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Complaint OccupyMaine.12.19.11

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STATE OF MAINE CUMBERLAND, ss.

SUPERIOR COURT CIVIL ACTION Docket No. PORSC-CV-11-_____

OCCUPYMAINE, FREDERICK DEESE HAMILTON, HEATHER LINNET CURTIS, HAROLD JOSEPH BROWN, JR., AND PALMA E. RYAN, PLAINTIFFS v.

CITY OF PORTLAND, MAINE, DEFENDANT

) ) ) ) ) ) ) ) ) ) ) )

COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF

NOW COME Plaintiffs OccupyMaine, Frederick Deese Hamilton, Heather Linnet Curtis, Harold Joseph Brown, Jr. and Palma E. Ryan, and complain against the City of Portland, Maine as follows: THE PARTIES 1.

Plaintiff OccupyMaine is an unincorporated association of citizens organized in

solidarity with the national free speech and assembl y movement known as OccupyWallStreet for the purposes, among others, of engaging engagin g in non-commercial speech and assembly, assembl y, facilitating public dialogue about the grave economic, social and political injustices of our time, reclaiming public spaces for civic engagement, creating direct democracy and facilitating civic community, and petitioning the government for redress redress of grievances. OccupyMaine is based in Lincoln Park, a public park in Portland, Maine and also maintains an office at the Meg Perry Center on Congress Street in Portland.

2.

Plaintiff Frederick Deese Hamilton is a legal resident of the City of Portland,

County of Cumberland and the State Maine. Plaintiff Hamilton is a member of OccupyMaine and is a daytime and overnight ov ernight demonstrator in OccupyMaine’s protest encampment in Lincoln Park. Plaintiff Hamilton’s use of a tent and his overnight occupancy in Lincoln Park is intended as a form of symbolic expression to draw the attention of the public and the government to the grave economic, political and social injustices of o ur time, and voice the possibility po ssibility of a more democratic, just, and economically egalitarian society society and form of government. Plaintiff  Hamilton’s continuous presence in the park is intended to hold that attention until grievances are a re adequately redressed by those in power. See Affidavit of Frederick Deese Hamilton, attached hereto as Exhibit A. 3.

Plaintiff Heather Linnet Curtis is a legal resident of the City of Portland, County

of Cumberland and the State Maine. Plaintiff Curtis is a member of OccupyMaine and is a daytime and overnight demonstrator in OccupyMaine’s Occup yMaine’s protest encampment in Lincoln Park. Plaintiff Curtis’ use of a tent and her overnight occ upancy in Lincoln Park is intended as a form of symbolic expression to draw the attention of the public and the government to the grave economic, political and social injustices of our time, and voice the possibility of a more democratic, just, and economically egalitarian society and form of government. Plaintiff Curtis’ continuous presence in the park is intended to hold that attention until grievances are adequately redressed by those in power. See Affidavit of Heather Linnet Curtis, attached hereto as Ex hibit B. 4.

Plaintiff Harold Joseph Brown, Jr. is a legal resident of the City of Portland,

County of Cumberland and the State Maine. Plaintiff Brown is is a member of OccupyMaine and is a daytime and overnight demonstrator d emonstrator in OccupyMaine’s protest encampment in Lincoln Park.

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Plaintiff Brown’s use of a tent and his overnight occupancy o ccupancy in Lincoln Park P ark is intended as a form of symbolic expression to draw the attention of the public and the government to the grave economic, political and social injustices of our time, and voice the possibility of a more democratic, just, and economically egalitarian society society and form of government. Plaintiff  Brown’s continuous presence in the park is intended intend ed to hold that attention until grievances are adequately redressed by those in power. See Affidavit of Harold Joseph Brown, Jr., attached hereto as Exhibit C. 5.

