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The Letter and the Spirit- Occupy Tucson and the Law

by on Nov. 09, 2011, under Politics

Occupy Tucson has filed a Federal lawsuit against the City of Tucson:

…This action seeks declaratory and injunctive relief pursuant to 42 U.S.C. §§1983 and 1988; for injury to the First Amendment rights of individuals and organizations involved in lawful expressive activity in the City of Tucson, Arizona, and the 1st, 4th, 5th and 14th Amendments to the United States Constitution and under the Constitution of the State of Arizona.

This is a description of the organization as the plaintiff- there are individuals named as well, but a description of the group as defined in their own lawsuit might be useful for those who’ve been dismissive of Occupy Tucson as a load of filthy hippies. Those reactionary regressive types couldn’t be more wrong.

Plaintiff Occupy Tucson is an unincorporated political association that is opposed to excessive corporate power and influence in the American political system. Occupy Tucson (OT) was formed in the aftermath of the Occupy Wall Street movement in New York City and is part of a world-wide movement inspired by Occupy Wall Street. There are now similar occupations in more than 1,100 cities across the country and the world. In fact, a National Journal/United Technologies survey released on October 19 revealed that 59 percent of adults either completely agree or mostly agree with the protesters.1 Occupy Tucson is a directly democratic association and has been in existence only for a short period of time. OT established its “occupation” on October 15, 2011, at Armory Park, a public park located in downtown Tucson, Arizona.

A member of the group with 24 tickets, equating to $24,000 in fines, reports that this lawsuit against the city has been denied, as it seems there legal standards of notice were not met. He opined that this had more to do with paper arrests being not that big a deal. From Courthousenews.com:

  U.S. District Judge Cindy Jorgenson denied the group’s request for a temporary restraining order and a preliminary injunction late Tuesday, finding that the city had not been served and had not had a chance to respond to the charges.

From the Court’s denial of the TRO [link in previous quote]:

A Temporary Restraining Order (“TRO”) is unwarranted in this case. Although the record reflects that Plaintiffs’ counsel spoke with Defendant Michael Rankin about the plan to file the Complaint in this matter, it is devoid of any reasons why Defendants should not be given notice and an opportunity to respond to the allegations at issue. Plaintiffs activities began October 15, 2011.   On November 3, 2011, Plaintiffs were directed to leave Armory Park, and reestablished their activities at Viente De Agosto Park.Tucson Police Department (“TPD”) officers have cited protesters for violations of the Tucson City Code since Plaintiffs’ occupation commenced.  The ongoing activities of Plaintiffs and TPD’s response has remained unchanged. Plaintiffs filings with this Court fail to demonstrate a clear showing of likely success on the merits and likely irreparable injury. Plaintiffs’ counsel failed to certify in his affidavit why notice should not be given to Defendants or why it should not be required. Accordingly, Plaintiffs’ request for a TRO is DENIED.

Well, OK. I can see where being fined is not “irreparable injury.” It’s passive-aggressive on the part of the City, it’s ridiculous to levy fines against broke/strapped/unemployed persons that may as well be a gazillion dollars for all the financial capability even the employed protestors may have at their fingertips, but it’s not “irreparable.”

And I’ll give credit where credit is due: Every single cop I’ve met at Occupy Tucson, either at the park or on the marches, has been polite and solicitous to a fare-thee-well. The City of Tucson could have gone the Oakland/Phoenix/Brooklyn Bridge route and ordered the use of the riot gear, teargas and rubber bullets. I think they haven’t, not because of the moral bankruptcy of the practice, but because Tucson is fully humanist enough to rise up in rage if the City did martyr our own version of Scott Olsen, and it’s easier and less obtrusive and politically expedient to simply fine Occupy Tucson out of existence.

