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In the case of Norris v. City of Asheville, 2024 U.S. Dist. LEXIS 52902 (W.D. N.C. 3/25/2024), Plaintiffs claimed they had been banned from Asheville city parks in violation of the First and Fourteenth Amendment of the U.S. Constitution.
The Plaintiffs included a number of current and former residents of Ashville, North Carolina, who, in various ways, all had been involved in providing assistance, such as meals, to Asheville’s homeless population. In January 2022, Plaintiffs were charged with felony littering under N.C. Gen. Stat. § 14-399 in connection with their participation in December 2021 protests in city parks that advocated for Ashville to allow sanctuary camping for people experiencing homelessness.
Under North Carolina state law, any person who commits littering “in an amount exceeding 500 pounds or in any quantity for commercial purposes, or who discards litter that is a hazardous waste” is guilty of a felony. As cited by the federal district court, “littering” would occur under North Carolina state law when a person or entity “intentionally or recklessly throws, scatters, spills or places or intentionally or recklessly causes to be blown, scattered, spilled, thrown or placed or otherwise disposes of any litter upon any public property or private property not owned by the person,” except when the litter is deposited in a space designated for litter (like a dump or garbage receptacle). N.C. Gen. Stat. § 14-399(a).
In March 2022, several of the Plaintiffs started receiving notices, effective December 25, 2021, that they had been banned from all city park and recreation facilities for a period of three years based on their felony littering charges. These notices were issued pursuant to the City of Asheville’s “Restricted Access to City Parks” administrative policy (the Policy). The Policy provided that a person’s access to city parks may be restricted if the person violates a city ordinance, park rule or recreation program rule, as well as a state or federal law.
Park Restriction Policy
Pursuant to the Policy, upon observation of a violation of any park rule, a person could be issued a restricted access notice by a city employee or the park and recreation department, including notice provided by the Ashville Police Department at the time of arrest or citation for any misdemeanor or felony offense committed in a city park. The Policy provided the following length of park restriction access for violations:
1. Violation of any park rule or Parks and Recreation Department program rule - 6 months. 2. Violation of any City ordinance or the commission of any offense punishable as a misdemeanor under federal or state law - 1 year. 3. The commission of any offense punishable as a felony under federal or state law, repeated violation of Park rules, and/or repeated commission of misdemeanor offenses - 3 years.
The Policy, however, did “not require an underlying citation, ticket, charge, indictment, or conviction to ban an individual from city parks.” Moreover, the Policy did not “require any documentation of the alleged violation for a ban to be issued.” The Policy provided the following regarding “notice”:
Any notice provided to a person that their access to City parks has been restricted will state (1) the reason why their access is restricted, (2) the length of the restriction, (3) that the person will be subject to arrest for trespassing if they enter a City park and/or recreation facility, and (4) information about how to appeal the restriction.
The Ashville parks and police departments would maintain and update a listing of individuals subject to access restrictions in the city parks. Also, this restricted access list was to be made available to citizens upon request. Individuals subject to a park ban, however, were not entitled to notice or a pre-deprivation hearing under the Policy.
Park Ban Appeals Process
Under the Policy, individuals could appeal the park ban decision in writing within 14 calendar days of the date of the restricted access notice. All appeals had to be addressed and delivered to the Asheville Parks and Recreation Department to the attention of the parks and recreation director.
Scheduling of an appeal hearing had to be completed within 14 days of receipt of the written appeal. Notification of the date of the appeal hearing had to be mailed to the address provided by the person in their written appeal.
Appeals would be heard by the parks and recreation director or their designee. Upon receipt of a timely and valid appeal, the parks and recreation director would hear whatever relevant evidence the person appealing the restriction may wish to present. Based on that evidence, the director could dismiss the restriction or uphold the restriction as imposed at the time of notice. In the alternative, the director could also uphold the restriction but modify the duration for which the restriction is effective.
The parks and recreation director was required to issue and serve a written decision on such appeal within 14 days of the date of the hearing. Decisions of the parks and recreation director were final upon issuance. Throughout the appeals process, the access restriction from city parks and/or recreational facilities would remain in effect.