Plaintiff Palma E. Ryan is a resident of the City of Portland, County of 

Cumberland and the State Maine. Plaintiff Ryan is a member of OccupyMaine and is a daytime and overnight demonstrator in OccupyMaine’s protest encampment in Lincoln Park. Plaintiff  Ryan’s use of a tent and her overnight occupancy in Lincoln Park is intended as a form of  symbolic expression to draw the attention of the public and the government to the grave economic, political and social injustices of our time, and voice the possibility of a more democratic, just, and economically egalitarian society and form of government. Plaintiff Ryan’s continuous presence in the park is intended to hold that attention until grievances are adequately redressed by those in power. See Affidavit of Palma E. Ryan, attached hereto as Exhibit D. 6.

Defendant City of Portland is a duly incorporated municipality of the State of 

Maine. JURISDICTION & VENUE 7.

Venue is proper in this Court because OccupyMaine is based in Cumberland

County, all individual Plaintiffs currently reside in Cumberland County, a nd the Defendant City of Portland is located in in Cumberland County. This Court has personal jurisdiction jurisdiction over the Defendant because it is a duly incorporated municipality of the State of Maine.

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8.

This Court has subject matter jurisdiction over this case because it arises under

the laws and Constitution of the State of Maine, and under the laws and Constitution of the United States with respect to which the State of Maine has powers of enforcement under the Supremacy Clause of the United States Constitution. 9.

Plaintiffs meet the requirements of prudential standing because Defendant City of 

Portland has denied OccupyMaine’s request for permission to continue its Lincoln Park  demonstration and has stated in writing that Plaintiffs must terminate their exercise of  constitutionally protected speech, assembly and petitioning activity at noon on December 19, 2011 absent a request for judicial intervention. 10.

There are no pending federal court proceedings relating to any or all of the factual

and/or legal claims asserted in this Complaint. FACTUAL BACKGROUND 11.

The OccupyWallStreet movement began on September 17, 2011 in New York 

City. At its General Assembly on September 29, 2011, OccupyWallStreet issued a declaration that included the following language: “We, the New York City General Assembly Occupying Wall Street in Liberty Square, urge you to assert your power. Exercise your right to peaceably assemble; occupy public space; create a process to address the problems we face, and generate solutions accessible to everyone. To all communities that take action and form groups in the spirit of direct democracy, we offer support, documentation, and all the resources at our disposal.” See Declaration of the Occupation of New York City, a copy of which is attached hereto as Exhibit E. As part of that same Declaration, OccupyWallStreet formally articulated an initial set of grievances about which it was seeking redress through peaceable assembly, speech and petitioning activity. See Exhibit

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E hereto. 12.

OccupyMaine was formed in response to that national call to peaceable assembly

and democratic action. On October 1, 2011, OccupyMaine began a peaceable assembly in Monument Square for the purposes, among others, of showing solidarity with OccupyWallStreet, advocating for economic, political and social justice, creating a public space for citizens to consult upon the common good, and petitioning for redress of grievances. 13.

Members of OccupyMaine maintained a continuous and uninterrupted presence in

Monument Square from October 1st through October 3rd, 2011 (and in Lincoln Park since October 3, 2011) engaging in expression, assembly and consultation with ordinary citizens about the need to redress a plethora of grievances arising from the vast inequality of wealth an d income in the United States and throughout the world; a thoroughly corrupt and unjust financial, economic and political system; and the corporate takeover of our public spaces and our once democratic government at the national, state and local levels. 14.

On Monday, October 3, 2011, the City Manager for the City of Portland, Mark 

Rees, acting through the City Spokesperson, Nicole Clegg, offered Lincoln Park to OccupyMaine as a place where the group could continue its non-commercial assembly, speech and petitioning activity, provided that it discontinued its 24-hour demonstration in Monument Square. For this purpose, the City agreed to waive a provision of the Code of Ordinances prohibiting individuals from loitering in Lincoln Park between the hours of 10:00 p.m. and 6:30 a.m. (Code Section 18-18). A true and correct copy of Section 18-18 of City’s Code of  Ordinances (the anti-loitering ordinance) prohibiting persons from remaining in Lincoln Park  past 10:00 p.m. is attached hereto as Exhibit F.

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15.

