Court sides with city in day laborer case
A six year legal battle that began with the arrests of day laborers along Artesia and Manhattan Beach boulevards reached a possible end as the Ninth Circuit upheld the city's actions. Photo
A federal appeals court last week overturned a lower court’s decision that had prevented the city of Redondo Beach from enforcing the anti-solicitation ordinance used in the arrests of day laborers along Artesia and Manhattan Beach boulevards six years ago.
The United States Court of Appeals for the Ninth Circuit issued a decision last Wednesday that upheld the constitutionality of Redondo’s ordinance, which was enacted 25 years ago but didn’t draw legal fire until 2004, when it was enforced with police sting operations that led to the arrests of 69 day laborers and a handful of contractors who sought to hire them.
The three judge panel, which heard arguments in May, 2008, sided with Redondo Beach in a 2-1 decision. Judge Sandra Ikuta’s 30-page majority opinion hewed closely to the arguments made by City Attorney Mike Webb before the court, citing a previous Ninth Circuit decision that upheld a similar ordinance in the city of Phoenix that was sued as unconstitutional by the ACORN activist group.
“We have previously upheld a virtually identical ordinance against a constitutional challenge,” Ikuta wrote. “We reach the same result here and hold the Redondo Beach ordinance is a valid time, place, or manner restriction.”
Webb, who noted in his arguments that Redondo actually modeled its ordinance on Phoenix’s, expressed satisfaction with the ruling.
“We are very pleased,” Webb said. “It it, I think, a very important victory for the principle of the rule of law. The city has to balance out public safety versus individual constitutional rights, and if you can’t rely on binding federal court precedent then it becomes an impossible task.”
According to Webb, the city in 2004 was responding to a growing number of complaints from residents and businesses near the city’s two common congregating places for day laborers – near a strip mall at Manhattan Beach Boulevard. and Inglewood Avenue and outside a convenience store on Artesia Boulevard. The two areas routinely attract anywhere from a half dozen to several dozen workers, who are utilized as temporary workers by local contractors.
The ordinance, which is among the city’s public safety provisions relating to traffic, reads in part, “It shall be unlawful for any person to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle.” Further provisions define sidewalks as part of the roadways in question and likewise prohibit motorists from stopping to respond to such solicitations.
The National Day Laborer Organizing Network sued the city arguing that the ordinance was in violation of the day laborers’ First Amendment free speech rights. In late 2004, U.S. District Court Judge Consuelo Marshall ruled in favor of the day laborers and issued an injunction against further enforcement of the ordinance. She also held Redondo liable for $208,000 in legal fees. The Ninth Circuit ruling relieves the city of that liability.
Attorney Phillip Hwang, representing the day laborers on behalf of the San Francisco-based Lawyers’ Committee for Civil Rights, argued before the Ninth Circuit that the ordinance’s “overly broad” language has the effect of “chilling free speech” by prohibiting “classically-protected First Amendment activities” in a public place. He further argued that the ordinance has the unintended consequence of moving the day laborers from public property to private property.
“The city’s position is clear,” Hwang said. “They believe the day laborers need to stand behind the sidewalk. Their position is you have to stand on private property belonging to third parties.”
Robert Rubin, LCCR legal director, took Hwang’s argument a step further after the court proceedings and accused the city of employing twisted logic in order to target day laborers for reasons altogether unrelated to traffic safety.
“What they are saying is you should trespass before you should be able to exercise your First Amendment rights,” Rubin said. “I mean, that is the message: that somehow or another private shopping malls are to be the guardians of the First Amendment rather than the government, which is supposed to protect those rights in the first instance.”
“I don’t think there is any doubt what this ordinance is about and who it is aimed at,” Rubin added. “I mean, they don’t just want day laborers off the streets and sidewalks. They want them out of the city.”
In a strongly worded 30-page dissenting opinion, Ninth Circuit Judge Kim McLane Wardlaw likewise argued that the ordinance violated the laborers’ rights. She wrote that the Phoenix ordinance and did not specifically include sidewalks — but rather targeted streets – and argued that the majority’s opinion failed to recognize the importance of sidewalks in legal precedence concerning free speech. Wardlaw also argued that the court’s ACORN decision did not apply in Redondo Beach because it very specifically addressed a different situation – activists stepping into public streets and exchanging literature or taking cash from motorists.
“On its face, the Ordinance sweeps far more broadly than what is justified by the City’s interests in traffic flow and safety, and it does not leave open ample alternatives for communication,” Wardlaw wrote.
Webb said that day laborers do indeed have other alternatives – they are still able to solicit employment, he said, but they must not direct their solicitations toward motorists and thereby create a public safety hazard.
“It is that the day laborers want to do what is most effective,” Webb said. “Well, what is most effective – in this case, stopping traffic on two of our busiest streets – is a real danger.”
Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, which along with LCCR represented the day laborers, said the ruling will be appealed. If the court takes up the appeal, a panel of 11 Ninth Circuit judges would review the decision.
Webb commended the city’s fortitude in the six year legal fight.
“I really think the current mayor and city council and previous mayor and city councils have to be commended for seeing this process through,” Webb said. “It’s been six years since the lawsuit was filed, and many cities throughout the state and county of LA rescind ordinances when they lose at the lower court level or even when a lawsuit is filed…Our mayor and city council are determined to follow this through, and follow the will of a majority of residents.” ER