Constitution
U.S. Judge Rules Occupy Protest Is Legal, Tents Are Symbolic Statement
February 27, 2012 
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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Comments & Discussion
Comments are closed for this post.
Feb 27, 2012, 3:27 pm
What happens when the grass starts growing and needs to be watered? Can’t the state ask them to vacate for routine watering and mowing?
Feb 27, 2012, 3:59 pm
If the judge is saying the people but not the tents and other detritus are what the statute covers, can what those folks leave behind be considered “littering” under other existing law? Could its removal then be lawfully ordered?
Just wondering’.
EDITOR NOTE–That was the original bill, but it got amended and due process requires all property be inventoried and kept for 90 days so the owners have a chance to claim their possessions. Boise PD said they will not participate in that sort of action.
Feb 27, 2012, 4:21 pm
I am not even going to comment on the wording of the statute. I have no doubt that it could be fixed. The ruling is absurd. “Tents” are the “core political message” of the Occupy freaks? Okay. Great. I did not know that. I thought they had no point at all, but now we know it is tents. Tents is the point.
Feb 27, 2012, 4:29 pm
Thank god, now if those peoples leave, us homeless have a place to stay when sanctuary is full or won’t take us cuz they say were are drunk! Hope they leave some food to.
Feb 27, 2012, 6:11 pm
I am shocked by the amount of people against this movement. It’s called the right to a peaceful assembly. Im amazed our elected officials are trying to skirt the 1st Amendment and people are supporting them. First comes no camping, then comes no protesting, then comes shooting those that protest. Sounds like Syria. Wake up people.
Feb 27, 2012, 8:36 pm
I’m shocked too, John. This is political speech and needs to be protected and supported. Winmill called it correctly. A strong first amendment protects us all, even those with whom we disagree.
Feb 27, 2012, 9:45 pm
Yippee! See ya there, Sal!
Feb 28, 2012, 4:13 am
The one percent may have provided them with a tent but they cant do anything about it. That’s funny. How bout them apples Otter.
Feb 28, 2012, 10:04 am
I read the order. Let’s not forget that our Legislature is so incompetent that they couldn’t write a bill that would do what they wanted to do in this matter. The wording of the bill was referenced as part of the opinion. I agree with the ruling.
Feb 28, 2012, 10:43 am
John, I don’t think anybody is trying to quash “the right to a peaceful assembly.” There are peaceful assemblies every day at the Statehouse during the Legislative session in particular.
But – those assemblies assemble, and then disburse. These “occupy” folks are “occupying,” or “squatting” on public property.
You can camp in the public forest for a few days… but you can’t set up permanent residence there. The judge and the Legislature certainly have to recognize the rights of the Occupy folks, but the rest of the community has rights, too… and a lot of us resent that OUR property seems to have been permanently taken over by a few who refuse to peaceably assemble and then move on.
Feb 28, 2012, 2:37 pm
Bike boy nailed it on the head. Assemble, protest, go do something else productive, protest again on another date. No need to squat, it does not help the message and creates a public eye sore and health concern.
Nov 15th SF Examiner reports outbreak of dog diseases within Occupy
Nov 11th Tuberculosis in Atlanta Occupy
Jan 22nd dead body in Occupy Salt Lake
CDC reports TB in Occupy Wall Street
Fatal Shooting Occupy Oakland
Drugs and fatal over dose in Occupy Vancouver
Arson in Occupy Portland
Rat infestations in Occupy Oakland
Just google health concerns with Occupy and look at the health concerns and response expense tax payers are covering.
Occupy Boise–state your message then go back to work. Assemble again at another time repeat your message, then go back to work. Going back to something is obviously the part you have difficulty with.
EDITOR NOTE–JJ, Don’t forget the coppers fracturing the skull of the Iraq war vet with a tear gas canister too!
Feb 28, 2012, 7:35 pm
As a property owner, I have HAD to remove weeds on said property every year or PAY to havr them removed for me at an accelerated cost. Darn it I like weeds but I chose to live by the rules of the subdivision. These Occupy folks should be encouraged to get a brain, get a life and then get an opinion. Lets include Judge Winmill Occupiers you might follow the whining of some movie stars and just leave this horrbile country. Ooops the movie stars did not leave–they just keep whining.
Feb 28, 2012, 10:48 pm
I agree with Bikeboy, that the 1/2% (Occupy Boise)get to blatantly take advantage of a situation. Not only are they ‘squating’, but they may be breaking existing laws.
Public Nuisance
http://legislature.idaho.gov/idstat/Title18/T18CH59SECT18-5901.htm
Placing Debris on Public Property (pallets may qualify)
http://legislature.idaho.gov/idstat/Title18/T18CH70SECT18-7031.htm
Placing Signs on Public Property (signs all over especially attached to tree protection)
http://legislature.idaho.gov/idstat/Title18/T18CH70SECT18-7029.htm
Feb 28, 2012, 11:37 pm
Note to Clancy, when the grass starts to grow the sprinklers start to sprinkle. Try to imagine the rest on your own…..
I was by there today and the place looked neat, clean and orderly. What crime(s) have these people committed beyond exercising a free speech demonstration.
Feb 29, 2012, 1:01 am
It amazes me that the Idaho Legislature and Governor were so blind and stupid as to pass the law in the first place. Never to my mind, was there any doubt that the right to a free expression of speech of a political nature was the crux of this issue. I think that the only thing wrong with the Judges ruling is that he failed to praise the few who voted against this in the Legislature. How many more of these inane and expensive to defend “laws” will we put up with before we throw the bums out? I would hope that Bike Boy JJ and Karen would try to read the first amendment it isn’t long it isn’t difficult. But then, the hope that they would grasp the basic contents would probably mean that I would also hope that the legislators who voted for this had the brains of a grasshopper which quite obviously they do not.
Feb 29, 2012, 3:38 pm
Laws prohibiting camping out on government property are common and enforced everywhere, including by the Obama Administration in Washington, D.C. This is silly. There is no First Amendment right to camp out.
EDITOR NOTE–Mr. Bond I presume you could inform the judge of the error of his ways with an Amicus brief.
Feb 29, 2012, 6:39 pm
Grumpy:
Read the first amendment, even with my Idaho education I was able to understand it. I agree Occupy has peacefully assembled and they are voicing an actual position. The issue, is the lack of dis-assemble. While the Courts rightfully uphold the rights of the first amendment, they also uphold that other people’s rights end where my nose begins. I am being prevented from use of the public land held hostage by Occupy. Occupy has placed physical structures on the public land which prevents me from use of that land, and while I do not mind waiting for my turn and sharing, Occupy has no intent on leaving or removing their barriers. I do not believe the founding fathers envisioned the first amendment being used to provide perpetual free land for one person or groups sole use, but that is what is occurring and what I have a problem with. I do not see how preventing Occupy from living there prevents their free speech, they can still assemble there every day and protest.
Feb 29, 2012, 8:39 pm
Plus they are pluged into the buildin and using state electric, so you tax payers (not me, I don’t pay, cuz I don’t work) are paying for them to use it, which is good for me when i go get a meal from them.
Apr 20, 2012, 7:19 pm
Yea. All 4 of them. Way to go..uh Boise. Bottom of the food chain again……and again.