The City of Portland’s anti-loitering ordinance (Code Section 18-18) is a blanket

ban on loitering. It could not apply to Plaintiffs because: (a) Plaintiffs were engaged in the exercise of non-commercial expression, assembly and petitioning activity, not the act of  loitering; and (b) by its offer on October 3, 2011, the City had expressly waived any application of the ordinance. 16.

OcccupyMaine accepted the City’s invitation, and on October 3, 2011 began

setting up tents and tables in Lincoln Park where the protestors could maintain a con tinuous presence for the purposes, among others, of: (a) raising public awareness about the grave economic, political and social injustices of our time; (b) en gaging fellow citizens in a civic discussion and dialogue about those injustices; (c) creating genu ine direct democracy and civic community as a means to empower and inspire fellow citizens to join together in concerted action to combat those injustices; and (d) petitioning the government at the federal, state and local level for redress of grievances. During the first two weeks, tents were erected in the northeasterly corner of Lincoln Park, and the number of overnight protestors did not exceed twenty-five persons. Within a month, hundreds of similar occupations had sprung up in cities and towns throughout the country and the world. OccupyMaine has maintained a continuous presence in Lincoln Park since October 3, 2011. 17.

OccupyMaine is governed through its General Assembly (“GA”), which meets

daily at 6:00 p.m. and offers itself as a self-governance model with power residing in the people, making decisions on a consensus basis through direct democracy. During the first three weeks of  the demonstration, GA meetings took place in Monument Square. Starting in late October, 2011, GA meetings moved to OccupyMaine’s protest encampment in Lincoln Park.

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18.

In the early morning hours of October 23, 2011, a chemical bomb was tossed

from Congress Street into OccupyMaine’s protest encampment in Lincoln Park, during a period when a vehicle repeatedly drove by the Park shouting “you communists” and “get a job.” The bomb exploded under a table in the common area tent, lifting the table more than a foot off the ground. Apart from fumes breathed in by two or three protestors sitting nearby, no one was seriously injured. The group moved its common area tent and other tents to the Courthouse side of the Park. No arrests have been made in that case. The authorities refused to treat it as a federal crime or a civil rights violation, based on the conclusion that the motivation for the bombing could not be deciphered unless and until the perpetrators were caught and questioned. 19.

Over the next two weeks, more people came to pitch tents in Lincoln Park, many

of whom were not part of the OccupyMaine movement. OccupyMaine never asserted an exclusive right to use Lincoln Park and never endeavored to make any decisions about who could pitch tents and/or stay overnight in the Park. The Group has never excluded or attempted to exclude members of the public from using the Park or passing through the Park, and has never blocked any of the sidewalks or ways within the Park. The group maintained its ongoing peaceable assembly and continuous expressive demonstration – using tents and an overnight presence to symbolize the grave economic and social injustices that are the subject of their protest – with verbal permission from the City Manager, the terms of which did not grant to OccupyMaine exclusive use of the Park or any authority to decide who could or could not use the Park or stay in the Park on a 24-hour basis. At no time did the City manager or the City rescind the waiver it had extended regarding the inapplicability of its anti-loitering ordinance, Section 18-18 of the City Code.

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20.

Starting in late October, 2011, the Portland Police began breaking up various

gatherings of homeless people around the City where individuals would stay overnight. Many of  these individuals, including but not limited to Plaintiff Harold Brown, Jr., were directed by Portland Police Officers to go and stay in Lincoln Park. 21.

In addition to the tents pitched by individual protestors to symbolize the plight of 

those who have been evicted or foreclosed upon, OccupyMaine erected tent-like structures in Lincoln Park in late October and early November, including a kitchen and food pantry, a medical tent, a working library dedicated to late Troy Davis (who was executed by the State of Georgia on September 21, 2011), a geodesic dome following a design of the late Buckminster Fuller which has served as the spiritual center for OccupyMaine, and a “free store” for non-food items donated to the movement and made available free of charge to the protestors and the general public. 22.

