Federal judge halts enforcement of sidewalk sitting ban

Thursday, June 3, 1999

A federal judge has placed a temporary halt on an Arizona city's efforts to enforce a highly controversial sidewalk sitting ban, allowing weary citizens to rest on Tempe's walkways — at least for now.

The law, which took effect Jan. 17, is intended to curb loitering around popular streets and businesses. It prohibits sitting or lying down on the sidewalks in most areas of Tempe, including the busy Mill Avenue section, during most hours of the day.

Violation of the ban, which constitutes a misdemeanor, is punishable by a $500 fine and/or up to 30 days in jail.

In an order issued on April 30, U.S. District Judge Stephen McNamee granted Arizona-based Project S.I.T. a preliminary injunction, forbidding enforcement of the law until the court decides whether it violates the First Amendment right of assembly.

In its request for an injunction, Project S.I.T. attacked the law's permit-application policy, which requires potential sit-in demonstrators to provide the name of a responsible party and the date, hours and location of the demonstration.

In approving the injunction, McNamee cited the U.S. Supreme Court's 1960 decision in Talley v. California, in which the court concluded that: “The requirement that those desiring to exercise free speech rights identify themselves and supply the names, addresses, and telephone numbers of sponsoring or responsible persons has a 'chilling effect' on free speech, and is unconstitutional.”

McNamee also cited a 1981 decision by the 9th U.S. Circuit Court of Appeals (Rosen v. The Port of Portland), which stated that “persons desiring to exercise their free speech rights may not be required to give advance notice to the state.”

While acknowledging the city's desire to ensure “free movement” on sidewalks by restricting those who would sit or lie there, McNamee nevertheless resolved that the city's ban was unconstitutional.

The “statutory attempt to allow for free movement conflicts with existing law governing First Amendment rights,” wrote McNamee.

Randall Amster, leader of Project S.I.T., expressed his belief that some positive strides had been made in the Tempe case.

“In Tempe, a dialogue opened that wasn't here before,” he said. “We've begun to link the rights of protesters with the rights of street people in a way not done before.”

City attorneys, who said that the city had implemented the ban as a “safety measure,” responded to the injunction with a motion for reconsideration on May 10. McNamee denied the request 10 days later, arguing that the city had failed to provide adequate grounds for reconsideration.

Assistant City Attorney Marlene Maerowitz has indicated that the defense will ask for a summer trial. Should they lose that battle, they would be able to continue their appeal to the 9th Circuit.

Amster says that the city has shown no signs of backing down. “Ideally, the city would just leave the street people alone,” he said.

Meanwhile, Project S.I.T. awaits a decision by McNamee on its request for summary judgment, which would render a final decision in the case without going to trial.

Sitting bans similar to Tempe's have been implemented in over 20 cities across the United States. In Berkeley, Calif., and Cincinnati, pressure from the American Civil Liberties Union has forced the cities to scale back their laws. However, courts have upheld ordinances such as Seattle's, saying they are not a violation of constitutional rights and are enforceable by law.