October 2024 – Parks & Recreation - 40

LAW REVIEW
es of assembly, communicating
thoughts between citizens, and discussing
public questions.
In this particular instance, the
court found Plaintiffs had " shown
that they were involved in peaceful
protests and gatherings in city parks
prior to their bans. " Further, the
court found: " Such peaceful demonstrations
in public places are protected
First Amendment activities. " Accordingly,
the federal district court
determined Plaintiffs had " demonstrated
that they have been prohibited
from accessing any city parks or
parks and recreation facilities or traveling
throughout the city greenways
since the imposition of their bans. "
In addition, the federal district
court found Plaintiffs had demonstrated
" this prohibition has impacted
their
First
Amendment
rights, as they were all involved in
advocacy efforts that take place in
city parks, as well as their ability to
do their jobs and care for their families. "
As a result, the federal district
court held Plaintiffs had " sufficiently
shown a deprivation of a
cognizable liberty interest in their
First Amendment rights to access
and gather in public parks. "
Opportunity To Be Heard?
Having found the required deprivation
of a cognizable liberty interest
protected by the First Amendment
for Plaintiffs' procedural due process
claim, the federal district court then
had to " determine whether the Plaintiffs
have sufficiently demonstrated
that they were not afforded an opportunity
to be heard. " As described by
the court, the " adequacy of the opportunity
to be heard " is governed by
the following three-step inquiry:
A balancing of the private interest
and the public interest, along
with the risk of an erroneous deprivation
of such interest through the
procedures used, and the probable
value, if any, of additional or substitute
procedural safeguards.
In addition, the court noted adequate
procedural due process
would require the hearing to be " a
real one, not a sham or a pretense. "
In this particular instance, the
court noted the Policy provided
" no requirement of an opportunity
to be heard before bans take effect,
only for appeals hearings once
notice is provided. " In addition,
during the appeals hearings, the
court found evidence that Plaintiffs
" were not permitted to ask questions
or review the evidence against
them. " Further, the court found
Plaintiffs were not provided any
findings or reasoning in support of
their appeals being denied.
Accordingly, in the opinion of
the federal district court, procedures
employed by the City of
Asheville Defendants had created
" a substantial risk of an erroneous
deprivation " of First Amendment
rights. Specifically, the court found
Plaintiffs had been " banned from
parks based solely on observations
of park rule violations " without
" the opportunity to question the
officials banning them " regarding
" the basis for their bans. "
Under such circumstances, the
federal district court determined
" Plaintiffs can likely prove that the
probable value of additional procedural
safeguards, even minimal
ones, is considerable. " Specifically,
in the opinion of the court, " requiring
hearings before a decision is issued
would substantially reduce the
likelihood of an individual being
issued a ban mistakenly or without
cause. "
40 Parks & Recreation | O CTOBER 2 0 2 4 | PARK S ANDRECRE AT ION . OR G
In particular, the federal district
court cited evidence that the Ashville
director of parks and recreation
had explicitly told the Asheville
police captain that " he had
decided to uphold the bans even
before the hearings were held. " In
the opinion of the court, that fact
" would further suggest
that
the
hearings were merely a pretense
and not bona fide opportunities for
the Plaintiffs to be heard. "
Accordingly, the federal district
court concluded Plaintiffs
had
" shown a likelihood of success on
the merits of their procedural due
process claims. "
Irreparable Injury?
The federal district court then had
to determine whether granting a
preliminary injunction to Plaintiffs
would satisfy the requirement that
" irreparable injury is likely in the
absence of an injunction. " According
to the court, " it is well established
that the loss of First Amendment
freedoms, for even minimal
periods of time,
unquestionably
constitutes irreparable injury. "
In this case, the court found evidence
that " many of the Plaintiffs
have suffered harm in their professional
lives, either leaving their
careers or being unable to fully
perform their jobs because they can
no longer access city parks. " As
a result, the federal district court
found Plaintiffs were likely to suffer
" irreparable harm to their First
Amendment rights in the absence
of preliminary relief because the
Policy effectively undercuts their
purpose for speaking, which is to
visit city parks to advocate for and
support homeless populations. "
As a result, the federal district
court held " Plaintiffs have suffi
October 2024 – Parks & Recreation

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