Watters v. Otter

955 F.Supp.2d 1178

Edward WATTERS, Dean Gunderson, Steven Farnworth, Matthew Alexander Newirth, individuals, and Occupy Boise, an Idaho unincorporated nonprofit association, Plaintiffs,

v.C.L. (Butch) OTTER, in his official capacity as the Governor of the State of Idaho, Teresa Luna, in her official capacity of the Director of the Idaho Department of Administration, and Col. G. Jerry Russell, in his official capacity as the Director of the Idaho State Police, Defendants.

Case No. 1:12–cv–00076–BLW.

United States District Court, D. Idaho.

June 26, 2013.

Richard Alan Eppink, American Civil Liberties Union of Idaho Foundation, Bryan Keith Walker, Obsidian Law, PLLC, Boise, ID, for Plaintiffs.

Carl J. Withroe, Idaho Attorney General, Clay R. Smith, Michael S Gilmore, Thomas C. Perry, Office of the Governor, Boise, ID, for Defendants.

MEMORANDUM DECISION AND ORDER

B. LYNN WINMILL, Chief Judge.

The Court has before it the State's motion for partial summary judgment. The Court heard oral argument on February 26, 2013, and took the motion under advisement. For the reasons set forth below, the Court will grant the State's motion, to the extent it asks the Court to find the state's no-camping statute, Section 67–1613, Idaho Code, is facially constitutional. The Court further finds that section 67–1613A, which governs the disposition of any “property remaining after issuance of a citation or any property left unattended,” is also facially constitutional.¹

INTRODUCTION

Occupy Boise's tent city is a political protest of income inequality. As such, it is expressive conduct protected by the First Amendment. The State has the authority to regulate expressive conduct and can require reasonable time and place restrictions that are content neutral. The no-camping statute at issue in this case, on its face, is a reasonable time, place, and manner restriction. It is therefore facially constitutional.

If the State enforces a law in a manner that targets certain speech for restriction because of its content—especially when the target is political speech in a public forum—it will be taken to task. When a restriction is content-based, the State bears an “extraordinarily heavy burden” of showing that the law or its enforcement is the least restrictive means to further a compelling State interest. Here, however, the State ceased its initial enforcement efforts, which appeared to exceed the grasp of the statute, after the Court issued its initial injunction prohibiting the State from forcibly removing Occupy Boise's symbolic tent city; the Court therefore finds no evidence that the State's current effort at enforcing the camping ban has unconstitutionally targeted Occupy Boise's expressive conduct.

With respect § 67–1613A, which governs the disposition of any “property remaining after issuance of a citation or any property left unattended,” the Court finds that the procedures it authorizes constitutes neither an unreasonable seizure under the Fourth Amendment nor an unconstitutional taking without just compensation under the Fifth Amendment. Likewise, the Court finds that section 67–1613A does not violate the Fourteenth Amendment due process requirements.

BACKGROUND

In November 2011, Occupy Boise, in solidarity with the Occupy Wall Street movement, erected a tent city on the Capitol Annex grounds to protest income inequality. Occupy Boise placed the tent city on a public plaza in direct view of the Idaho Statehouse, the Idaho Supreme Court building, and other nearby government buildings. As part of their protest, Occupy Boise participants camped on the Annex grounds round-the-clock—cooking, eating, and sleeping there.

On February 21, 2012, Governor Otter signed into law a bill banning “camping” on state grounds, including the site of the Occupy Boise tent city. I.C. § 67–1613. The law also authorizes the State to “remove any unauthorized personal property” and consider it as “litter ... [to] be disposed of ...” Id. Upon signing the bill into law, Governor Otter immediately issued a directive requiring Occupy Boise to remove the symbolic tent city from the Capitol Annex grounds by 5 p.m., on February 27, 2012. To implement the Governor's edict, the State Police developed a detailed plan called “Operation De–Occupy Boise” to remove the protesters and their tents, including the large assembly tents not meant for sleeping.

In response, Occupy Boise immediately moved to enjoin enforcement of the no-camping statutes, as well as the Governor's edict directing the occupants to permanently vacate the site. Occupy Boise argued that the new law and the Governor's edict requiring the removal of the symbolic tent city violated its First Amendment rights.