All of these tent-like structures were intended to symbolize and otherwise draw

attention to the basic needs of citizens struggling to make ends meet, and to model for the general public community-based methods of addressing those needs. These structures serve the additional purpose of facilitating community, self-governance and genuine direct democracy through which members of the public can gather to exchange ideas, confer and consult upon the common good, and draw attention to, and seek redress of, grievances arising from the grave economic, social and political injustices that gave rise to the Occupy movement. As such, they an integral and inseparable part of the Plaintiffs’ constitutionally protected activity. 23.

On November 1, 2011, following the first snow storm, OccupyMaine received its

first written correspondence from the City requesting information to address certain concerns outlined by the City. In an email from Ted Musgrave, the Director of Special Activities for the

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Department of Recreation and Facilities Management, OccupyMaine was asked to provide the City with the following information: (a) fire, safety and emergency medic al response plans; (b) plans for staying warm; and (c) plans for stewardship of Lincoln Park. A true and correct copy of this e-mail is attached hereto as Exhibit G. 24.

On November 8, 2011, OccupyMaine responded to the City’s November 1, 2011

request for information, with a promise to submit more detailed information by Nov ember 15, 2011. A true and correct copy of OccupyMaine’s November 8, 2011 response is attached hereto as Exhibit H. 25.

On November 15, 2011, OccupyMaine provided the City with an Updated and

Supplemental Response to the City’s November 1, 2011 request for information. A true and correct copy of that response is attached hereto as Exhibit I. 26.

Following OccupyMaine supplemental submission, the City conducted its first on

site inspection of OccupyMaine’s protest encampment at Lincoln Park on November 17, 2011. Following that inspection, the City sent a letter to OccupyMaine on November 18, 2011 detailing the results of that inspection and expressing concerns about compliance with the City Code of  Ordinances, encompassing fire safety, public safety and building code and permitting compliance. A true and correct copy of that November 18, 2011 letter, with enclosures, is attached hereto as Exhibit J. 27.

During the third week of November, 2011, various incidents occurred in Lincoln

Park which the City cited as raising concerns about public safety. The City invited members of  OccupyMaine to a meeting at City Hall on November 21, 2011, to address these concerns as well as the concerns set forth in the City’s correspondence dated November 18, 2011. On that date,

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the group’s attorney and five of its members met with the City Manager, Mark Rees, Corporation Counsel, Gary Wood, and the Acting Chief of Police, Mike Sauschek. 28.

In the context of that meeting on November 21st, the City and OccupyMaine

agreed that the best way to address the City’s concerns about public safety, fire safety and structural safety would be to place the ongoing assembly and protest encampment under a written permitting structure with specific rules and regulations governing the continued use of  Lincoln Park by OccupyMaine. The City manager further expressed the City’s view that – under the City’s Code of Ordinances, specifically Section 18-41 – any continued demonstration in Lincoln Park by OccupyMaine and its members would have to be approved by the Portland City Council, the exclusive permitting authority for events lasting more than three consecutive days. A true and correct copy of Section 18-41 of the City of Portland’s Code of ordinances is attached hereto as Exhibit K. The City Manager invited OccupyMaine to petition the Portland City Council for a written permit governing the terms of an y such continued use. 29.

On November 22, 2011, OccupyMaine sought additional guidance and

clarification from the City concerning it correspondence of November 18, 2011, and the matters that the City expected the group to address in its formal petition to the Portland City Council. On November 23, 2011, the City sent correspondence to OccupyMaine providing the additional clarification and guidance sought by the group. A true and correct copy of that November 23, 2011 letter, with enclosures, is attached hereto as Exhibit L. 30.

On November 28, 2011, the General Assembly of OccupyMaine approved the

decision to formally petition the Portland City Council for a written permit governing its continued use of Lincoln Park. On November 29, 2011, OccupyMaine submitted its petition to the City, petitioning the City Council for: (a) the establishment of a 24-hour speech, assembly

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and community building zone in Lincoln Park; and (b) a written permit governing the terms and conditions of OccupyMaine’s use of that space for non-commercial speech, assembly and petitioning activity for a limited, finite period of 179 days (less than six months). A true and correct copy of the November 29, 2011 Petition is attached hereto as Exhibit M. 31.

