Here is an e-mail I received just now on the subject of whether or not it is constitutional. I am not a lawyer, and a lot of it is over my head.
In my opinion, the Utah County Ordinance applicable to "large public
assemblies" is facially invalid. This is with respect to its bonding
requirements,
which are unconstitutional under well-settled First Amendment case law,
IMHO. A copy of that ordinance, Article 13-4,. Large Public Assemblies, is
at http://www.utahcountyonline.com/apps/WebLink/Dept/ATTY/Chap13.pdf,
.
First, without considering any of the constitutional issues, there is a
question of whether the putative rave party
http://www.sltrib.com/utah/ci_2961967
with “two hundred fifty (250) or more people” was “reasonably” “expected to
continue for twelve hours (12) or more consecutive hours.”
If not, it appears that no permit was required. § 13-4-2-1. Although I
have some issues with the wording of § 13-4-2-1, I am going to generously
assume, arguendo, that this and other provisions of the ordinance are
otherwise
constitutional.
Moving on to the provisions of a bond in § 13-4-2-4, there is a strong
argument that the provisions of this section are unconstitutional.
§ 13-4-2-4.provides, in pertinent part:
Before any license shall be issued under the
provisions of this Division, a bond in an amount as
determined by the Board of County Commissioners,
but not less than one thousand dollars ($1,000.00),
shall be filed by the applicant with the County Clerk.
Such bond shall be conditioned for the prompt
cleaning up of any debris or waste material produced
or left by the assembly.
By its own terms, § 13-4-2-4 vests unfettered discretion in the Board of
County Commissioners to fix the maximum amount of the bond. For this
reason, it constitutes an impermissible prior restraint on free speech…
Moreover, the ordinance is also unconstitutional because it utterly fails
“articulate any standards for fixing [the] amount.” Forsyth County, Ga. v.
Nationalist Movement, 505 U.S. 123 at 133, (1992)
http://laws.findlaw.com/us/505/123.html; see, also, Steele v. City of
Bemidji, 257 F.3d 902, 8th Cir. (2001)
http://caselaw.lp.findlaw.com/data2/circs/8th/003348p.pdf.
Needless to say, IMHO, the County's actions to enforce an allegedly
unconstitutional ordinance are justicable under the provisions of 42 U.S.C.
§ 1983 http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=42&sec=1983.
Both a United States District Court and a state court would have concurrent
jurisdiction, although the federal court is probably the more favorable
forum in Utah. This is subject to the caveat that state officials, however,
enjoy Eleventh Amendment protection, with respect to litigation of pendant
state law claims in federal court, IMHO.
It mist be pointed out, however, that whether an ordinance is
unconstitutional and whether there was misconduct by law enforcement
officials, are two separate, although related, legal issues. Merely because
an officer unwittingly enforces an ordinance subsequently rendered nugatory
by a court, does not, by itself, impose § 1983 liability, IMHO.
Police misconduct cases litigated as constitutional torts have become
increasingly difficult to win, way before 9/11. See, Schwartz, et al,
Section 1983 Civil Rights Litigation (20th Annual Handbook).(2003),
Practising Law Institute
http://www.pli.edu/product/book_detail.asp?ptid=503&stid=28&id=EN00000000000531.
Although it is not necessary to file a notice of claim with a state or
local government under state or local law, as a prerequisite to commencing
litigation under § 1983, the timely failure to promptly do so might vitiate
any pendant state or local law claims asserted in court against government
officials,
IMHO.