The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Before the Court is Plaintiffs' Amended Motion for Temporary Restraining Order [ECF No. 10]. For the reasons that follow, the Motion is DENIED.
Plaintiffs are participants in a local movement known as "Occupy Sacramento," which is loosely affiliated with the ongoing "Occupy Wall Street" demonstrations. The "Occupy" demonstrators have been protesting, among other things, social and economic inequality issues for the past several months.
Starting on Thursday, October 6, 2011, and continuing to the present, the "Occupy Sacramento" participants have congregated in Cesar Chavez Plaza Park ("the Park"), which is a community park, approximately 2.5 acres in size, in downtown Sacramento and located across the street from City Hall. On October 6, when the Occupy Sacramento participants began to gather and set up structures in the Park, representatives of the Sacramento Police Department advised the demonstrators that the Park would close at 11:00 p.m. pursuant to Sacramento City Code § 12.72.090. That ordinance, which was enacted in its current form in 1981, states, in full:
12.72.090 Remaining or loitering in parks during certain hours prohibited.
A. No person shall remain or loiter in any public park:
1. Between the hours of midnight Friday or Saturday and five a.m. of the following day; and
2. Between the hours of eleven p.m. Sunday through Thursday and five a.m. of the following day.
B. The prohibitions contained in subsections (A)(1) and (A)(2) of this section shall not apply:
1. To any person on an emergency errand;
2. To any person attending a meeting, entertainment event, recreation activity, dance or similar activity in such park provided such activity is sponsored or co-sponsored by the department of parks and community services or a permit therefor has been issued by the department of parks and community services;
3. To any person exiting such park immediately after the conclusion of any activity set forth in subsection (B)(2) of this section;
4. To any peace officer or employee of the city while engaged in the performance of his or her duties.
C. The director, with the concurrence of the chief of police, may designate extended park hours for any park when the director determines that such extension of hours is consistent with sound use of park resources, will enhance recreational activities in the city, and will not be detrimental to the public safety or welfare. The prohibitions contained in subsections (A)(1) and (A)(2) of this section shall not apply to any person present in a public park during extended park hours designated pursuant to this subsection.
D. The chief of police, with the concurrence of the director of parks and community services, may order any park closed between sunset and sunrise when he or she determines that activities constituting a threat to public safety or welfare have occurred or are occurring in the park and that such closing is necessary to protect the public safety or welfare. At least one sign designating the sunset to sunrise closing shall be installed prominently in the park. When a park is ordered closed between sunset and sunrise, it is unlawful for any person to remain or loiter in said park during said period. (Prior code § 27.04.070).
Later on October 6, attorney Mark E. Merin ("Merin"), the attorney for the Plaintiffs in the present action, sought a temporary restraining order ("TRO") in Sacramento County's Superior Court. See Exh. B to Decl. of Brett M. Witter attached to Defendants' Opposition ("Witter Decl."). Although not brought on behalf of the specific Plaintiffs in this action, the ex parte Request for TRO sought to restrain and prevent Sacramento's Chief of Police from enforcing § 12.72.090 and from citing or arresting persons remaining in the Park after hours. The Request averred that unsuccessful attempts had been made to contact both the Chief of Police and the City Manager to request an extension or a permit granting the extension.
At 8:30 p.m. on October 6, Sacramento County Superior Court Judge Lloyd Connelly heard oral argument on the Request from Merin and Supervising Deputy City Attorney Brett Witter. See Exh. C to Witter Decl. On Friday, October 7, Judge Connelly issued an Order denying the Request for TRO. Id.
In his Order, Judge Connelly concluded that the Petitioner had (1) "failed to establish that it would suffer irreparable harm if the temporary restraining order was not issued, as the demonstration could be held during normal park hours;" and (2) "not reasonably attempted to apply for a permit to use the park for camping purposes, as Petitioner made no attempt to request such a permit until at least 3:30 p.m. on October 6, 2011." Id.
Plaintiffs contend that the City's Police Department has not permitted demonstrators to remain or loiter in the Park after the hours set forth in § 12.72.090. Plaintiffs assert that every night before closing, they must pack up their property and move out of the park or face arrest. They allege that over 50 people have been arrested and taken into custody since October 6 for violating § 12.72.090.
Plaintiffs do not allege that they attempted to obtain a permit or an extension of the park hours from Sacramento's Director of the Department of Parks and Recreation ("Director"), as set forth in § 12.72.090(C), prior to filing this action. However, on Thursday, October 24, Merin did send a letter to the City Manager, the City Attorney and the City Council (hereinafter "Oct. 24 Merin Letter"). See Exh. 1 to First Amended Complaint.
In essence, Merin's letter stated that (1) the City's enforcement of § 12.72.090 violated the demonstrators' First Amendment rights; (2) he was prepared to file a lawsuit to validate those rights; and (3) he encouraged these various officials to permit the demonstrators to remain in the Park. Id.
On Wednesday, November 1, Merin filed the instant action, including both the Complaint and the Motion for TRO. In both the Complaint and the Motion for TRO, Plaintiffs' generally allege that § 12.72.090 is unconstitutional on its face and as applied to them and that Defendants have violated Plaintiffs' First and Fourteenth Amendment rights by enforcing § 12.72.090.*fn1 The Complaint seeks a TRO, a preliminary injunction, and a permanent injunction. Presently before the Court is Plaintiffs' Motion for a TRO. On November 2, Defendants filed their Opposition, and Plaintiffs filed their Reply.
The Court held a hearing on Plaintiffs' Motion for TRO on Thursday, November 3. Of note, at the hearing, counsel for the parties advised the Court that, earlier in the day, Plaintiffs filed an application for an overnight use permit for the Park with the Department of Parks and Recreation and that the Director had promised to review the application on an expedited basis. Although the ordinary turnaround time for such an application is apparently ten days, the Director promised a decision by Monday, November 7. Despite the pending application, both parties declined to dismiss or delay the Court's decision as to the pending Motion for TRO.
After hearing oral argument on the issues, the Court issued a verbal Order denying the Motion, but also promised a written Order would follow. At the hearing, the Court also established a briefing ...