#CivilRightsSuitToEstablishSafePark #Excerpt #CV12781 Tucson City Code §11-36.2 (b)(4) unambiguously declares persons exempt from criminal prosecution persons “[w]ho [are] exercising First Amendment rights protected by the United States Constitution, including free exercise of religion, speech and assembly; provided, however, that the person sitting or lying on the public sidewalk remains at least eight (8) feet from any doorway or business entrance, leaves open a five (5) foot path and does not otherwise block or impede pedestrian traffic,” while § 11-36.2(a) clearly allows for sitting or laying on the sidewalks for any reason or no reason at all during the hours between 10:00 p.m. and 7:00 a.m. On Dec. 21st, 2011 Chief Villasenor informed members of Occupy Tucson and Occupy Public Land in front of the media and the public at 99 S. Church at 10pm, that people would NOT be allowed to sleep on the sidewalk at 99 S. Church Ave under any circumstance. One hour following, Chief Villasenor had Plaintiff brought to him across the street at 1 N. Church and informed defendant privately that he spoke to city staff and he was incorrect and people were allowed to sleep on the sidewalk. Members of OT and OPL slept on the sidewalk at 99 S. Church Ave. from Dec. 21st, 2011 to Feb. 1st, 2012 in order to protest the mass injustice of corporate power now running all governments.) No arrests were made by TPD between dates Dec. 21st, 2011 to Feb.1st, 2012 for obstructing the sidewalk at 99 S. Church Ave, i.e... T.C.C. 16-35.Members of OT and OPL moved the protest to the easement west of 1001 N. Stone Ave. on Feb. 1st, 2012. And, they were forcibly evicted from their camps on Mar. 1st, 2012. Twenty members of OT and OPL were arrested. Members of OT returned to the sidewalk at 99 S. Church Ave. to continue the 24 hour protest on Mar. 2nd, 2012. Beginning Mar. 10th, 2012 TPD officers arrested and confiscated possessions from members of OT for obstructing the sidewalk at 99 S. Church Ave.On Mar. 27th, 2012 Defendant sent an email to Chief Villasenor, Jonathan Rothschild, Richard Miranda, all city council officials, and the local media informing them of the illegal arrests being made on the sidewalk, and the Tucson city codes that apply. On Mar. 28th, 2012 defendant composed a video from the sidewalk at 99 S. Church Ave. protesting the illegal arrests by TPD for sitting or lying on the sidewalk. Defendant set up his sleeping bag and sat and lay on the sidewalk with a sign bearing the message “Occupy Public Land.” Defendant remained in the exact same spot for hours discussing with anyone who walked by the injustice of the illegal arrests by the Tucson Police Department, and the corporate control of our Government. Defendant laid on the sidewalk from 9pm to 6am the next morning. Defendant was seen by a dozen TPD officers, but was never questioned. Relying on the clear body of law, Defendant—an Occupy protester and Executive Organizer with Occupy Public Land—participated in a protest on the Red Brick Sidewalk located at 99 South Church Avenue, to the East of Veinte de Agosto Park. Defendant arrived to said area at 10p.m. on April 4th to protest the illegal arrests by the City of Tucson’s Police department under T.C.C. §16-35. Defendant set up his sleeping bag and sat and lay on the sidewalk with a sign bearing the message “Occupy Public Land.” Defendant remained in the exact same spot for hours discussing with anyone who walked by the injustice of the illegal arrests by the Tucson Police Department, and the corporate control of our Government. At approximately 2 a.m. on April 5th two (2) Tucson Police officers approached Defendant and informed him that he will be arrested for lying on the sidewalk. Defendant explained that it was within his rights to lay there according to Tucson City code, and showed the officers ordinance 11-36.2(b)(4) on printed copy. The officers responded they did not care about that, they have already told Occupy Tucson that they could not lay on the sidewalk under any circumstance. After approximately twenty (20) minutes, two (2) more Tucson Police officers arrived to the scene. Defendant attempted to explain to the new ranking officer on the scene that it was within his rights to sit and lay on the sidewalk. The Sergeant told Defendant that “we” have already been warned about this and Defendant should have known because he was one of the leaders of Occupy Tucson, and we were going to jail. Defendant replied that he had never been personally told of any violation for sitting on the sidewalk, and City code clearly shows that it is legal. Defendant was taken to the Pima County Jail, and his sleeping bag, pillow, and sign were confiscated by the Tucson Police Department for evidence. CAUSES OF ACTION FIRST CAUSE OF ACTION Violation of the First Amendment 42 U.S.C. §1983 (Against All Defendants) Plaintiff reallege and incorporate the foregoing paragraphs as if set forth herein. Defendants’ actions described herein violated Plaintiff’s rights under the First Amendment to the United States Constitution by prohibiting Plaintiff from exercising his constitutional rights to free speech and expression, as well as freedom of the press and assembly; and by retaliating against Plaintiff for attempting to exercise those same rights. The violation of Plaintiff’s First Amendment rights occurred pursuant to a policy, custom, or practice, maintained by Defendants City of Tucson, Officer John Doe 1-20, Roberto Villasenor, Richard Miranda, and Jonathan Rothschild of having Government officials discriminate against the Occupy message, prohibit people from congregating in public places where such things are lawful if advocating the message of the 99%, and of retaliating against individuals who seek to exercise their First Amendment rights in such places by calculated due process and equal protection violations by the City’s use of unlawful arrests to prevent Plaintiff from spreading his message. Defendants conduct violated clearly established constitutional or other rights, of which Defendants knew, or of which reasonable public officials should have known, rendering Defendants liable to Plaintiffs under 42 U.S.C. § 1983. As a direct and proximate