D.C.’s Public-Camping Ban Dooms Occupy Suit

(CN) - Two Occupy protesters arrested for pitching their tent outside the offices of Merrill Lynch cannot sue the District of Columbia, the D.C. Circuit ruled.

Samuel Dukore and Kelly Canavan were members of the Occupy movement in Washington, D.C.

In February 2012, they were part of a group of about four dozen protesters who set up tents outside Merrill Lynch's office to "occupy" public space outside the wealth-management firm as a protest against financial inequality in the United States.

D.C. law requires the mayor's permission, however, to "set up, maintain, or establish any camp or any temporary place of abode in any tent" on public property.

Most of the protesters disassembled their tents when police threatened to arrest them, but Dukore and Canavan defied the officers' orders, reassembled their tent and continued their protest.

They were arrested for violating the ordinance, and released three to four hours later. The charges were dropped, but their tent was seized and never returned.

Dukore and Canavan then sued, claiming that their arrests violated their civil rights.

A federal judge ruled for the city, and the D.C. Circuit affirmed Wednesday.

"We hold that the arresting officers had probable cause to conclude that Dukore and Canavan had violated the temporary-abode regulation," Judge Patricia Ann Millett wrote for the three-judge panel.

Even though Dukore and Canavan had no sleeping materials with them in the tent, it was still reasonable for the officers to assume that they intended to stay in the tent through the night as it was a cold, February evening, the court ruled.

"Given that the Occupy Movement's animating purpose is to oppose economic injustice and poverty, and that the plaintiffs displayed that message openly on signs attached to their tent, a reasonable officer could conclude that enduring a deliberately spartan abode at the feet of Merrill Lynch was itself part of the protestors' message. Surely a Winnebago would have sent the wrong signal," Millett said.

The panel also found that the officers have qualified immunity on the protesters' claims they were arrested in retaliation for their protest.

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