The crux of the matter: The City of Tucson has chosen an approach that follows the letter of the law. They have chosen to follow this letter in such a way as to stifle the expression of free speech in the city, and hobble the First Amendment rights of Americans. If Federal law trumps state law in matters specifically outlined in the Constitution of the United States of America, then the City of Tucson powers-that-be have failed in the loftier, and more noble, spirit of the law.

Americans have the right to free speech, as outlined in the First Amendment. This country grew out of tumult and chaos, but from that chaos came  growth into the the America we love. If the  City is choosing the security of public safety and the maintenance of order over the Constitution-codified right of freedom of expression, then they’re missing the forest for the trees. Benjamin Franklin said it best:

Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.
Benjamin Franklin, Historical Review of Pennsylvania, 1759
US author, diplomat, inventor, physicist, politician, & printer (1706 – 1790)

I have every hope that America, and Americans, really are strong enough to withstand the slings and arrows that come from challenging the status quo. The longer it takes to do so, the more we allow the gaming of the system, the more strength we as a nation will need.

Update: I’d like to thank the posters who have clarified my understanding of the ruling. To paraphrase Dr. McCoy, I’m an English teacher, not a lawyer, Jim! :)

This entry was posted on Wednesday, November 9th, 2011 at 4:56 pm and is filed under Politics. Tags for this post: , , , , , . You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.

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  • JD

    I am a old man, watched the 1960′s anti-war movement, civil rights movement, these were grass roots movements, not neat, not ogranized, not well funded by billionaires, they won, they ended the vietnam war, drove the angry segregationists from the democratic party to the republican party, which is where the term dixiecrat comes from! The tea party/tea publican party was never a grass roots movement, to neat, to well financed by billionaires, directed and organzied by a GOP operative named Dick Armey, totally a sham much as the sham candidate Russell Pearce tried to run to defeat his opponet, it is fizzling much as Pearces feeble attempt at a dishonest attempt to keep his position fizzled, so will the tea party be written off by historians as a fraud, created and financed by the right wing elite! During the 1960′s one had Kent State college students shot, murdered, one saw many riots, police actions, many civil disobediance events, this is grass roots movments, any alleged grass roots movement which has enough money to pay for one day rental at $10,000 for space to dress up in cute colonial outfits, provide porta poties, hire clean up crews post events, is not a grass roots organization but a sham!

    • terquee

      Those “1960s protests” sure did a bang-up job of ending the war…in 1975. Way to go, folks. Strange to hear you lay the dixiecrats at the feet of the protestors, too. You’re also the first person I’ve heard who thinks it’s a bad thing that Tea Party protestors cleaned up after themselves. Keep fighting for that utopia where a felony record is considered proof of civic pride. You’re making good progress.

      • leftfield

        “Those “1960s protests” sure did a bang-up job of ending the war…in 1975.”

        You are certainly correct in mentioning that the regime rulers were non-responsive to peaceful protest against the American invasion of Vietnam.  It had to go all the way to bombings and other actions that raised the specter of a nation coming apart.  I am hoping against hope that someone, somewhere has learned a lesson about how peaceful protest can evolve when it is ignored.

        • terquee

          Yeah, it must have been those bombings that did the trick. Threats of violence sure are handy. If only we hadn’t forced Timothy McVeigh’s hand. If it happens again, we’ll know that you’ll be shrugging your shoulders and saying “Them folks had it coming.” Some may suspect you of plotting it, but it will be hard to know for sure since any plotters will be saying the exact same things as you.

      • JD

        I was a in the US Marines when Siagon fell in 1975 as well as Cambodia fell to teh communist’s, one can play with words, when troop numbers were withdrawn from Vietnam, if one wishes to feel that the 1960′s anti-war movement had no effect, or if one wishes to feel the few US marines at the US embassy in Siagon was the last date of troop withdrawl, exit of american troops from vietnam feel free! The good thing is you get to have your opinion, but historians wrote this era, the cyber peanut gallery disappears in about 48 hours or so after you post, and no one cares what we say!:-) Much as historians give Nixon credit for ending the Vietnam war, some might not agree but the good thing about history its written by historians us cyber space peanut gallery residents don’t write it!:-) As to grass root movements historians will write what the tea party was or was not, as well as this 99% movement not you or I, how funny is that, we will not even be a footnote in the historical writings! Its already widely written who financed tea party the billionaire right wing Koch brothers, already written whose brain child idea it was Dick Armey…..a well known GOP operative/lobbyist! I don’t lay claim to anything but merely am a peanut gallery observer, same as you!

