Occupy Denver: David Lane says refusal to grant restraining order a civil rights tragedy

Update by Michael Roberts: Attorney David Lane doesn't foresee appealing a court's refusal to grant a temporary restraining order on behalf of Occupy Denver protesters, who claim their First Amendment rights have been systematically squelched. However, he has strong words for case overseer Judge Robert Blackburn, as well as the City and County of Denver and Mayor Michael Hancock, whose claims of validation from the ruling appear to make him more than a bit queasy.

"Obviously, I completely disagree with the judge," Lane allows. "He ignored most of the evidence we put in front of him." For example, Blackburn wasn't convinced that police officers ticketing Daniel Garcia for a few honks in support of the protesters represented an example of selective enforcement -- "but how about all the pictures of Hancock at a 'honk and wave,' and nobody got any tickets? He just ignored that.

"The Constitution is only as strong as those charged with protecting it," he continues. "And unfortunately, we have a lot of people in black robes around the country who are not particularly invested in protecting it."

Why is an appeal impractical from his point of view? "The temporary restraining order was designed to get quick emergency relief," he points out. "The appellate process is very cumbersome and time-consuming -- so it's probably not going to go anywhere."

Where's that leave Occupy Denver members, who face the prospect of a long winter without the use of tents or structures of any kind with which to protect themselves from the elements? "The police and city agenda is to harass them into submission," Lane maintains, "and we got no support from the court. So it depends on the firmness of the protesters."

Meanwhile, Lane agrees that Blackburn's denial of the order "backed up the mayor and his policies -- which is really a shame for civil rights. To allow this kind of harassment to go on in the name of law and order, and at the expense of our freedoms, is tragic."

Look below for our previous coverage.

4:04 p.m. December 7 update below: After a day and a half of waiting, federal Judge Robert Blackburn denied Occupy Denver's request for a temporary restraining order against the City and County of Denver this afternoon.

"A temporary restraining order constitutes extraordinary relief," Blackburn wrote in his decision, adding that the plaintiffs did not meet the requirements necessary to gain that relief in his view.

The movement and its professional legal team, led by civil rights attorney David Lane, originally sought the injunction against four city ordinances; they deal with honking, the Civic Center Park curfew, parking in the area, and encumbrances on the sidewalk. The attorneys alleged that the Denver Police Department and city officials enforced these edicts greater vigor against protesters than those outside the movement. The results, they argued, violated the protesters' First Amendment right to freedom of speech by using fear as a means of dissuading participation and donations in support of the occupation.

But Blackburn didn't agree. In the statement released concerning his decision, the judge wrote that the plaintiff had not provided enough proof to suggest a violation worthy of a temporary restraining order. "Without evidence of defendants' retaliatory motive, the plaintiffs' claim will fail," he wrote. "To the extent any of the evidence in the record can be read to show that an individual Denver Police officer may have selectively enforced one or more of the four ordinances against the plaintiffs because that officer had a retaliatory motive, there is no evidence that such a motive held by an individual officer is rightly or necessarily attributable or imputable to the named defendants."

At the hearing, the plaintiff cited a handful of instances during which protesters have been ticketed for honking or making donations in support of the donation -- two actions that Rob Piper and other protesters maintained had caused the success of the occupation to "plummet" in recent weeks.

The brunt of the plaintiff's case, which included ten witnesses and a wealth of documents entered into evidence, focused on the idea that the ordinances were being processed as a means of retaliation against protesters. To add to this argument, the plaintiffs provided evidence of similar camping situations for different ends (SNIAGRAB and H&M) to suggest a difference in treatment. However, Blackburn pointed out that two of the plaintiffs -- Natalie Wyatt (cited for disturbing the peace) and Bert Schultz (cited for biking on the sidewalk) -- were charged with offenses that didn't fall within the four ordinances cited in the complaint.

When Westword spoke to attorney David Lane after Monday's hearing, he said the plaintiffs would change nothing about its presentation, given the option, and added that he felt it was "probable" Blackburn would grant a restraining order. When asked about the opposite option, Lane said only that, "If he denies it, we really have no other options. We're done with the issue for a while."

Update, 4:04 p.m. December 7: This afternoon, Westword had the strange misfortune of bearing the news of the injunction's denial to plaintiff Daniel Garcia, the man ticketed for hoking in support of the occupation. Garcia is a first-year law student who was recently released from the final exam for his civil procedures class and had yet to hear about the decision. "I'm surprised, and I figured the judge would at least issue an injunction against ticketing people for honking," Garcia says. "I didn't know how the other issues were going to go either way, particularly with parking and stopping in the bus lane, but I think we proved the point well that other people are honking frequently without the same results."

Garcia's surprise carries over to the other issues, though to a lesser degree, and he hopes the ruling doesn't impede the occupation's future progression in other potential legal issues. "It's a big decision, as far as what it means for us right now," Garcia says. "We had a great team of lawyers, and I thought they presented a solid case."

Look below to read Blackburn's entire order.

Occupy Denver Order on Request for Temporary Restraining Order

More from our Occupy Denver archive: "Occupy Denver timeline: Two-and-a-half months that have shaken the city."

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Kelsey Whipple
Contact: Kelsey Whipple