Occupy Minneapolis Gets a Split Decision

MINNEAPOLIS (CN) - A federal judge ordered Hennepin County to allow Occupy Minneapolis protesters to put up signs or posters in the Hennepin County Government Center plaza. But the judge allowed the county to enforce other "unwritten policies," prohibiting protesters from sleeping and storing personal items on the plaza, and from marking it up with chalk.

On the day before Thanksgiving, U.S. District Judge Richard Kyle granted only part of the protesters' request for a temporary restraining order.

Kyle wrote that "the parties are going to have to 'learn to live' with one another."

He appointed Magistrate Judge Tony N. Leung to mediate an "expedited settlement conference."

Mediation has not yet been scheduled, but Occupy Minneapolis' attorney Alain Baudry, with Maslon, Edelman, Borman & Brand, told Courthouse News Service in an email exchange that because Occupy Minneapolis "intends to maintain a long term protest, there is good reason for OccupyMpls and [Hennepin County] to maintain a respectful dialogue in which each parties' rights can be respected to the greatest degree possible."

Baudry said he was pleased with the ruling to enjoin Hennepin County's restriction on signs.

"It will help the demonstrators convey their message of economic inequality. Without it, the demonstrators would have had difficulty maintaining a 24/7 presence in the bitter cold as they would have been stuck holding signs all day, and even those would have been subject to confiscation anytime one of them was put down (left unattended) to allow a person to take a restroom break."

But Kyle's ruling could be a blow to Occupy Minneapolis in the long run, given Minnesota's unforgiving winters and protesters' lack of shelter and access to electricity.

During a Nov. 23 hearing, Occupy's attorney cited Clark v Community for Creative Non-violence to convey how Occupy Minneapolis is utilizing sleeping as a symbolic expression.

(In that 1984 ruling, the U.S. Supreme Court found that the National Park Service did not violate protesters' First Amendment rights by refusing to let protesters sleep in tents on the National Mall and in Lafayette Park during a weeklong demonstration to raise awareness about homelessness. The court ruled 7-2, finding that the National Park Service's ban on sleeping on the Mall and in the park was content-neutral, and that protesters had other avenues of expression. Justice Thurgood Marshall wrote in dissent.)

In the present case, attorney Timothy Griffin, with Leonard, Street and Deinard, argued that in Clark, the Supreme Court ruled that sleeping on the National Mall and Lafayette Park was more facilitative than expressive. But unlike those protesters, Occupy Minneapolis protesters live somewhere else and have no intent to provide shelter for the homeless on the plaza.

Baudry told Courthouse News: "Sleeping by the Occupy Minneapolis demonstrators is expressive conduct that seeks to draw attention to the staggering economic inequality and foreclosure crisis sweeping the country. That is also the case when protesters use tent-like signs to send a message of political protest, without using the tent for purposes of shelter or sleeping. Thus, any sleeping by Occupy Minneapolis is expressive conduct entitled to First Amendment protection. Moreover, in Clark, the Supreme Court noted that the Park Service provided alternative places for protesters to sleep. Here, in contrast, [Hennepin County] has sought to ban all sleeping on any county property, and hence its ban is not narrowly tailored to meet a compelling government interest."

Although Kyle agreed that there may be First Amendment problems with the ban on sleeping in the plaza, he found that "expressive activity may be subject to reasonable time, place, and manner restrictions even in a traditional public forum such as a park or sidewalk."

In response to Hennepin County's concern with safety and the weather, Occupy Minneapolis said it was willing to sign liability waivers. However Assistant County Attorney Daniel Rogan said the county has "no interest" in liability waivers.

Outside of the St. Paul Federal Courthouse, plaintiff Samuel Richards said, "It just seems like another bureaucratic move. We've seen a few other instances like that before. They've often cited public safety for reasons why they don't want us on the plaza. I feel like not allowing us to sign a liability waiver is hypocritical."

The county submitted evidence to the contrary.

In a declaration submitted to the court, Hennepin County Security Manager Kirk Simmons said that at about 1 a.m. on Nov. 22, "while performing a welfare check, a security officer needed to call for an ambulance because an individual associated with the Occupy Mpls. group who was on the Plaza appeared to be suffering from hypothermia. The individual was taken by ambulance to the Hennepin County Medical Center."

Deputy County Administrator David Hough added in a declaration that since Occupy Minneapolis began, Hennepin County has paid "in excess of $350,000" for increased security.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit