Caught in ordinance

Jason Burns is fed up with not finding work.

Instead of sitting at home, waiting for a phone call from a prospective employer, the 31-year-old former loan officer recently stood on the sidewalk near a U-Haul rental truck lot in Costa Mesa, looking for someone to give him a job.

But a Costa Mesa police officer recently stood in his way of finding work, when, by Burns’ account, he told him that he can’t ask for it. Burns, an American-born U.S. citizen, said he was at Mesa Drive and Newport Boulevard when he signaled that he was looking for work to a driver pulling into the U-Haul.

A police officer then approached.

“He told me that it was against the law for me to do that,” Burns said. “I told him I heard different and he told me, ‘No, it’s against the law.’”

In fact, what Burns had heard differently is true. Costa Mesa City Hall in March issued a moratorium on enforcing its controversial anti-solicitation ordinance.

City officials agreed to the moratorium with three civil rights groups, which had filed a lawsuit on behalf of day laborers claiming the ordinance is unconstitutional. Costa Mesa agreed to halt enforcement of the city law until the U.S. 9th Circuit Court of Appeals rules on a similar case involving another city.

But Costa Mesa Police Chief Christopher Shawkey said not enforcing the law doesn’t mean his officers can’t inform people about it.

“We are not enforcing it, that doesn’t mean we can’t contact people to tell them about the ordinance,” he said.

It’s also too hard to tell what the circumstances were on that day when the officer approached Burns, Shawkey said.

“It might’ve been from a safety standpoint,” he said. “It could be that the officer saw the guy going on the roadway; maybe the driver stopped in the roadway, which is a violation.”

Burns said he wasn’t in the way of traffic nor did the driver stop to speak to him. He said the officer told him he can hold a sign, but that he couldn’t approach anyone to ask for work.

“I didn’t give him a reason to come up to me,” Burns said.

Shawkey would not allow his officer to speak to the Daily Pilot to give his account of the 3-week-old incident.

Belinda Escobosa Helzer, an attorney with the American Civil Liberties Union of Southern California’s Orange County office, sees the case differently than the police chief.

“The fact that they are not honoring that agreement is very concerning, and because they didn’t cite the gentlemen for the violation, the fact that they are discouraging the very speech that the ordinance prohibits is just as unconstitutional as enforcing the ordinance,” Helzer said.

Earlier this year, the ACLU of Southern California, the National Day Laborer Organizing Network and the Mexican American Legal Defense and Educational Fund filed a lawsuit on behalf of workers in Costa Mesa claiming that the ordinance is unconstitutional.

The lawsuit is targeting the language of the ordinance, which makes it illegal for anyone to stand in a street and solicit work.

The suit came as a direct consequence of an undercover police operation that resulted in the arrest of 12 day laborers and deportation of 11 workers determined to be illegal.

“The ability or the right under the Constitution to express your availability for work is not contingent on your immigration status,” Helzer said. “That is less important to me than just the fact that he has the right to express his availability to work and that he’s being told by a government official that it’s illegal.”

Costa Mesa City Atty. Kimberly Hall Barlow said the city is not enforcing its ordinance.

“The officers are not instructed to do that. I’m sure he was doing something that he wasn’t supposed to do,” Barlow said of Burns.

Helzer said the ACLU plans to send a letter to the city about this incident.

“From our prospective, we believe that this is a serious violation of a court order, and we will ask them to ensure that they adhere to the court order or we will have to take appropriate legal remedies, including possible contempt of court,” she said.