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Wednesday April 23rd 2014

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Campout in the Court

By Jeremy Morrison

The encampment at Pensacola City Hall has lost some of its luster since last fall. Occupy Pensacola’s patchwork of tents and political philosophies have given way to what appears to be an amiable collection of hobos.

Although the sparse gathering still sports a large ‘99 Percent’ banner at the corner of Government and Spring streets, the city hall encampment has become … uninteresting. These days, the more interesting aspects of Pensacola’s Occupy experiment are playing out in the courts.

The central legal battle to emerge from the experiment—whether or not the city of Pensacola violated Occupy’s First Amendment rights—could soon wrap up. Both sides have filed motions for summary judgment, which means a decision could be reached this month.

“Unless you’re interested in constitutional garbely-goop, you should just read the Statement of Facts,” said city attorney Jim Messer.

Currently, the city is listed as the defendant in a case before the U.S. District Court Northern District of Florida. Occupy Pensacola, in addition to several individual members of the local Occupy, contend that the city did not have the authority to evict the encampment that sprung up along side likeminded gatherings across the country.

“They’ve got a bunch of constitutional issues that, quite frankly, I can’t explain to you—I’d have to go back and look at my motion,” Messer said. “The basic grounds are ‘it’s just not fair’ and it impedes their rights.”

Attorney Alistair McKenzie—who has represented the local Occupy movement since its inception—is arguing that the city “engaged in outright discrimination of Plaintiff’s First Amendment rights,” according to a motion he filed in early June.

Occupy’s basic position was recently laid out before the Pensacola City Council by Dr. Melody Castro, who was arrested as she traversed the city hall lawn last year.

“I have two words: selective enforcement,” Castro said, explaining that she felt city administration had overstepped legal boundaries. “This mayor does things above and beyond his own reaching.”

Specifically, Occupy is arguing that city officials misused ordinances in an effort to specifically target a group protesting political and social inequalities. While Messer describes the current status as “not much going on,” McKenzie sounds confident about his chances.

“It’s unbelievable,” the attorney said, ticking off the evidence he’s gathered. “I hope that we get an argument in front of the judge.”

Faced with a lawn full of tents in the fall of 2011, city officials invoked a number of ordinances in an effort to curtail the encampment. Eventually, Occupy was evicted from the city hall lawn, with the camp’s remnants sanctioned to a sliver of sidewalk on the corner.

McKenzie holds up statements and correspondences between city officials as evidence that the city overstepped in their dealings with Occupy Pensacola.

In an October 27, 2011 email, Messer apparently informed Pensacola City Councilwoman Maren DeWeese that the city had no way of curbing the growing encampment: “The short answer is very little if anything that Occupy Pensacola does at this point is prohibited by City Ordinance … There are no land use ordinances that apply. There are no ordinances governing tents, regulating the public usage of City property or permits for this type of demonstration.”

McKenzie also cites a Nov. 17 email from City Administrator Bill Reynolds to a concerned citizen: “The real problem is that the City Code does not currently have the necessary language to address what is occurring. That will be rectified in the near future however.”

The attorney points to another email from Reynolds—this time addressing city council members—that he said indicates the city attempted to “pass a camping ordinance” specifically to deal with Occupy: “if it had been in place the last few months, we would have been able to deal with our recent issues in a succinct manner.”

“Thus, based on the blatant discrimination and admission by the Defendant,” McKenzie wrote in his recent motion, “use of these laws was patently malicious, done in bad faith, and done in violation of Plaintiff’s First Amendment rights.”

The attorney describes the city’s strategy in dealing with the local Occupy movement as “post-hoc rationalization.”

“Which means they’re basically making up a bunch of bullshit reasons after the fact,” McKenzie said.

Messer maintains that the city used ordinances properly and consistently. In his motion, he challenges Occupy’s assertion that the ordinances in question are unconstitutional.

“Neither the law nor the facts support the proposition that either ordinance is unconstitutionally vague, unconstitutional as applied or unconstitutional on their face,” the motion states.

McKenzie referred to Messer’s recent filing as “a garbage motion.”

“His positions I can’t understand,” McKenzie said, adding that it appears Messer “doesn’t make any effort” in defending the city. “I know he’s a smart guy—I’ve heard that from a lot of people—I just don’t understand what’s going on.”

The young Occupy attorney said he’s hopeful that his clients will soon prevail in their legal battles with the city of Pensacola.

“That could just be naivety or stupid ambition that leads me to believe that,” McKenzie said.

Messer, meanwhile, appears to be casually wading through the legal proceedings. These most recent filings, he explained, are most likely just another step in the legal process as opposed to the end game.

“I would assume that whatever side gets the sticky end of the lollipop will probably appeal,” the city attorney said.