In this letter directed to the Tucson City Attorney on June 19, 2015, John Cooper of Occupy Public Land continues to defend the right of homeless people to sleep on the sidewalk downtown and continues to call the city to task for depriving the economically disenfranchised of their constitutional rights. For a summary of the letter, see the Comments section below. — Editors.
Occupy Public Land
3054 N. Edith
Tucson, Ariz. 85716
John Thomas Cooper, Jr.
Secretarial Working Group
June 19, 2015
c/o Chris Avery
Tucson City Attorney
PO Box 27210
Tucson, AZ 85726
In re: Notice of Continued Unconstitutional Conduct
Dear Mr. Rankin and Mr. Avery:
Since the closure of Veinte De Agosto Park (Safe Park) June 14th, the Tucson Police have proceeded to arrest and confiscate the property of homeless individuals on the Downtown sidewalks—to include the sidewalk to the east of Safe Park; which, as you know, is protected by the United States District Court’s preliminary injunction. The Police issued a memorandum which stated two City Code Sections as applicable to the conduct of the homeless population with respect to the Downtown sidewalks:
Sec. 16-35 provides: “No person shall obstruct any public sidewalk, street or alley in the city by placing, maintaining or allowing to remain thereon any item or thing that prevents full, free and unobstructed public use in any manner, except as otherwise specifically permitted by law.”
Sec. 25-51 provides: “No person shall obstruct any public sidewalk in the city, by placing, depositing or allowing to remain thereon, any boxes, crates, goods, wares, merchandise, hay, grain, farmproduce or other thing, or prevent, in any manner, the full, free and unobstructed public use of any of the public sidewalks, . . . ”
This memorandum further stated that “unattended property shall be considered abandoned and subject to immediate removal by the City of Tucson.”
1. Abandoned or Unattended
We have previously had contention with the City concerning whether unattended property is abandoned. In a previous letter we explained that
the definition of abandoned does not include leaving your property in a particular area unattended. Abandonment is “the act of intentionally and voluntarily relinquishing a known right absolutely and without reference to any particular person or purpose.” Mason v. Hasso, 90 Ariz. 126, 129, 367 P.2d 1, 4 (1961). A forfeiture, on the other hand, “is enforced and involuntary and occurs without regard to intention.” Id. Indeed, even if arrest had been made—which they were not—the government would not be able to simply declare the property abandoned. See, e.g., A.R.S. § 13-904(D) (“The conviction of a person for any offense shall not work forfeiture of any property, except if a forfeiture is expressly imposed by law. All forfeitures to the state, unless expressly imposed by law, are abolished.”); A.R.S. § 31-228(A) (“When a prisoner is released on parole or discharged from a facility of the department of corrections there shall be returned to the prisoner everything of value taken upon commitment to the department of corrections, or thereafter received by the prisoner.”); Blum v. State, Dept. of Corrections, 829 P.2d 1247, 171 Ariz. 201 (1992). See Lehr v. City of Sacramento, 624 F.Supp.2d 1218, 1235 (E.D.Cal.2009) (citing Justin v. City of Los Angeles, CV 00-12352 LGB AIJ, 2000 WL 1808426, at *9 (C.D. Cal. Dec. 5, 2000)); Kincaid v. City of Fresno, CV 06-1445 OWW SMS, 2006 WL 3542732, at *35-37 (E.D.Cal.2006) (issuing a preliminary injunction after holding that “[t]he City’s seizure of homeless people’s personal property without probable cause and the immediate and permanent destruction of such property without a method to reclaim or to assert the owner’s right, title, and interest to recovery such personal property violates the Fourth Amendment to the United States Constitution and Article I § 13 of the California Constitution”). This conclusion is not altered by the fact that the City may have found the property in a public place. See, e.g., Soldal v. Cook County, 506 U.S. 56, 68, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (“an officer who happens to come across an individual’s property in a public area could seize it only if Fourth Amendment standards are satisfied—for example, if the items are evidence of a crime or contraband.”).
