October 2024 – Parks & Recreation - 38

LAW REVIEW
an opportunity to object or be heard
before the bans were imposed.
Three of the Plaintiffs were not
made aware of their park bans until
nearly a year later. As a result, these
three Plaintiffs did not have an opportunity
to appeal their bans and
continued to visit city parks until
they learned of their bans, thereby
unknowingly subjecting themselves
to arrest and additional penalties.
Ten of the Plaintiffs were all able
to timely appeal their bans. Each
was given a short hearing presided
over by the director of parks and
recreation, the deputy city attorney,
the city police captain, a city
police officer, and the parks and
recreation program manager.
Before any appeals hearings were
held, the city police captain sent an
email to the city director of parks
and recreation, recommending the
Plaintiffs' park bans be upheld. In
response, the director indicated he
had decided to uphold Plaintiffs'
suspension from city parks imposed
by the police department.
At their subsequent hearings, the
Plaintiffs were not permitted to ask
questions or review the evidence
against them. The presiding officials
did not make any findings or
render a decision. Shortly after the
hearings, the parks and recreation
director sent all 10 Plaintiffs who
had appealed their bans a shortform
letter upholding the bans. The
letters did not include findings, reasoning
or any evidence in support
of upholding the bans.
After their bans were upheld,
three Plaintiffs pled to lesser misdemeanor
charges in order to avoid
employment consequences or jeopardize
future employment opportunities
from a felony charge. One of
these three Plaintiffs pled to a lesser
charge because his job required him
to be in parks, and he hoped to have
his ban reduced to one year pursuant
to the Policy. Another Plaintiff
chose to plead to a lesser charge so
that she could maintain a professional
license required for her job
as a veterinary technician. Despite
these misdemeanor pleas, the threeyear
park bans remained in place.
Park Ban Effects
Plaintiffs alleged the park bans have
had a serious effect on their professional
and personal lives. Plaintiffs
claimed the park bans affected
" 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. "
One of the
Plaintiffs worked
for an Asheville-based food justice
nonprofit, where he regularly
works in city parks " to build community
gardens, conduct educational
workshops promoting food
justice, and organize community
support for edible gardens in Asheville
parks. " As a result, he alleged
he could " not perform at least half
of his job responsibilities and is at
risk of losing his job. "
Another Plaintiff, an afterschool
teacher and babysitter, could no
longer take the children under her
care to field trips in the park. Instead,
she had to ask colleagues
to fill in for her and, subsequently,
stopped her babysitting work altogether.
Two other Plaintiffs, both
parents, had been unable to take
their children to city parks.
Two of the Plaintiffs " decided
to move out of Asheville following
their bans because they felt targeted
and surveilled by city officials and
38 Parks & Recreation | O CTOBER 2 0 2 4 | PARK S ANDRECRE AT ION . OR G
wanted to be able to access public
parks again. "
Plaintiffs also alleged they had
been " deterred from going to city
council meetings held at city parks
and recreation facilities,
including
meetings regarding the city's
response to homelessness. " Moreover,
after the expiration of their
park access bans, Plaintiffs
expressed
ongoing concerns that they
would be " subjected to future bans
as a result of their protests against
city policies and their support of
the homeless population. "
Plaintiffs
further
alleged " the
Asheville Police Department has
not investigated or charged other
known parties with felony littering
in instances where city staff
cleaned up large amounts of trash,
including one instance involving
over 15,000 pounds of trash. "
Procedural Due Process
In their lawsuit,
Plaintiffs
petitioned
the federal district court
to issue a preliminary injunction
based upon an alleged violation of
their right to procedural due process
under the Fourteenth Amendment.
If granted, a preliminary injunction
would cease enforcement
of the bans against the Plaintiffs
until the federal district court conducted
trial proceedings and made
a final determination as to whether
the bans were lawfully imposed.
As cited by the federal district
court, the Fourteenth Amendment's
due process clause provides that no
person shall be deprived of " life, liberty,
or property, without due process
of law. " U.S. Const. Amend.
XIV. To establish a procedural due
process violation under Section
1983 of federal civil rights law, the
federal courts would require a plain
October 2024 – Parks & Recreation

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