U.S. District Judge U.S. District Judge Lynn Winmill ruled Monday the Occupy Boise tent city is a “political protest of income inequality.” Since it is a preliminary injunction, the decision is not final. The final hearing for decision will be made on March 2nd.
The decision appears to block the state from removing tents on the site on 1st Amendment grounds, but upholds the state’s new ban on camping there. “Once a state law, or the state’s enforcement of that law, targets certain speech for restriction because of its content – especially when the target is political speech in a public forum – the law is presumptively unconstitutional,” Winmill said in his ruling.
Winmill found the new state law “only prohibits ‘sleeping’ and ‘camping’ on state grounds and does not purport to ban the maintenance of a symbolic tent city which could be staffed 24 hours a day and 7 days a week. Yet Gov. Otter’s letter announcing his signing of the legislation appears to require the removal of all tents, and that appears to be how the State Police are interpreting the law. Such action is simply not authorized by the statute.”
The GUARDIAN has it on good authority that since the new law is only an infraction–less than even a misdemeanor–it’s worth no more than a ticket (citation). If enough political pressure is brought forth, they might try to make a case for “trespassing,” but due to the way the Occupy folks have worked with the state prior to the legislature coming to town and passing a law AFTER the fact (ex post facto) don’t look for any confrontation soon.
The judge also said, “Because the reach of the State’s enforcement may exceed the grasp of the statute, this creates the appearance that the state is stretching to suppress the core political message of Occupy Boise – its tents – as presented in a public forum. These circumstances render the State’s enforcement policy of removing Occupy Boise’s tents presumptively invalid under the 1st Amendment.”
In describing Otter’s eviction order for Occupy Boise, Winmill wrote, “Governor Otter’s edict, and the stated intention of the State Police, is to remove Occupy Boise entirely – tents and all. … This creates the appearance that the State is stretching to shut down a political message – a tent city – presented in a public forum.”
The Idaho State Police is the lead agency for enforcement. Director G. Jerry Russell and Boise Chief Mike Masterson previously sent a letter to the Occupy group praising them for their conduct and past cooperation. Masterson previously told the GUARDIAN Boise PD would not participate in any action to seize property and Monday said his men would not play a primary role in any enforcement action.
Read the COURT ORDER
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