Contra Costa Times
June 11, 2010
By Denise Nix
The victory for the city comes nearly six years after the city staged “sweeps” of the job-seekers who congregate in a strip mall parking lot – and more than two years after the case was argued in Pasadena.
In a 2-1 decision, the 9th U.S. Circuit Court of Appeals reversed a lower court ruling that sided with the day laborers, who sued the city.
Comite de Jornaleros de Redondo Beach and the National Day Laborer Organizing Network argued that the city’s nearly 25-year-old ordinance unfairly targets a group of people, while violating their constitutional rights to free speech and equal protection.
The city has maintained that the ordinance is in compliance with the law, and rightfully bans everyone from soliciting on the sidewalks or medians, so as not to impede traffic.
The roughly 30-page majority opinion, penned by Circuit Judge Sandra Ikuta, focuses heavily on a 1986 decision from the same court.
The older opinion, which stemmed from a lawsuit filed by ACORN against the city of Phoenix over a similar ordinance, was the basis for Redondo Beach’s law.
Ikuta wrote that Redondo Beach’s ordinance is constitutional, like Phoenix’s, because the activities it wishes to restrict are broad and is tailored specifically to address safety concerns.
Ikuta also found that the ordinance passes muster because it provides other means to engage in the same activity – nothing prohibits solicitors from approaching people who are not in their cars.
“Prospective employers or contributors can park legally and respond to solicitations made by individuals on foot without either party to the transaction violating the ordinance,” Ikuta wrote.
“Therefore, the ordinance does not require solicitors to resort to substitutes like
Men looking for day laborer work outside the shopping center on Manhattan Beach Boulevard near Inglewood Avenue in Redondo Beach. (Brad Graverson/Staff Photographer)advertising in phone books, newspapers or by mail, which may require longer lead times and greater financial resources,” she added.
However, Circuit Judge Kim Wardlaw disagreed with the majority.
In a dissenting opinion, Wardlaw said the ordinance is “overbroad and thus violates well-established principles of our First Amendment jurisprudence.”
She says the majority is wrong to “cling” to the ACORN opinion, as that case was about giving literature to drivers, not about seeking business or employment.
Wardlaw, citing a July 2007 study, said there are approximately 40,000 day laborers seeking jobs, such as construction or gardening, on any given day in California.
The city attorney enacted the ordinance after residents and business owners complained about the day laborers impeding traffic flow, littering, urinating in public, causing property damage and harassing women.
In 2004, the Redondo Beach Police Department conducted a series of sweeps with undercover officers posing as potential employers.
Approximately 60 people were arrested. Those convicted of violating the ordinance were given three years probation, a 180-day suspended jail sentence and ordered to stay away from the sidewalk where they were arrested.
City Attorney Mike Webb called the opinion “a big victory for the rule of law” since, in drafting the ordinance, the city relied on the Phoenix law approved by the 9th Circuit.
“Cities are always in a quandary of how to resolve issues and how to protect public safety without infringing on individuals’ constitutional rights,” Webb said.
“If you can’t rely on a valid 9th Circuit decision, then there’s no way that cities can effectively do that,” Webb added.
He said this case was closely watched by other municipalities wanting to pass similar ordinances.
Webb would not comment on when enforcement would commence, but said the ruling lifts a permanent injunction a lower court judge placed on the ordinance in 2006.
The city appealed the injunction to the 9th Circuit, which led to Wednesday’s decision.
At the same time she issued the injunction, U.S. District Court Judge Consuelo Marshall ordered Redondo Beach to pay more than $200,000 in attorneys’ fees to the plaintiffs.
The 9th Circuit decision voids that ruling as well, Webb said, expressing relief that the already cash-strapped city won’t have to pay such a hefty legal bill.
Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, which represented the plaintiffs along with attorneys from the San Francisco-based Lawyers’ Committee for Civil Rights, said they will appeal the ruling.
Saenz said they will ask for a review of the case by the full panel of 9th Circuit Court judges, and feels optimistic the court will agree to it and, ultimately, find the ordinance unconstitutional.
Saenz said Wardlaw’s “strong dissent” is more in line with what other judges on the court have found, giving the plaintiffs “strong reason to continue to contest” the ordinance.