OccupyMaine’s Petition was first sent to the Public Safety Committee of the

Portland City Council for review and deliberation. The Public Safety Committee is chaired by Councilor Suslovic and consists of Councilors Suslovic, Coyne and Marshall. The Public Safety Committee held a 5-hour public hearing on OccupyMaine’s petition on December 1, 2011. 32.

Although the City’s Corporation Counsel had advised the Committee that it could

make any changes to the Petition as necessary to address the Committee’s concerns, the Public Safety Committee arbitrarily elected to treat OccupyMaine’s Petition on an up or down basis and voted 3-0 against recommendation of the Petition to the full Council. The Committee voiced its specific concerns with respect to the Petition with input from City Staff in attendance at the hearing in particular the Chief of Police. 33.

Throughout five hours of public safety discussion on December 1st focusing

principally on the “drain” on the City’s resources associated with the number of police calls to Lincoln Park, not a single mention was made of the chemical bomb tossed into the camp by an outsider on October 23, 2011. The acting Chief of Police complained at the December 1st hearing about the resources his department was dedicating to various incidents and disturbances in Lincoln Park, to address the disorderly and sometime violent and threatening conduct of  drunken individuals in the Park. One member of the public at the December 1st hearing pointed out to the Public Safety Committee that OccupyMaine was “guilty” of shining a bright spotlight

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on the problems of poverty, homelessness and substance abuse in Maine’s wealthiest City that Portland would prefer to ignore or keep out of sight. 34.

In response, OccupyMaine observed to the Public Safety Committee that the City

appeared to tolerate an even larger drain on City resources for commercial activity, including the steady diet of violence and police calls that have become an integral part of Portland’s night life in the Old Port District, where physical altercations break out into Portland’s sidewalks and streets, and drunken individuals over-served at Portland drinking establishments drive away leading to more arrests and injuries. The City’s response to that problem has been to work  cooperatively with bar owners to address the violence associated with Portland’s night life in the Old Port, not to shut down the bars or the night life. See article from Portland Press Herald , attached hereto as Exhibit N. 35.

Notwithstanding these concerns, the City’s Acting Chief of Police expressed his

view that comparing police calls for drunk and disorderly conduct in Lincoln Park with police calls for drunk and disorderly conduct in the Old Port District was like comparing “apples and oranges”, and that a more appropriate way to capture the impact of the OccupyMaine’s demonstration would be to compare the number of police calls to Lincoln Park before OccupyMaine’s demonstration began with the number of police calls after the Park was filled with protestors, tents and overnight occupants. As one member of the public noted when he addressed the full council on December 7, 2011, this is like comparing the number of police calls to a football stadium during the middle of the week with the number of calls on game day when the stadium is full. 36.

During the Public Safety Committee meeting on December 1, 2011,

OccupyMaine also pointed out to the City that it allowed the construction of a 20-foot tall ski

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slope for skiers and snowboarders in Monument Square earlier this year, to allow the owners of  Sugarloaf and Sunday River to market and promote their commercial interests. It was apparently the third year in a row in which the slope was constructed in Monument Square for that purpose. This commercial marketing event in a traditional pub lic forum – which involved a structures allowed to remain overnight – must have included some variances or waivers with respect to the City’s code of ordinances. 37.

At the meeting on December 1st, OccupyMaine also pointed out that the City and

various corporate sponsors hold rock concerts in Monument Square with vast staging, excessive volume and noise, and the sale and consumption of alcoholic beverages in Monument Square during those concerts, all of which are not strictly in compliance with the provisions of the C ity Code. 38.

Following the December 1st Public Safety Committee hearing, OccupyMaine’s

general Assembly approved the submission of an amended petition to further address the concerns raised by City officials and members of the Public Safety Committee at the December 5th hearing. On December 5, 2011, OccupyMaine submitted an Amended Petition for consideration by the City Council. A true and correct copy of OccupyMaine’s Amended Petition of December 5, 2011 is attached hereto as Exhibit O. 39.

