After a day spent, with the exception of three recesses, entirely in federal court, lead plaintiff attorney David Lane sounded more than optimistic about his side's chance for success in guaranteeing a temporary restraining order against the City and County of Denver. "I'd say it's probable," Lane said of the outcome. "We've put in a lot of time on this case. If we win, the city has to pay our legal fees, and then we'll really count the hours."
After both sides gave closing arguments and Lane offered a rebuttal, Judge Robert Blackburn promised to provide a final decision in the hearing "as soon as practical," which he then translated to mean "as soon as tomorrow morning."
At end of the day's longest recess at noon, the defense called two witnesses. The most notable speaker was Denver Police Department division chief David Quinones, who spoke extensively about the DPD's enforcement policies and relationship history when it comes to Occupy Denver.The core of the plaintiff's argument focused on the suggestion that the DPD is selectively enforcing municipal ordinances to specifically restrict the practices of the occupation, and the issue came up repeatedly during Quinones' cross-examination, particularly when he confirmed that a gathering the size of Occupy Denver is not allowed in city parks on a regular basis without a permit allowing it to do so. The arguments centered on the standards the city uses to decide which ordinances it chooses to enforce.
When asked to detail the steps the DPD has taken in order to protect the movement's First Amendment freedom of expression, Quinones said the police have "accommodated several unlawful, unpermitted marches" by blocking off traffic to ensure the group's safe passage through downtown during Saturday rallies. He maintained the DPD must regularly enforce park rules because "the park is dark at night," Quninones said, adding that "a lot of crimes typically occur in parks."
A notably heavy drug area in the past, Civic Center Park has continued to host criminal activity during the occupation as well, Quinones testified. "We've had at least one drug overdose, sexual assaults, several fights we've had to put out," he said. In his view, the encampment includes "disorder and a lot of criminal mischief."
Any property removed because of the city's anti-encumbrance ordinance is classified as "abandoned," Quinones said. He asserted that the personal property of the protesters' provided such extensive encumbrances that passersby were forced to walk into incoming traffic lanes to make their way past. That earned a retort from Lane, who asked why pedestrians did not simply step into the park instead of the street.
During the later part of the day's arguments, the discourse between the plaintiff and defense grew occasionally sarcastic, particularly after Quinones admitted holes in his knowledge base. Although he argued Daniel Garcia's honking might have prevented officers from hearing his orders or police radio during the night's altercation, he told the court, "I don't know why the officer issued that ticket. I was told the next day."
Other evidence included documentation of Mayor Michael Hancock's Honk 'n' Waves, campaign rallies for which Lane confirmed with a witness for the defense that there were no related tickets for honking.
Quinones later said for the court that the enforcement of municipal ordinances falls primarily to individual officers. He said that in a hypothetical situation similar to the one in which a literature table was removed from the occupation as an encumbrance: "I would advise the officers to leave them alone. It's not worth the fight."
"What you're saying then," asked David Lane, "is that it's up to each and every officer to decide what they're willing to enforce?"
Quinones' reply: "Absolutely." (Quninones, it is interesting to note, testified that he was not aware of either CBS4 or the Denver Post's coverage of Daniel Garcia's ticket -- only Westword's.) The same statement applied to Quninones' assessment of Schultz's ticket for riding on the sidewalk, which he agreed officers would normally just treat with a warning.
"The apparent lack of command within Denver brass was something I found very surprising," Lane said after the hearing.
Although Lane remains positive regarding the outcome of the plaintiff's petition for a temporary restraining order, the closing arguments were predictably -- and eloquently -- split. The defense maintained that Lane and his team did not provide enough evidence to suggest that the city's actions would chill a person of ordinary firmness from participating in the movement and exercising his or her First Amendment rights, while Lane struck out bluntly against the city's aggressive tactics in controlling the occupation.
"The bureaucracy is always the enemy of free speech," Lane said. "Everything they can do to make your life difficult and miserable, they will do. I think it really just comes down to what kind of society you want to live in. Do you want to live in a society that encourages free speech and expression or not?"
More from our Occupy Denver archive: "Occupy Denver: Charge against plaintiff in David Lane lawsuit dropped days before court date."