This Court agreed. February 26, 2012 Memorandum Decision and Order at 10, Dkt. 17, 854 F.Supp.2d at 829. It found that the State's enforcement of the law banning camping and requiring immediately removal of the tent city targeted Occupy Boise's expressive conduct protected by the First Amendment. The Court interpreted the law as permitting a symbolic tent city that did not feature overnight “sleeping” or “camping.” Yet, Governor Otter's edict required removal of all tents. Because the reach of the State's proposed enforcement appeared to exceed the grasp of the statute, the Court found that the State was “stretching to suppress the core political message of Occupy Boise—its tents—as presented in a public forum,” and these circumstances rendered the State's enforcement policy of removing the tents presumptively invalid under the First Amendment. The Court therefore concluded it was unlikely that the State could show that its enforcement policy was the least restrictive means to further a compelling state interest.

The Court, however, agreed with the State that the ban on “camping” or “sleeping” was a reasonable time, place, and manner restriction. It also found ban on personal belongings related to camping, along with cooking and fire building materials was proper.

For all these reasons, the preliminary injunction entered by the Court on February 26, 2012 enjoined the State from removing the tents. The injunction, however, allowed Occupy Boise to staff the site around the clock. The Court ordered the preliminary injunction remain in place until it could hold an evidentiary hearing.

The Court later modified the injunction at the State's request. The modified injunction required Occupy Boise to temporarily vacate the Capitol Annex grounds to allow for repairs and maintenance of the property. The Court's order allowed Occupy Boise to resume its vigil after eight weeks with the caveat that Occupy Boise would have to grant the State unobstructed access to water and mow the lawn at scheduled times.

Now the State seeks summary judgment on Occupy Boise's claims directed to the no-camping statutes. Occupy Boise opposes the motion, renewing its arguments that the no-camping statutes impermissibly restrict their First Amendment rights to expressive activity, assembly, and association on the grounds around Idaho's Capitol building.

ANALYSIS

1. First Amendment Framework

Certain general principles of First Amendment law guide the Court's analysis. The First Amendment prohibits Congress from enacting laws “abridging the freedom of speech, ... or the right of the people peaceably to assemble.” U.S. Const. amend. I. The Supreme Court has extended the protection of the First Amendment to the states. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963).

The First Amendment affords certain types of speech greater protection. See, e.g., Nat'l Adver. Co. v. City of Orange, 861 F.2d 246, 248 (9th Cir.1988) (“The first amendment affords greater protection to noncommercial than to commercial expression.”). Political speech is core First Amendment speech, critical to the functioning of our democratic system. Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980). “[T]he practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (quoting Citizens Against Rent Control/Coal. for Fair Hous. v. City of Berkeley, 454 U.S. 290, 294, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981)). For this reason, the First Amendment applies with particular force to marches and other protest activities. U.S. v. Baugh, 187 F.3d 1037, 1042 (9th Cir.1999)

The Supreme Court also affords different protections to First Amendment activities depending on the location of the activities. To account for these differences, the Court has developed an analysis that examines the location of the speech to determine the level of scrutiny the courts must give to any state-imposed restrictions on that speech. According to this analysis, the restrictions on speech in a traditional public forum are examined under the strictest scrutiny. United States v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111 L.Ed.2d 571 (1990). In a public forum, the State may not impose a blanket prohibition on speech, and may enforce a content-based exclusion only if it is narrowly drawn to achieve a compelling state interest. A.C.L.U. of Nevada v. City of Las Vegas, 333 F.3d 1092 (9th Cir.2003). However, the State may enforce time, place, and manner restrictions that are content-neutral, narrowly tailored to serve a significant government interest, and leave open alternative channels of communication. Id.

“When the Government restricts speech or other First Amendment rights, the Government bears the burden of proving the constitutionality of its actions.” United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 816, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).

2. Section 67–1613, Idaho Code

Occupy Boise argues that section 67–1613 is facially unconstitutional. There are two types of facial constitutional challenges. “First, a plaintiff seeking to vindicate his own constitutional...