(CN) – Police in Redondo Beach, Calif., cannot use a decades-old ordinance to stop day laborers from looking for work in groups on sidewalks and street corners, a full panel of 9th Circuit judges ruled Friday, inspiring an indignant dissent from Chief Judge Alex Kozinski.
Kozinski called the majority en banc ruling “folly” and said that he would dissent twice if he could.
The 9-2 ruling reverses a 2010 decision by a three-judge panel of the 9th Circuit, and partially overrules the federal appeals court’s 1986 ruling in Acorn v. City of Phoenix, a case upon which Redondo Beach relied when drafting and adopting its ordinance 24 years ago.
The case stems from a 2004 crackdown on day laborers in the wealthy Los Angeles County community. Police arrested dozens of people and prosecuted them under the ordinance in an attempt to clear streets of job-seeking men, who were said to “litter, vandalize, urinate, block the sidewalk, harass females and damage property,” according to the ruling.
Comite de Jornaleros de Redondo Beach and the National Day Laborer Organizing Network sued Redondo Beach in federal court, claiming that the ordinance violated the First Amendment. U.S. District Judge Consuelo Marshall agreed and enjoined the law.
But the 9th Circuit reversed last year based on precedent set in ACORN v. City of Phoenix, which upheld a similar law meant to stop the organization, known as the Association of Community Organizations for Reform Now, “from accosting the drivers and passengers of automobiles temporarily stopped at red traffic lights at city street intersections to solicit contributions to its cause,” the ruling states.
The court agreed four months later to rehear Redondo Beach’s case before a full, 11-judge panel.
On Friday, the San Francisco-based panel ruled in favor of the day-laborer organizations, finding that the ordinance “is not narrowly tailored because [it] restricts significantly more speech than is necessary, and because the city could have employed various less restrictive alternatives to achieve its goals.
The panel found the ordinance “significantly overinclusive,” arguing that it could technically apply to Girl Scouts selling cookies outside of their schools and kids with lemonade stands.
“As the plaintiffs observe, the ordinance even applies to ‘school children shouting “carwash” at passing vehicles,’ and ‘protestors imploring donations to a disaster relief fund,'” Judge Milan Smith wrote for the majority.
“Because the ordinance is not narrowly tailored to achieve the city’s goals, it is facially unconstitutional,” he added.
As for the circuit’s precedent-setting ACORN ruling, Smith said it “is overruled to the extent that it construed a substantially identically worded ordinance as facially restricting only solicitation conduct.”
Judge Carlos Bea joined Kozinski in a withering dissent that called the majority’s ruling “demonstrably, egregiously, recklessly wrong.”
“If I could dissent twice, I would,” Kozinski wrote.
The majority went too far in banning an ordinance that reasonably seeks to prevent the “indignities” and disruptions brought on the businesses and citizens of Redondo Beach by large groups of idle men, he argued,
“For years, the city of Redondo Beach has had a serious problem with day laborers – sometimes as many as seventy-five – crowding sidewalks and street-corners, soliciting work from passing motorists,” he wrote. “As might be expected when large groups of men gather at a single location, they litter, vandalize, urinate, block the sidewalk, harass females and damage property. Cars and trucks stop to negotiate employment and load up laborers, disrupting traffic.
“Residents and businesses need not suffer these harms and indignities day in and day out for years on end. It is to secure the safety, beauty, tranquility and orderliness of neighborhoods that municipal governments are instituted among men. Nothing in the First Amendment prevents government from ensuring that sidewalks are reserved for walking rather than loitering; streets are used as thoroughfares rather than open-air hiring halls; and bushes serve as adornment rather than latrines.”
Kozinski added that “Redondo Beach’s ordinance seeks to regulate conduct -precisely the kind of conduct that’s regulated when we require retail establishments to obtain business licenses, maintain health standards, buy insurance and hire workers based on merit rather than race or sex. Panda Express can’t set up a stand anywhere it pleases and start selling moo shu pork to motorists. Any argument that the First Amendment gives them a right to pander to passers-by would be laughed out of court.”