Today is the court hearing on Occupy San Diego’s application for a TRO (temporary restraining order) against the City of San Diego in enforcing Municipal Code section 54.0110. The hearing is in Federal Court at 2:30 pm with Judge William Hayes in Courtroom 4 (Fourth Floor). The court is located on 940 Front Street (between Broadway and F Street).
People are asked to attend the hearing, but also to abide by federal court rules, ie, no signs, slogans, T-shirts with slogans, video/still cameras, audio recorders allowed, and all cell phones must be off.
Read the court document filed by OSD attorney: Here is the Complaint.
More details about the Complaint.
There are three plaintiffs for the complaint, occupiers Eugene Davidovich and John Kenney, and OSD supporter Davina Lynch. The defendant is the City of San Diego.
The legal effort is an attempt to obtain a temporary restraining order, a preliminary injunction, and a permanent injunction that would prohibit the City from enforcing San Diego Municipal Code section 54.0110, which has been used by the San Diego Police Department against Occupy San Diego protesters.
San Diego Municipal Code section 54.0110 provides as follows:
§ 54.0110 Unauthorized Enchroachments Prohibited
It is unlawful for any person to erect, place, allow to remain, construct, establish, plant, or maintain any vegetation or object on any public street, alley, sidewalk, highway, or other public property or public right-of-way, except as otherwise provided by this Code.
The Complaint states that “the legislative history of this ordinance is that it was enacted to prevent encroachment of dumpsters in alleyways.” It also states:
The police sometimes choose to enforce this ordinance very strictly, requiring that no one entering Civic Center Plaza place any object on the ground, particularly when members of Occupy San Diego enter the Plaza. On other occasions or with respect to other individuals, the police allow objects to be placed on the ground.
It also recounts that “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” and that Plaintiff Lynch was informed the barricades were being placed there “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.”
The Complaint also attacks the code section for being “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 so that First Amendment rights are chilled.”
It goes on to state that “Section 54.0110 is overbroad because it has a chilling effect on free expression in that individuals are often not permitted to place protest signs down even next to where they are standing. The ordinance also sweeps unnecessarily broadly and thereby invades areas of protected freedoms.”
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I just spoke to Davina, one of the plaintiffs, and she reported that the judge did NOT make a ruling – and has up to 10 days to do so. We will be posting more on this soon.