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The Occupiers at McPherson Square and Freedom Plaza have gone a whole day without being kicked out, as the Park Service had warned might happen as soon as yesterday at noon. It’s a horrible feeling of uncertainty, not knowing when—-if at all—-a police officer might come along and seize your tent as evidence.
As the uneasy stalemate drags on outside, Occupy D.C.’s attorney Jeffrey Light has been fighting to buy them some more time. In early December, he got a judge to force the Park Police to issue 24 hours notice before commencing any enforcement, which is why the campers had as long as they did to prepare for yesterday’s non-action. This morning in a U.S. District Court hearing well-attended by press and occupiers alike, Light argued for a temporary restraining order against any property seizures, arguing that the rules for recovering property are too ambiguous for campers to reliably get their stuff back.
Judge James Boasberg didn’t buy that argument, responding that the relevant statues spell out pretty well how people are supposed to retrieve impounded property, and suggesting that the occupiers might want to put their names on their tents. Turning to the Department of the Interior, he asked attorney Marina Braswell: Is the Park Police planning to seize tents for any reason other than enforcing the rule against camping?
“Assuming that they’re not violating any other provision of the law, the answer is no,” Braswell answered. “There might be other reasons under a particular set of circumstances…that a tent might need to be taken.” She offered sanitation as one example.
There’s another way in which the Park Service could get the occupiers out: By closing the park entirely. Braswell said she “had no knowledge of any plan to close the park.” If the Park Service decided to do so, they’d have to provide notice and justification, and Light got Boasberg to agree to require that notice be served through official court channels rather than simply an ad in a local newspaper, which would technically be allowed. But if there were an “emergency,” Braswell made sure to clarify, the Park Service could close the park with no notice at all.
Was Braswell telegraphing the Park Service’s strategy by insisting on those contingencies? Perhaps. Whatever the feds decide to do, though, there will likely be another court argument about it.
Why, you might ask, is Light being so reactive and asking for piecemeal injunctions? Isn’t there some bigger Constitutional question here over whether camping qualifies as protected speech?
There isn’t—-or at least, it’s been settled already. The Supreme Court ruled that sleeping isn’t protected under the first amendment back in 1984, when activists camped in Lafayette Park to dramatize the problem of homelessness. In this morning’s hearing, a young fellow named Dale Primerano tried to challenge on the grounds that the federal government had the obligation to provide some area to sleep for protestors who otherwise couldn’t afford to stay in the District. But Boasberg threw that out as well, saying it was more of a policy matter for the Park Service to take up, not an issue for a court to decide.
Photo by Matt Dunn