        • terquee

          You seem unaware that many early Tea Party supporters are angry that it was co-opted by the Republican establishment and are staunch supporters of the Occupy movement.

          • Marsha

            The magic of the Occupy Movement is that the 99% also include Tea Partiers, Republicans, Democrats, Independents, Greens, Native Americans and every other political iteration you can name.  We all are the 99% (well, except for a very few!)  That’s why we will prevail!

  • Tip O’Neill

    You misunderstand the ruling. The Judge did not rule that the plaintiff’s rights have not been violated or that the ticketing is unconstitutional.
    She simply denied to issue a restraining order since there is no “irreparable harm”  in letting the case proceed normally thru the legal system.

    As to whether the City Council is wise in taking on the expense of a legal battle to suppress their citizens right to peaceful assembly – there I agree they are being dumb as stumps.

    Its a fight we don’t need – and don’t need to pay for. 

  • Dave

    The Occupy folks are going to lose this argument, in Tucson and everywhere else. It is well-settled law that cities can regulate the time, place, and manner of protests such as these. 
    Furthermore, other groups of citizens have long-standing reservations to use these parks on dates that are fast approaching. It seems the Occupiers think their right to assemble in public places is superior to everyone else’s. But it isn’t. Your turn is over, kids; time to move out and let others use the parks.
     
     
     

    • Jay

      You’re misrepresenting what is settled law. Time Place and Manner restrictions are permitted if and only if they are narrowly tailored to serve a significant government interest. According to the 9th Circuit as recently as 2009, one thing that makes a measure not narrowly tailored is if it provides “unbridled discretion” to the government in how to enforce the law. Based on the complaint, it looks like the claim that the protesters are pushing is that the cities parks hours ordinance provides too much discretion and is therefore not narrowly tailored enough. We’ll see if that’s the case as the lawsuit progresses, but it’s far from as straightforward a case as you’ve painted it in your comment.

      • Dave

        The government interest here is preserving the parks for the enjoyment of ALL citizens! As I understand your argument about “discretion,” Tucson’s only transgression has been to cut the Occupiers too much slack so far. Glad we agree on that!
        And there’s still the moral matter of hogging the parks and abusing them. Go occupy a bank if you have a problem with banks.

        • Reality

          Better yet, go occupy a job if you are broke; go occupy the Federal Building grounds if you have a problem with politicians…..but both of those things are too hard, it is much easier to camp out in a park and draw on cardboard….that is the way to bring about reform. What a pityful movement.

          • tunkashila

            If there were jobs to be occupied, they wouldn’t be camping out.  Whatever your version of reality is, it’s about as pitiful as your spelling…

    • Marsha

      Thank you for calling this 65 year old (and 1%) a “kid”.  The right to regulate parks relates to health and safety, none of which is a problem with OT.  And, quite frankly, the right to free speech, and the right to assemble trump those regulations.  Homeland Security has  created an era of fear in which the Public Square has been closed.  The Occupiers are respectful of  people, place, property, and prior permits.  We were willing to change our Occupation in light of permits for Armory Park, but the City Manager decided to evict us in the middle of the night.  No need for that lack of civility.  All that needed was to discuss, talk, and decide.  OT shall prevail!!!

  • fraser007

    You big bad left wingers just need to pay some park fines. Guess you are too good for that! How can some fines stop your revolution! Love the whining. Keep it up.

