Judge Has No Patience for Hypothetical Occupy Suit

(CN) - Washington police have no plans to destroy tents that would be left in the park by evicted Occupy D.C. protesters, so the protesters cannot get an injunction, a federal judge ruled.

Two demonstrators asked the court to block the National Park Service from enforcing an anti-camping ordinance against them. Brett Henke and Laura Potter, who are participating in the round-the-clock occupation of McPherson Square in northwest Washington, D.C., claimed they feared imminent eviction from the square and unreasonable seizure, including the confiscation and destruction of their tents.

Henke first sued the government in December, after the U.S. Park Police closed off a portion of the square to remove a wooden structure. Henke, whose tent was located within the closed area of the square, had argued that the partial closing of the park and the potential seizure of his tent had violated his First and Fourth Amendment rights. He had asked the court to enjoin the park police from closing off sections of the park to the public and seizing protesters' personal property without probable cause.

During a December hearing, the government said it did not intend to evict Henke or other protesters from the square and claimed it would not enforce its anti-camping ordinance without 24-hour notice.

Henke amended his complaint in January to add Potter and a putative class of protesters. He sought class certification and a new injunction against eviction and unreasonable seizure.

On Jan. 27, the government announced 72 hours in advance that it intended to begin enforcing its anti-camping regulations in the park.

Though they agreed that the government had given them plenty of notice, Henke and Potter argued that the authorities may evict demonstrators who are not breaking the anti-camping rules and could unlawfully seize their property and destroy it. They also claimed that the government's decision to close the park was unconstitutional.

On Feb. 2, U.S. District Judge James Boasberg said that the protesters "have not shown any imminent actual injury that threatens their tents" and noted that "any future closing of the square remains too hypothetical for the court to address."

While protesters have the right to invoke the Fourth and Fifth Amendment against unreasonable searches and seizures, the government also has a legitimate interest in maintaining the parks for the public, the court found. The anti-camping regulations open the park to demonstrations, and simply forbid tent use.

According to the 16-page ruling, the protesters failed to prove that, even if confiscated, their property was likely to be destroyed. The National Park Service must keep impounded property for at least 60 days, which gives protesters the opportunity to reclaim it.

Protesters also failed to show that the agency has a policy of seizing, damaging or destroying property from law-abiding demonstrators. The court called the protesters' claims that the police had already damaged some of their belongings without adequate notice "murky" and their evidence "anecdotal."

Henke and Potter had also argued that the government may close the park to the public without proper notice, in violation of their due-process rights.

But the court rejected this hypothetical issue.

"Consistent with NPS's position thus far, at the hearing on this motion the government disavowed any present intent, absent an emergency, to close the square," Boasberg wrote. "NPS has thus neither taken a final agency action nor even indicated any intent to imminently do so. In the absence of any factual information indicating why such a decision might be made or how it would be carried out, it is impossible for this court to evaluate plaintiffs' claims, which are therefore presently unfit for review."

The government has already given demonstrators proper notice of its noncamping regulations, and it would likely do the same if it decides to close the park, the order states.

Unlike occupiers in Boston and Fort Myers who challenged the constitutionality of certain regulations, Boasberg noted that Henke and Potter questioned the legality of potential future agency action. The court cannot resolve a hypothetical dispute, he said.

After the Feb. 2 decision, police cleared most of the tents from McPherson Square. D.C. protesters have kept their movement going through "targeted occupations," small encampments designed to draw attention to a specific corporation or issue.

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