If a banned individual entered a city park or committed another violation under the Policy, the ban would automatically extend by one year. In addition to any extension based on the violation, a banned individual could also be criminally charged with trespass.
No Hearing Prior to Park Bans
Pursuant to the Policy, none of the Plaintiffs had had an opportunity to object or be heard before the bans were imposed. Three of the Plaintiffs were not made aware of their park bans until nearly a year later. As a result, these three Plaintiffs did not have an opportunity to appeal their bans and continued to visit city parks until they learned of their bans, thereby unknowingly subjecting themselves to arrest and additional penalties.
Ten of the Plaintiffs were all able to timely appeal their bans. Each was given a short hearing presided over by the director of parks and recreation, the deputy city attorney, the city police captain, a city police officer, and the parks and recreation program manager.
Before any appeals hearings were held, the city police captain sent an email to the city director of parks and recreation, recommending the Plaintiffs’ park bans be upheld. In response, the director indicated he had decided to uphold Plaintiffs’ suspension from city parks imposed by the police department.
At their subsequent hearings, the Plaintiffs were not permitted to ask questions or review the evidence against them. The presiding officials did not make any findings or render a decision. Shortly after the hearings, the parks and recreation director sent all 10 Plaintiffs who had appealed their bans a short-form letter upholding the bans. The letters did not include findings, reasoning or any evidence in support of upholding the bans.
After their bans were upheld, three Plaintiffs pled to lesser misdemeanor charges in order to avoid employment consequences or jeopardize future employment opportunities from a felony charge. One of these three Plaintiffs pled to a lesser charge because his job required him to be in parks, and he hoped to have his ban reduced to one year pursuant to the Policy. Another Plaintiff chose to plead to a lesser charge so that she could maintain a professional license required for her job as a veterinary technician. Despite these misdemeanor pleas, the three-year park bans remained in place.
Park Ban Effects
Plaintiffs alleged the park bans have had a serious effect on their professional and personal lives. Plaintiffs claimed the park bans affected “their ability to continue volunteer work, to carry out job and family responsibilities, and to access public spaces in Asheville to recreate, assemble and carry out political and social protest and speech.”
One of the Plaintiffs worked for an Asheville-based food justice nonprofit, where he regularly works in city parks “to build community gardens, conduct educational workshops promoting food justice, and organize community support for edible gardens in Asheville parks.” As a result, he alleged he could “not perform at least half of his job responsibilities and is at risk of losing his job.”
Another Plaintiff, an afterschool teacher and babysitter, could no longer take the children under her care to field trips in the park. Instead, she had to ask colleagues to fill in for her and, subsequently, stopped her babysitting work altogether. Two other Plaintiffs, both parents, had been unable to take their children to city parks.
Two of the Plaintiffs “decided to move out of Asheville following their bans because they felt targeted and surveilled by city officials and wanted to be able to access public parks again.”
Plaintiffs also alleged they had been “deterred from going to city council meetings held at city parks and recreation facilities, including meetings regarding the city’s response to homelessness.” Moreover, after the expiration of their park access bans, Plaintiffs expressed ongoing concerns that they would be “subjected to future bans as a result of their protests against city policies and their support of the homeless population.”
Plaintiffs further alleged “the Asheville Police Department has not investigated or charged other known parties with felony littering in instances where city staff cleaned up large amounts of trash, including one instance involving over 15,000 pounds of trash.”
Procedural Due Process
In their lawsuit, Plaintiffs petitioned the federal district court to issue a preliminary injunction based upon an alleged violation of their right to procedural due process under the Fourteenth Amendment. If granted, a preliminary injunction would cease enforcement of the bans against the Plaintiffs until the federal district court conducted trial proceedings and made a final determination as to whether the bans were lawfully imposed.
As cited by the federal district court, the Fourteenth Amendment’s due process clause provides that no person shall be deprived of “life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV. To establish a procedural due process violation under Section 1983 of federal civil rights law, the federal courts would require a plaintiff to show the following:
(1) That he has been deprived of a cognizable liberty interest and (2) that such deprivation occurred without adequate procedural protections.