    • leftfield

      Still bitter about the Pearce thing, fraser?   I guess Russell has now joined the millions of people “too lazy to get a job” and “looking for a handout”. 

      • fraser007

        Leftfield:
        I think you have misread the Pearce thing. Its an internal problem among the Mormons. Shocking isnt it. One side in the Church wants to boot the illegals. The other wants them so they can convert them. The same thing could also be said for the Catholic Church.
        Funny how the guy running against Pearce is also a Mormon.

        • JD

          Widsom is sometime’s a gift of old age, and other times merely a learning experience, the Mormon church is not famous for their tolerance of non-white folks, in fact up till 1978…they banned blacks as having the mark of cain on them, but one cannot legislate away xenophobia, one can do as Jesus did though shame some to be convicted of their very own souls as he did with the Pharisee’s and the adulteress parable, who knows what is in some Mormons hearts, only they do!:-)

  • JD

    It must be truly disappointing to be a republican right now, a lot of pent up anger, confusion, disorientation, the god father of SB 1070 has went down in flames, a moderate republican who is not a advocate of SB 1070 defeated him in his own home ground, in Ohio a former fox & friends icon now GOP governor had his hat handed to  him in a defeat of his anti-working class move to ban unions, in Maine a GOP governor also was told he over stepped his power to do away with same day voter registration, and in a deep southern state the GOP lost a bid to say a raped woman or victim of inceest can be forced to bear the child of her abuser! There is right wing and there is “extreme right wing” much as their is left wing and “extreme left wing”, and then there is moderate that middle ground where most of us commons sense americans live!

    • http://drudge terese dudas

      Don’t worry about us, JD, we’ll survive Pearce’s ouster.  Ain’t it strange, though, that both the opponents were Mormon’s?  I suppose the better Mormon won.  As for SB1070, it could come to pass that the bill might be rewritten to reflect the Alabama model – much more harsh & encompassing regarding illegal immigration.  Just say’n, you understand.

      • JD

        Now that is a funny one, do you really believe in that devout right wing heart that I am worried about the right wing?:-) I seem to remember Alabama is having the same issue as Arizona, federal courts have ordered their laws to be stayed till a federal court review! I often wonder is it a right wing flaw or defect that when one went to school they never learned immigration/treaties are the domain of federal government!:-) I don’t worry about the right wing, seems to me they are their own worst enemies, all we democrats got to do is sit back and watch the circus its very entertaining!:-)

  • JD

    If one watches politics as I do there is the extreme right, the right “the moderate which can exist in either party” the extreme left and the left! I am a moderate democrat, pro-2nd amendment, don’t believe in abortion, would never agree to it, but in same vein I don’t believe government should out law it, even though I feel personally/morally its murder, feel its between the woman and god, she will have to answer for it not I, one can call that view anything one wishes I really don’t care! As to the poor I don’t follow the right wing view they are lazy, shiftless, deserving of their poverty, nor do I blame the unemployed for being unemployed, lazy & shiftless, nor do I feel the uninsured sick deserve to die or be denied medical care, no I leave that view to those on the far extreme right wing, I would hope the moderates on the right wing also could look deep into their souls and realize that view is a wide and easy path to the lake of fire! Same with the elderly, I don’t believe they should be worked till they drop, constantly raising the retirement age, hoping they die off and never draw their social security is the ideology of the far right wing, being one of them old retiree’s cannot see the sense of anyone being so foolish as to think if they live long enough they one day will be worn out and have earned to spend their last few years in a comfortable retirement and not be worked to death or cast into the streets as once was the way the elderly ended if they had no safety net! One can be arrogant, believe one will never loose a job, will never face a foreclosure, bankrupting illness or that old age will never come, but I hate to bust you folks living in a delusional state of bliss all these things are possible, but for the grace of god there go I!

