September 2013 - Parks & Recreation - 28

L AW R E V I E W

Subject to some limited exceptions,
Sacramento City Code §12.72.090
prohibits anyone from remaining in
the park after 11:00 p.m. and before
5:00 a.m. each weekday, and after
midnight and before 5:00 a.m. on
weekends. With the concurrence of
the police chief, the park and recreation director could " designate extended park hours for any park when
the director determines that such
extension of hours is consistent with
sound use of park resources, will enhance recreational activities in the
city, and will not be detrimental to
the public safety or welfare. "
On October 7, 2011, shortly after 11:00 p.m., and on succeeding
nights, members of the City's Police Department ordered members
of Occupy Sacramento and others
out of the park at the closing times
designated in §12.72.090, i.e., 11:00
p.m. Occupy Sacramento contended the City's enforcement of
§12.72.090 disrupted their " peace-

which determinations are made and
discretion is exercised as to which
events are permitted to be held after
such hours. " Moreover, Occupy Sacramento claimed " the City routinely
sponsors and/or cosponsors events
which are held after the hours specified in city code section 12.72.090. "
Yet, Occupy Sacramento alleged the
City had refused their group's request
for permission to remain in Chavez
Park after park hours.
Occupy Sacramento subsequently
petitioned the federal district court
for a temporary restraining order
(TRO) to prevent the City from " enforcing the City Code as it pertains
to illegal camping (Sacramento City
Code Chapter 12.52) and loitering
in parks between the hours of 11:00
p.m. and 5:00 a.m. (Sacramento
City Code Section 12.72.090). " The
court refused to issue a TRO, finding
restricted park hours did not subject
Occupy Sacramento to " irreparable
harm. " On the contrary, the court

" Even in a traditional public forum, the government
may impose reasonable restrictions on the time,
place or manner of protected speech, provided the
restrictions are justified without reference to the
content of the regulated speech. "
able assembly. " As a result, Occupy
Sacramento alleged they were afraid
to peaceably assemble and engage
in constitutionally protected political speech with " other likeminded
citizens in Cesar Chavez Park after
the hours set forth in §12.72.090 " for
fear of being arrested.
According to Occupy Sacramento, the City had " no standards by

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Parks & Recreation

found " the demonstration could be
held during normal park hours. "
The court further noted that Occupy Sacramento had failed to file
a timely application for a permit to
use the park after hours in October.
In November, Occupy Sacramento
filed an application for an overnight
use permit for the park with the Department of Parks and Recreation.

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The Parks Director promised to review the application on an expedited
basis and ultimately denied the application for a parks-use permit.
First Amendment Standards
As cited by the court, the First
Amendment states, in relevant part,
that " Congress shall make no law
abridging the freedom of speech, the
right of people peaceably to assemble " (U.S. Const. amend. I). Moreover, the Supreme Court has held
that the First Amendment's prohibitions also apply to state and local
governments through the Fourteenth
Amendment.
As characterized by the court, " [t]
he protections afforded by the First
Amendment are nowhere stronger
than in streets and parks, " both categorized for First Amendment purposes as traditional public forums.
In such quintessential public forums, the government may not prohibit all communicative activity. For
the state to enforce a content-based
exclusion, it must show that its regulation is necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end.
That being said, the federal district
court noted that First Amendment
rights in parks are not absolute, but
subject to reasonable governmental
regulation:
[E]ven in a traditional public forum, the government may impose
reasonable restrictions on the time,
place or manner of protected speech,
provided the restrictions are justified
without reference to the content of
the regulated speech, that they are
narrowly tailored to serve a significant governmental interest and that
they leave open ample alternative
channels for communication of the
information.
September 2013 - Parks & Recreation

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