Time to Step Up and Fight City Hall on “Stay Away” Ordinance

In a previous article, I discussed what I believe to be the best way to challenge new and restrictive ordinances proposed by the Santa Cruz City Council. The most recent iteration of such retrogressive lawmaking will have a second reading before council on October 28th. The new ordinance (Municipal Code Section 13.08.100 as amended) is an extension of an ordinance passed into law in June of last year which provided for the issuance of 24-hour “stay away” orders to people who posed some arguable “public health or safety concern” within our parks and open spaces. The proposed amendment goes much further and raises serious concerns about our constitutionally guaranteed right to peaceably assemble in traditional public fora, our right to due process of law and our collective right to simply exist.

As passed by council at its October 14 session, this amended ordinance would permit the Santa Cruz Police Department and City Park Rangers to issue “stay way” orders to “habitual” offenders which will effectively prohibit assembly or even further physical presence in designated public spaces for up to a year. Perhaps more troubling is the fact that a violation of such an Order of Court may be prosecuted as a misdemeanor and could result in the imposition of a jail term of up to one year and/or a substantial fine. Leaving aside for the moment the fact that this ordinance as amended targets the poor, people of color, the unemployed and the homeless almost exclusively, the practical reality is that this legislative fiat conjured up by council is nothing more than a not so thinly veiled extension of a policy to drive undesirables, i.e., people experiencing homelessness, out of our community.

It is argued by some that public education and outreach may be the most effective tool to bring pressure to bear on the city council to reconsider the adoption of this ordinance. It is suggested that public “speak outs” and petitions may also be effective tools. It is also suggested that a Statement by the local ACLU board might temper the council’s deliberations. But while standing before this council and rending one’s garments or running gravel through one’s hair in defense of the voiceless may be noble efforts in their own right, it is my opinion that the most effective tactic to bring down this latest attack on the freedom of speech and freedom of assembly in our city is litigation; in common parlance, a lawsuit. And while I respect diversity of tactics, local history has shown that litigation, even unsuccessful, can be a powerful tool in the fight against oppression.

Remember Jonathan Gettlemen’s exhaustive legal arguments in defense of Linda Lemaster. Remember Ed Frey’s full-throated defense of Occupy Santa Cruz that brought broad public support to the movement. Remember also the solidarity of the Santa Cruz Eleven and the impassioned courtroom arguments made on their behalf. Remember the community rallying around those defendants as we hope they will again when the remaining four come to their moment of judgment. I believe that the battles fought in the courts of law are as important as the ones we wage in the court of public opinion. And they are all the more powerful for the public stage they are played out upon.

And here is something else to consider. The courts may do what the current city council will not: they can just “press pause”. By this I mean that a well crafted argument before a fair and impartial court may well result in the issuance a preliminary order “enjoining” enforcement of this ordinance until all the legal and constitutional concerns have been fully and properly addressed. To cite just one example, it is a well-settled doctrine of law that a post-deprivation of rights remedy is a clear violation of due process. The ordinance as drafted creates a high risk of “erroneous deprivation of rights” in that (1) the orders will be issued pursuant to vague and overbroad protocols; (2) there is no clear or stated procedure to contest the issuance of any such order and; (3) individuals will have no access to meaningful due process of law before they are adjudged in violation. Even the casual observer must concede that the ordinance as presently amended is overbroad and poorly as well as hastily drafted. Our city council seems unwilling to consider the larger consequences of this law; a court of competent jurisdiction may well be.

Many will say, and perhaps rightly, that the courts are poor places for the pronouncement of public policy. I say that courts are not merely constituted to prosecute the guilty but are more properly employed to protect the innocent or, in this case, the disenfranchised and disempowered. But like anything else, it is not the system that determines our rights; it is how we use that system. I believe that we can use it to our advantage.

Fundamental due process requires notice AND an opportunity to be heard. Among its many flaws, the proposed “stay away” ordinance provides no procedure or process by which any cited individual can be heard about the facts or circumstances of his or her alleged violation. It is time for our local courts to weigh in and it is our responsibility as community members to place these issues before the court.