Occupy Main Street is an unincorporated association protesting financial corruption. It seeks to Zucco park, a privately owned park open to the public as a gathering point and protest in the city of Nork. The protestors distribute food to homeless people and distribute literature and offer English as a second language courses to immigrants in the park. The city of Nork wishes to ban the protestors. One local businessman “Joe’s Deli” also wishes to ban the protestors because he says they interfere with his business – his toilets are wrecked, he says, because of the protestors. Another local businessman, Karl’s Kampers, wishes that the protestors be permitted to protest.
PART 1)
Joe sues the protestors for tortious interference with his business: he requests damages for his toilets and an injunction banning the protestors. Karl sues to enjoin Joe from ejecting the protestors. You are the judge. How do you rule?<
PART 2)
Nork has this law:
“The Safe Park Law”
Article 1. No person other than a police officer may have any weapons in any Nork park at any time.
Article 2. “Park” includes any land open to the public for purposes of rest, relaxation, play, and eating.
Nork passes a law:
Title “The No Park at Night Law”
Article 1. Any park in Nork is closed from sundown to sunrise.
Article 2. The police are empowered to enact reasonable regulations to enforce this law.
Article 3. Anyone caught in the park may be banned from the park.
Article 4. Anyone who wishes to gather in the park in a group of more than 5 people requires a police permit prior to using the park.
Nork State has a constitution which is identical to the U.S. constitution.
Are these laws constitutional? Why or why not? What challenges could be made to these laws? Would they succeed? Why or why not?
MODEL ANSWER
“The Safe Park Law” may be seen as interfering with the right to bear arms guaranteed by the Second Amendment. Historically, the second amendment right has been subject to reasonable police restrictions in the interest of public safety. If the police law is a rational means to a permissible end, which does not unduly invade a fundamental right it will stand. Presumably the purpose of the law is public safety, a permissible end; and indeed, prohibiting weapons is a reasonable means to the end, since weapons make violence deadlier. The right to bear arms is however a fundamental right. Laws which interfere with fundamental rights must do so in the least restrictive way and must be necessary. The police can well point out the presence of protests, homeless people, and children in parks as reasons why the gun ban is necessary. The only alternative to a gun ban would be to have metal detectors and fences around the entire park, which is not possible because parks are large and often forested. Consequently this law is a necessary means to a permissible end and the least restrictive invasion of a fundamental right and will likely be found to be constitutional.
“The No Park at Night Law” may be found to be unconstitutional however whoever wishes to challenge it must bear the burden of proving that the law is unconstitutional. Moreever, even if found unconstitutional the court can and likely will try to sever the unconstitutional parts of the law from the constitutional parts.
“Park” is not defined in the “The No Park at Night Law” however “Park” is defined in the “Safe Park Law” which will likely be used by the court in a structural argument: the same term found in two different laws may be interpreted to have the same meaning.
Article 1 which closes the park at night is likely constitutional as a reasonable means to a needed end (public safety): crime is likelier at night and few people use parks at night for recreation. No fundamental right to use a public park exists and so rational basis means end review without strict scrutiny applies.
Article 2 may be attacked as an unconstitutional delegation of legislative power (lawmaking) to the executive (the police) in violation of the principle of separation of powers. While it may seem reasonable to empower the police with rule-making authority the police in this case are given no guidelines from the legislator and in fact are delegated legislative power in violation of the principle of separation of powers. Consequently Article 2 will likely be found unconstitutional, even though laws are presumed to be constitutional and will be interpreted as such whenever possible.
Article 3 appears to be a rational means to the end of ensuring the public park will be properly used. While the park is open to the general public the violators of the park’s rules may be fairly excluded from the park for violating it’s rules because their own actions caused their being banned.
Article 4 may be found to be a violation of the right of freedom of association. Public protests historically have had many hard battles between the police who wish to prevent riots and protect the public. The police do not seek to prevent protests however protests present risks. Historically, the U.S. Supreme Court has repeatedly ruled that reasonable restrictions on the right to assembly may be allowed in the interest of public safety. The rule clearly infringes a fundamental right – the right to peaceably assemble – and so the measure must be necessary and the least restrictive possible. The measure is not too restrictive since seeking a permit is not an outright ban. The measure is necessary to avoid riots and looting which are the risk of any protest march. The end, public safety and well being is permissible. Consequently Art. 4 will likely be found to be constitutional as a rational and necessary means to a permissible end which, although burdening a fundamental right, does so in the least restrictive way possible.