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Skid Row Protesters Seek Injunction From the 9th

PASADENA, Calif. (CN) - California has wrongly criminalized the disruption of public meetings, advocates for the homeless living in Los Angeles Skid Row told the 9th Circuit.

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.

Hamid Khan, another protester, claims he was threatened with arrest.

Along with CPR, White and Kahn challenged 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 finding that the regulation neither violated equal protection guarantees nor was unconstitutionally vague.

The 11-page decision noted that White was arrested after chanting: "'We are not resisting, this is our First Amendment Right'" close to one of the people on the walk.

For Walter, however, it was not the content of speech that had led to White's arrest.

"The undisputed facts demonstrate that Mr. White substantially impaired the conduct of the meeting by intentionally committing acts in violation of implicit customs or usages or of explicit rules for governance of such a meeting, of which he knew, or as a reasonable man should have known," Walter wrote. "Moreover, there can be no serious dispute that Mr. White was arrested because his conduct substantially impaired the conduct of the Skid Row Walk and was not based upon, in any manner whatsoever, the content of his chant."

At an appeal before the 9th Circuit on Tuesday, Santa Monica attorney Carol Sobel said her clients deserve an injunction against the vague law.

Judge Richard Clifton questioned how the court could issue a rule of law on the constitutionality of the regulation if there was no "persistent pattern" of misuse by the authorities. There was only the one episode involving White's arrest and subsequent release. In that case, the statute was not applied, the judge said.

"We don't have evidence of a recurring pattern of police misapplication," Clifton said. "Are we supposed to rule every time that somebody is arrested and not charged?"

Sobel countered that selective enforcement could not save the regulation.

"I think it is sufficient for the court to say it is an unconstitutional statute and that the California Legislature needs to go back and look at it," she said.

Without intervention, there is nothing to stop the city from chilling the right of "anyone who wants to go out and engage in expressive activity at a public meeting," Sobel added.

Judge Stephen Reinhardt meanwhile questioned the wisdom of leaving it to politicians to get the job done.

"To say that the Legislature, that august body, is going to write something that's going to tell you what you can do or you can't that will meet the constitution ... Good luck," Reinhardt said.

Such pessimism failed to deter the activists' attorney, however.

"That doesn't mean that a law that is inherently and fatally unconstitutional should remain on the books as a tool for law enforcement to use," Sobel said.

Los Angeles deputy attorney Kimberly Erickson noted that White was arrested only for the disruption he had caused to the walk, not the content of his speech.

"This case is very unique in the sense that it involves the balancing of First Amendment rights between two groups," Erickson said, urging the court not to overlook the free speech rights of participants in the walk.

She cited multiple instances where officials had attempted to work with the community group to allow it to protest while preserving the free speech rights of officials on the walk.

"The city doesn't dispute that they have every right to protest," Erickson said. "It's just the manner in which they do that."

During rebuttal, Clifton continued to press Sobel, reasoning that the regulation "made complete sense" and was "not inconsistent with the First Amendment."

Sobel disputed that.

"The question is: Can it be applied consistent with the First Amendment as it is written," Sobel said. "And the answer is no."

U.S. District Judge Jennifer Dorsey, sitting by designation from Nevada, joined Judges Clifton and Reinhardt on the panel.

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