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.
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.
