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Skid Row Protest Case Divides 9th Circuit

(CN) - Though California's 1872 ban on disrupting public meetings is constitutional, Los Angeles wrongly arrested a protester at an event on city homelessness, the 9th Circuit ruled Tuesday.

The dispute grew out of a monthly event known as the Skid Row Walk, and the protesters who rallied against it in 2011­­.

Los Angeles describes the walk as a "community meeting" that brings citizens together to work on a solution for one of the nation's largest homeless populations.

Members of the homeless community group CPR for Skid Row take another view, arguing that the walk aims to force the homeless out by enforcing low-level crimes that are not as strongly prosecuted in other areas of the city.

CPR member Pete White says he was chanting during one such walk on July 6, 2011, when the LAPD had him arrested under California Penal Code Section 403, an 1872 law that criminalizes the "disruption" of a public meeting.

Though White was booked and released on bail, the city did not file charges against him.

Along with Hamid Khan, another protester whom police allegedly threatened with arrest, CPR and White filed suit against the city, challenging Section 403 under the First and 14th Amendments of the U.S. Constitution.

U.S. District Court Judge John Walter granted the city summary judgment in 2012 after was unconstitutionally vague and withstood equal-protection scrutiny.

The 9th Circuit was divided 2-1 on Tuesday in agreeing that Section 403 is not unconstitutional on its face.

In re Kay, in which the California Supreme Court declined to consider the statute's exceptions for political meetings, lays the groundwork for the majority opinion.

"Premising a conclusion that Section 403 is unconstitutionally void for vagueness based on an interpretation of that statute that has never actually been expressed by the California Supreme Court or by any court is a leap that we are not prepared to take," Judge Richard Clifton wrote for the court.

Judge Stephen Reinhardt chided the majority in his dissent for deciding to simply ignore the case since "Kay doesn't expressly hold that Section 403 applies to political meetings."

Noting that CPR's case has "important political ramifications," Reinhardt emphasized that California is a highly active political state and frequent host of political conventions for national parties.

"Essentially, I believe that the majority's decision simply does not go far enough and will lead to unnecessary confusion regarding the applicability of the various sections of the antiquated statutory scheme to expressive conduct that interferes with or disrupts various types of public meetings," Reinhardt said. "It will leave the citizens of California without clear guidance as to the exercise of their First Amendment rights to engage in public protest."

The panel was unanimous, however, in agreeing that Section 403 does not apply to CPR's protests.

Noting that Elections Code section 18340 covers "electors ... assembling in public meetings for the consideration of public questions," the majority opinion says that Section 403 by its own terms does not cover meetings covered by Section 18340.

"CPR's activities fall within this except to Section 403 because the Walks they have protested consist of public officials and members of the public who meet on public sidewalks to learn about the challenges in the Skid Row neighborhood," the 29-page opinion states.

Regarding this part of the opinion, Reinhardt again said that the majority did not go far enough in their analysis to clarify the law for ordinary people.

"Is it a violation of the statutory scheme simply to willfully disturb a political meeting by 'committing acts in violation of implicit customs or usages,' as provided by Section 403 or is it an offense to disrupt such a meeting only by 'threats, intimidations, or unlawful violence' as Section 18340 provides?" Reinhardt asked. "And do some political meetings fall in one category and some in the other? And, if so, how does anyone tell which fall where?"

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