OccupyMaine sues Portland, claims city code is unconstitutional

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PORTLAND — OccupyMaine on Monday morning sued the city in Cumberland County Superior Court to keep its encampment at Lincoln Park.

The lawsuit claims the 24-hour occupation is necessary for the group to send its message and compel those in power to address what the group considers “grave economic, political and social injustices.”

The lawsuit challenges the constitutionality of city ordinances, including a “blanket prohibition on speech and assembly in an public park during certain hours.”

The city gave OccupyMaine until noon Monday to sue or vacate the park. The city agreed not to evict protesters until a court rules.

John Branson, OccupyMaine’s pro bono attorney, said the city’s position made it unnecessary for the group to ask the court for a temporary restraining order.

The city has 21 days to respond to the lawsuit. After the city files its response, OccupyMaine will have seven days to respond to the city.

City Hall spokeswoman Nicole Clegg said she couldn’t comment on the lawsuit or the city’s course of action, because the city is still reviewing the filing.

OccupyMaine has been camping in Lincoln Park for more than two months in solidarity with Occupy Wall Street. The groups oppose corporate influence in politics and government, and perceived economic injustices from the distribution of wealth.

City officials have allowed OccupyMaine to camp out in Lincoln Park, even though overnight stays are prohibited by the city’s loitering ordinance. Most city parks are closed from 10 p.m. to 6:30 a.m.

Branson said the continued presence in Lincoln Park is vital to the group’s efforts, including the elimination of homelessness. The encampment is considered a symbolic expression of their message.

Branson said he hopes to have a full jury trial with witness testimony. He said occupiers would be likely to undertake an extensive period of discovery in an effort to find out what made the city “suddenly revoke its permission” to allow the encampment.

OccupyMaine agreed to seek a permit that would address health, fire and public safety concerns at the park, but the City Council voted 8-1 to deny the permit.

The vote followed a lengthy Public Safety Committee meeting, where police provided details of about 20 arrests at the park, mostly for assault.

Branson said OccupyMaine wants to discover “the circumstances and motivations that led members of the City Council – elected officials – to reverse the course that had prudently been set by the city manager and other officials that sought to accommodate this demonstration.”

The group claims the city cannot prohibit noncommercial free speech and assembly in city parks.

It also challenges the requirement that protesters engaging in noncommercial political free speech must receive permission from the city to hold events in public parks if the events last more than three days or attract more than 25 people.

Both provisions, Branson said, amount to prior constraint on free speech and assembly. There needs to be an exception for spontaneous, sustained free speech, he said.

“It was these very ordinances that led to the undoing of OccupyMaine’s effort to work with the city and remain in Lincoln Park,” he said. “They don’t need to make every public space available, but there needs to be some forum available for that kind of sustained and continued assembly.”

Branson said the lawsuit was filed in state court because Maine’s Constitution provides more protections than the U.S. Constitution.

That was the argument laid out in a friend-of-the-court brief filed in support of OccupyMaine by the American Civil Liberties Union of Maine.

“The federal Constitution sets the floor, and not the ceiling, for the protection of free speech,” ALCU of Maine Legal Director Zachary Heiden said in a press release. “State courts cannot be less protective of free speech than the federal Constitution commands, but they can interpret their own constitutions to provide greater protections.”

In addition to the Occupy group, there are four individuals named as plaintiffs, each of whom submitted sworn affidavits attesting to how they have been aggrieved by social, economic and political injustices.

Portland resident Heather Curtis, a 42-year-old mother of five, said she blames corporate malice for the lead-poisoning of her daughter.

The carpet in her first Portland apartment contained five times the legal limit for lead dust, she said, nearly forcing her daughter into a lead coma.

“That this known poison had been put into my home is shocking,” Curtis said in her complaint. “What I have come to realize is that this type of major breach of trust is rampant, and even rewarded, in the dominant culture as it stands.”

Harold Brown, a 59-year-old homeless man, said in a sworn affidavit that he and a friend were sleeping in a Preble Street doorway when a Portland police officer told them they couldn’t stay there.

Instead, Brown said the officer allegedly told them “to go pitch a tent in Lincoln Park with the protesters.”

Branson said that situation has been more common that one might expect.

“We heard that happened quite a bit actually, just prior to when we had a lot of altercations and disorderly conduct in the park,” the attorney said.

Acting Police Chief Michael Sauschuck said he has pressed protesters for information about the dates and officers involved these alleged incidents.

Those details were never provided, Sauschuck said. But now that they’re are outlined in the affidavits, he will be able to investigate.

“That’s the first I have heard of a name and date,” he said Tuesday. “That alone will give me something to follow up on.”

Sauschuck said any efforts to divert the homeless to an outdoor encampment is “outside the department policy.”

Branson said it is premature to talk about what might happen if OccupyMaine loses its case against the city. It would be up to individual protesters to decide if they want to defy a court order to leave and risk arrest, he said.

Curtis, meanwhile, said the lawsuit brought by the group and individuals is reflective of the Occupy movement itself.

“It fits what we have been saying all along: We are together, united and standing together, and we are autonomous individuals,” she said. “It’s not either/or.”

While protesters in Augusta and Boston have seen their lawsuits shot down by the courts, Curtis said the Portland group’s only option was to proceed, if only to test whether regular citizens have the same rights as “monied interests” of corporations, which are given “personhood” under federal law.

“It’s got to stop – enough is enough,” she said. “We’re not going to roll over … We’re going to fight for it, and we’re going to see if the judicial system actually works the way its supposed to.”

Randy Billings can be reached at 781-3661 ext. 100 or rbillings@theforecaster.net. Follow him on Twitter: @randybillings

Sidebar Elements


Attorney John Branson reads from a pocket-sized copy of the Constitution during a press conference on Monday outside the Cumberland County Courthouse, where he discussed OccupyMaine’s lawsuit against Portland.

Portland finds shelter for 4 OccupyMaine protesters

PORTLAND — City Hall spokeswoman Nicole Clegg said the city has found temporary housing for four homeless people who were staying at the OccupyMaine encampment in Lincoln Park.

Clegg said employees from the city’s Social Services Division met with a group of 18 homeless people at the camp last week. Eight asked for one-on-one follow-up interviews to get more information about city services, she said.

Clegg said four individuals agreed to stay at a local homeless shelter until the city could find them permanent housing.

It’s difficult to pin down exactly how many homeless people are staying with protesters in Lincoln Park, but Clegg said the city considers last week’s effort a success.

“We were really pleased we could connect with as many people as we did,” she said.

Mayor Michael Brennan has said he is interested in forming a task force to address issues raised by protesters, including finding ways to help homeless people who may be displaced if the encampment is dismantled.

— Randy Billings

OccupyMaine protester Heather Curtis, 42, of Portland, is one of the individual plaintiffs in the group’s lawsuit against the city. She claims corporate influence almost led to the death of her daughter from lead poisoning.

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