Federal judge orders Asheville activists' city park bans lifted until lawsuit decided

ASHEVILLE — A federal judge on March 25 ordered that park bans be lifted for 15 activists suing the city over bans they say violate their First and 14th Amendment rights, at least until a final ruling is made in the lawsuit.

This is the latest development in a year-long lawsuit against the city of Asheville by the American Civil Liberties Union of North Carolina, which first sued the city in spring 2023 on behalf of more than a dozen activists banned from city parks for three years.

In a preliminary injunction filed in October, the N.C. ACLU asked for the bans to be lifted before the case is decided, saying it is violating the mutual aid workers’ constitutional rights, interfering with their work helping the homeless and impacting daily lives and volunteerism.

The bans came after the lawsuit's plaintiffs were charged with felony littering following an art-based protest in December 2021 in Aston Park demanding shelter for the city's growing unhoused population.

City denied dismissal of park ban suit: Judge denies dismissal of park ban suit, saying Asheville violated protesters' rights

The group was barred not only from going to parks and recreation facilities, but also from attending any City Council meetings held at these numerous locations, including meetings regarding the city’s response to homelessness — until now.

Chief United States District Judge Martin Reidinger ruled that the plaintiffs are "likely to suffer irreparable harm to their First Amendment rights" if the bans aren't lifted in the interim "because the Policy effectively undercuts their purpose for speaking, which is to visit city parks to advocate for and support homeless populations."

Reidinger said in his order, filed March 25, that the activists "have shown that they were involved in peaceful protests and gatherings in city parks prior to their bans. Such peaceful demonstrations in public spaces are protected under First Amendment activities."

Several of the volunteers were with a mutual aid organization and relied on city parks to distribute food, supplies and provide aid — something they were participating in biweekly in Aston Park before the protests, the Citizen Times has reported.

More: NC ACLU: Asheville, police chief, parks director violated protester constitutional rights

Reidinger also ruled that the plaintiffs demonstrated their due process rights were likely violated since they were not afforded a legitimate "opportunity to be heard."

In February 2022, several of the mutual aid volunteers started receiving “restricted access notices,” banning them from all city parks and recreation facilities for a period of three years. These notices were issued under the 2017 Restricted Access to City Parks policy.

The policy does not require a hearing before a ban takes effect, but only requires a hearing once the person is notified and appeals the ban.

Ten people who were banned attempted to appeal through a Parks and Recreation appeals process that April, the Citizen Times previously reported. Three of the plaintiffs were not made aware of their bans until almost a year later, and therefore did not have an opportunity to appeal and even risked arrest by continuing to visit city parks until they learned of their bans, according to the judge's order.

More: NC ACLU: Asheville, police chief, parks director violated protester constitutional rights

During the hearings, those who appealed were not permitted to ask questions, review evidence against them, and were not provided any findings or reasoning in support of their appeals being denied, Reidinger said. The hearings were presided over by Parks and Recreation Director C. Tyrell McGirt, Deputy City Attorney John Maddux, Asheville Police Capt. Mike Lamb, Asheville Police Officer Sam DeGrave and Parks and Recreation Program Manager Christy Bass.

APD Chief Lamb — who was a captain at the time — emailed McGirt, recommending he uphold the park bans. Before any appeals hearings were held, McGirt responded, "My decision is to uphold the APD suspension," according to the order.

"(This) further suggests that the hearings were merely a pretense and not bona fide opportunities for the Plaintiffs to be heard," Reidinger said.

Reidinger also noted the plaintiffs can "likely prove" the "considerable" value of additional procedural safeguards, "as requiring hearings before a decision is issued would likely substantially reduce the likelihood of an individual being issued a ban mistakenly or without cause."

If the city does ultimately win the lawsuit, the remaining nine months of the bans can be reinstated, Reidinger wrote.

The defendants therefore "risk little" from the injunction being granted and the bans being lifted, but the "plaintiffs, on the other hand, risk losing their rights, along with the attendant personal and economic impacts, without a preliminary injunction," Reidinger said.

One plaintiff, for example, works for an Asheville-based food justice nonprofit where he regularly works in city parks to build community gardens and organize support for edible gardens in Asheville parks. Now, due to the ban, he alleges that he's at risk of losing his job because he can't perform half of his responsibilities, the order said.

The plaintiffs are required to post $1 of security with the Clerk of Court to cover costs and damages the defendants might face — which Reidinger said will be "minimal or nonexistent" — if it's found they were right in banning the activists. Once the security is posted, the injunction will take effect.

Ryley Ober is the Public Safety Reporter for Asheville Citizen Times, part of the USA Today Network. Email her at rober@gannett.com and follow her on Twitter @ryleyober

This article originally appeared on Asheville Citizen Times: Federal judge orders Asheville park bans lifted until lawsuit decided