On the afternoon of December 7, 2011, OccupyMaine submitted to the City of 

Portland a Petition for Initial Redress of Grievances. A true and correct copy of this Petition for Redress of Grievances is attached hereto as Exhibit P. 40.

On the evening of December 7, 2011, the Portland City Council conducted a

public hearing to consider OccupyMaine’s petition of November 29, 2011 and its amended petition of December 5, 2011. Following initial presentation by City Staff and by the

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undersigned Counsel for OccupyMaine, the Council opened the matter for comment from the general public. During a period of nearly three hours, fifty-three members of the public spoke out concerning OccupyMaine’s petition. Forty-eight members of the public expressed their support for the Petition, and five voiced their opposition to the Petition. 41.

Following the public comment period at the December 7th hearing, the Council

first voted to consider OccupyMaine’s Amended Petition dated December 5, 2011, which contained substantive changes and concessions not contained in its original Petition dated November 29th. Following that initial vote, member of the Council made public comments about the Amended Petition. As publicly advised by Corporation Counsel, and as noted by at least two members of the Council, the Council had the authority to propose and consider any changes or amendments to the Petition as necessary to satisfy the Council’s concerns about the Petition. 42.

Notwithstanding that advice and the fact that the subject matter was not

commercial activity but rather core political speech an d assembly, the Council proceeded to treat OccupyMaine’s Amended Petition on an up or down basis, and voted 8-1 to deny the Petition. A majority of those on the Council expressed the position that they would not grant any petition for use of Lincoln Park by OccupyMaine that was not strictly in compliance with the City’s Code of  Ordinances, including but not limited to the prohibition on individuals remaining in Lincoln Park  past 10:00 p.m. as set forth in the City’s anti-loitering law contained in Section 18-18 of the Code of Ordinances. The majority of Councilors made little reference to the standards set forth in Section 18-41 governing their authority to issue a permit for events lasting more than three consecutive days, but rather were guided by their belief that in this particular situation – un less a  judge told them otherwise – they must strictly enforce the provisions of the City code that banned any presence in Lincoln Park past 10:00 p.m.

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43.

In their efforts to explain why OccupyMaine’s sustained expression, assembly

and demonstration in Lincoln Park must come to an end, Councilors also barely addressed the First Amendment or the constitutional questions at all, suggesting that those matters are b est left to persons in “black robes.” Instead, Councilors focused mainly on “law and order”, “public safety” and “city resources”, and accused OccupyMaine at different times of being both too inclusive and too exclusive. For example, after offering to reduce their numbers to no more than 50 persons to address the City’s stated concerns about public safety and to significantly reduce the group’s geographic footprint in Lincoln Park, Councilor Duson voiced her concern about the exclusion of the “51st camper”, a concern that was echoed by the majority of other councilors opposed to granting any group “exclusive” use of public space for any activity including constitutionally protected activity. 44.

As noted by the lone supporter of OccupyMaine’s petition, Councilor David

Marshall, through its permitting process the City regularly grants to groups the exclusive right to use public parks for events and activities, both commercial and non-commercial in nature. Every Wednesday and Saturday throughout every year, no group can hold an event during the morning or afternoon in Monument Square or Deering Oaks, respectively, because the Portland Farmer’s Market has been granted exclusive rights to use those Parks on those two days every week  apparently ad infinitum. 45.

Notwithstanding the Council’s stated concerns about “exclusive” use of a limited

portion of Lincoln Park by OccupyMaine and its members, no evidence was offered at the Council meeting – nor has it ever been brought to OccupyMaine’s attention since October 3, 2011 – that a single group or individual has sought permission to use Lincoln Park for any purpose, commercial or non-commercial, during the period of the OccupyMaine demonstration.

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46.