  • JD

    Poor ole Russell Pearce was getting his farewell interview on fox & friends last night, no doubt its a confusing thing at fox & friends to realize all their propaganda, all their tilting of the news failed him!:-)

  • JD

    During the 1960′s a well known today protester who was beaten by southern cops, got arrested is a US elected official at the federal level, he is often featured on news shows, guess his arrest record for civil disobedience did not hinder his life any, civil disobedience is a sign of true grass roots movements……the tea party was cute in their cute colonial outfits, playing like the tea party of a bygone era, does anyone know that our ancestors who threw the tea into Boston harbor heralded in our national drink of “Coffee” not tea?:-) If one  is a true patriot for america it ought to be named the “Coffee party”!:-) I think them royalist’s/monarch advocates are the tea drinkers not us coffee drinking americans!:-)

  • JD

    The problem with the extreme right wing or the extreme left wing is they both think negotiation is a dirty word, nasty thing! Fact is both major political parties has these wings, now presently the GOP has lost control of their extreme right wing, in 2008 we democrats gained control or our extreme left wing members, we did not try and kick them out, negotiation is our by word, they don’t get all they want, and seems to be working since democrats are not divided and destroying one another as the GOP is today, Russell Pearce was really defeated by his own party…..Brewer is a Romney style politician she will go the  way the wind is blowing, and my guess is being on her final term she either has no future political ambitions therefore will not care who dislikes her actions or if she has future ambitions she had best figure out which way the republican wind is blowing in Arizona!:-)

    • terquee

      “in 2008 we democrats gained control or our extreme left wing members”

      If you did, it didn’t take long to lose it again. They’re saying worse things about Obama than mainstream Republicans are, and any reasonable person saw that coming.

      “we did not try and kick them out”

      You should. They’re trashing your house. Don’t be afraid to stand up to them.

      “Russell Pearce was really defeated by his own party”

      And yet you say they’ve lost control of their extreme wing. Make up your mind. 

      • JD

        You know delusions of grandeur are so funny, those who suffer from them cannot see they are delusional! I have never said “all” extreme left wing are kow towing to the moderates in the democratic party, the difference is we democrats disagree, argue, even get a bit upset with each other, but one thing we don’t do is kick out someone merely for not agreeing with us! Now some did leave of their own accord in 1960′s, them now famous dixiecrats, but hey they chose to leave!;-) Logic is hard for a die hard right winger to follow, who won the election against Pearce? Seems simple logic a fellow republican, a moderate, who defeated him, his own party, now did Pearce loose his fanatical extreme right wing supporters no, they were out in full force, getting signatures for the sham Hispanic candidate, logic is to me this district is a GOP dominated district and the Pearce defeat was caused due to a GOP civil war!:-) You call it anyway that trips your extreme right wing trigger and I will merely be a democratic observer!:-)

        • terquee

          On second thought I do see your point in a coexistence sense. Personally I’d rather the fringes not be so easily tolerated by either side, so while I understand your point better I disagree that it is better to be so accomodating to them.

  • JD

    One does not see a primary opponet yet to President Obama now when and if this occurs one might say the democratic party is in disarray, sorry to disappoint the right wing geniuses, but the democratic party has never been a lock step party, we got plenty of disagreement but so far we agree on one thing, anything but a republcian!:-)

  • JD

    I do love the right wing psychics with their magical crystal balls predicting how courts will rule “pre-hearing” how they can predict elections pre-election night! I guess the funniest part to me is if these prophets are so good they ought to pick the winning lotter numbers and prove to us all how good they are!;-) I think I will wait and see post court hearings, rulings, post election night after votes have been tallied to make my comments on who will win! I got no magical crystal ball and surely was never gifted with psychic prophecy skills!;-)

  • Marsha

    The Tucson police have been civil.  But give credit, also, to the Occupiers who are doing everything – and I mean everything – to be civil, respectful, honest, transparent and brave in their dealings with the City of Tucson and the TPD.  I am honored to have them represent me as just one of the 99%.

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