Victory for Day Laborers: Ninth Circuit Rules City Anti-Solicitation Ordinance Unconstitutional

By: Joshua Goodman

On any given day in the United States, approximately 117,000 people are either working or looking for work as a day laborer.[1]  Typically, day laborers seek work in informal settings, including standing in front of businesses, home improvement stores, and on busy streets.[2]  Some people view these day laborers as a nuisance to the public, while others believe they are well-intentioned, hardworking people who simply want to make an honest living and support their families.[3]

Many cities and states have legislation in order to regulate day laborers; these ordinances vary in their level of restrictiveness.[4]  In September, the United States Court of Appeals for the Ninth Circuit ruled that a Redondo Beach ordinance that targeted day laborers was unconstitutional because it violated freedom of speech.[5]  This ruling is a major victory for day laborers and will likely have widespread implications for other jurisdictions.

Redondo Beach Municipal Code § 37.1601 (the “Ordinance”) stated in pertinent part: “It shall be unlawful for any person to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle.”[6]  Michael Webb, a city attorney for Redondo Beach asserts that the statute has been “the most effective way” to prevent street and traffic obstruction.[7]  Opponents stress that the anti-solicitation ordinance is overly broad, and thus, impinges on individual rights to free speech.[8]

Two day laborer organizations, Comite de Jornaleros de Redondo Beach and National Day Laborer Organizing Networks challenged the Ordinance in 2004 after the City of Redondo Beach initiated the Day Labor Enforcement Project to increase enforce of the ordinance.[9]  The Ninth Circuit of Appeals decided that “the Ordinance is not narrowly tailored because it regulates significantly more speech than is necessary to achieve the City’s purpose of improving traffic safety and traffic flow at two major Redondo Beach intersections, and the City could have achieved these goals through less restrictive measures.”[10]  Therefore, the Ordinance is “facially unconstitutional.”[11]

It should be pointed out that the decision was not unanimous – Judge Alex Kozinski gave a blistering dissent.[12]  He points out that there have been serious consequences in Redondo Beach as a result of the day laborer gatherings: littering, vandalizing, urinating, blocking the sidewalk, and harassing females.[13]  He argued that municipalities have a right “to secure the safety, beauty, tranquility and orderliness.”[14]

This ruling overturns the Court’s decision in ACORN v. City of Phoenix, which permitted a similar ordinance regulating solicitation of vehicles temporarily stopped because it “was a reasonable regulation designed to promote public peace, health, and safety.”[15]  This new ruling is likely to have a significant impact on the entire day laborer community in Redondo Beach and beyond.  All cities in the Ninth Circuit will need to reevaluate their day laborer statutes and comply with the Court’s decision.

While this decision is a major victory for free speech advocates and the day laborer community, the fight may not be over.  In October, the City of Redondo indicated that it intended to appeal this result to the Supreme Court of the United States.[16]  It remains to be seen if the Supreme Court will adopt the view of the Ninth Circuit or side with the dissent.


[1] Abel Valenzuela Jr. et al, On the Corner: Day Labor in the United States, i, http://www.sscnet.ucla.edu/issr/csup/uploaded_files/Natl_DayLabor-On_the_Corner1.pdf.

[2] Id.

[3] See Adam Cohen, Day Laborers and the Right to Roadside Job, Time, Sept. 26, 2010, http://www.time.com/time/nation/article/0,8599,2005358,00.html.

[4] See National Conference of State Legislatures, http://www.ncsl.org/default.aspx?tabid=13393 (last visited Oct. 7, 2011).

[5] See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 2011 U.S. App. LEXIS 19212, at *2-3 (9th  Cir. Sept. 16, 2011).

[6] Id. at 6.

[7] See Lily Mihalik, Loitering or Looking for Work? Redondo Beach’s Day Laborers Can Stay, KPCC, Southern California Public Radio, http://www.scpr.org/programs/patt-morrison/2011/09/20/20755/loitering-or-looking-for-work-redondo-beachs-day-l (last visited Oct. 7, 2011).

[8] Id.

[9] See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 2011 U.S. App. LEXIS 19212, at *6-7 (9th  Cir. Sept. 16, 2011).

[10] Id. at 3.

[11] Id. at 4.

[12] Id. at 53.

[13] Id.

[14] Id. at 55.

[15] ACORN v. City of Phoenix, 798 F.2d 1260, 1260-1261(9th Cir. 1986).

[16] See Matt Stevens, Redondo Beach to Ask U.S. Supreme Court to Uphold Day Laborer Law, L.A. Times, Oct. 6, 2011, http://latimesblogs.latimes.com/lanow/2011/10/redondo-beach-asks-supreme-court-to-spare-day-laborer-law.html.

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