STATE OF MAINE ‘SUPERIOR COURT CUMBERLAND, SS. CIVIL ACTION DOCKET NO. PORSC-CV-2011-549 OccupyMaine, Frederick Deese Hamilton, Heather Linnet Curtis, Harold Joseph Brown, Jr., and Palma E. Ryan, Plaintiffs ve City of Portland, Defendant DEFENDANT'S OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND INCORPORATED MEMORANDUM OF LAW NOW COMES the City of Portland? (“City”), by and through undersigned counsel, and submits this memorandum in opposition to the plaintiffs’ (“OccupyMaine,” inclusive) motion for a preliminary injunction. "city" in this Memorandum refers to the administration of the City of Portiand led by the City Manager, and not to the City Council except where specifically identified.INTRODUCTION AND BACKGROUND ‘TABLE OF CONTENTS ARGUMENT . ‘THE PLAINTIFFS CANNOT MEET THEIR BURDEN OF DEMONSTRATING A LIKELIHOOD THAT THEY WILL ‘SUCCEED ON THE MERITS OF THEIR CLAIMS AGAINST THE CITY A. The Plaintiffs Have Failed to Establish That Camping in a Pubic Park Is a Constitutionally Protected Form of Speech or Expression . 1. The intent of camping is not to communicate a message 2. There is no substantial likelihood that those observing the encampment will understand OccupyMaine’s message(s) . B. Section 18-18 of the Portland City Code Is a Reasonable Time, Place and Manner Restriction upon the Use ofa City Park. Occupy Augusta... 6... eee eee Occupy Boston ........ daw arenincns QCCUpY:SBR DIEGO sae 34 10 sans tm 8 nh vw Occupy Minneapolis Occupy Sacramento 1, Section 18-18 is not constitutionally overbroad; rather, it is narrowly tailored to serve a valid public purpose . a. Not overbroad b. Narrowly-tailored . 2. Alternative channels of communication are available . 3. Requiring a park permit is not an unconstitutional prior restraint on speech ‘THE PLAINTIFFS HAVE FAILED TO MEET THEIR BURDEN OF PROVING THAT THEY WOULD SUFFER IRREPARABLE HARM IF THEIR MOTION FOR A PERMANENT INJUNCTION IS DENIED . . . . THE HARM TO THE CITY AND THE PUBLIC INTEREST BY GRANTING THE MOTION WOULD OUTWEIGH ANY HARM THE PLAINTIFFS WOULD SUFFER AS A RESULT OF ITS DENIAL ANALYSIS OF THIS CASE PURSUANT TO THE MAINE CONSTITUTION DOES NOT PRODUCE A DIFFERENT RESULT CONCLUSION 15, 16 7 18 19 20 22 23 25 26 7 29 31 33 41INTRODUCTION AND BACKGROUND, As the City Manager recently stated, “Portland has a proud reputation as a politically active and engaged community.” Defendant's Complaint for Declaratory Judgment (“Complaint”) at Exhibit ("Ex") Q. This is a City with a long history of “thoughtful and respectful debate from differing viewpoints.” {d. Accordingly, since the beginning of the Occupy movement in Portland on October 3, 2011, the City has worked tirelessly to balance the competing interests of the OccupyMaine protesters’ rights to express their message(s) with the City's responsibility to ensure the health, safety and welfare of all of its citizens and protect and maintain public property. For instance, rather than immediately banish the OccupyMaine participants and their tents and tables from all City parks despite numerous violations of the Portland City Code in Monument Square, the City offered them the temporary use of Lincoln Park while it analyzed their legal rights relative to the enforcement of City regulations. Complaint at 1 14, From the outset, the City made it clear ~ and OccupyMaine agreed ~ that the residential use of Lincoln Park “was permissive on the part of the City, and could continue only if OccupyMaine complied with City and State laws that protect the health, welfare and safety of everyone, including the people in the park.” Complaint Exs. J, L, Q See also Memorandum of City Manager Rees to Mayor and City Council dated December 1, 2011 attached hereto as Exhibit A (Bates stamped CITY EX 001-003).* From the beginning of the occupation of Lincoln Park on October 3, 2011, there were far more public safety issues in the park necessitating police responses, including disorderly conduct, drug violations, public intoxication, fights, and assaults than existed prior to OccupyMaine’s residential use of the park on a 24-hour/7-day-per-week basis. Complaint, Ex. J, * For further ease of reference, City has Bates stamped the Exhibits attached to this Memorandum. Reference to such Exhibits will hereafter be in the form (CITY EX _