Judges deny motions to dismiss in Occupy Gainesville trespassing arrests


Published: Monday, January 28, 2013 at 7:30 p.m.
Last Modified: Monday, January 28, 2013 at 7:30 p.m.

The court case involving late 2011 Occupy Gainesville trespassing arrests carries on.

On Friday, a three-judge panel denied motions to dismiss filed by 29 defendants who were arrested in October and November 2011 for remaining in downtown Gainesville’s Bo Diddley Community Plaza after hours.

The defendants’ attorneys argued that the city’s park curfew ordinance should be thrown out as an unconstitutional violation of the First Amendment rights to free speech and assembly.

The panel of county Judges Walter M. Green, Thomas M. Jaworski and David P. Kreider ruled that the city law was an allowable First Amendment restriction “narrowly tailored to achieve a government interest.”

In this case, the city’s interests in prohibiting people from remaining in the park overnight included keeping the park in an attractive, clean condition, reducing crime and protecting nearby neighborhoods from noise, the judges ruled.

The three-judge panel also ruled that the park curfew ordinance was not a content-based restriction on speech because it applies to anyone who would remain in the park.

At this point, the defendants’ cases are expected to be scheduled for trial dates.

Gainesville attorney Geoffrey Mason, who represents almost all of the Occupy defendants, wrote in an email that he planned to file additional motions to dismiss in response to the judges’ ruling.

Mason said he still feels the city law is an unconstitutional content-based restriction on speech.

“The prohibition against content-based ordinances, in reference to First Amendment rights of Freedom of Speech and Freedom of Assembly, isn’t just whether it is obviously content-based but rather, whether anything in the ordinance prevents the decision maker from making a content-based decision,” Mason wrote. “The ordinance, however, does not contain any specific, objective guidelines to guide the decision maker and as such, arguably grants the city unfettered discretion to make those decisions, which I would argue, is unconstitutional.”

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