Occupy Sacramento protesters and attorney Mark Merin are considering legal action against the city of Sacramento for violations of their First Amendment rights if arrests of protesters for ignoring the park curfew are not stopped.

“It’s not a question of whether we will pursue legal action – that decision has been made,” Merin, a Sacramento civil rights attorney, said Thursday. “It’s just a matter of when.”

There have been close to 100 arrests made since the Occupy Sacramento movement first appeared in Cesar Chavez Plaza Oct. 6, and protesters say all of those are in violation of First Amendment protections of speech and assembly.

The nature of the Occupy movement, according to Merin, is based on the principle of the use of public space to exchange information and state grievances – fundamental principles that are protected by the U.S. Constitution.

“(The movement) is happening around the world, and it’s a lot bigger than anything we’ve seen in the past,” Merin said. “It unites people who have a variety of grievances – (people who are) saying there is something wrong with the system that has gotten us to this state.”

No lawsuit has been filed yet, Merin said, but the main thrust of any potential suit is that the city ordinance that regulates park hours is unconstitutional because it gives the parks director and the chief of police discretion to grant or deny exceptions to the law.

According to Sacramento city code, “The (parks) director, with the concurrence of the chief of police, may designate extended park hours for any park when the director determines that such extension of hours is consistent with sound use of park resources, will enhance recreational activities in the city, and will not be detrimental to the public safety or welfare.”

“What are the standards for making such exceptions? Where are they listed?” Merin said. “They have been given broad reach to grant or deny exceptions, and this is an interference with First Amendment constitutional rights.”

City representatives say that it’s a challenge to strike a balance between citizens’ right to free speech and the government’s responsibility to protect the health, safety and welfare of the people.

Sacramento spokeswoman Amy Williams said Thursday that, since the start of the Occupy Sacramento demonstrations, city personnel have “worked cooperatively with the participants to protect their rights to assemble and speak, as well as the rights of other citizens to utilize a clean and safe park.”

Williams said that cases interpreting the First Amendment provide that a local agency like the city of Sacramento may place reasonable "time, place and manner" restrictions on the use of public property where those restrictions are content-neutral, are rationally related to a government interest and leave open alternative channels of communication without running afoul of the First Amendment.

When the police charge individuals with city code violations, the city attorney has a duty to review the charges on a case-by-case basis and determine whether the evidence supports prosecuting those charges, Williams said.

However, “The city attorney's personal feelings about the movement cannot be a consideration,” Williams added.

“The city attorney's duty is to prosecute city code violations in a fair, impartial and evenhanded manner,” Williams said.

The U.S. Supreme Court clarified the protections of the First Amendment in a variety of cases.

In “Ward v. Rock Against Racism,” [491 US 781 (1989)], the court ruled that local governments have authority to set “time, place, or manner” regulations on free speech activities.

The restrictions, the court held, ''must be narrowly tailored to serve the government's legitimate interests” – and they must not be based solely on the content of the message.

The court also ruled that those restrictions need not be the “least-restrictive or least-intrusive means of doing so.” They simply must not be more than necessary to achieve the government's stated purpose for the law.

Setting park hours that apply to everyone equally is a reasonable “time, manner and space” restriction, according to City Attorney Eileen Teichert.

Joaquin McPeek, spokesman for Mayor Kevin Johnson, said the city has a duty to maintain a safe and healthy environment in its parks.

“The mayor believes closing Chavez Park at or around midnight each night is consistent with the city's duty to protect public safety and public health and welfare,” McPeek said in an email statement Thursday. “He also believes the city has provided ample, daily opportunities for Occupy Sacramento to peacefully assemble and speak.

“The mayor is not in favor of allowing certain, special groups to make exceptions to city ordinances. He believes our laws must apply fairly to all citizens,” McPeek said.

The Supreme Court ruled in “Lakewood v. Plain Dealer Publishing” [486 U.S. 750 (1988)] that any statute that “vests unbridled discretion in a government official over whether to permit or deny expressive activity” is unlawful and a violation of the First Amendment.

City parks director Jim Combs said Thursday that, as it relates to special events, he has authority to extend park hours, but not as a general exception to the code.

“If it makes sense to extend the hours of the park, then I can do that,” Combs said, “but there has to be a responsible party that agrees to the regulations that we set.”

Some event restrictions that the parks department might set for a special event include the requirement for portable toilets, a fee for providing extra security and a $1 million liability insurance policy.

“We have an obligation to set conditions for the use of the park as it relates to public health, welfare and safety,” Combs said.

Combs said that, if people want an exemption to park hours, they have to spell out their activities and go through the same permit process that all other events have to go through.

When it comes to First Amendment activities, however, Combs said he doesn’t provide permits.

“People have a right to assemble, and a right to speak,” Combs said. “They are not required to get permits for that.”

Sgt. Andrew Pettit, police department spokesman, said that the recent arrests of Occupy protesters have been based on violations of the park curfew first, and – when police have asked demonstrators to leave the park so that they are no longer in violation of that city code and the protesters refuse to leave – then arrests are made based on the state penal code for refusal to disperse.

But the underlying violation of city code remains. So, if the district attorney decides not to prosecute the penal code violation, then the case can be referred to the city attorney for prosecution of the city code violations.

The decision of where the case is prosecuted does not lie with the police, Pettit said. Officers are charged with enforcing the law, not prosecuting violations of the law.

“We don’t determine fines when we’re giving traffic citations, we just enforce the law as it’s written,” Pettit said. “The same thing goes for other code violations, like park curfew hours.”

Pettit said the Police Department regularly sends cases to the District Attorney’s Office.

“If they decide not to prosecute, that’s their choice. That doesn’t mean we aren’t going to arrest if someone breaks the law,” Pettit said.

According to city code, people cannot conduct an assembly of more than 50 people in a park unless a park use permit has been issued for the event.

But the government cannot issue a permit on free speech, Merin said, so the code section doesn’t apply to Occupy Sacramento.

“I think there’s a really good legal claim in Sacramento,” Linda Lye, staff attorney with ACLU Northern California said Thursday.

“You cannot allow a decision-maker to have unbridled discretion,” Lye said, “and that is what is in the code in the city related to park closure.”

Merin said that the Occupy Sacramento group will “definitely start legal action,” but they have not yet decided when to take that action.

“First, we want to let the city come to their senses,” Merin said. “They will eventually realize there is too much public support for the movement to try to shut it down.”

Merin said participants in the Occupy movement are not eager to take immediate legal action because they don’t want to transfer the public debate to the courtroom.

“It would undermine public discussion,” Merin said.

If a lawsuit does develop, Williams said the city believes the code section in question “will pass Constitutional muster in federal court.”

Melissa Corker is a Staff Reporter for The Sacramento Press. Follow her on Twitter @MelissaCorker.