It’s been nearly eight months since the last of the Occupy D.C. protesters cleared out of public parks around downtown Washington, but they scored a victory yesterday in federal court.
U.S. District Judge James Boasberg denied (PDF) the U.S. Department of Interior’s motion to dismiss, finding that an Occupy D.C. protester could go ahead with a lawsuit over the removal and destruction of what he claimed was protest-related property by U.S. Park Police.
Boasberg found that that the plaintiff, David Bloem, could pursue what’s known as a Bivens claim, which allows private individuals to sue federal employees for constitutional violations. The judge also rejected the Interior Department’s argument that the defendants should be entitled to immunity.
Bloem’s attorney, Washington solo practitioner Jeffrey Light, said today that he was pleased with the ruling and thought that it clarified that protesters had a right to go to court to not only defend their speech, but also to protect property related to those speech activities. Light said his next steps include identifying the U.S. Park Police employees involved.
Representatives of the Interior Department and National Park Service could not immediately be reached for comment.
Occupy D.C. protesters set up tents in downtown parks beginning in October 2011 as part of a national grassroots movement. Several protesters filed civil claims against law enforcement agencies over what they alleged were improper arrests or unlawful seizure of their property.
Bloem claimed that Park Police violated his First, Fourth and Fifth Amendment rights. When police seized property from the Occupy D.C. site at McPherson Square as part of its enforcement of a no-camping regulation, Bloem alleged that they took his property and destroyed it before he had a chance to claim it.
Boasberg, over the federal government’s challenge, found that Bloem could claim that the entire Occupy D.C. site at McPherson Square was “expressive conduct” protected by the First Amendment. By accusing police of seizing items that were part of that speech - as opposed to items that were just abandoned or a public nuisance - and then destroyed them without offering Bloem due process, Boasberg found that Bloem had met his burden at this stage of the case.
The defendants also argued that even if Bloem could make a Bivens claim, they should still be protected by qualified immunity. Boasberg found that because a ruling on immunity would depend on a more substantive finding on how a reasonable officer might have viewed the property at issue - as expressive conduct versus as contraband or a public nuisance - it was too early to decide that issue.
A scheduling conference is scheduled for March 5.