ATLANTA (CN) — A panel of the 11th Circuit heard arguments Thursday in a dispute between the city of Atlanta and residents of nearby DeKalb County, Georgia, that would force a public vote on construction of a controversial police and fire training center, called “Cop City” by opponents.
An attorney for the city asked a three-judge panel of the appeals court to toss out a federal judge’s decision allowing nonresidents to collect signatures as part of the referendum petition drive to “Stop Cop City.”
The referendum seeks to repeal a city ordinance authorizing Atlanta Mayor Andre Dickens to lease 381 forested acres of land to the Atlanta Police Foundation for construction of what is set to be the nation’s largest public safety training facility. The project is expected to cost the city’s taxpayers $36 million.
The mayor and other supporters say the $90 million complex is necessary to replace inadequate facilities and retain new police officers and first responders. Still, the project has drawn local and national opposition from residents and activists who fear greater militarization of the police, over-policing of poor and majority-Black communities and environmental damage to one of the city’s largest remaining green spaces.
Four DeKalb County residents who live within miles of the proposed site claimed in their lawsuit that a residency verification requirement violated their First Amendment rights by allowing only city residents to collect signatures for the referendum petition.
Arguing on behalf of the city, attorney Robert Ashe of Bondurant Mixson & Elmore told the panel that the plaintiffs have not suffered any legal injury that could justify U.S. District Judge Mark Cohen’s decision allowing nonresidents to collect signatures.
“The city of Atlanta has not said anyone may not circulate a petition asking the city to revisit its decision to build the training center,” Ashe said. “What they’ve said is if the specific petition you use does not contain this residency attestation then it will not count to trigger the specific process you’re trying to trigger.”
Asked by U.S. Circuit Judge Kevin Newsom whether there is a “discrete First Amendment interest in the canvassing process,” Ashe acknowledged that the plaintiffs’ actions could be a form of “interactive political communication.”
“[But] I do not believe the petitioners ability to engage in interactive political speech was impaired in any meaningful way,” Ashe said, adding that the plaintiffs’ decision not to “go talk to anybody” because “it won’t count in the process” was not an injury caused by the city.
Attorney Jeffrey Filipovits of Spears & Filipovits, who represents the plaintiffs, said preventing his clients from engaging in political speech harmed them.
“There’s no doubt the First Amendment violation as it stood frustrated the signature collection efforts,” Filipovits said. “It required people to work in teams and took resources away from city residents.”
Ashe also argued that the lower court’s order, which was issued halfway through the 60-day period allowed for signature collection, unfairly extended the Aug. 21 collection deadline.
The lower court should not have extended the deadline for anyone other than the four plaintiffs, Ashe said, telling the panel the city residents were not entitled to the “windfall” injunction.
Filipovits said a district court ruling that did not restart the clock on the 60-day deadline would not have relieved the First Amendment violation.
At least one judge on the panel questioned whether the entire municipal dispute might be moot due to a state law that echoes the city ordinance’s signature attestation requirement.
U.S. Circuit Judge Robert Luck pointed to the Home Rule Act, a Georgia law that requires a resident of the municipality affected by a petition to attest that petition signatures were collected inside the municipality’s boundaries.
But Filipovits told the panel that state law is “irrelevant to the process” because the referendum is proceeding under the municipal ordinance.
“State law is about referendums to amended charters,” Filipovits said. “The city charter itself authorizes referendums to repeal ordinances, which is what this referendum is about. The citation to state law that’s contained in the ordinance has no legal effect whatsoever under the state code.”
Luck appeared incredulous at this argument, saying several times that the district court’s move to “rewrite municipal law” may raise “serious” federalism concerns.
To succeed in getting the referendum on the ballot, petitioners must have collected at least 58,231 valid signatures — an amount equal to 15% of Atlanta’s active registered voters in 2021.
Although organizers say they have collected 116,000 signatures, an analysis by the Associated Press and three Georgia news organizations found on Wednesday that some signatures may be ineligible.
A ruling by the 11th Circuit excluding signatures collected after the original Aug. 21 deadline or from people who are not Atlanta voters could prove fatal to the referendum effort.
Newsom and Luck were joined on the panel by fellow Trump appointee U.S. Circuit Judge Elizabeth Branch. The panel did not indicate when it would issue a ruling.
Follow @KaylaGoggin_CNS
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