and safety of the public during abatement sweeps. As alluded to above, the amended ordinance grants defendant complete discretion to establish an undefined barrier either during or before any abatement activity. The amended ordinance applies to reporters and the media in general, who are not by its terms even granted any opportunity to enter the "buffer zones" afforded to persons providing services to the occupants or advocating on their behalf. More importantly, the amended ordinance applies to the public writ large, and of course the public often serves as a source for the press. As recently stated by the Ninth Circuit, "public access plays a significant positive role in the functioning of our democracy …. Indeed, the public became aware of the circumstances surrounding George Floyd's death because citizens standing on a sidewalk exercised their First Amendment rights and filmed a police officer kneeling on Floyd's neck until he died." Yet, under the amended ordinance, no unauthorized person may enter a restricted area to observe or report on the city's abatement activity.

Defendant has simply offered no explanation as to how having the press on the location of abatement activities it carries out would interfere with defendant's health and safety goals. The only parties the amended ordinance apparently grants some limited degree of access to are advocates providing services to the unhoused community, and that access is only prior to an abatement area being secured. But even these individuals are subject under the ordinance to "particular restrictions mandated by safety concerns or emergency procedures," neither of which is defined. Consequently, the amended ordinance limits the First Amendment rights of far more people than just those responsible for the asserted "evil" or harm the city alleges it is seeking to remedy….