In addition, the District Court in Cooper v. City of Tucson agreed with our analysis. In its Order granting our Motion for Preliminary Injunction, the court noted that:
In the Ninth Circuit, the Fourth and Fourteenth Amendments protect homeless persons from government seizure and summary destruction of their “unabandoned,” but momentarily unattended, personal property. Lavan v. City of Los Angeles, 693 F.3d 1022,1024 (9th Cir. 2012).“Because homeless persons’ unabandoned possessions are ‘property’ within the meaning of the Fourteenth Amendment, the City must comport with  due process requirements if it wishes to take and destroy them.” Id. at 1032.
The court concluded:
Lavan was NOT about a constitutionally-protected property right to leave possessions abandoned on public sidewalks. Id. at 1027. The case was about whether homeless persons instantly and permanently lose protected property interests in their possessions by leaving them momentarily unattended in violation of a municipal ordinance. Id. The court held they do not, and the City cannot treat “unattended” personal property of homeless persons differently than it treats an unattended car parked in a “no parking” zone. Id. at 1032. Under Lavan, the City must distinguish between personal property that is abandoned or simply left unattended or in the attendance of another person. Only property that in good-faith appears to be abandoned is subject to seizure. The Court finds the Plaintiffs have shown a likelihood of prevailing on the claim that police are harassing protestors by seizing personal property that is not abandoned…
IT IS FURTHER ORDERED that Defendant the City of Tucson is enjoined as follows: (4) Seizing any personal property that in good-faith does not appear to be abandoned.
Accordingly, we again place the City on notice that it is unconstitutional for the City to confiscate property from individuals simply because the property is momentarily unattended or left in the care of another person. Occupy Public Land well use all legal avenues available to prevent the City’s pursuit of this course of action.
2. Mens Rea and Vagueness.
As stated in the Police memorandum cited above, “[o]bsturcting sidewalks by placing items that prevent the public’s full and free use violates [TCC] Sections 16-35 and 25-51.” According to several officers we questioned, this means either—(1) Individuals are not allowed to have any property what-so-ever on the Downtown sidewalks; (2) Individuals are allowed a bed roll, backpack, and a beverage (the fact that the District Court ruled the 3-B policy unconstitutional was lost on the two officers who stated this as City Policy);1 or (3) Individuals are allowed only the amount of property which they can carry in one trip. The fact that these three positions cannot be reconciled evinces the constitutional infirmity of the statutes under question here.
1 We note that Officer Hawkings informed us that the City Attorney’s Office told the Police that Judge Bury granted the City’s Motion for Clarification and amended his injunction according to the City’s request. This is patently false, as you are well aware. We think it need not be stated that the job of the City Attorney’s Office is not to provide misinformation or misrepresentations which will directly lead to constitutional violations. Such advice from an attorney would violate Rule 1.2. (d) of the Rules of Professional Conduct, which provides:
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
First, both statutes are void for vagueness as they fail to provide a workable definition of the word “obstruction” or the phrase “full, free and unobstructed public use.” Section 16-35 states that “No person shall obstruct any public sidewalk, street or alley in the city by placing, maintaining or allowing to remain thereon any item or thing that prevents full, free and unobstructed public use…” Section 25-51 states “No person shall obstruct any public sidewalk in the city, by placing, depositing or allowing to remain thereon, any boxes, crates, goods, wares, merchandise, hay, grain, farm produce or other thing, or prevent, in any manner, the full, free and unobstructed public use of any of the public sidewalks . . .” However, as patently demonstrated above, not even two law enforcement officers charged with the enforcement of the City Code could agree on the meaning of these statutes.
As the United States Supreme Court has noted on numerous occasions, “[T]he terms of a penal statute […] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., 269 U.S. 385, 391 (1926).
