Judge blocks Fresno’s ordinance restricting advocates, press from encampment cleanups
In a win for Fresno’s homeless advocates, a district court judge said the city of Fresno couldn’t enforce its ordinance that restricts access to the city’s homeless encampment cleanups, citing First Amendment concerns.
In January, Fresno City Councilmembers Luis Chavez and Miguel Arias authored an ordinance that said anyone who enters a restricted abatement area without express authority from the city could be charged with a misdemeanor or fined up to $250.
In response, the ACLU of Northern California sued the city of Fresno on behalf of the advocacy group Faith in the Valley, homeless advocate Dez Martinez, and Robert McCloskey, a reporter for the independent newspaper, Community Alliance. At the time, the advocates raised concerns around First Amendment rights and their work in supporting the unhoused during an encampment cleanup.
On Tuesday, U.S. District Court Judge Dale Drozd granted a preliminary injunction blocking the enforcement of Fresno’s abatement ordinance, saying, “the amended ordinance and the arguments made in support of its application suggest that the intention of the ordinance is in reality simply to avoid public scrutiny.”
“Because the court has determined that plaintiffs are likely to succeed on their claims that the ordinance as amended is facially invalid under the First Amendment and void for vagueness, the court will enjoin the amended ordinance in its entirety,” the judge said in the order. “If, however, the parties alert the court to any changed circumstances warranting a tailoring of the injunction, the court is at liberty to do so.”
Homeless advocates and first amendment groups celebrated the decision.
“We’re extremely glad that the court saw…that this is an unconstitutional ordinance,” Hannah Kieschnick, staff attorney at the ACLU of Northern California, said in an interview with The Bee on Tuesday.
“At its core, this ordinance is about hiding government action from public scrutiny,” she said.
In a statement to The Bee late Tuesday, Councilmember Luis Chavez said safety remains a top priority.
“We welcome journalists and advocates witnessing firsthand the homeless crisis our city faces and we welcome the advocates help and partnership in this effort, our primary concern is the safety of all spectators as we operate heavy machinery/equipment and handle hazardous material like needles, scrap metal and debris,” Chavez said. “We will continue to work with our legal team to develop the most humane and safe protocol for handling mass clean ups.”
In an email to The Bee on Wednesday, Sontaya Rose, spokesperson for the city of Fresno, said that due to the pending litigation, they will not provide a comment at this time.
First amendment advocates react to the decision
In an interview with The Bee on Tuesday, Monica Price, a lawyer with the First Amendment Coalition who authored an amicus brief raising First Amendment concerns about the ordinance, said the coalition decided to get involved because this ordinance was “particularly problematic” in how it tried to “exclude the public from a public place.”
“It was so vague that the advocates on the ground and the press on the ground weren’t sure what they were and weren’t allowed to do and where they were allowed to be,” Price said.
City leaders have said that the ordinance was designed to keep people safe during abatement cleanups, particularly when heavy equipment is involved.
But the judge’s order said, “nothing in the language of the amended ordinance or in defendant’s briefing explains what health and safety related state interests are meant to be remedied by excluding the public from observing abatement activities, in particular those occurring in public places.”
And while there are safety concerns, Price said, the ordinance needed more “specific evidence” to back up that argument.
“When you have an ordinance that impacts the First Amendment, you need to do more than gesture at vague safety concerns,” she said.
Price said the First Amendment Coalition is starting to see other “concerning” ordinances of this nature are popping up as the housing and homelessness crisis grows.
“With the housing crisis getting worse and worse, these abatements are increasing, and cities are trying a multitude of tactics to figure out what to do about the housing crisis and the abatements,” she said.
A win for homeless advocates
Dez Martinez, homeless advocate and president of the Fresno Homeless Union, said she cried “tears of joy” when she first heard the news of the court’s decision.
Martinez said she hopes low-income people like herself “that have always been beat up by the system” are inspired to speak out against injustice. “Even though it’s hard, even though you’re scared and terrified…stand up and fight,” she said.
Kieschnick, of the ACLU, said the ordinance represented part of “an intensifying war against unhoused people occurring all over California.”
She said she hopes the city “comes to its senses” and “redirects its time, energy, and, of course, resources away from defending something unlawful and towards actually solving the problem.”
This story was originally published May 24, 2022 at 7:38 PM.
