Occupy Minneapolis v. County of Hennepin

866 F. Supp. 2d 1062, 2011 U.S. Dist. LEXIS 135646, 2011 WL 5878359
CourtDistrict Court, D. Minnesota
DecidedNovember 23, 2011
DocketCiv. No. 11-3412 (RHK/TNL)
StatusPublished
Cited by8 cases

This text of 866 F. Supp. 2d 1062 (Occupy Minneapolis v. County of Hennepin) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Occupy Minneapolis v. County of Hennepin, 866 F. Supp. 2d 1062, 2011 U.S. Dist. LEXIS 135646, 2011 WL 5878359 (mnd 2011).

Opinion

MEMORANDUM OPINION AND ORDER

RICHARD H. KYLE, District Judge.

The Plaintiffs in this case, Occupy Minneapolis and several of its members, are loosely affiliated with the recent “Occupy Wall Street” movement.1 They have been “occupying” two plazas immediately adjacent to the Hennepin County Government Center (the “Plazas”) continuously since October 7, 2011, to “call[ ] attention to the economic injustices ravaging the country.” (Compl. ¶ 1.) They allege in this action that Defendants Hennepin County, several of its Commissioners, the Hennepin County Sheriff, and certain of his deputies and security officers (collectively, the “County”) have violated their rights under [1066]*1066the First, Fifth, and Fourteenth Amendments to the United States Constitution by restricting the ways in which they may “occupy” the Plazas and precluding or limiting certain of their activities there. Presently before the Court is Plaintiffs’ Motion for a Temporary Restraining Order (Doc. No. 3). For the reasons set forth below, their Motion will be granted in part and denied in part.2

BACKGROUND

Plaintiffs have maintained a continuous “occupation” of the Plazas since October 7, including sleeping overnight in tents and sleeping bags; cooking and sharing meals; displaying signs; assembling for meetings, demonstrations, and “teach-ins;” and other events. They have broadcast their activities over the internet to others who sympathize with their cause. They assert that a “24/7” presence at the Plazas is necessary to effectively communicate their message, such as the fact “that the foreclosure crisis and homelessness are problems affecting millions of Americans.” (Compl. ¶ 22.) They plan to maintain an uninterrupted presence at the Plazas “until the change they seek is achieved” (id. ¶ 21), although it is not entirely clear what that “change” is.

Prior to Plaintiffs’ “occupation,” the County did not have in place written procedures relating to individuals assembling at the Plazas indefinitely. However, it previously had unwritten policies precluding persons from sleeping on the Plazas, storing personal items there, and affixing signs to or using chalk on the Plazas’ buildings or other structures. On the day Plaintiffs arrived at the Plazas, for example, they were informed that the County precluded the erection of tents or other structures on the property; prohibited the use of cooking equipment such as propane or charcoal grills; and did not permit any other conduct that could be hazardous to public safety or could damage County property. Nevertheless, Plaintiffs violated several of these restrictions, including putting up tents and writing on Plaza property with chalk. Although the County initially declined to enforce some of its policies in order to avoid a “confrontation” with Plaintiffs, eventually it began to enforce its unwritten rules by, among other things, removing tents and other structures, removing signs affixed to Plaza property, and issuing trespass notices to persons who chalked on Plaza grounds.

On November 8, 2011, the County cut off electricity to the Plazas, which Plaintiffs had been using to continuously stream their activities and “occupation” over the internet. On that same day, the County passed a resolution (the “Resolution”) restricting certain activities at the Plazas. Of pertinence here, the Resolution prohibited any signs or posters “except those placed by county personnel related to county business” from being affixed to Plaza property; precluded the storage of items there or the leaving of items there “unattended”; and prohibited individuals from sleeping at the Plazas.3 According to the County, Plaintiffs have refused to abide by these newly enacted restrictions or its other, unwritten ones.

On November 21, 2011, Plaintiffs commenced this action, asserting that the Resolution and the County’s unwritten regula[1067]*1067tions violate, inter alia, their rights to freedom of speech, assembly, and to petition the government for redress of grievances under the First Amendment to the United States Constitution. They have now moved for a Temporary Restraining Order with respect to six specific restrictions imposed by the County: the bans on (1) placing structures of any kind on the Plazas; (2) using existing electrical outlets on the Plazas; (3) using sidewalk chalk on the Plazas; (4) affixing signs or posters to Plaza property; (5) leaving property “unattended” or “stored” on the Plazas; and (6) sleeping on Plaza property. (Doc. No. 4 at 2.) They claim that all but one of these restrictions violate their free-speech rights under the First Amendment; as for the last restriction (number (5), above, concerning unattended or stored property), they assert that the Regulation violates due process because it is unconstitutionally vague. The County timely filed a response to the Motion, and the Court held a hearing on November 23, 2011. The Motion is now ripe for disposition.

STANDARD OF DECISION

As the Supreme Court recently emphasized, injunctive relief “is an extraordinary remedy never awarded as a matter of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). This Court must consider four factors to determine whether such relief is warranted here: (1) Plaintiffs’ likelihood of success on the merits; (2) the threat of irreparable harm to Plaintiffs in the absence of relief; (3) the balance between that harm and the harm injunctive relief would cause to the County; and (4) the public interest. E.g., Watkins Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir.2003) (quoting Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc )).4 When analyzing these factors, the Court must “flexibly weigh the case’s particular circumstances to determine whether the balance of equities so favors the movant that justice requires the court to intervene.” Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 182 F.3d 598, 601 (8th Cir.1999).

In First Amendment cases such as this one, however, the Court’s primary focus is on the first element: likelihood of success. This is because the remaining factors necessarily turn on whether there has been a showing that the plaintiffs constitutional rights have been violated:

It is well-settled law that a loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Likewise, the determination of where the public interest lies also is dependent on the determination of the likelihood of success on the merits of the First Amendment challenge because it is always in the public interest to protect constitutional rights. The balance of equities, too, generally favors the constitutionally-protected freedom of expression.

Phelps-Roper v. Nixon, 545 F.3d 685, 691 (8th Cir.2008) (internal quotation marks and citations omitted).

To show a likelihood of success on a particular claim, Plaintiffs need not “prove a greater than fifty percent likelihood that [they] will prevail,” PCTV Gold, Inc. v. SpeedNet, LLC,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bledsoe v. Ferry County
E.D. Washington, 2020
Ness v. City of Bloomington
D. Minnesota, 2020
Hensel v. City of Little Falls
992 F. Supp. 2d 916 (D. Minnesota, 2014)
Bloem v. Unknown Department of the Interior Employees
920 F. Supp. 2d 154 (District of Columbia, 2013)
Mitchell v. City of New Haven
854 F. Supp. 2d 238 (D. Connecticut, 2012)
Watters v. Otter
854 F. Supp. 2d 823 (D. Idaho, 2012)
Occupy Columbia v. Haley
866 F. Supp. 2d 545 (D. South Carolina, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
866 F. Supp. 2d 1062, 2011 U.S. Dist. LEXIS 135646, 2011 WL 5878359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/occupy-minneapolis-v-county-of-hennepin-mnd-2011.