Ninth Circuit sides with Tucson on sidewalk belongings

The Ninth Circuit Court of Appeals has sided with the city of Tucson in a case over how much authority the city has to regulate a downtown homeless encampment.

Thursday’s decision from the court lifts an injunction issued by a U.S. District Court judge in December that kept the city from enforcing a policy about what possessions a person may have while sitting on the sidewalk in the downtown area.

But the Ninth Circuit also asked the District Court to take another look at whether a new injunction is needed because the city has changed the sidewalk code.

Two homeless men, John Cooper and Jon McLane, were living on the sidewalks surrounding Veinte de Agosto Park in downtown Tucson as part of the Occupy Tucson movement. They sued the city in District Court to keep the city from enforcing a policy that limited their possessions to a bedroll, a backpack and a beverage. They claimed the policy discriminated against homeless people.

They claimed they were holding a continual protest and had the right to live on the sidewalk while exercising their First Amendment rights.

For months while the injunction was in place, the encampment grew to several downtown blocks and included person-sized plywood sleeping boxes called “dream pods.” The city was barred from taking the protesters’ belongings or interfering with their free-speech protest rights.

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The city appealed to the Ninth Circuit, saying it needs the authority to regulate the stuff that accumulates at a homeless encampment and “the First Amendment does not require the city to convert sidewalks into campsites.”

The protest all but ended after the city closed the park in June. It remains closed, and lead organizer McLane is under a court order to stay away from the park until next month as part of a drug charge.

Meanwhile, the City Council approved a new law, which took effect in January, defining what possessions may be kept on the sidewalk.

“We’ve made it crystal clear” what the new rules are, said City Attorney Mike Rankin.

The new code gives people a maximum of 4 cubic feet of stuff on the sidewalk between 10 p.m. and 7 a.m. in downtown and university area commercial zones instead of specifically naming items like backpacks.

If a person is in violation of the rules, a police officer may ask the person to move or can issue a citation.