On November 21, 2011, two protesters associated with Occupy Austin, a large continuous political protest, who had been arrested for trespassing, filed a lawsuit in the United States District Court for the Western District of Texas against the City of Austin and a number city employees in their official capacities. The plaintiffs, represented by private counsel, claimed that the City of Austin's administrative policy of issuing "Criminal Trespass Notices" banning individuals from city property, including City Hall, imposes a prior restraint on their First Amendment rights of expression. They sued under 42 U.S.C. §1983 for violations of their First Amendment and Due Process rights.

Specifically, plaintiffs claimed these trespass notices were overbroad and vague, delegating unrestrained discretionary authority to a wide range of city employees to ban any individual from any or all city property for substantial periods, solely because that individual's conduct is subjectively viewed as "unreasonably disruptive or harmful." The City of Austin had provided its employees with a chart of suggested duration of exclusions based on descriptions of the disruptive or harmful conduct. Conduct was described in terms of the level of harm to persons or property, the level of disruption to City business or events, and the presence of similar past conduct. Each of these factors was measured with three imprecise quantifying terms, "no" "some" and "significant," with each quantifier receiving substantially differing suggested exclusion durations. Plaintiffs sought declaratory relief stating that the city's trespassing law is facially unconstitutional as well as injunctive relief against further enforcement of the policy.

On December 22, 2011, the District Court (Judge Lee Yeakel) partially granted defendants' motions to dismiss. The court found that the plaintiffs' claims against the city employees were redundant of the plaintiff's claims against the City of Austin. The court therefore dismissed the plaintiffs claims against the individual defendants in their official capacities and without prejudice to claims against those defendants in their individual capacities.

On September 27, 2012, the District Court (Judge Lee Yeakel) found that the city's administrative bulletin Criminal Trespass Notices on City Property, was unconstitutional on its face and enjoined the City of Austin from further enforcement of the City's policy of issuing criminal-trespass notices. The court found that by barring access to the City Plaza, which the court recognized as a traditional public forum, the trespassing notices restricted protected-speech conduct. The court held that the policy burdened more speech than was necessary to secure the City of Austin's substantial government interests of control and maintenance of public property, and to provide city-owned facilities for business and other approved activities, and thus was not narrowly tailored. Finally, the court held that the policy was impermissibly broad and risked erroneous deprivation of first amendment interests.

On October 5, 2012 the City of Austin filed a motion to amend the judgment. The District Court (Judge Lee Yeakel) denied that motion on February 4, 2013.

Richard Jolly - 05/15/2014


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