In addition, the federal district court noted minimum “procedural due process” would require “fair notice of impending governmental action and an opportunity to be heard.”
Liberty Interest Deprivation?
The initial “procedural due process” issue before the federal district was, therefore, “whether the Plaintiffs have been deprived of a cognizable liberty interest.” In addressing this issue, the federal district court “recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion.” In addition, the court acknowledged the following “constitutionally protected right to associate for expressive purposes exists if the activity for which persons are associating is itself protected by the First Amendment”:
Particularly in places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the state to limit expressive activity are sharply circumscribed. The right to associate for expressive purposes is not, however, absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.
In addition, the federal district court noted the United States Supreme Court had “recognized the right to access parks and other spaces open to the public as well as the First Amendment rights implicated by such access”:
An individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is a part of our heritage, or the right to move to whatsoever place one’s own inclination may direct. Streets and parks have immemorially been held in trust for the use of the public, and have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.
In this particular instance, the court found Plaintiffs had “shown that they were involved in peaceful protests and gatherings in city parks prior to their bans.” Further, the court found: “Such peaceful demonstrations in public places are protected First Amendment activities.” Accordingly, the federal district court determined Plaintiffs had “demonstrated that they have been prohibited from accessing any city parks or parks and recreation facilities or traveling throughout the city greenways since the imposition of their bans.”
In addition, the federal district court found Plaintiffs had demonstrated “this prohibition has impacted their First Amendment rights, as they were all involved in advocacy efforts that take place in city parks, as well as their ability to do their jobs and care for their families.” As a result, the federal district court held Plaintiffs had “sufficiently shown a deprivation of a cognizable liberty interest in their First Amendment rights to access and gather in public parks.”
Opportunity To Be Heard?
Having found the required deprivation of a cognizable liberty interest protected by the First Amendment for Plaintiffs’ procedural due process claim, the federal district court then had to “determine whether the Plaintiffs have sufficiently demonstrated that they were not afforded an opportunity to be heard.” As described by the court, the “adequacy of the opportunity to be heard” is governed by the following three-step inquiry:
A balancing of the private interest and the public interest, along with the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.
In addition, the court noted adequate procedural due process would require the hearing to be “a real one, not a sham or a pretense.”
In this particular instance, the court noted the Policy provided “no requirement of an opportunity to be heard before bans take effect, only for appeals hearings once notice is provided.” In addition, during the appeals hearings, the court found evidence that Plaintiffs “were not permitted to ask questions or review the evidence against them.” Further, the court found Plaintiffs were not provided any findings or reasoning in support of their appeals being denied.
Accordingly, in the opinion of the federal district court, procedures employed by the City of Asheville Defendants had created “a substantial risk of an erroneous deprivation” of First Amendment rights. Specifically, the court found Plaintiffs had been “banned from parks based solely on observations of park rule violations” without “the opportunity to question the officials banning them” regarding “the basis for their bans.”
Under such circumstances, the federal district court determined “Plaintiffs can likely prove that the probable value of additional procedural safeguards, even minimal ones, is considerable.” Specifically, in the opinion of the court, “requiring hearings before a decision is issued would substantially reduce the likelihood of an individual being issued a ban mistakenly or without cause.”
In particular, the federal district court cited evidence that the Ashville director of parks and recreation had explicitly told the Asheville police captain that “he had decided to uphold the bans even before the hearings were held.” In the opinion of the court, that fact “would further suggest that the hearings were merely a pretense and not bona fide opportunities for the Plaintiffs to be heard.”
Accordingly, the federal district court concluded Plaintiffs had “shown a likelihood of success on the merits of their procedural due process claims.”
Irreparable Injury?
The federal district court then had to determine whether granting a preliminary injunction to Plaintiffs would satisfy the requirement that “irreparable injury is likely in the absence of an injunction.” According to the court, “it is well established that the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
In this case, the court found evidence that “many of the Plaintiffs have suffered harm in their professional lives, either leaving their careers or being unable to fully perform their jobs because they can no longer access city parks.” As a result, the federal district court found Plaintiffs were likely to suffer “irreparable harm to their First Amendment rights in the absence of preliminary relief because the Policy effectively undercuts their purpose for speaking, which is to visit city parks to advocate for and support homeless populations.”
