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Federal Judge To Hear Occupy San Diego Suit

A federal judge Tuesday, is scheduled to hear a lawsuit filed against the City of San Diego and the San Diego Police Department, on behalf of Occupy San Diego protesters.

Protesters rally at an Occupy San Diego meeting in Civic Centre Plaza on Nov. 16, 2011.
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Above: Protesters rally at an Occupy San Diego meeting in Civic Centre Plaza on Nov. 16, 2011.

The protesters' attorneys are seeking a temporary restraining order. The suit focuses on a city ordinance the protesters say is unconstitutionally vague.

The anti-Wall Street demonstrators believe law enforcement officials are using the ordinance as a way to keep them from re-occupying the Civic Center Plaza in Downtown San Diego, where dozens have been arrested since they began their encampment Oct. 7th.

The ordinance bans unauthorized encroachment. The protesters have been told that they can demonstrate any time of day, just as long as there are no signs they plan to remain indefinitely at the plaza.

Protesters say they've been prevented from setting up tables and chairs. Police also ordered them to take down an American flag.

"It violates protestors First Amendment Rights. They shouldn't be told they have to carry everything and that if they set anything down they're going to get arrested. That's not something that's being told to anyone else in the city," said attorney Brian Pease.

Pease believes the ordinance is being misapplied.

In fact, the ordinance was initially intended to clear dumpsters out of alley-ways and public property.

San Diego Municipal Code section 54.0110 reads as follows:

"It is unlawful for any person to erect, place, allow to remain, construct, establish, plant, or maintain any vegetation or object on any public street, alley, sidewalk, highway, or other public property or public right-of-way, except as otherwise provided by this Code."

According to the court documents, San Diego City Attorney Jan Goldsmith calls the issuance of a temporary restraining order a "an extraordinary remedy."

Goldsmith states the plaintiffs are free to exercise their free speech right at the Civic Center, but they can't live there. He adds, the ordinance is meant to protect public health, safety and welfare.

"To offer people to occupy, camp or live, for an undetermined amount of time would be totally inimical to these interest," said Goldsmith.

The plaintiff in the suit, John Kenney, is also on his 15th day of a hunger strike.

Kenney wants the San Diego City Council take action on Occupy San Diego's proposed resolution declaring that city leaders support the protest.

Other cities such as San Francisco and Los Angeles have passed resolutions in support of the movement. The Los Angeles City Council is in the works of striking a deal with the Occupy demonstrators that may include an offer of 10,000 square feet of office space.

Comments

Avatar for user 'Satariel'

Satariel | November 23, 2011 at 9:17 a.m. ― 3 years ago

Why is the judge wasting time on these clowns?

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Avatar for user 'Satariel'

Satariel | November 23, 2011 at 9:21 a.m. ― 3 years ago

I cannot legally set up a tent on the sidewalk in front of my house and sleep there, I cannot set up tables and a canopy and make a permanent area for me to occupy. Why do these people think they can do this on any public property? There are laws in place, and for good reason. Since when did protesting mean setting up filthy camps and sleeping somewhere? If they want to protest they can do so legally. Go there and protest. They don't have a constitutionally protected right to camp on any public property they want for as long as they want. I can't even go camping at the beach! Why would they think they can camp on the sidewalks or plazas that people walk around on every day? Infantile.

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Avatar for user 'Oxenfree76'

Oxenfree76 | November 23, 2011 at 12:02 p.m. ― 3 years ago

Satariel, the camps were specifically purposed to be protests. They weren't camping just for the sake of camping. One aspect of this protest was permanence or semi-permanence. Orange County's City Council deemed that tents were a form of speech, especially in light of the foreclosure crisis which is leaving some former homeowners on the street. Mayor Sanders and the San Diego Police had a choice to make and that was either enforce local camping ordinances or protect possible speech. They chose to pursue local camping ordinances over protecting the Constitutionally guaranteed right of assembly.

(http://boingboing.net/2011/10/27/orange-county-city-council-unanimous-occupy-tents-are-a-form-of-speech.html)

Also, when the police broke up the encampment, they kept protesters on a bus for between four and eight hours. From the 2 A.M. early morning raid until the middle of the day (up to eight hours later), protesters were kept on a bus and instructed to urinate and defecate on the bus. The Civic Center Plaza that day was ringed in police to keep protesters from entering. The Sheriff's office apologized for the conditions on the bus, but the intimidation had already been done: people were not willing to face dozens of police officers and risk inhumane conditions to exercise their rights. A restraining order would support protesters' rights to speak without this intimidation.

