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Occupy Sacramento v. City of Sacramento

Occupy Sacramento v. City of Sacramento

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Published by Doug Mataconis
Order denying Motion for Temporary Restraining Order in Occupy Sacramento v. City of Sacramento
Order denying Motion for Temporary Restraining Order in Occupy Sacramento v. City of Sacramento

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Published by: Doug Mataconis on Nov 13, 2011
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12345678910111213141516171819202122232425262728UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIAOCCUPY SACRAMENTO, et al.,No. 2:11-cv-02873-MCE-GGHPlaintiffs,v.MEMORANDUM AND ORDERCITY OF SACRAMENTO, et al.,Defendants.----oo0oo----Before the Court is Plaintiffs’ Amended Motion for TemporaryRestraining Order [ECF No. 10]. For the reasons that follow, theMotion is DENIED.
Plaintiffs are participants in a local movement known as“Occupy Sacramento,” which is loosely affiliated with the ongoing“Occupy Wall Street” demonstrations. The “Occupy” demonstratorshave been protesting, among other things, social and economicinequality issues for the past several months.1
Case 2:11-cv-02873-MCE -GGH Document 17 Filed 11/04/11 Page 1 of 24
12345678910111213141516171819202122232425262728Starting on Thursday, October 6, 2011, and continuing to thepresent, the “Occupy Sacramento” participants have congregated inCesar Chavez Plaza Park (“the Park”), which is a community park,approximately 2.5 acres in size, in downtown Sacramento andlocated across the street from City Hall. On October 6, when theOccupy Sacramento participants began to gather and set upstructures in the Park, representatives of the Sacramento PoliceDepartment advised the demonstrators that the Park would close at11:00 p.m. pursuant to Sacramento City Code § 12.72.090. Thatordinance, which was enacted in its current form in 1981, states,in full:
12.72.090 Remaining or loitering in parks duringcertain hours prohibited.
A.No person shall remain or loiter in any publicpark:1.Between the hours of midnight Friday orSaturday and five a.m. of the following day;and2.Between the hours of eleven p.m. Sundaythrough Thursday and five a.m. of thefollowing day.B.The prohibitions contained in subsections (A)(1)and (A)(2) of this section shall not apply:1.To any person on an emergency errand;2.To any person attending a meeting,entertainment event, recreation activity,dance or similar activity in such parkprovided such activity is sponsored orco-sponsored by the department of parks andcommunity services or a permit therefor hasbeen issued by the department of parks andcommunity services;3.To any person exiting such park immediatelyafter the conclusion of any activity setforth in subsection (B)(2) of this section;2
Case 2:11-cv-02873-MCE -GGH Document 17 Filed 11/04/11 Page 2 of 24
123456789101112131415161718192021222324252627284.To any peace officer or employee of the citywhile engaged in the performance of his orher duties.C.The director, with the concurrence of the chief ofpolice, may designate extended park hours for anypark when the director determines that suchextension of hours is consistent with sound use ofpark resources, will enhance recreationalactivities in the city, and will not bedetrimental to the public safety or welfare. Theprohibitions contained in subsections (A)(1) and(A)(2) of this section shall not apply to anyperson present in a public park during extendedpark hours designated pursuant to this subsection.D.The chief of police, with the concurrence of thedirector of parks and community services, mayorder any park closed between sunset and sunrisewhen he or she determines that activitiesconstituting a threat to public safety or welfarehave occurred or are occurring in the park andthat such closing is necessary to protect thepublic safety or welfare. At least one signdesignating the sunset to sunrise closing shall beinstalled prominently in the park. When a park isordered closed between sunset and sunrise, it isunlawful for any person to remain or loiter insaid park during said period. (Prior code §27.04.070).Later on October 6, attorney Mark E. Merin (“Merin”), theattorney for the Plaintiffs in the present action, sought atemporary restraining order (“TRO”) in Sacramento County’sSuperior Court. See Exh. B to Decl. of Brett M. Witter attachedto Defendants’ Opposition (“Witter Decl.”). Although not broughton behalf of the specific Plaintiffs in this action, the ex parteRequest for TRO sought to restrain and prevent Sacramento’s Chiefof Police from enforcing § 12.72.090 and from citing or arrestingpersons remaining in the Park after hours. The Request averredthat unsuccessful attempts had been made to contact both theChief of Police and the City Manager to request an extension or apermit granting the extension.3
Case 2:11-cv-02873-MCE -GGH Document 17 Filed 11/04/11 Page 3 of 24

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