NC ACLU suit: federal court should lift Asheville park ban now; city seeks dismissal
ASHEVILLE - Activists suing in federal court over a city park ban are now saying the ban should be lifted even before the case is decided, because it is violating their constitutional rights and interfering with their work helping the homeless.
The city, meanwhile, has asked the U.S. District Court for the Western District of North Carolina to dismiss the suit, saying activists' entitlements to parks were forfeited after they committed crimes there.
The motion for a preliminary injunction to quickly lift the ban is the latest move in the federal lawsuit filed in the spring by the American Civil Liberties Union of North Carolina on behalf of the 15 activists. Chief District Court Judge Martin Reidinger is presiding.
"These bans have prevented plaintiffs from continuing their work supporting Asheville’s unhoused community members and from speaking out about issues that they are invested in and impacted by, based on criminal charges that for most plaintiffs are still pending,” ACLU of NC staff attorney Muneeba Talukder said a day after filing the motion for a preliminary injunction.
“Instead of addressing Asheville’s growing housing crisis, the city has chosen to remove the voices that hold them accountable from some of the only public forums in the city," Talukder said in the Oct. 13 statement.
The activists were charged with felony littering following a Christmas 2021 protest in Aston Park demanding shelter for the city's growing unhoused population. The city then banned them from Asheville parks for three years.
Reached by the Citizen Times Oct. 13, Asheville City Attorney Brad Branham disputed the basis of motion to lift the ban before the case was decided "as well as the requested relief."
"It is our intention to file a responsive brief to that effect. This will likely happen in the coming days," Branham said. He declined to comment further per what he said was the city's policy of minimizing substantive comments on active litigation.
Police said the activists dumped “more than 2,000 pounds of litter and refuse” while protesting a series of police sweeps of encampments that winter and calling for sanctuary camping for the homeless population.
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A Buncombe County Superior Court judge in September said a trial against two activists, Amy Hamilton and Pageant Quinn Nevel, must start over after police lost and submitted evidence late.
Others defendants are awaiting trial, while two, as of April, pleaded guilty to lesser misdemeanors.
In a related case that has drawn widespread attention from press freedom groups, journalists at the park were convicted June 16 in Buncombe County Superior Court of misdemeanor second-degree trespass. They are appealing.
At the federal level, ACLU sued on behalf of the activists, saying in an April 18 complaint that the bans violated activists' constitutional rights including the First Amendment right to assemble and the 14th Amendment right against being deprived of life, liberty or property, without due process. Not being able to go in the parks also impacted their daily lives, volunteerism and work, the suit said.
The city moved to dismiss the complaint, saying in a July 13 filing that a policy of restricting access to a public forum based on past criminal conduct was constitutional.
"It is not surprising that numerous jurisdictions, including the state courts of the State of North Carolina, have concluded that the right to access public parks is not so deeply rooted in this nation’s history that the deprivation of said right for certain individuals threatens to undermine our societal understanding of liberty and justice, and have therefore held that such a right is not protected by the Due Process Clause," the city said in its motion for dismissal.
The activists' said the dismissal was uncalled for, noting the bans are done without giving the subjects a chance to contest them or even notify them about the process or result. Restricted areas include greenways, public trails, paths, outdoor pools and community centers, the ACLU said in an Aug. 3 response.
"Plaintiffs have experienced severe limitations on their ability to participate in community life because of these bans, resulting in social and economic harm to themselves and their families," they said.
Lead plaintiff Sarah Norris, who has a young child, told the Citizen Times in April that the ban has been difficult on her child, but that the bigger issue "is that the city's policies allow people with power to restrict the rights of those they perceive as challenging their power."
"It happened to us this time, but it could happen to anyone who inconveniences the city's narrative of itself, and we are working to make sure no one else can be targeted this way."
The case is assigned to Chief District Court Judge Martin Reidinger and U.S. Magistrate Judge W. Carleton Metcalf. No dates have been set for rulings on the motions.
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Joel Burgess has lived in WNC for more than 20 years, covering politics, government and other news. He's written award-winning stories on topics ranging from gerrymandering to police use of force. Got a tip? Contact Burgess at jburgess@citizentimes.com, 828-713-1095 or on Twitter @AVLreporter. Please help support this type of journalism with a subscription to the Citizen Times.
This article originally appeared on Asheville Citizen Times: ACLU: federal court must lift Asheville park ban now; city: toss suit
