Hewitt v. City of Cookeville

Disingenuous argument wins for Cookeville

By GEOFF DAVIDIAN

Editor, The Putnam Pit

COOKEVILLE, Tenn. (June 8, 2003) – I’ll bet you I can hold my breath longer than you while crossing the street. But we can’t actually do it for 21 days. And the cops have to approve it. And we have to come up with a $100 bond. And. And. And. And.

 

United States District Judge William Haynes has denied a motion by the Plaintiffs in Hewitt et al. v. City of Cookeville to enjoin the city from enforcing Ordinance 12-210, which made it unlawful for anyone to have “any meeting, parade, demonstration, competition, or exhibition on the public streets or right-of-ways before securing a permit from the City Clerk at least twenty-one (21) calendar days before the activity.”

 

The Cookeville ordinance said persons or organizations intending to engage in such constitutionally protected First Amendment behavior must also put up at least a $100 bond, run their plan by the police and pay for any cones, barricades or other traffic and security costs the police deemed necessary to protect the public health and safety.

 

The Knoxville firm Watson & Hollow, which defends Cookeville in a half dozen federal civil rights cases and protects government officials from lawsuits brought by citizens the officials allegedly oppress, says that the city repealed the ordinance in February 2002. But in an incident on Sept. 1, 2002, police chased a picketing couple away from their post outside a church. The City’s insurance lawyers say that the two police officers who told Carl and Patsy Hewitt to stop demonstrating just made a mistake.

 

“While it is the position of the City of Cookeville that ordinance 21-210 was not violative of the Constitution of the United States,” Robert H. Watson Jr. says in the City’s pleadings, filed march 17, 2003, the “amendment is filed to clearly demonstrate that Ordinance 12-210 has been repealed . . . .”

 

Although Judge Haynes has denied the motion for injunctive relief, he may not have heard the end of it because the motion relies on false statements in an affidavit by Cookeville Police Sergeant Lewis Gooding, incorrectly represents the intentions of the city and ignores the fact that the City continues to follow the same practices the Plaintiffs allege are unconstitutional.

 

In the first place, Ordinance 12-210 was not repealed in February 2002, before the “mistake” of the police officers who silenced the Hewitts, but in December 2002, three months after the “mistake.” See Repeal.pdf

 

And whichever date you pick, the City continues to apply the same criteria to who gets the permit, yet waives requirements whenever it wants without regard to the law in force. The ordinance was applied differently to different people, based not on policy but on Jimmy Dale Shipley’s whim, records show. For example:

 

  • On April 24, 2003, the Upper Cumberland Harley Owners Group requested a permit and signed a statement acknowledging it had to secure a permit 21 days in advance of the May 3, 2003 event – although the event was just nine days later. The “official” permit request form says the applicant must have 21 days advance permission, but police Capt. J. Bennett approved it anyway, although there is no explanation of what constitutes conditions warranting a waiver of the time requirement. The City demanded the bond, however. Shipley OK’d the waiver, showing Ordinance 12-210 was used as a basis for granting permission more than a year after Watson told the Court the ordinance had been repealed, but it was enforced strictly on the arbitrary discretion of Shipley as recently as May 2003.

 

  • On Oct. 22, 2002 -- nine months and 22 days after Watson & Hollow say the City repealed Ordinance 12-210 – the Chamber of Commerce signed a 12-210 Application for a parade permit, while Shipley waived the $100 bond as he had in previous years although the law did not exempt the Chamber from posting the bond.

 

In an interview June 6, 2003, Shipley told The Putnam Pit that in the Hewitt case there was “confusion” by the police officers who drove the demonstrators off.  “I’ve always thought that if anyone wanted to demonstrate, and they’re not blocking traffic or a driveway, in this country they are free.”

 

But when asked whether we could look forward to a review and possible changes to the ordinance, he said, “Yes, you can.”

 

The violations by Cookeville closely resemble the City’s policy unconstitutional method of determining who could get a link to Cookeville’s Web page. In a “friends of the court” brief by Project Censored, The Silha Center for the Study of Media Ethics and Law and the 120-member Association of Alternative Newsweeklies, the groups argue that the “vagueness doctrine” requires that citizens understand what a law says, but in this cases, none of the officials or police understand it, and it is published one way and enforced another.

 

Furthermore, in a related area, the brief points out that a “regulation offends the First Amendment when it grants a public official ‘unbridled discretion’ such that the official’s decision to limit speech is not constrained by objective criteria, but may rest on ‘ambiguous and subjective reasons.’

 

In the Hewitt situation, as in the Putnam Pit v. City of Cookeville, which is before the United States Court of Appeals for the 6th Circuit, the City’s policy contains no definitions, no definitions, no explicit textual incorporation and no judicial or administrative construction of the policy’s terms.

 

In fact, the Hewitt’s were stopped from picketing because one caller to police complained that a picture on a picket was “disturbing.”

 

What Jimmy Dale Shipley needs is a refresher course in Constitutional law. This case rearticulates the errors in the City’s linking policy.