Judge bars Phoenix from enforcing parks ordinance against church group

A federal judge ruled that a Phoenix church group fighting a controversial new city ordinance limiting aid to homeless people in parks will be allowed to continue to serve food to homeless people in a city park without a permit — for now.

On Wednesday, U.S. District Court Judge Krissa M. Lanham granted an emergency temporary restraining order prohibiting the city of Phoenix from enforcing its ordinance, which bars food distribution for charitable purposes in city parks without a permit, against Orthodox Christian ministry St Herman’s Table and its founder and minister, Lance Brace. The judge found that Brace and his church, both plaintiffs in a lawsuit filed earlier this month, had valid claims that the new ordinance violated their First Amendment rights to the free practice of religion.

“Based on the present record and arguments, plaintiffs have established they are likely to succeed on their First Amendment Free Exercise claim,” Lanham wrote in her decision.

The order went into effect on June 10 and will expire on June 24, though Lanham will now consider whether to impose a preliminary injunction. The restraining order applies only to St. Herman’s Table and Brace, not other groups that feed and provide medical treatment to Phoenix’s homeless population.

The ruling marks the second time in the last few weeks that a federal judge has found the city likely violated the First Amendment. In late May, a different federal judge wrote that the city likely infringed on the free speech rights of ex-Phoenix police sergeant Dusten Mullen, whom the city fired for his conduct at a protest while off-duty.

The parks ordinance, which passed the city council on May 6 and went into effect on June 7, makes distributing food or providing medical care without a permit in a city park a misdemeanor, and it bans needle exchanges and medical care with needles altogether. It also established a process through which people and organizations looking to provide medical care or serve food in city parks can apply for a limited number of permits. The ordinance allows for two permits per approved park per month.

Spokesperson for the city of Phoenix did not respond immediately to requests for comment.

Brace and St. Herman’s Table are being represented by the Christian Legal Society, which celebrated the ruling in a press release and said it will continue to fight for its clients. The organization’s CEO and president, David Nammo, called the ordinance “ridiculous” and accused the city of hurting people in need.

“They are also discriminating against religious ministries in clear violation of the First Amendment, making religiously motivated volunteers criminals for serving those in need,” Nammo said in the release. “To top it all off, they have created multiple carve-outs for other members of the community to host birthday parties and other celebrations. The City of Phoenix should be ashamed.”

In their filings, Brace and St. Herman’s argued that the ordinance violated their First Amendment rights. Every Thursday evening, Brace and church volunteers serve food to homeless people in Cave Creek Park off Cactus Road. Their complaint argued that the restrictions imposed to even apply for one of the few available permits, such as requiring $2 million in liability insurance and far advance notice of who will volunteer, prevented the church group from fulfilling its religious obligations of “almsgiving and evangelism.”

Lanham agreed with their arguments. “At best, the ordinance would cut St. Herman’s activities in half even if it receives both of Cave Creek Park’s monthly permits,” she wrote. She went on to write that the ordinance, which expressly applies to food distributions for “charitable or similar humanitarian purposes,” likely violates the plaintiff’s First Amendment rights because it is not “neutral” or “generally applicable.” Non-charitable events, such as private birthday parties or weddings, are exempt from the ordinance’s restrictions.

“Although subtle, charitable purposes certainly correlate with religious ones,” Lanham wrote. “To illustrate, the text of the ordinance would seem to allow a restaurant to conduct a food distribution event just like St. Herman’s for the general public if the ‘purpose’ of that event was drumming up future business instead of charity.”

Lanham also noted that other secular events generate just as much trash and big crowds as a group serving the homeless does, yet they are not required to obtain permits. 

“Phoenix provides no evidence or meaningful argument explaining why a birthday party providing cake to twenty select two-year-olds is any less likely to strain park resources with noise or mess than a religiously-motivated gathering open to twenty members of the public,” she wrote.