The American Civil Liberties Union has taken the City of Las Vegas to court so many times that one of the organization’s lawyers, Allen Lichtenstein, predicts the battles between the two over First Amendment issues won’t subside until after he is dead — and he is neither ill nor very old.
On Monday, as they have many times before, ACLU lawyers and city attorneys met in federal court to argue over the access that citizens should have to public spaces. Parks are the public spaces at issue this time.
The hearing was in response to a petition filed in April by the ACLU. Based on evidence submitted in the year-old lawsuit, the organization urged the judge to rule in favor of the ACLU.
The ACLU claims three codes approved by the Las Vegas City Council violate the First Amendment.
ACLU attorney Lee Rowland challenged the constitutionality of “children-only parks,” a law requiring permits for groups of 25 to gather in parks and a code that allows police to boot from parks people under “reasonable suspicion.”
U.S. District Judge Robert Jones did not rule on the petition Monday.
The ACLU represents residents who have been cited and shooed away from area parks for feeding the homeless, handing out leaflets or engaging the homeless in religious ministry.
It claims the city codes are yet another attempt to keep the homeless away from public parks. The city’s last effort, which made it illegal to feed someone who appeared to receive public assistance, was overturned.
According to the ACLU’s latest motion, the city has stamped “children-only” designations on parks frequented by residents and the homeless. The ACLU balked at the city’s action, emphasizing that parks are public.
“The public park is the quintessential public forum, where First Amendment rights have their fullest effect,” the motion says. “The Permit Code and Children’s-Only Parks directly chill speech and protest by reducing the availability of a public forum.”
Deputy City Attorney William Henry argued that of the 67 public parks in the city of Las Vegas, only three have been given the children’s-only designation. Only children under 12 years old and their guardian are allowed in such parks.
Further restricting public forums is another city code that prohibits gatherings of more than 24 people in all but 15 parks. Permits are needed if the park gathering will exceed 24 people.
Rowland said witnesses to an event can easily bump a small crowd up to the level of a misdemeanor. For example, if 15 residents are in a park protesting the war, and 15 others show up to oppose the demonstration, citations could be issued.
“It’s a violation of the constitution because it’s vague; people can’t avoid violating it,” Rowland said. “It suppresses speech more likely to engage an audience.”
Henry said that while the ACLU’s duty is to protect groups such as the homeless, the city is obligated to the entire community and regulates parks for residents’ safety.
“The city has an interest and obligation to everyone else in the community,” he said. “We have an interest in acting constitutionally.”
The ACLU protested a third ordinance that allows park police to “86” park visitors under “reasonable suspicion.” Rowland said police can remove people from the park without probable cause, the historic threshold for citing or arresting a suspect.
Cited visitors who show up at the park again will be arrested for a misdemeanor offense. Rowland said those cited do not get to argue their case until after they have been charged with a crime.
Henry countered that they get their day in court.
The city and ACLU’s day in court Monday was brief. But it most likely won’t be their last because of the ongoing dispute over ordinances.