U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Day Laborers Win Right to Solicit Work

Attorney Elbert S. Hendrickson opened a blacksmith shop in the Town of Oyster Bay at a time when immigrants came to America trying to make a living any way they could.

One hundred fifty years later, lawmakers want to stop day laborers from making a living on the same Long Island streets. They enacted an ordinance that banned mostly immigrants from soliciting drivers for work as they drove through the suburban neighborhood.

However, the U.S. Second Circuit Court of Appeals struck down the ordinance in Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay. While the appeals court said it violated their free speech rights, town leaders vowed to fight on.

"I cannot understand why any court in this nation would allow illegal aliens to gather on residential streets seeking illegal work while avoiding paying taxes," Supervisor Joseph Saladino said, promising to appeal to the U.S. Supreme Court. "Our neighborhoods will not become sanctuaries for illegal aliens under my watch."

Oyster Bay

The hamlet once belonged to American Indians, who sold the land to English settlers in 1653. They paid for it largely with cookware, tools, stockings and shirts.

After the American Revolution, the town became part of New York City and Nassau County. As newcomers flooded into the area in the late-1900's, the town grew from 40,000 to 290,000.

When the town board proposed the ban on immigrant workers, Oyster Bay resident Tara Keenan-Thomson warned against it. Keenan-Thomson, director of the local chapter of the New York Civil Liberties Union, said the ban was unconstitutional and divisive.

"It criminalizes day laborers, who are often Latino, for doing nothing more than trying to support their families," she said.

Commercial Speech

The Second Circuit agreed, affirming a preliminary injunction against enforcement of the ban. A divided panel said the law targeted speech and overbroadly regulated it.

"The Ordinance reaches a lone person standing on the sidewalk, away from the curb, who attempts to make known to the occupants of vehicles his availability for work even if it does not result in a car stopping in traffic or double parking," Judge Barrington D. Parker wrote. "It reaches children selling lemonade at the end of a neighbor's driveway (which is, after all, 'adjacent to' a public right of way), the veteran holding a sign on a sidewalk stating 'will work for food,' and students standing on the side of a road advertising a school carwash.

"Even a person standing on the sidewalk holding a sign 'looking for work-park at the curb if you are interested in hiring me' would violate the ordinance as it contains no specific intent element and no requirement that the 'attempt to stop' result in traffic congestion, the obstruction of other vehicles, or double parking."

Judge Dennis Jacobs dissented, saying the plaintiffs lacked standing.

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