Court Rejects Occupy Sacramento’s Challenge to Ordinance Barring Park Use Between 11 pm and 5 am

The case is Occupy Sacramento v. City of Sacramento (E.D. Cal. Nov. 4, 2011) (just posted a few days ago on Westlaw); technically, the decision holds that Occupy Sacramento hasn’t shown a likelihood of success on the merits — the standard used when plaintiffs seek a temporary restraining order — but the court’s reasoning suggests that the judge considered the merits and concluded that Occupy Sacramento’s claims were unsound. The decision seems generally quite right to me, given Clark v. Community for Creative Non-Violence (1984), which upheld a similarly content-neutral ordinance banning sleeping in the park.

The city ordinance does leave government officials some discretion in extending the hours if “(1) such extension of hours is consistent with sound use of park resources, (2) the extension will enhance recreational activities in the city, and (3) the extension will not be detrimental to the public safety or welfare.” (The plaintiffs had not asked for an extension as of the time they went to court.) But, as the court pointed out, Thomas v. Chicago Park Dist. (2002), held (among other things) that a content-neutral demonstration permit ordinance was constitutional even if it left government officials with similarly limited discretion. If there was evidence that the officials exercised their discretion in a content-discriminatory way, that would be unconstitutional, but absent such evidence the limited discretion to waive the ordinance requirements doesn’t render the ordinance unconstitutional.

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