The Eleventh Circuit Court of Appeals recently vacated a decision of U.S. District Court for the Middle District of Florida which had upheld the City’s of St. Petersburg municipal ordinance authorizing certain City officials to issue trespass warnings. In vacating the lower court, the Eleventh Circuit held that the City’s trespass warning ordinance was unconstitutional.
The Plaintiffs, four homeless residents of the City, filed a complaint against the City alleging, in part, that the trespass ordinance violates their rights under the United States and Florida constitutions. On appeal, the Eleventh Judicial Circuit held that the City’s trespass ordinance violated the Plaintiffs’ rights to due process under the Fourteenth Amendment and the Plaintiffs’ right to intrastate travel and freedom of travel as guaranteed by the Florida Constitution.
City Code Section 20-30, known as the trespass ordinance, authorized certain City employees, including police officers, to issue a “trespass warning,” which warns persons on public property to depart from the property and not return. The trespass ordinance gave authority to issue a trespass warning for public property in three instances: (1) City employees or officials, or their designees, having control over a facility, building or outdoor area, including municipal parks, may issue a trespass warning to any individual who violates any City ordinance, rule, regulation, or state law or lawful directive of a City official or employee for the public property where the violation occurred; (2) a police officer may issue a trespass warning when the City official in control of the pertinent City property is unavailable, to any individual who violates any City ordinance or state law for the public property where the violation occurred, but only if the police officer has received the approval of the officer’s immediate supervisor for the issuance of the trespass warning; and (3) any City official or employee has authority to issue a trespass warning to any person for any lawful reason for any City property when necessary or appropriate in the sole discretion of the City official or employee. After a person received a trespass warning, if the person was later found on the pertinent property in violation of the warning, the person could be arrested for trespassing. Depending on the circumstances, a trespass warning could be in effect from one to two years. Notably, although the trespass warning itself is a written citation, the City did not provide a formal procedure by which the recipient of the trespass warning could challenge the basis or terms of the warning.
Pursuant to the Plaintiffs’ due process claims, the Court held that the City deprived the Plaintiffs of liberty interests in two ways: (1) by enforcing the trespass ordinance to prohibit them from having access to a specific park as ordinarily used by the public, and (2) by carrying out a policy of enforcing the ordinance to prohibit their use of all parks in the City open to the public generally. The Court found that the trespass ordinance causes a substantial risk of erroneous deprivation of liberty because it is seemingly easy for the City, through a variety of agents, to issue a trespass warning and because no procedure is provided for the recipient of a trespass warning to challenge the warning or for the warning to be rescinded.
The Court also found that the Plaintiffs stated a claim for relief for violation of their right to intrastate travel and freedom of movement under the Florida Constitution. The Plaintiffs alleged that the City enforces the trespass ordinance on sidewalks surrounding the public parks and at the bus shelters located on public sidewalks surrounding the parks. The Court acknowledged that all citizens ofFloridahave the right under the Florida Constitution to walk on a public sidewalk or street and that the City meet its burden of establishing this policy was narrowly tailored to advance a compelling government interest. Accordingly, the Court held that the City’s alleged policy of enforcing the trespass ordinance on public sidewalks did not pass the strict scrutiny test required by Florida Law.
You can read a copy of the Eleventh Circuit’s decision here.
Author(s): Sara E. Aulisio
