“Bushes as Latrines”: Ninth Circuit Rules Day Laborers May Not Be Kept From Gathering.

I have recently visited Redondo Beach a number of times to visit my adult daughter, who moved within a block of the beach and near the village.  The town is charming, and speaks of hope and dreams fulfilled:  a seaside life of ever rising property values.  (Except that bubble burst some time ago, and the dream is now month-to-month).

Still, the City government wanted to preserve the tranquility and ambiance of a world set apart from the stresses and strains of poverty and desperation.  Undocumented workers gathering on the street corners seeking cash under the table for back-breaking work—well, that is not something one ordinarily uses in a dream script.  So, the City Council voted to restrict such gatherings of day-laborers, borrowing from a Phoenix AZ city ordinance approved by the Circuit in 1986 (the year my daughter was born).  The difference was that Redondo Beach restricted gathering and activity “on the street” and expanded it to include sidewalks, alleys, “and other [vague] such locations.”  It was this further limitation that seemed to trigger a different result by the Ninth Circuit 24 years later. 

The Ninth Circuit, en banc, ruled 9-2, with Justices Carlos T. Bea, and Alex Kozinski, dissenting.  Justice Kozinski wrote as follows:  “Nothing in the First Amendment prevents government from ensuring that sidewalks are reserved for walking rather than loitering; streets are used as thoroughfares rather than open-air hiring halls; and bushes serve as adornment rather than latrines.” 

So there you have it:  Cities may not protect their bushes from mob attacks by urinating undocumented workers.    Justice Kozinski dares his colleagues to show him where in the Constitution it says that.  I think the argument got a bit emotional.  Statements like these indicate the “bigger picture” of civil liberties for us all in gathering in public places for sublime or trivial reasons may have gotten lost.  The City surely has a legitimate interest in protecting itself from public urination.  It likely has ordinances that already address that problem.  I doubt the Ninth Circuit would find it “unconstitutional” to arrest an undocumented worker caught in the act. 

The issue, it seems to me, is one I intuitively grasped even before attending law school 37 years ago.  “Loitering” can be a definition applied by an oppressive government to interfere with lawful associations and gatherings in public places to address matters of political importance.  I agree with the Ninth Circuit en banc decision.  Let the City draft its ordinance more clearly, with greater focus on the real problem, and with less opportunity for abuse of constitutional freedoms. 

The Case:  Comite de Jornaleros v. City of Redondo Beach, 06-55750.  (Sept. 16, 2011)