Regulation of City Public Open Space & Its Constitutional and Enforcement Implications

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1 Regulation of City Public Open Space & Its Constitutional and Enforcement Implications

2 Topics Overview Regulation of Public Camping Regulation of Street Performances Possible Solutions Looking Ahead and Challenges

3 Forum Overview Traditional Public Forums are those places which by long tradition or by government fiat have been devoted to assembly and debate. Parks, Sidewalks, Parkways and Streets Regulation of expressive activities at a public forum must be narrowly drawn to achieve a compelling state interest

4 Forum Overview Designated Public Forums forums created by the government for public discourse. Limited Public Forums forums that the government has reserved for certain limited groups or the discussion of certain limited topics. Non-public Forums Everything Else

5 Forum Overview Traditional Public Forums Significant Disparity Between Federal and State Law California's Liberty of Speech Clause is more protective than the First Amendment in determining forums. Carreras v. City of Anaheim, 768 F.2d 1039, 1045 (9 th Cir. 985) (parking lots and walkways of the Anaheim Stadium are public forums) Kuba v. 1-A Agr. Ass'n, 387 F.3d 850, 857 (9 th Cir. 2004) (walkways and parking lots outside of the Cow Palace are public forums)

6 Constitutional Rights Overview First Amendment Rights Berger v. City of Seattle (prior restraint) Vagueness and Selective Enforcement Desertrain v. City of Los Angeles (Camping) Pottinger v. City of Miami (Selective) Secure of Personal Property Lavan v. City of Los Angeles 8 th Amendment / Status Punishment Jones v. City of Los Angeles

7 Regulation of Public Camping Desertrain v. City of Los Angeles (9 th Cir 2014) LA Ordinance (prohibits use of a vehicle as living quarters) is unconstitutionally vague. Ordinance offers no guidance as to what conduct it prohibits (does not define living quarters, or specify how long or when is otherwise. ) Does the Ordinance prohibit eating food in a vehicle, keeping a sleeping bag, storing household items, talking on the phone or using a vehicle as a shelter against weather? (all are otherwise perfectly legal ) While Ordinance is broad enough to cover any driver in Los Angeles who eats food or transports personal belongings in his or her vehicle,... it appears to be applied only to the homeless. Ordinance fails constitutional muster because it selectively prevent[s] the homeless and the poor from using their vehicles for activities many other citizens also conduct in their cars

8 Regulation of Public Camping SMMC (a) (b) No person shall camp in a prohibited public place. For the purpose of this Section: (1) Camp means to erect, maintain or occupy a camp facility for the purpose of living accommodations. (2) Camp facility means one or more of the following: tents, huts, other temporary physical shelters, cots, beds, sleeping bags, hammocks, or bedrolls. (3) Prohibited public place means any of the following: the public parks listed in Section , public beaches, the Santa Monica Municipal Pier, public streets, public alleyways, public parking lots, public passageways, public rights-of-way, publicly-owned landscaped areas or greenbelts, public educational institutions including properties owned by the Santa Monica-Malibu Unified School District or Santa Monica College, or other government-owned properties located within the City of Santa Monica.

9 Regulation of Public Camping SMMC Jury Instructions A) B) 1. The defendants occupied a camp facility AND 2. The camp facility was in a prohibited public place 1. Camp: To erect, maintain or occupy a camp facility for the purpose of living accommodations 2. Camp Facility: One or more of the following: tents, huts, other temporary physical shelters, cots, beds, sleeping bags, hammocks, or bedrolls

10 Regulation of Public Camping Opportunity for 1101(b) evidence A) 1101(b) permits the introduction of a defendant s prior conduct when it is relevant to prove any fact in dispute other than defendant s disposition to commit an act. 1. Admissibility depends (1) materiality; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. 2. Prior camping encounters show: knowledge and notice of prohibited acts / locations / consequences.

11 Regulation of Public Camping Other Opportunities for 402 Motion A) Prohibit the Defendant from arguing constitutionality of local law (Jury is the finder of fact not of law (CALCRIM 104)) B) Lack of knowledge of the Law is no Defense. Stark v. Superior Court, (2011) 52 Cal.4th 358, May want to only argue this if the court denies the 1101(b) motion.

12 Regulation of Public Camping People v. Charles, BR (6 cases consolidated on appeal) PC 991: Only whether there is probable cause other temporary physical shelter or Bedroll = sleeping on public bench btw 4:00 to 5:00 am with a blanket and a bag or two? Judicial Notice taken of the Ordinance and SR. Common Officer / Totality of the Circumstances

13 Regulation of Street Performances Berger v. City of Seattle, 569 F.3d 1029 (9 th Cir. 2009) rule requiring performers to obtain permits before performing was not sufficiently narrowly tailored reducing territorial and other disputes involving street performers, and coordinating uses at a public park are no more, and perhaps less, substantial than those cited by the local governments in the door-to-door solicitation cases Rather than requiring all speakers to pre-register with the government as a prerequisite to engaging in communicative activity, the City could simply enforce its existing rules against those who actually exhibit unwanted behavior

14 Regulation of Street Performances Santa Monica s System Permits for Promenade, Transit Mall, Pier General Regulations that Apply to All Detailed Administrative Instruction on Permit Revocation Criminal and Administrative Enforcement

15 Regulation of Street Performances Lamle v. City of Santa Monica, 498 Fed.Appx. 738 (9 th Cir. 2012) Summary Judgment Granted for the City Rejected Performer s Berger challenge Farook the game is not inherently expressive and not entitled to First Amendment Protection.

16 Regulation of Street Performances People v. Foote, 91 Cal.App.4th Supp. 7 (2001) Foote argued: He was soliciting money for incense for a religious cause Sign: IF YOU HAVE MORE MONEY, YOU GIVE MORE. THE POOR GIVE LESS. Incense is communicative, when burned goes to heaven Court: Nothing communicative about incense sales (common sense) Even if communicative, vending regulations are reasonable time/place/manner regulations. Plenty of alternative avenues under local law

17 Possible Solutions I. Use Existing State Law Remedies II. Warn First and Often III. Document every encounter IV. Don t forget about Voir Dire V. Prosecutorial Discretion

18 Looking Ahead and Challenges SB 876 Right to Rest Act I. Homeless Persons shall be permitted to: II. a. Free Movement b. Sleep or Rest c. Eat / Share / Give Food Rest state of not moving, holding certain postures (sitting, leaning, lying, sleeping) III. Public Space a. any property owned by governmental entity (including easements) open to the public (including public buildings!)