(http://www.sdcitybeat.com/sandiego/blog-594-sheriff-promises-review-of-occupy-san-diego-arrests.html)

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Avatar for user 'Oxenfree76'

Oxenfree76 | November 23, 2011 at 12:09 p.m. ― 3 years ago

Right now there are dozens of police stationed around Civic Center Plaza, guarding a few protesters and making sure they don't set up a table or chair.

This is all in the shadow of a building two blocks away that boldly displays a sign that reads "Merrill Lynch" in six-foot-lettering. Merrill Lynch, before the collapse and before they were purchased by Bank of America, had faced several counts of and had been found guilty multiple times of fraud. No police are surrounding this building.

To summarize:
Thirty protesters in a concrete plaza warrants 25-30 police.
Repeat felony fraud which may have extracted millions or billions from the economy doesn't warrant even one officer or justice department official reviewing emails or files. None.

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Avatar for user 'Satariel'

Satariel | November 23, 2011 at 12:26 p.m. ― 3 years ago

I do not think the constitution protects our right to protest in whatever manner we deem to be a protest. What if I want to protest by setting police cars on fire? Then will that suddenly be constitutionally protected protest?

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Avatar for user 'Satariel'

Satariel | November 23, 2011 at 12:28 p.m. ― 3 years ago

Speech comes from our mouths, speech is not setting up tents and camping.

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Avatar for user 'Dialectrician'

Dialectrician | November 23, 2011 at 3:54 p.m. ― 3 years ago

@Satariel, please read about Hoovervilles (helpful link: http://en.wikipedia.org/wiki/Hooverville ), in answer to your question "Since when did protesting mean setting up filthy camps and sleeping somewhere?" There is a strong historical precedent, which the Occupy movement emulates. And I'm sure you'd rather see vinyl dome-tents than shanties built of cardboard and rubble.

In response to your statement "If they want to protest they can do so legally." -- Might I suggest that this is precisely why a judge is "wasting time" on this matter, though apparently you don't want that to happen either. There is a legitimate cause to question what constitutes the freedom of speech, and now both sides will have the opportunity to argue that case. Also important, however, is the right of the people to peaceably assemble, and to petition the government for a redress of grievances. "Occupy" is all of the above, and it is all covered in the same First Amendment.

On the issue of whether "the constitution protects our right to protest in whatever manner we deem to be a protest", again, you don't have the weight of precedent behind you here. The Supreme Court has generally favored an interpretation of the First Amendment that permits anything that is not otherwise dangerous or harmful to others or to property, and does not deny others their rights. There is a well known statement that the freedom of speech does not make you free to "shout 'fire' in a crowded movie theater", which is to say, you can't exercise speech that poses a direct and immediate threat to the lives or rights of others. So the current legal challenge essentially asks for the "Occupy" actions to be upheld as legal in that context. I personally hope they prevail, because I see limitations on speech and demonstration, which otherwise cause no harm, to be inherently dangerous to our society and civil liberties.

The simple fact is that "Occupy" do no harm, or at least nothing significant enough to warrant denying them an inalienable right. Their presence might be an eyesore to you, and might frustrate you, and that *is* one of the messages they are trying to send. They are frustrated, and given the current socio-political climate they have a vastly diminished role in the social dialog, compared to the "1%" they're challenging, who can afford to spend profligately to influence media. The "99%ers" don't have money, and can't buy media or political access, but they can put their "bodies on the gears", as Mario Savio described this kind of protest at UC Berkely back in 1964. (Helpful link: http://en.wikipedia.org/wiki/Mario_Sa... )

Thanks for participating in the dialog. I hope you'll see that that is what "Occupy" are doing, also.

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Avatar for user 'Oxenfree76'

Oxenfree76 | November 23, 2011 at 4:04 p.m. ― 3 years ago

"Speech comes from our mouths, speech is not setting up tents and camping."

Wow. Let this stand as the opposition's best argument in defense of fraud, crashing the economy, and destroying billions of dollars of American wealth: speech comes from our mouths.

Just. Wow.

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