Occupy Gainesville defendants will fight constitutionality of arrests on appeal


In this Nov. 2, 2011 file photo, Occupy Gainesville and UF members walk through Diddley Community Plaza after marching from the Plaza of the Americas in Gainesville.

Matt Stamey/The Gainesville Sun
Published: Monday, July 1, 2013 at 4:08 p.m.
Last Modified: Monday, July 1, 2013 at 4:08 p.m.

The court battle continues over the arrests in late 2011 of members of the Occupy Gainesville movement for trespassing on downtown’s Bo Diddley Community Plaza.

The majority of the 29 protesters arrested in October and November 2011 for remaining on the plaza after hours in violation of the city’s park curfew ordinance have now pleaded no contest and entered deferred prosecution deals.

They’ll receive no jail time and will pay a small fine and court costs. But their legal fight will carry on. They also will appeal their misdemeanor cases to circuit court and again argue that the city’s ordinance — and their arrests — should be thrown out as unconstitutional violations of the First Amendment rights to free speech and assembly, defense attorney Geoffrey Mason said.

“They’re factually admitting to the fact that they were there after park hours but saying the ordinance is unconstitutional,” Mason said.

That is the same argument the defendant’s attorneys made before a three-judge panel last fall, when they were trying to get the cases thrown out in county court.

In January, that judicial panel said the cases could proceed and that the city ordinance was “narrowly tailored to achieve a government interest.”

Those interests included keeping the plaza, which city ordinance lists as a park, in an attractive, clean condition, reducing crime and protecting nearby neighborhoods from noise, the judges wrote.

City ordinance prohibits anyone from remaining in 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.

Since the county court panel’s ruling, prosecutors have dropped 10 cases because police could not confirm that they gave those defendants warnings to leave the plaza. One case has gone to trial. A jury found the defendant, Annette Gilley, guilty, but the judge then withheld adjudication.

And one more trial might loom in county court for local homeless advocate Pat Fitzpatrick, who has not accepted a deferred prosecution agreement.

“I’m an innocent man.” Fitzpatrick said. “This is civil disobedience. This is what this country is made of.”

Fitzpatrick’s case was slated to go to a jury trial on June 17. But the judge declared a mistrial because members of the jury pool were discussing the case during a recess. Prosecutors now want the judge to order a non-jury trial on the condition that the state will not seek jail time or a judgment of guilty.

The lengthy legal battle over misdemeanor arrests either could reinforce the city’s legal authority to keep the plaza clear overnight or end it. As it stands, the homeless often sleep on the public sidewalks bordering the plaza. In a court filing last year, prosecutors said the city’s ban on remaining in the plaza after hours prevents a “de facto campground in the middle of downtown Gainesville.”

Fitzpatrick, on the other hand, said there should be 24/7 access.

“I think we should keep that open all night so we can feed homeless people,” he said. “We’ve been doing it for 10 years. Why can’t we do it from 11:30 (p.m.) to 7 (a.m.)?”

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