By Denny Walsh
dwalsh@sacbee.com
The ordinance banning Occupy Sacramento protestors from the park across the street from City Hall during late night and early morning hours appears, at this early stage of a legal challenge, to be constitutional, a federal district judge decided today.
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 protestors.
England said the ordinance "as drafted and applied," does not discriminate against the views of park occupiers and it regulates in a reasonable way as to the "time, place and manner" of demonstrations.
Moreover, England said, the ordinance gives a reasonable amount of discretion to the city's respective chiefs of police and parks as to when the Cesar Chavez Park may be occupied.
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 occupiers. He cautioned that his findings were for "instructional" purposes only, not to be cited as a formal ruling, and 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 decided in court on the merits. An appeal from the outcome of that motion may be available to the loser.
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