This analysis should come as no surprise to the City, as the District Court in Cooper v. City of Tucson warned its attorneys that these laws were precariously written:
[T]he City misses the important point that it needs the 3-B Policy because obstruction is not defined in the ordinances it seeks to rely on here: TCC §§ 16-35 and 25-51. See Desertrain v. City of Los Angeles, 754 F.3d 1147, 1155-56 (9th Cir. 2014) (describing statute as unconstitutionally vague if it leaves the public uncertain as to the conduct it prohibits or encourages arbitrary or discriminatory enforcement). “If a statute provides ‘no standards governing the exercise of . . . discretion,’ it becomes ‘a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure.’” Id. (quoting Papachristou v. Jacksonville, 405 U.S. 156, 170 (1972)). Except for the express 5 foot/8 feet standards provided for in TCC § 11-36.2(b)(4) when the sidewalks are being used in the daytime for First Amendment activities, the TCC sidewalk ordinances contain no standards nor definition for “obstruction.” The City ignores an express standard, provided by the City Council for applying to all First Amendment activities conducted downtown during the day, in favor of defining “obstruction” pursuant to the 3-B Policy, which appears uniquely tailored to homeless people.
Second, the failure to include a mens rea component in TCC Section 16-35 renders the statute and its application nearly indistinguishable from the law invalidated by the United States Supreme Court in Cox v. Louisiana, 379 U.S. 536 (1965). In Cox, the Court was faced with the following statute:
“No person shall willfully obstruct the free, convenient and normal use of any public sidewalk, street, highway, bridge, alley, road, or other passageway, or the entrance, corridor or passage of any public building, structure, watercraft or ferry, by impeding, hindering, stifling, retarding or restraining traffic or passage thereon or therein.”
La. Rev. Stat. § 14:100.1 (Cum. Supp. 1962). The Court noted the lack of a mens rea in the statute rendered it susceptible to abuse. The Court stated:
[t]he situation is thus the same as if the statute itself expressly provided that there could only be peaceful parades or demonstrations in the unbridled discretion of the local officials. The pervasive restraint on freedom of discussion by the practice of the authorities under the statute is not any less effective than a statute expressly permitting such selective enforcement. A long line of cases in this Court makes it clear that a State or municipality cannot “require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval, with a discretion in the police to say some ideas may, while others may not, be . . . disseminate[d] . . . .” Schneider v. State, supra, at 164. See Lovell v. Griffin, supra; Hague v. CIO, supra; Largent v. Texas, supra; Saia v. New York, supra; Niemotko v. Maryland, supra; Kunz v. New York, supra.
This Court has recognized that the lodging of such broad discretion in a public official allows him to determine which expressions of view will be permitted and which will not. This thus sanctions a device for the suppression of the communication of ideas and permits the official to act as a censor. See Saia v. New York, supra, at 562. Also inherent in such a system allowing parades or meetings only with the prior permission of an official is the obvious danger to the right of a person or group not to be denied equal protection of the laws. See Niemotko v. Maryland, supra, at 272, 284; cf. Yick Wo v. Hopkins, 118 U.S. 356. It is clearly unconstitutional to enable a public official to determine which expressions of view will be permitted and which will not or to engage in invidious discrimination among persons or groups either by use of a statute providing a system of broad discretionary licensing power or, as in this case, the equivalent of such a system by selective enforcement of an extremely broad prohibitory statute.
