Judge to decide within 48 hours whether Occupy Augusta vigil may continue

By Judy Harrison, BDN Staff
Posted Dec. 05, 2011, at 5:24 a.m.

BANGOR, Maine — Members of Occupy Augusta will know within 48 hours whether they will be able to camp legally overnight in Capitol Park to protest corporate influence on government.

U.S. District Judge Nancy Torresen said Monday at the end of a 90-minute hearing that she would issue a decision by Tuesday or Wednesday on a motion that would allow the Occupy Augusta vigil to continue in the park across from the State House without a permit.

About a dozen supporters of James Freeman of Verona Island and Diane Messer of Liberty attended the hearing. On Nov. 28, the two veteran protesters sued Public Safety Commissioner John E. Morris, who is the supervisor of Russell Gauvin, chief of the Capitol Police, in federal court in Bangor. The park, State House, Blaine House and other state-owned property are protected by the Capitol Police.

Freeman, Messer and seven others were arrested Nov. 27 in a protest at the Blaine House. Their bail conditions prevent them from being in the park, at the Blaine House and/or the State House. They are scheduled to be arraigned Jan. 18 in Augusta District Court on criminal trespass charges. Freeman said after Monday’s hearing that he and other defendants would seek jury trials.

The lawsuit alleged that requiring protesters to obtain a permit to continue their vigil in Capitol Park violates their First Amendment right to “expressive conduct.”

In the complaint, Freeman and Messer’s attorney, Lynne Williams of Bar Harbor, said the rules governing use of Capitol Park are unconstitutional because they fail to distinguish “between large groups engaging in First Amendment activities and small groups, or even a lone speaker” and they give too much discretion “to the administrative decision maker regarding whether to grant a permit and what the time frame for making that decision must be.”

Assistant Attorney General Paul Stern, who on Monday represented Morris, told Torresen the park’s 10 p.m. closing time and no-camping rule both are established practices and do not violate the First Amendment rights of Freeman, Messer or Occupy Augusta. Stern said the Capitol Police have been patient with the protesters and allowed them to stay since Oct. 15 without a permit.

Freeman testified Monday that a tepee provided by the Penobscot Nation and a large winterized tent are the only tents remaining in the park. There also are four small tarp-covered, tepeelike structures being used for storage, he told the judge. He said that a wood fire in a mesh-enclosed fire pit off the ground had been used in the tepee. He also said that campers had not damaged the property.

In answer to a question from the judge, Gauvin said that since he took the job in 2006, just three permits have been denied out of the 300 or so that have been issued. Two were denied over concerns the events would damage the turf and a third was denied because another organization had applied for and already been issued a permit for the same time and date.

“If someone or a group is going to take up space on state property, they need a permit,” he testified. “I don’t get into what their messages are.”

Torresen’s questions focused on the rules that govern the park, how they are disseminated to users and how Gauvin exercises his discretion in deciding to which groups to issue permits.

She could rule as federal judges have in Occupy suits in other parts of the country — uphold the group’s First Amendment right to demonstrate in a public space but prohibit overnight camping and order the group to apply for the proper permit.

“Their position is that the First Amendment allows them to live in that park forever,” Stern said at an impromptu press conference outside the Margaret Chase Smith Federal Building. “They have no case law to support that.”

Freeman called Monday’s event “a big to-do about nothing.”

“We’re camping in a park,” he said after the hearing. “We’re part of what has become an international movement. We don’t know how long we’ll be there as of right now.”

The day the lawsuit was filed, Torresen brokered an agreement that allowed the protest to continue when the park is open to the public until her order on the motion for a temporary restraining order and preliminary injunction is issued. In the standstill agreement, protesters agreed not to move any tents back into the park or to have any open fires, propane heaters or other incendiary devices in the park. The police agreed not to ask the group to apply for a permit until the judge’s order has been issued.

To view the reply brief for the state in the Occupy lawsuit, click here.

http://bangordailynews.com/2011/12/05/news/augusta/judge-to-decide-of-occupy-augusta-can-stay-in-park/ printed on September 17, 2014