Appeals Court Rejects ‘Donkey Cart’ Argument

The U.S. 9th Circuit Court of Appeals refused Wednesday to grant a temporary restraining order in a lawsuit involving a donkey cart artwork.

On Jan. 6, Chief U.S. District Judge Gordon Thompson ordered “San Diego Donkey Cart” removed from the Federal Building plaza in San Diego “for security reasons,” although a permit had been issued to exhibit it.

An assemblage by local artist David Avalos, the donkey cart depicts an immigration official arresting an illegal alien.

Last Thursday, U.S. District Judge Earl B. Gilliam excused himself from hearing a claim filed by the American Civil Liberties Union on behalf of the artist. All the judges in the southern district, including Gilliam, had discussed the artwork at a meeting.

The ACLU, which contends that the cancellation of the permit was illegal, sought a hearing with the appeals court in San Francisco, which did not reach a decision until Wednesday. “This is the first instance in my career that it’s taken this kind of time to get a hearing on a temporary restraining order,” said Greg Marshall, an ACLU attorney. The normal response time, he said, is 24 hours. He had requested the restraining order so the cart could be placed on exhibit again immediately. The original permit expires Friday.

Marshall filed a request Wednesday for a hearing with the U.S. District Court upon learning that the appeals court had denied his request. “I assume we’ll get a visiting judge,” he said, referring to the fact that all the district judges in San Diego have already been involved in the matter.