Lawsuit Against City of San Diego Regarding Municipal Code 54.0110

Citizens Oversight (2011-11-16) Bryan Pease

This Page: https://copswiki.org/Common/M1202
More Info: Occupy San Diego, Police Dept Oversight

• See also: Encroachment Law, Occupy San Diego

Lawsuit Documents

• OccupySD_complaint_for_TRO.pdf Complaint for TRO
• OccupySD_memorandum_for_MPA_for_TRO.pdf: Memorandum for MPA for TRO
• Full Ruling

• (I seem to be missing a document here, an updated complaint).
• Doc_34_city_opp_filed_2012-01-25.pdf Doc 34 City Opposition filed 2012-01-25
• Doc_34-1_Cap._Mark_Jones_dec_filed_2012-02-25.pdf Doc 34-1 Cap. Mark Jones declaration filed 2012-02-25
• 11-cv-02675_reply_for_tro.pdf Response by Attorney Pease to City Docs 34 & 34-1

Temporary Restraining Order hearing on 2012-11-22

• Federal court hearing of the TRO (Temporary Restraining Order) regarding Municipal Code 54.0110. Judge Hayes heard the oral arguments at 2:30pm on Tuesday, Nov 22.
• Decision was reached on Dec 1. Judge DENIED TRO
• Attorney Bryan Pease could not attend in person because he just completed Lasik eye surgery. He attended by telephone but did not participate in the hearing.
• Attorney Todd Cardiff presented the arguments in favor of the restraining order.
  • The primary argument is that the law is vague and overly broad, and therefore subject to abuse. It outlaws anything on public property, even a coffee cup, and even if it is for free speech.
  • We are talking about the civic center plaza here, which is specifically set aside for free speech.
  • Quoted ACLU vs. City of Las Vegas
• Asst City Attorney Kristin Black presented the defense for the City.
  • Said TRO is not required, because there is no imminent harm. She said the protests have been continuing with out disruption since Oct 7 and there is no infringement of freedom of speech. If this was a big concern, then this case should have been brought sooner.
  • She said that the law was only used when the plaza was cleared, because they did not want the protestors setting up their tents and gear while the square was being cleared. Of course we know this statement was far from being accurate.
  • She said they have not "precluded anyone from putting anything down." Maybe, but I know once it is put down, the police will threaten arrest if you don't pick it up.
• Judge said the law was "narrowly drawn" which is nothing but unbelievable.
• Attorney Todd Cardiff said he will be preparing an additional declaration regarding the impossibility of siting a voter registration table in the public portion of the plaza.

Press Release

Occupy San Diego
National Lawyers Guild
Canvass for a Cause

For immediate release

Contact: Rachel Scoma, Esq. CFAC Programs Director, Rachel@canvassforacause.org, 760-271-0579

Occupy San Diego Files Injunction Claiming SDPD Violated Rights; Former City Attorney Agrees

Today, November 16, 2011, free speech attorneys, LGBT rights group Canvass for a Cause, and members of the National Lawyers Guild representing Occupy San Diego protesters filed a lawsuit against the City of San Diego and the San Diego Police Department in Federal Court seeking the court to issue a temporary restraining order (TRO) against the city and the SDPD.

“The SDPD are currently arbitrarily telling people who walk through the Civic Center that if they set down anything—their purse, their bag, a chair, or in one case even a tomato plant—, they will be arrested,” said Bryan Pease, a free speech attorney in San Diego. “The First Amendment guarantees the right to free speech and the right to peacefully assemble—municipal code section 54.010 and how it is being enforced by the SDPD is unconstitutional.”

Attorneys are hopeful of their eventual success, “Even if the court does not grant the TRO because they want to allow the city time to prep their arguments, this is a text book case of unconstitutional enforcement of a municipal code and I believe we will be successful at the preliminary injunction hearing,” said Pease. To help Occupy San Diego’s case, former San Diego City Attorney Michael Aguirre spoke in front of City Council publicly calling out the municipal code: “The provision being used by the SDPD to thwart public assembly was not intended to be so used and abridges the right of those involved to peacefully assemble. There are First Amendment rights being violated and legal research will bear it out."

Similar lawsuits are being filed all across the country. “This movement has become the impetus for a dynamic, constructive change forward and we are here to ensure that the rights of the occupiers are preserved and asserted. With the coordinated nationwide crackdown on Occupiers everywhere, many of the Occupations are seeking legal help from the National Lawyers Guild and other civil rights attorneys including at Occupy Wall Street ” said Hasmik Geghamyan, the San Diego Chapter Coordinator of the National Lawyers Guild, “Because there are local NLG chapters all across the county, at every Occupation, it is easy to share information, keep updated, and provide moral support for each other—what we’ve found is that a legal remedy in these situations is often the most effective.”

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