result of the unlawful actions of these Defendants, Plaintiff has suffered significant emotional and economic harm. Plaintiff intends to continue demonstrating in public, but fears further harassment by the City of Tucson. That fear prevents him from exercising his First Amendment rights as much as he would like or in places he would like. SECOND CAUSE OF ACTION Violation of the Fourteenth Amendment Due Process Clause 42 U.S.C. §1983 (Against All Defendants) Plaintiff realeges and incorporates the foregoing paragraphs as if set forth herein. Defendants’ actions described above violated Plaintiff’s rights under the Fourteenth Amendment to the United States Constitution by denying Plaintiffs the due process of law. The City Government has created a liberty interest by enacting an ordinance allowing the populace use of the sidewalk for purposes of free speech activity, yet the City denies the exercise of this interest to Plaintiff to discriminate against and marginalize Plaintiff’s message. Chief Villasenor, Richard Miranda, and Jonathan Rothschild wholly failed to articulate particularized facts which support City decisions to arrest Plaintiff for laying on the sidewalk for purposes of protest—violating the due process right to written notification that explains the reasons for the decision. The violation of Plaintiff’s Fourteenth Amendment rights occurred pursuant to a policy, custom, or practice, maintained by Defendants City of Tucson, Fred Chief Villasenor, Richard Miranda, and Jonathan Rothschild, of having Government officials discriminate against the Occupy message, prohibit people from congregating in public places where such things are lawful if advocating the message of the 99%, and of retaliating against individuals who seek to exercise their First Amendment rights in such places by calculated due process and equal protection violations by the City’s use of unlawful arrests and the failure to articulate particularized facts to support arrests of Members of the Occupy movement. Defendants’ conduct violated clearly established constitutional or other rights, of which Defendants knew, or of which reasonable public officials should have known, rendering Defendants liable to Plaintiffs under 42 U.S.C. § 1983. As a direct and proximate result of the unlawful actions of these Defendants, Plaintiff has suffered emotional and economic harm. Plaintiff intends to continue demonstrating in public, but fears further detention and harassment by the TPD. That fear prevents him from exercising his First Amendment rights as much as he would like or in places he would like. THIRD CAUSE OF ACTION Violation of the Fourteenth Amendment Equal Protection Clause 42 U.S.C. §1983 (Against All Defendants) Plaintiff reallege and incorporate the foregoing paragraphs as if set forth herein. Defendants’ actions described herein violated Plaintiff’s rights under the Fourteenth Amendment to the United States Constitution by denying Plaintiff the equal protection of the laws. The City Government has created a liberty interest by enacting an ordinance allowing the populace use of the sidewalk for purposes of free speech activity, yet the City denies the exercise of this interest to Plaintiff to discriminate against and marginalize Plaintiff’s message. Moreover, this discrimination clearly violates equal protection as Plaintiff has been arbitrarily and irrationally treated differently from others similarly situated and no rational basis for the different treatment exists. In fact, the City truly worked a denial of equal protection as it violated its own laws in a spiteful effort to get Plaintiff for reasons wholly unrelated to any legitimate governmental objective. The violation of Plaintiff’s Fourteenth Amendment rights occurred pursuant to a policy, custom, or practice, maintained by Defendants City of Tucson, Officer John Doe 1-20, Roberto Villasenor, Richard Miranda, and Jonathan Rothschild, of having Government officials discriminate against the Occupy message, prohibit people from congregating in public places where such things are lawful if advocating the message of the 99%, and of retaliating against individuals who seek to exercise their First Amendment rights in such places by calculated due process and equal protection violations by the City’s use of unlawful arrests and the failure to articulate particularized facts to support arrests of Members of the Occupy movement. Defendants’ conduct violated clearly established constitutional or other rights, of which Defendants knew, or of which reasonable public officials should have known, rendering Defendants liable to Plaintiffs under 42 U.S.C. § 1983. As a direct and proximate result of the unlawful actions of these Defendants, Plaintiffs have suffered significant emotional and economic harm. Plaintiff intends to continue demonstrating in public, but fears further harassment by the City of Tucson. That fear prevents him from exercising his First Amendment rights as much as he would like or in places he would like. PRAYER FOR RELIEF Plaintiff therefore respectfully requests that the Court enter a judgment including: (a). A declaratory judgment that Defendants’ actions as described herein violated the First and Fourteenth Amendments to the United States Constitution; (b). To the extent the Court finds that Defendants’ conduct were authorized by a policy or regulation, a declaratory judgment that those policies or regulations are unconstitutional under the First and Fourteenth Amendments to the United States Constitution; (c). A Permanent Injunction enjoining: (i) The City of Tucson from utilizing any blanket ban on utilizing the public sidewalks to sit, lay, sleep or any other activities within reason in practicing Constitutional activity; (ii) Mandating City officials to provide an initial warning and written explanation for any arrests made for obstructing the sidewalk; (d). As to Defendant, compensatory and punitive damages for violation of the laws and Constitution of the United States and State of Arizona, in an amount to be determined at trial by jury; (e). Reasonable fees and costs of suit; and (f). Any other relief as may be just and proper.
Posted on: Tue, 22 Apr 2014 22:03:38 +0000