Federal judge lets Tempe, Ariz., sitting ban stand — for now

Monday, February 15, 1999

A federal judge last week opted to let a sidewalk sitting ban in Tempe, Ariz., stand while he examines the constitutional claims protesters are making against the 2-month-old ordinance.

U.S. District Judge Stephen McNamee said on Feb. 11 that he planned to wait until at least March 19 to make a decision whether a law forbidding people from sitting on downtown sidewalks violates First Amendment assembly rights.

Members of Arizona-based Project S.I.T. sued the city of Tempe on Jan. 15 over the law. Although Project S.I.T. members failed to secure a temporary restraining order last month, several members held a couple of sit-ins including one on Martin Luther King Jr. Day in honor of similar protests held during the civil rights era.

The Tempe City Council approved the ordinance last December to prohibit people from sitting or lying down on downtown public sidewalks during most hours of the day. The ban includes the congested Mill Avenue, a popular dining and club spot near Arizona State University.

Violations of the law, which went into effect Jan. 17, are misdemeanors with a maximum $500 fine and a 30-day jail sentence.

City leaders say the law is necessary for safety because business owners and police routinely complain about groups of people sitting on the sidewalks and in front of doorways.

Tempe Mayor Neil Giuliano didn't return calls, but he recently told the Tempe-area daily Tribune that the sidewalk law was a fair one.

“When people lie or sit on the sidewalks, other people can't enjoy them,” Giuliano said. “I never thought that asking people to sit on the benches, chairs or planters that line Mill Avenue is asking too much.”

On Jan. 15, Randall Amster, an Arizona State University justice studies instructor, and Anthony Cox, an Arizona State student, sued the city saying the law unfairly targets groups who hang out along Mill Avenue. They also say the law is too broad because it prohibits protected speech, such as sit-ins.

The Arizona Civil Liberties Union is assisting the two men in the case.

“'Sit-ins' are a time-honored and classical form of political expression — notably utilized by both Gandhi and Dr. King in pursuing social justice,” the lawsuit says.

In court, Amster claimed that when he attempted to get a permit under the new law, city officials asked him for the name, address, Social Security number, and hair and eye color of each of the demonstrators.

McNamee agreed that the permit requirements were too strict but declined to find the entire ordinance unconstitutional. He said his delay in ruling should give the city time to tighten its permit requirements and time for Amster and Cox to respond.