Three File Lawsuit against Park Board


The rumblings of the people’s movement have once again sprang forth in Over-the-Rhine. Lack of transparency and a lack of democracy are again the complaints. And the collusion between government and 3CDC is again the catalyst. Last week, three citizens who live near Washington Park filed a lawsuit against the Park Board and its director, Willie Carden, alleging that the board abused the law and unfairly developed rules for the new crown jewel of the parks system.

According to the new lawsuit, the Park Board and Carden “are violating Plaintiffs’ First and Fourteenth Amendment rights,” which deal with freedom of speech and assembly, by arbitrarily adopting rules and placing signs without public input and without public consent. These arbitrary rules lead also to arbitrary application and arbitrary prosecution. The Park Board created these signs under Rule 28 of its own rulebook. The lawsuit alleges that the use of Rule 28, which states that the Board may issue new provisions for parks simply by erecting signs, creates a system of rulemaking that is totally outside of “proper public legislative channels.” These signs are essentially laws; and criminal citations and prosecutions have occurred in the past for violations. Such a system effectively creates special criminal jurisdictions where special laws exist, but only within the boundaries of the parks.

In Washington Park, the rules posted after the reopening in July were clearly directed at discouraging the poor and homeless from using the park and its facilities. In general, park rules do not prohibit the sharing of food on park grounds, at Washington Park they do; they generally do not forbid the inspection of trash and recycling containers, in Washington Park they do; and they generally, do not prohibit the use of amplified sound, in Washington Park they do.

As the lawsuit alleged and emails obtained through a Freedom of information Act request show, these rules were not debated publicly, on the contrary, they were discussed between a few parties including the Park Board, the police and 3CDC, this sort of backdoor legislating is not acceptable in a democracy. According to the lawsuit, such a scheme creates “quasi-criminal laws [which] were wholly written and adopted by a private corporation and a member of the executive branch of government outside the public process and immune from public participation.” And the discussions that led to the rules show that they were developed based on the preferences of those who did have a voice. Rather than consulting with the Drop Inn Center, or asking those who use its services how the park can best serve them, the Board deferred to Captain Daniel Gerard of the city police, who wrote in an email dated December 18th “Until the Drop Inn Center moves, the line about food and clothing drop off being prohibited is absolutely needed.”

This all underlines the way that city leaders and redevelopers see Over-The-Rhine heading in the coming years–services are being moved elsewhere, and the homeless population, and others who rely in services that help the homeless, will be forced to move with them. The park and the redevelopment in general simply isn’t for them.

Jerry Davis, one of the plaintiffs and a vendor of Streetvibes, has been asked by police several times to move away from the park. He now tends to stay away, and, as the lawsuit alleges, this has created a chilling effect on his first amendment rights, as he is unable to distribute Streetvibes and is thus less able to raise awareness for the work that he does as a homeless advocate.

The suppression of free speech during Occupy is also referred to in the emails obtained where, Captain Gerard wrote “After what we’re dealt with during our Occupy protests, adding a line about no camping or personally owned tents can’t hurt.” A similar situation with the rules emerged during Occupy, when the Park Board changed the general rules, adding a section to stifle the encampment and make it easier to remove the protesters from their homebase at Piatt Park. The encampment was evicted on the eve of the funeral parade of Carl Lindner, which was set to pass by the park on 9th and Vine.

The other plaintiffs, Andrew Fitzpatrick and Ann Brown, have almost completely avoided the park, which they frequented prior to the renovation, for fear of violating one or more of the new rules and risking arrest or citation.

Andrew Fitzpatrick, who is a member of the People’s Platform, boiled the rules down to a question of service to others saying, “ I want to be able to give food to a hungry person or clothes to a cold person without getting in trouble.This right should be accessible to all people and faith communities.” But if the Park Board rules are allowed to stand, this services will have to take place outside of Washington Park, and likely eventually outside of Over-the-Rhine. Community groups like the People’s Platform for Equality and Justice, who hold monthly grill outs to connect with residents wouldn’t be able to readily hold such grill outs on park grounds. Because these grill-outs include members of the homeless community, they would likely be less successful, and regular attendees like Davis, Fitzpatrick and Brown would be unable to do the work they do. Other groups like Food Not Bombs which shares food for free with anyone who walks by, would also be unable to continue with their program in the park.

Crying wolf is often the first step in creating the environment for renovation and permanent demographic change change, the opponents of the Anna Louise Inn routinely cite apparent marijuana usage among residents as an example of their unworthiness to live in the prime real estate of Lytle Park, in the shadow of Western and Southern.

The lawsuit touches on a similar theme in Washington Park; alcohol being of primary concern. When the public relations push to renovate the park was being made several years ago, the issue of alcoholism was raised in nearly every article in the various news sources. The rules, as they are written allow only the Park Board to grant permission to sell or possess alcohol in any park, however 3CDC, who runs the park, is effectively able to circumvent the official path to liquor licensing and, at its convenience, sell alcohol at any time and any event.

The case is not unlike that which the major players in redevelopment have seen before; when residents were removed from their homes in the Metropole Hotel, 3CDC and the city deceived the tenants. After the tenant association filed suit, the developers were forced to settle and caved to some of the demands of the residents. The three plaintiffs in the Park case are carrying the torch lit at the metropole for citizen’s voice and accountability in the changes taking place.

It is always the residents, the poor, and the homeless who are at fault when others come to push them out of their homes and neighborhoods. Such language alienates residents from the very beginning, and develops latent assumptions that anyone appearing to be homeless in the park is going to be using alcohol. But the case is not about freedom to consume alcohol, as those who vilify the homeless would like to make it out to be. The case is about a different kind of freedom, the democratic freedom to have a say in how this city is run and how the downtown is redeveloped; it is about the freedom to have a say in the transformation that few would say is not needed or wanted. The public needs to be disabused of the notion that these anti democratic sanctions are somehow the norm.

Were the city and 3CDC actually interested in stopping the rummaging of trash cans or the distribution of food, they would implement policies that got people off the streets permanently, attacking the root of the problem, and effectively making the job of organizations like the Homeless Coalition and the Drop Inn Center obsolete. They would include the voices of the residents, including the poor and homeless in a meaningful way, not just at public forums. They would allow citizens to help draw up redevelopment plans, a system that has worked in other places. They would not deliberately shutter the process at every step, which has been the norm for the last 10 years.

This article originally appeared in the print edition of streetvibes