Cox v. Louisiana, 379 U.S. 536; 85 S. Ct. 453; 13 L. Ed. 2d 471 (1965) (emphasis added). See also Bachellar v. Maryland, 397 U.S. 564, 571, 25 L. Ed. 2d 570, 90 S. Ct. 1312 (reversing convictions of anti-war protesters where the record left open the possibility that their arrests were content-based, but noting “petitioners’ convictions could constitutionally have rested on a finding that they sat or lay across a public sidewalk with the intent of fully blocking passage along it, or that they refused to obey police commands to stop obstructing the sidewalk in this manner and move on.”) (emphasis added).2
2 A statute may be so vague or so threatening to constitutionally-protected activity that it can be pronounced wholly unconstitutional; in other words, it is ‘‘unconstitutional on its face.’’ Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Smith v. Goguen, 415 U.S. 566 (1974). Generally, a vague statute that regulates in the area of First Amendment guarantees will be pronounced wholly void. Winters v. New York, 333 U.S. 507, 509–10 (1948); Thornhill v. Alabama, 310 U.S. 88 (1940). Moreover, an ordinance making it a criminal offense for three or more persons to assemble on a sidewalk and conduct themselves in a manner annoying to passers-by was found impermissibly vague and void on its face because it encroached on the freedom of assembly. Coates v. City of Cincinnati, 402 U.S. 611 (1971). See Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) (conviction under statute imposing penalty for failure to ‘‘move on’’ voided); Bouie v. City of Columbia, 378 U.S. 347 (1964) (conviction on trespass charges arising out of a sit-in at a drugstore lunch counter voided since the trespass statute did not give fair notice that it was a crime to refuse to leave private premises after being requested to do so); Kolender v. Lawson, 461 U.S. 352 (1983) (requirement that person detained in valid Terry stop provide ‘‘credible and reliable’’ identification is facially void as encouraging arbitrary enforcement). Similar concerns regarding vagrancy laws had been expressed previously. See, e.g., Winters v. New York, 333 U.S. 507, 540 (1948) (Justice Frankfurter dissenting); Edelman v. California, 344 U.S. 357, 362 (1953) (Justice Black dissenting); Hicks v. District of Columbia, 383 U.S. 252 (1966) (Justice Douglas dissenting).
The same problems noted by the Court In Cox and Bachellar exist with respect to TCC Sections 16-35 and 25-51. Because the phrase “full, free and unobstructed public use” is unqualified by the intent of the actor, the personal predilections of individual officers is all that gives the law any standard. Who’s to say when an individual is not objectively preventing the “full, free and unobstructed public use” of a sidewalk when the City’s attorneys admit to a Federal Court that an individual stopped with a roll-along brief case is an obstruction? Such standardless enforcement places all citizens in the Downtown area at risk of arrest.
“A legislature must establish minimal guidelines to govern law enforcement.” Smith v. Goguen, 415 U. S. 566, 574 (1974). Where the legislature fails to provide such minimal guidelines, a criminal statute may permit “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Id., at 575.3 This result is patently unconstitutional, and Occupy Public Land will take legal action to prevent the further enforcement of these laws against the homeless. The City of Tucson may not empower its Police “to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade, according to their own opinions regarding the potential effect of the activity in question on the ‘welfare,’ ‘decency,’ or ‘morals’ of the community.” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153 (1969).
3 This concern for minimal guidelines finds its roots as far back as the decision in United States v. Reese, 92 U. S. 214, 221 (1876):
“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of government.”
Accordingly, we have clearly demonstrated that the City has utterly failed to abide by the Constitution of the United States in its continued war against the impoverished and disenfranchised. Although Tucson may not be constitutionally obligated to establish and maintain a public park or sidewalk system, it has nevertheless done so and has required its citizens to abide by said statutes. The authority possessed by the City to prescribe and enforce standards of conduct in its streets and parks—although concededly very broad—must be exercised consistently with constitutional safeguards. We agree with the Supreme Court that it is the role of the “political branches to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349 (1996).
City officials cannot be allowed to violate the Constitution of the United States with impunity. The Tucson City Government is required to take action to insure to its citizens a republican form of government, which adheres to the Constitution and laws of the United States. The City’s actions in failing to discipline its officials for violations of the Federal Constitution puts the City in the untenable position of aiding and abetting federal criminals, as 18 U.S.C § 242 makes it a Federal crime for anyone under color of any law, statute, ordinance, regulation, or custom; to willfully subject any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.
John Thomas Cooper, Jr.
Occupy Public Land
Secretarial Working Group
3054 N. Edith Bvld.
Tucson, Ariz. 85716