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The ordinance banning Occupy Sacramento protesters in the park across the street from City Hall during late night and early morning appears, at this early stage of a legal challenge, to be constitutional, a federal district judge decided Thursday.
U.S. District Judge Morrison C. England Jr. said the ordinance does not appear to contravene First Amendment guarantees of free speech and assembly, contrary to arguments by attorneys for the protesters.
The month-old protest is part of a nationwide movement targeting “corporate greed” and other issues.
England said the Sacramento ordinance “as drafted and applied” does not discriminate against the views of park occupiers, and it governs in a reasonable way the “time, place and manner” of demonstrations in all city parks.
Moreover, England said, the ordinance gives a reasonable amount of discretion to the city’s respective chiefs of police and parks as to when Cesar Chavez Plaza may be occupied.
He noted the 1981 ordinance “has been in place for 30 years and has never before been challenged.”
The judge made oral findings from the bench at the conclusion of a 75-minute hearing on Occupy Sacramento’s motion for a temporary restraining order barring the city from enforcing the ordinance and arresting demonstrators. He cautioned that his findings were “instructional,” not to be construed as a formal ruling, and he promised to issue a written order “shortly.”
England set Jan. 5 for a hearing on Occupy Sacramento’s motion for a preliminary injunction against the city, a remedy that if granted would remain in place until the lawsuit is either settled out of court or resolved in court on the merits.
An appeal from the ruling on that motion may be available to the loser.
At the close of business Thursday, no written order had been posted on the case’s electronic docket.
Throughout the day city officials and attorneys for Occupy Sacramento defendants searched for a resolution to the dozens of criminal cases already in court and a way to avoid further arrests with a permit allowing occupation of the park beyond the 11 p.m. and midnight curfews.
Occupy Sacramento attorney Mark Merin filed an application for such a permit with the city Thursday morning. Later in court, Merin informed England he had been promised a decision on the application by the end of Monday.
England pointed out that the protest began Oct. 6, and a state court judge denied the protesters a temporary restraining order the next day. He asked Merin why he waited until Thursday to apply for a permit.
Merin replied that his interpretation of the city code did not and still does not lead him to the conclusion that a permit is required under the circumstances.
One protester interviewed in the park Thursday, where occupiers have claimed that most of the country’s wealth is in the hands of 1 percent of the population, liked the idea of a permit.
“If we are able to get a permit, and of course the traditional fee is waived, that’s great,” said Gary Harris, 27, a salesman who has helped maintain the movement’s decreasing presence in the park.
More than 80 protesters have been arrested during the forbidden hours and charged by the City Attorney’s Office with misdemeanors. They have been taken to jail, booked, given a citation with a court date and released. County prosecutors have declined to file charges because no state law is being violated, according to a statement last week by District Attorney Jan Scully’s office.
Forty-eight protesters appeared in Superior Court on Thursday and pleaded not guilty. Many of them have vowed to force jury trials, expressing the belief that their constitutional rights trump the city’s ordinance.
“I think that everybody here is looking forward to their day in court so we can defend all our rights to free speech, which is what this case is all about,” said Cres Vellucci, an occupier who pleaded not guilty.
Linda Parisi and other defense attorneys attended a meeting with Supervising Deputy City Attorney Gustavo Martinez in an effort to reach a comprehensive resolution to the criminal cases, and Parisi expressed optimism that they can work out a deal.
“Our hope is we can fashion a resolution that does not criminalize (the protesters’) conduct, but likewise there is some way where it is a recognition of the city’s position as well,” she said.
Martinez said the city is “motivated to find a reasonable resolution that is mutually acceptable to the defendants and the city. I’m confident we can find something.”
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