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.
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