TUCSON (CN) - The Tucson city attorney wants the 9th Circuit to toss a federal court order that has converted downtown sidewalks into a "property storage facility" and homeless camp, complete with light-blue private sleeping boxes.
The city filed a brief with the San Francisco-based appeals court late Friday, just as organizers of the so-called "Safe Park," otherwise known as Veinte de Agosto Park in downtown Tucson, across Congress Street from the Pima County Courthouse, moved in nine more of what they call "Dream Pods" to the city's hub.
On Tuesday afternoon, 30 of the sleeping pods lined the sidewalks to the north and east of the park. The pods are roughly 8 feet long and 4 feet wide, built of plywood, two-by-fours and corrugated metal, with room for one person and few possessions. Other homeless residents camped out along the sidewalk in tents. There are no public bathrooms or showers in the immediate vicinity.
The structures began to show up on a sidewalk on the east side of the park in January after a preliminary injunction issued in late December by U.S. District Judge David Bury, in an ongoing civil-rights action against the city by members of Tucson's Occupy movement.
Bury temporarily enjoined the city from enforcing ordinances that prohibit protesters from obstructing city sidewalks and taking up permanent residence on city property. Under one ordinance, protesters are allowed, during the daytime only, to sit or lie down on city sidewalks with at most a bedroll, a backpack, and a nonalcoholic beverage, so long as they don't obstruct traffic.
However, Bury ruled that because the park closes after dark, the sidewalk in front of the park is the "exclusive venue available to the plaintiffs to conduct a 24-hour vigil."
Finding nothing in the ordinances that limits the hours during which a protester can sit or lie on the sidewalk, Bury enjoined the city from removing people or property from it as long as a "five foot path is left unobstructed on the sidewalk and 8 feet is left open from any doorway or business entrance."
"The City offers no explanation why this ordinance is not applicable to plaintiffs' First Amendment activities, around the clock," Bury wrote. "Expressly, the ordinance applies in the daytime, and the city offers no reason why the same standard should not apply at night."
Tucson City Attorney Michael Rankin argues in the 65-page appellate brief that the injunction has allowed the plaintiffs to "re-establish their desired 24-hour encampment/occupation of City property."
He says that, among other things, Bury improperly applied the First Amendment exception in the city's "sit/lie" ordinance to "items" and "objects," rather than to people alone.
"The sidewalk along the east side of Veinte de Agosto Park is about 180 feet long and 12 feet wide," the brief states. "The District Court's Order has converted the sidewalk into a 1,260 square-foot property storage facility, and if applied City-wide would effectively convert any sidewalk within the City of Tucson wider than five feet into a personal property storage facility."
Safe Park organizers argue that they are creating "a safe space for people to sleep and receive services 24 hours a day without fear of arrest or harassment."
"Safe Park continues to be a safe legal place for people to sleep 24 hours a day, and is prized as a safe haven for the homeless population of Tucson," the group's website states.
Safe Park Director Jon McLane, one of two plaintiffs in the case, told Courthouse News on Tuesday that he wants to see Tucson create a public campground for homeless residents.
"Once the city sees 50 or 60 dream pods and tents in a place they don't want them to be ... hopefully they'll say, where is a more practical place for them?" McClane said in an interview. "Unless the city finds a more pleasing place, there are going to people on the sidewalks, because they have that right and that liberty."
McClane said he has immediate plans to place another 20 pods on the sidewalks in response to personal requests.
The plaintiffs are represented by Tucson attorney Carl Sammartino. An answering brief is due to the 9th Circuit by March 13.
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