As a result, the federal district court held “Plaintiffs have sufficiently shown a likelihood of irreparable harm if the preliminary injunction is not granted.”
Balance of Equities
The federal district court also considered whether Plaintiffs had established the required “balance of equities tips in its favor” to warrant a preliminary injunction. In so doing, the court would “balance the competing claims of injury,” considering “the effect on each party of the granting or withholding of the requested relief.”
In this case, the court noted Plaintiffs had “already served over two years” of the “three-year ban from parks and recreation facilities.” Accordingly, in the absence of an injunction, the court found “the Defendants can effectively impose the full duration of the original bans by simply waiting for the litigation process to run its course.” Accordingly, in the opinion of the court, “the vindication of the Plaintiffs’ rights (if they are entitled to such vindication) can only be accomplished by granting a preliminary injunction.” On the other hand, the court noted the City could reinstate the remaining nine months of Plaintiffs’ ban if the City prevailed in a full trial. As a result, the court found “Defendants risk little from the granting of the Plaintiffs’ requested injunction.”
The federal district court, therefore, held the “relative equities of the parties therefore weigh in favor of the Plaintiffs.” In addition, the court recognized “the City has other policies and procedures in place to ensure it can continue to maintain and protect public spaces.” In particular, the court cited “Section 12 of the Asheville City Code also punishes as a misdemeanor damaging property or vegetation in city parks, and Section 15 proscribes a civil penalty, which can include injunctive relief, for causing littering on public property”:
Therefore, to the extent the Defendants are concerned about the Plaintiffs continued littering in public spaces during the pendency of this action, they have other means of prohibiting them from doing so, either by altering the conditions of their pretrial release, bringing misdemeanor charges against them, or seeking additional injunctive relief under the city code.
In addition, the court noted “all of the Plaintiffs awaiting trial are prohibited from accessing Aston Park, the site of the initial demonstrations, as a condition of their pretrial release.” Accordingly, the federal district court held “the balance of equities in this case tips in favor of the Plaintiffs.”
Public Interest
As described by the federal district: “A plaintiff seeking a preliminary injunction must establish that the granting of an injunction is in the public interest.” In particular, the court noted “upholding constitutional rights is in the public interest.” Having been “indicted for felony littering,” the City Defendants had claimed “it is in the public interest for the city to keep them out of parks.” The federal district court rejected this argument:
While the Defendants undoubtedly have an interest in maintaining city property, those interests are not outweighed by the Plaintiffs’ constitutional rights in this case, especially because the Defendants’ interests are protected by other means.
In the opinion of the federal district court, Plaintiffs had “demonstrated a likelihood of success on the merits of their claims that the Policy fails to provide the procedural due process guaranteed by the Fourteenth Amendment.” The court, therefore, granted the imposition of a preliminary injunction prohibiting enforcement of the Asheville Parks Ban Policy against the Plaintiffs until further trial proceedings produced “a final determination as to whether the bans were unlawfully imposed.”
Settlement Agreement
On August 9, 2024, the federal district court issued an order agreeing to enforce a settlement agreement in which the City Defendants paid Plaintiffs’ attorney fees and costs. Norris v. City of Asheville, 2024 U.S. Dist. LEXIS 142388. Effective July 1, 2024, the federal district court recognized the City had “adopted an amended version of the City of Asheville’s administrative policy regarding “Restricted Access City Parks.”
In addition, the court noted the City Defendants had paid attorney fees and costs to the Plaintiffs. In the settlement, the City Defendants agreed to leave in place the injunctive relief granted to Plaintiffs by the federal district court and further agreed “not to reinstate Plaintiffs’ park access bans at any point in the future.” The settlement agreement, however, would not “preclude Defendants from banning Plaintiffs from the parks in the future” if such bans arise from occurrences separate from those bans described above and “are imposed in accordance with current city park access policies,” effective July 1, 2024.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Emeritus Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Archive of articles (1982 to present).