SAN DIEGO (CN) – Three Occupy San Diego protesters say the city is selectively enforcing a law that prohibits people from placing “any object” on public property.
Their attorney told Courthouse News her clients object to the city’s “arbitrary and overboard” enforcement of the law, which the city is using as an “intimidation tactic.”
The federal complaint cites San Diego Municipal Code section 54.01.10, which bans “unauthorized encroachments” and makes it illegal to place “any object” on public property, which includes streets, alleys, sidewalks and highways.
“The legislative history of this ordinance is that it was enacted to prevent encroachment of Dumpsters in alleyways,” but the city is using it to ban protests in Civic Center Plaza, the protesters say. They want the law declared “void for vagueness,” and a violation of the 1st Amendment.
Plaintiffs Eugene Davidovich, Davina Lynch and John Kenney say the law has “a chilling effect on free expression in that individuals are often not even permitted to place protest signs down next to where they are standing.”
Their attorney Rachel Scoma told Courthouse News that protesters who set down backpacks and purses at the Civic Center had been threatened with arrest, as were handicapped protesters who sat in chairs to listen to ACLU teach-ins on constitutional rights.
“But if you look like you’re going to a play at the Civic Center or you’re going to your office dressed in a suit you can walk right through and set your bag down,” Scoma said.
According to the complaint: “On or about October 30, 2011, the San Diego Police Department placed large plastic barricades filled with water across all entrances to Civic Center Plaza except for a narrow three foot passageway.
“Lt. Darryl Hoover informed plaintiff Davina Lynch as the barricades were being placed that their purpose was to control access to Civic Center Plaza and make it easy to inform anyone entering that they cannot place any object down, pursuant to SDMC section 54.0110.
“Plaintiff Lynch Videotaped Lt. Hoover stating, ‘What happens with the barricades is, as you’re coming by, it gives us the opportunity, when people are coming by, that we can say hey, make sure that you’re following the rules. The rules are whatever you’re carrying, you have to carry, right, you can’t be setting stuff down. If you’re setting stuff down, then that rule’s been enforced as it has in the past it’s gonna continue to be enforced where you’ll lose that stuff and if you fight over that stuff, if you won’t remove it you will go to jail.’
“The police sometimes choose to enforce section 54.0110 very strictly, requiring that no one entering Civic Center Plaza place any object on the ground, particularly when members of the protest group ‘Occupy San Diego’ enter the Plaza.”
In contrast, the protesters say, “other individuals,” presumably those not involved with the Occupy Wall Street movement, have been permitted to place objects on the ground.
“Section 54.0110 is void for vagueness in that it does not define a criminal offense with sufficient certainty so that ordinary people can understand what conduct is prohibited, and it encourages arbitrary and discriminatory enforcement. The ordinance fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests and fails to give fair notice of what acts will be punished, and thus First Amendment rights are chilled,” the complaint states.
The protesters say the law “sweeps unnecessarily broadly” and “invades areas of protected freedoms.”
They add: “Plaintiffs and others are also prohibited from using temporary tables in a public forum to disseminate First Amendment speech, which is a constitutionally protected activity.”
They want the city enjoined from enforcing the ordinance. They are represented by Scoma and Bryan Pease, both of San Diego.
The city did not immediately respond to a request for comment.
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