Pensacola, Florida
Sunday June 25th 2017


The Price of Rights

City Seeks Legal Fees from Occupy
By Jeremy Morrison

Michael Kimberl was making an effort to come out of his shell, to connect to a wider community. Besides, he was already on the front lines, why not take the next logical step?

I had already put myself out there, Kimberl recalled. Why hide now?

An active volunteer with Food Not Bombs, Kimberl was naturally attracted to the emerging Occupy Pensacola movement in the fall of 2011. He relished the dialogue and looks back on the dissipated movement as being instrumental in bringing attention to social and economic inequalities.

When we first started, we always talked about the main goal, if there was any, was to change the national conversation, and that definitely happened, Kimberl said. I do think it did accomplish that goal.

Kimberl marched with Occupy to Pensacola City Hall, where tents were pitched on the lawn. When city officials eventually booted the campout, he took the next step. He signed onto a lawsuit against the city.

First and foremost, I felt that my First Amendment rights had been violated, the activist explained.

Occupy Pensacolain line with the overall Occupy Wall Street movementwas a leaderless group. An amorphous movement sans members.

The local Occupy lawsuit, however, is not amorphous. It lists three Occupiers as plaintiffs: Kimberl, Gary Paull and Sara Beard.

A local judge ruled against Occupy Pensacola in November. With the group appealing the ruling, the city of Pensacola now intends to recoup legal fees from this trio.

In my personal case, I dont have the money, Kimberl said. I have no idea how I would pay for that.

Round One Fun

On Election Day 2012, Judge Roger Vinson ruled against Occupy Pensacola in its case against the city. He agreed with city officials that an existing ordinance prevented long-term camping on public land.

The dispositive question is simple and straightforward, Vinson wrote in his ruling. Can the plaintiffs pitch tents and occupy a centrally-located piece of public land for an indefinite period of time?

In response, Occupys attorney, Alistair McKenzie, filed an appeal. According to a statement release by the attorney at the time, the move was met with a warning from city hall.

Today, McKenzie wrote, the city of Pensacola informed my clients, regular citizens of Pensacola, who have merely sought to have their constitutional rights vindicated in court, that unless they drop the appeal filed in the 11th Circuit in the Occupy case, that Mayor Hayward will be seeking attorneys fees and costs against them.

Pensacola spokesman Derek Cosson disputed that claim. He said the city was intending to recoup legal fees regardless of the appeal.

The taxpayers have spent quite a large amount of money defending this case, Cosson said. Were gonna move for recovery of attorney fees one way or the other.

Following the ruling, McKenzie approached the Pensacola City Council about the legal fees. The attorney found no sympathy in councils chambers.

McKenzie then filed a response to the citys motion seeking legal fees. He argued that such action would chill, frighten and intimidate all persons who would seek to have their federal constitutional rights determined in a court of law.

Learning as I Go Along

Kimberl isnt an experienced legal wrangler. The Occupy suit is serving as his introduction.

Ive never been involved in a lawsuit before, he said. Im kinda learning as I go along.

If the city prevails, it could prove an expensive education. The lesson: think carefully, challenging authority could be costly.

I think thats ridiculous, Kimberl said. I think it will scare people out of going to court over First Amendment Rights.

Insofar as the appeal goes, the activist seems a realist.

Im hopeful in the appeal, but at the same time Im starting to think the whole game is rigged, Kimberl said. I think we should win, but Im not sure were going to win.

Judge Vinsons Election Day ruling has soured his optimism. He wonders if the appeal is simply the next verse in the same song, if theres any chance a higher court will rule against the city of Pensacola.

It makes it really hard to believe the courts are going to say, Yeah, yall are all wrong, Kimberl said. Maybe Im just a conspiracy theorist.


McKenzies Lawsuit Roundup

In addition to the Occupy Pensacola lawsuit, attorney Alistair McKenzie is also involved in two other suits pertaining to the city of Pensacola. He is representing Pensacola City Councilwoman Sherri Myers in her ongoing legal battle with Mayor Ashton Hayward, as well as former city councilwoman Maren DeWeese in her lawsuit addressing the mayors use of his veto power during the last budget season.

Myers filed suit following Haywards May 2012 memorandum, which directed council members to channel their communications with city staff through the mayors office. In September, Judge J. Scott Duncan issued a ruling that had both sides declaring victoryessentially ruling that the mayor could institute such a policy, except in the case of inquiries.

McKenzie requested a clarification on the ruling, but the judge declined to offer one. The appeal is now headed to the First District Court of Appeals.

More recently, DeWeese filed suit against Hayward, as well as Pensacola Chief Financial Officer Dick Barker, following some spirited sparring over this years budget.

In September, the Pensacola City Council amended the mayors proposed budget. They raided funds Hayward intended for a controversialand since droppedmarketing contract with the Zimmerman Agency, as well as funds from his personal budget.

Hayward subsequently vetoed the councils amendments. The council did not override the mayoral veto.

At the time, DeWeese stated that she didnt think Haywards veto reversed the councils moves, but rather zeroed-out the funds from the budget. Hayward, however, maintains that his veto had the effect of returning the budget to its previously proposed form.

The way he did it was not a veto and was illegal, McKenzie said, adding that a victory for DeWeese would have ramifications. It would have severe practical applicationsit actually calls into question whether theres actually a budget this year.

DeWeeses lawsuit is due for a Feb. 25 hearing. The city has filed a motion to dismiss, arguing that DeWeese lacks the standing to bring such a suit.

The law in Florida does not allow the general public to interfere with functions of the government by filing civil lawsuits, the motion states. Simply put, neither Ms. DeWeeses capacity as a taxpayer nor capacity as a councilwoman affords her standing to maintain her lawsuit.