City Attorney: (homeless) ordinances were enacted as a response to…”an ungovernable mob”

At the February 13, 2014 Pensacola City Council regular meeting, following many public comments, the Council ultimately voted to in favor of a measure to repeal the “blanket” ban portion of a “camping” ordinance and create a task force on homelessness. Both measures still face a second reading and subsequent vote February 27, 2014.

“Following a flurry of media criticism, Pensacola City Council discussed an ordinance, proposed by Councilwoman Sherri Myers (see page 31-32 of the Agenda), to repeal a section of a “camping” ordinance that bans blankets, sleeping bags, and other bedding bedding materials – which posed a tremendous health and safety risk to the homeless, particularly because the temperatures had already reached the teens and twenties. Citizens had expressed their concerns about the series of ordinances to the City Council in December 2011, May 2013 and January 2014. In addition to the camping ordinance, a restroom ordinance made it illegal to wash, shave, prepare drink or food, or clean any piece of clothing in a public restroom, among other things. Another ordinance made it illegal to beg.”
Read more about the meeting here: City Council set to repeal blanket ban

City Attorney, Jim Messer, also had a few comments related to the “homeless” ordinances (video here), after most the crowd had filtered out of the chamber. He began, “I would preface my remarks by asking that Councilwoman Myers not beat me up, because I understand that we have professional differences and I certainly respect her opinion. Now I’ve talked before about the razor blade that I straddle when I’m compelled to represent both this council and the mayor. So, I didn’t write the Charter, but that’s the deal I’m stuck with. In that respect, I also represent the City of Pensacola. The City of Pensacola is a municipal corporation. That municipal corporation has y’all [the Council] as the Board of Directors, and you have the citizens of the City of Pensacola, that quite frankly I think have been treated a little unfairly tonight. So my comments are not going to be directed to the merits or demerits of the ordinances we’ve been discussing. It’s not my job to create policy. It’s not my job to create the ordinances. But I think it is part of my job to put this discussion into a historical context. And I would ask you all to remember the historical context within which those ordinances were passed, and where the City of Pensacola was at that time…Those ordinances, rightly or wrongfully were enacted as a response to the occupation of this city’s property by an ungovernable mob…called ‘Occupy Pensacola’.” He continued, “now setting aside the legitimacy of their First Amendment claims or their right to occupy public property claims, the fact of the matter is this city had very limited options to deal with, in fact, an ungovernable mob. Now we’ve litigated that case in state court. We’ve litigated that case in Federal District Court and…we’re currently in litigation at the 11th Circuit Court of Appeals…What’s the practical impact? Well, the practical impact is that if that decision goes the other way, this city is subjected to probably seven-figure damages liability and high six-figures attorneys fees liabilities. So, in representing the City of Pensacola, I would impress upon you to please try and recall the historical context of these ordinances. The fact that the City was trying to regulate public land at a very ungovernable time in their history. And quite frankly I don’t think the City deserves all this vitriolic criticism based on the hyperbolic response of some people. “So with that said, I’ll try to withdraw gracefully from the battlefield here without being too badly wounded at 8:45 at night.”

Councilman Charles Bare replied, “I find it curious that you wait until the crowd is gone to make your comments,” as applause could be heard in the background.

Councilwoman Sherri Myers added, “I would like to address the City Attorneys characterization of the Occupy as an unruly mob, I think he said. That’s not the impression I got at all…When they were occupying the City grounds…I didn’t get the feeling that they were an unruly mob. I actually went there a few times and I did not observe anybody being unruly. I thought our police department did a superb job and had a good relationship with the Occupy movement. I thought our city handled it very well. And I do agree with you that these ordinances have, however, given the City a not-so-good reputation, but in terms of the Occupy event, I didn’t get the sense that it was unruly, and I thought that the city handled it very well. I’m sorry that these ordinances came out of that if indeed that’s why these ordinances were enacted. That may be an unconstitutional admission right there – if they were enacted to stifle the First Amendment rights of the citizens to petition the government for redress of grievances. So I just wanted to say that I have a different perspective on it than the City Attorney.”

Over several months, only two people from “Occupy Pensacola” were arrested for any crime. Dr. Melody Castro and Rev. David Burden were arrested Dec. 16, 2011, while standing on the green space near city hall. The alleged offense was misdemeanor “trespassing” on public property. Neither case resulted in a conviction. At one point the City evicted “Occupy” from the City Hall lawn, instead “allowing” them to use a “tiny triangle” on the public sidewalk as Judge Roger Vinson called it. The City then put up barricades to block use of the sidewalk, but removed them shortly after. The City of Pensacola filed a motion in the United States District Court, Northern District of Florida in attempt to recoup legal fees.

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U.S. Constitution, First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Florida Constitution, Article 1, Section 4.
Freedom of speech and press.—Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.

Florida Constitution, Article 1, Section 5
Right to assemble.—The people shall have the right peaceably to assemble, to instruct their representatives, and to petition for redress of grievances.