Occupy Gainesville wants trespass charges tossed
Published: Tuesday, October 30, 2012 at 6:02 p.m.
Last Modified: Tuesday, October 30, 2012 at 6:02 p.m.
Occupy Gainesville got its day in court Tuesday, more than a year after the first local members of the national protest movement were arrested for trespassing on the downtown plaza after hours.
Lawyers representing 30 Occupy defendants argued to a three-judge panel that the arrests and the city’s park curfew should be thrown out as unconstitutional violations of the First Amendment rights to free speech and assembly.
“The city can’t just say we’re going to close this public forum,” attorney Bill Salmon said at the hearing, which had been delayed three months to let the City Attorney’s Office enter the case.
Daniel Nee, a litigation attorney for the city, countered that Gainesville could put a reasonable restriction on free speech as long as it served a justifiable government purpose.
In the case of the plaza and other parks, access is restricted after 11:30 p.m. in order to protect against crime, to prevent overuse and to keep down on noise, Nee argued.
He said the prohibition was a “classic content neutral regulation” that applied not just to those engaging in political speech but to anyone who might use a park, whether it be for a festival, a picnic or a soccer game.
Gainesville ordinances list the Bo Diddley Downtown Community Plaza as one of approximately 70 city parks. The city prohibits anyone from remaining in those parks between 11:30 p.m. and 6:30 a.m. — unless different hours are posted at the park. In the case of the downtown plaza, access is restricted until 7 a.m.
County judges Walter M. Green and Thomas M. Jaworski questioned if the plaza, as the downtown public square, was not unique among the city’s parks. The plaza, Jaworski noted, was not fenced off and was “centrally located ... in the heart of downtown.”
The Occupy case involves arrests and notices to appear for trespassing from Oct. 14, Oct. 27 and Nov. 12, 2011.
About 10 of the 30 defendants attended Tuesday’s approximately five-hour hearing. Several wore red and black Occupy Gainesville T-shirts. Annette Gilley was one of the defendants who took the stand. Gilley was arrested twice after for trespassing last fall after she would not heed police warnings to leave the plaza.
“I was sure I had the right to be there,” she testified.
On the stand, Gilley recalled being arrested as she stood on top of the speaker’s stone, a rock pedestal in the park with the First Amendment etched on it. She noted that the right to free speech was “literally carved in stone” in the park.
Several Gainesville police officers testified for the prosecution. They recalled distributing maps that showed the plaza’s boundaries to some members of Occupy Gainesville and giving warnings before issuing citations or making arrests.
Attorneys for the occupiers argued that there was subjective and uneven police enforcement of the ordinance since passing through the plaza is allowed while sitting, sleeping or standing still in it is prohibited.
Gainesville Police Officer Jeffrey Guyan said that was his interpretation of how the ordinance was to be enforced. He recalled telling some Occupy Gainesville members that while other members of the movement were being arrested for trespassing. They responded, he said, by picking up signs and walking back and forth from one side of the plaza to the other. None of them were arrested, Guyan said.
“You could walk all night as long as you went from one side to the other,” Guyan said.
The judges made no decision Tuesday on the motion to dismiss all charges and attorneys for both sides have until Nov. 13 to submit additional legal arguments in writing.
Across the country, some Occupy movements have won legal battles of late. In September, a judge threw out more than 90 arrests in Chicago after ruling that the city’s park curfew and the way police applied it were both unconstitutional, according to the Chicago Tribune.
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