Judge allows advocates for Asheville homeless to pursue lawsuit over park ban

Image of downtown Asheville, N.C., at night, via City of Asheville website.

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  • A federal judge is allowing advocates for Asheville's homeless population to proceed with a lawsuit challenging the city's decision to ban them from local parks.
  • US District Judge Martin Reidinger rejected most of the city's motion to dismiss the lawsuit.
  • Fifteen plaintiffs argue that the park bans have violated their First and 14th Amendment rights. They contend that the bans were based on city officials' retaliation for their protests about Asheville's homeless policies.

A federal judge will allow advocates for Asheville’s homeless population to continue pursuing their lawsuit against the city. The suit challenges Asheville’s decision in 2021 to ban the 15 plaintiffs from city parks.

US District Judge Martin Reidinger issued an order Monday denying most of the city’s motion to dismiss the lawsuit. Plaintiffs can move forward with arguments that the park ban violated their rights to free speech and free association, as well as their due process rights under the federal and state constitutions.

Reidinger struck down just one of seven claims in the lawsuit, Norris v. City of Asheville. He disagreed with the plaintiffs’ argument that the challenged park ban policy is unconstitutionally vague.

The case stems from December 2021 protests in city parks. Plaintiffs were “advocating for Asheville to allow sanctuary camping for homeless people,” Reidinger wrote.

In January 2022, all plaintiffs were charged with felony littering. Three plaintiffs pleaded guilty to misdemeanor charges one year later. Charges remain pending against the other 12 plaintiffs.

In March 2022, some plaintiffs received word that they had been banned from city parks for three years because of their conduct. Those bans were tied to an Asheville administrative policy.

“The Policy does not require an underlying citation, ticket, charge, indictment, or conviction to ban an individual from city parks, nor does it require any documentation of the alleged violation for a ban to be issued,” Reidinger wrote. “Individuals subject to a park ban are not entitled to notice or a pre-deprivation hearing under the Policy.”

“If a banned individual enters a city park or commits another violation under the policy, his ban is automatically extended by one year in addition to any extension based on the violation, and he may also be criminally charged with trespass,” the judge added.

During appeals hearings, “Plaintiffs were not permitted to ask questions or review the evidence against them, and the presiding officials did not make any findings or render a decision,” Reidinger explained.

“The Plaintiffs allege that their park bans have had a serious effect on their professional and personal lives. This includes 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,” the judge wrote.

“The Plaintiffs also allege that they have been deterred from going to city council meetings held at parks and recreation facilities, including meetings regarding the city’s response to homelessness,” Reidinger added. “The Plaintiffs are concerned that even after the expiration of their bans, they will be subjected to future bans as a result of their protests against city policies and their support of the homeless population.”

Reidinger explained his decision to allow the due process claims to move forward . “The procedures employed by the Defendants create a substantial risk of an erroneous deprivation given that individuals can be banned from parks based solely on ‘observations’ of park rule violations even though they may be denied the opportunity to question the officials banning them on what the basis for their bans are,” he wrote. “Based on the alleged facts, the probable value of additional procedural safeguards, even minimal ones, is considerable, as requiring hearings before a decision is issued or allowing an individual to question the officer imposing the ban would substantially reduce the likelihood of an individual being issued a ban mistakenly or without cause.”

The judge addressed the free association claims. “Plaintiffs have alleged that they were involved in peaceful protests and gatherings in city parks prior to their bans,” Reidinger wrote. “Such peaceful demonstrations in public places are protected First Amendment activities. The Plaintiffs further allege that the Policy has prevented and discouraged their exercise of their First Amendment rights.”

Plaintiffs will also be able to continue to press their case that the park bans involved retaliation for their protests. “The Plaintiffs also allege that other clear violations of the felony littering statute have been brought to the attention of the Defendants but did not result in any charges or park bans,” Reidinger wrote. “These allegations are minimally sufficient to suggest that the Defendants do not enforce the Policy in similar situations involving similar or even greater amounts of trash, and that singling out these Plaintiffs under these circumstances gives rise to a reasonable inference that the action was taken against these Plaintiffs because of the nature of their protest and advocacy.”