An attorney representing Occupy D.C. protesters suing to stop the removal of tents or other property from McPherson Square called today's hearing on a motion for a preliminary injunction a "victory," even as he admitted the judge was unlikely to grant that request.
During the hearing this morning before U.S. District Judge James Boasberg, Assistant U.S. Attorney Marina Braswell confirmed that there were no imminent plans to seize tents or close the park, and that the National Park Service would comply with existing regulations requiring it to safeguard seized property and provide written notice of any future plans to close the park. She was careful to note, however, that the law gives the agency the right to close the park or cordon off sections in the event of an emergency.
“Those tents will be left alone, assuming there is no other problem,” she told Boasberg, referring to the property of protesters not in violation of a no-camping rule or any other laws. Besides public safety, she said sanitation was an example of a problem that could also warrant action.
Washington solo practitioner Jeffrey Light, attorney for the protesters, acknowledged in court that regulations already in place would require the government to give written notice of a plan to close the park – in the absence of an emergency – and give counsel time to object in new court filings. He said that as long as the government made sure to notify the court and counsel, he was satisfied.
Boasberg said he planned to issue an order within the next 48 hours that memorialized statements made by counsel. In light of what was said, Light said after the hearing that he didn’t expect Boasberg to grant the preliminary injunction, which provides relief in the face of an imminent problem.
“It definitely was a victory for us,” Light said, adding that he was preparing to argue a pending motion to certify a class of all Occupy D.C. protesters – the lawsuit only covers two demonstrators at the moment, Brett Henke and Laura Potter – and take the case to trial.
Braswell declined to comment on today’s proceedings, except to say that the government “made its position clear” and intended to do what was stated in court.
The protesters have been fighting in court since Dec. 5 for their right to maintain the site at McPherson Square, claiming that any removal of their tents or other property would constitute a violation of their Fourth and Fifth Amendment rights.
Although much attention has been focused on the National Park Service’s recent announcement that it would begin enforcing a no-camping rule at the site starting yesterday, the lawsuit doesn’t challenge that law or the agency’s right to enforce it. Instead, the demonstrators argue that the tents are part of a protest protected by the First Amendment, and that police don’t have a right to move or remove them if the owners aren’t in violation of the no-camping rule or any other laws.
The protesters sued the Interior Department in early December following a Dec. 4 confrontation over the construction of a wooden shelter. Protesters feared police were preparing to move or take away tents en masse, and moved for a temporary restraining order the next day.
Boasberg denied an early request for a temporary restraining order, but brokered a deal in which the National Park Service agreed not to move any tents or property without first giving the court 24-hour notice, assuming there wasn’t any emergency.
At today’s hearing, Boasberg had attorneys on both sides tease out how regulations governing the National Park Services’ handling of demonstrations and property apply to Occupy D.C. Braswell argued that the protesters had not presented concrete evidence justifying their fear of tent removal, and objected to a discussion of hypothetical situations during a hearing on a preliminary injunction motion.
Light said that while he acknowledged that the government would have to give notice if it wanted to close the park and clear out property, he feared it would be minimal, like a one-day ad in a newspaper. Boasberg had Braswell confirm that the government would give broad notice, as it has during the course of the Occupy D.C. demonstration to date. Light also expressed concern with what he argued was ambiguity in Park Police guidelines on the handling of seized property, but Boasberg found that they were clear.
Relations between the protesters and Park Police have generally been positive since the demonstration began in October, but the National Park Service has faced growing political pressure this month to enforce the no-camping rule and clean up the site. Local officials expressed concern about sanitation, and Mayor Vincent Gray suggested merging the McPherson Square demonstrators with a similar protest housed several blocks over in Freedom Plaza.
During a Jan. 24 hearing before the House Oversight and Government Reform Committee, agency Director Jonathan Jarvis testified that protesters were sleeping at the site in violation of the no-camping rule, prompting Republican lawmakers to question why Park Police weren’t taking action. Jarvis said that the agency had discretion to enforce the rule, and that he was trying to strike a balance to protect the protesters’ First Amendment rights.
On Friday, the agency announced that it would begin enforcing the no-camping rule at noon on Jan. 30. As crowds gathered around the park at lunchtime yesterday to watch what seemed like an impending showdown, protesters geared up to defend their right to stay on the site. Park Police inspected the area, but did not make any arrests or issue citations.
Boasberg also heard arguments this morning from Dane Primerano, an Occupy D.C. protester who filed a complaint (PDF) in U.S. District Court last night alleging the National Park Service’s enforcement of a no-camping rule in the park was a violation of the First Amendment. Boasberg denied Primerano’s motion for a temporary restraining order, noting that the U.S. Supreme Court already held in a 1984 decision that the no-camping rule was constitutional.