SACRAMENTO (CN) - Occupy Sacramento participants cannot stay in downtown's Cesar Chavez Park past 11 p.m., a federal judge ruled.
Every night since Oct. 6, when the Occupy Sacramento movement first descended on the 2.5-acre Cesar Chavez Park across from City Hall, protesters have allegedly had to either pack up their tents and head for home or face arrest. In the weeks to follow, Sacramento police officers arrested more than 50 protesters for remaining on park grounds after hours, according to the group's complaint.
Mark Merin, attorney for the Occupy Sacramento protestors, had sought a temporary restraining order on Oct. 6 that would prohibit the police chief from enforcing the ordinance.
But Sacramento Superior Court Judge Lloyd Connelly denied that maneuver, pointing out that the petitioners did not even apply for a permit to "use the park for camping purposes" until 3:30 p.m. the day they filed for the restraining order. Less than a month later, protesters filed a federal complaint for a temporary restraining order as preliminary injunctive relief.
The activists had demanded an injunction, claiming that that the city violated their constitutional rights by enforcing a law that prohibits loitering in any public park between 11 p.m. and 5 a.m.
Such conduct allegedly infringes on the First and 14th Amendments by restricting free speech and by failing to provide "meaningful limits" on the discretion of the parks director to set park hour extensions.
U.S. District Judge Morrison England Jr. of California's Eastern District said the complaint fails on procedural grounds alone. In the 25 days that passed between Judge Connelly's denial of the restraining order and the filing of the present action, Occupy Sacramento could have moved for a preliminary injunction, and they could have also appealed Judge Connelly's order.
Protesters could have also continued efforts to obtain a permit for afterhours park use. Instead of pursuing these options, Merin merely sent a letter to Sacramento's city manager, city attorney and the city council requesting that local officials stop enforcing the ordinance, according to the court.
England added that the protesters are unlikely to succeed their First or 14th Amendment claims. The curfew is "content neutral" since it does not reference speech and regulates only hours that anyone can remain in city parks. Although the ordinance "does have the direct effect of limiting speech and expressive activities in city parks during those hours during which people are not permitted to remain or loiter in the parks, 'reasonable time, place, or manner regulations normally have the purpose and direct effect of limiting expression but are nevertheless valid,'" England wrote.
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