Another Councilor, Cheryl Leeman, was extremely bothered by the notion that

OccupyMaine was improperly asking the City to enact a permanent zoning change with respect to Lincoln Park to keep it open for constitutionally protected activity on a 24-basis. Councilor Leeman’s public statement ignored the legal opinion expressed by the City’s own Corporation Counsel, who had concluded that no zoning change would be required . For example, the City could simply exempt individuals engaged in non-commercial speech, assembly and protest activity from the City’s anti-loitering ordinance (section 18-18). More troubling and telling with regard to the true nature of her concerns, Councilor Leeman neglected to acknowledge that she and other Councilors regularly consider and approve zoning changes, waivers and variances with respect to the City Code when large commercial developers appear before them seeking to profit financially from those regularly bestowed accommodations. 47.

During the public comment period, individuals from the general public who urged

Councilors to grant the Petition reminded them that they frequently grants waivers and variances with respect to the City Code when powerful commercial interests appear before them, including but not limited to the $2.8 million tax break the Council voted to grant to Portland’s largest law firm when it sought to move its offices to a newly constructed and renovated space on Portland’s waterfront.1 In connection with the same development project, the City Council also approved a re-zoning of a vast amount of storage space on Portland’s waterfront to commercial office space, much to the chagrin of fisherman and others fighting to defend Portland’s working waterfront. 48.

On December 9, 2011, the City Manager sent a letter to OccupyMaine’s

undersigned counsel informing him that the group had until Thursday, December 15, 2011 at 12:30 p.m. to decide whether to: (a) seek a restraining order through the co urts; (b) voluntarily disband the protest encampment; or (c) submit an amended petition for a permit that strictly 1

See Press Herald  Article of August 11, 2011, attached hereto as Exhibit P-1.

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complies with the City’s Code of Ordinances, which Code includes without limitation a blanket ban on any gatherings or assemblies of persons in Lincoln Park betwe en the hours of 10:00 p.m. and 6:30 a.m. A true and correct copy of the City’s December 9, 2011 letter is attached hereto as Exhibit Q. 49.

Prior to the passage of the City’s December 15th deadline, OccupyMaine’s

undersigned counsel communicated to the City that OccupyMaine would seek judicial intervention to protect their rights under the United States and Maine Constitutions. OccupyMaine further communicated to the City that its “invitation” to submit an amended petition strictly in compliance with the City’s Code of Ordinances – including without limitation the ordinance banning any gathering or assembly of persons in Lincoln Park past 10:00 p.m. – confirmed the end of the City’s tolerance for OccupyMaine’s continuous assembly or protest in Lincoln Park that was evident at the City Council meeting on December 7, 2011 and reflect in the comments and votes of the majority of the Council. 50.

On December 15, 2011, OccupyMaine received from the City of Portland a copy

of a certified notice reflecting the Council’s December 7th rejection, by a vote of 8-1 of: (a) OccupyMaine’s petition for a twenty-four hour speech, assembly and community building space in Lincoln Park; and (b) OccupyMaine’s Petition that it be permitted to continue its assembly under a written permit structure subject to terms and cond itions imposed by the City for a period of 179 days. A true and correct copy of the certified notice of Council action is attached hereto as Exhibit R. 51.

On December 15, 2011, OccupyMaine received from the City of Portland a

written decision of the Portland City Council, signed on December 15, 2011 by Mayor Michael Brennan on behalf of the Council, confirming its December 7, 2011 vote of 8-to-1 to deny

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OccupyMaine’s Amended Petition, and endeavoring to explain the basis for the rejection of that Amended Petition. A true and correct copy of that December 15, 2011 written memorandum of  the Council’s December 7th decision is attached hereto as Exhibit S. 52.

With respect to the City Council’s denial of OccupyMaine’s Petition that it be

permitted to continue its assembly in Lincoln Park under a written permit structure subject to terms and conditions imposed by the City for a period of 179 days, the Mayor’s December 15, 2011 written memorandum cited the following grounds for that denial:

53.

a.

The City’s Code of Ordinances does not allow 24-hours-per-a-day residential camping in city parks or public spaces sought by OccupyMaine.

b.

OccupyMaine’s use of Lincoln Park would “deny other members of the public the use of the park for traditional park uses including first amendment use.”

c.

That the group’s Amended Petition of December 5, 2011 – addressing every single stated concern of the City of Portland in great detail – failed to meet the standards for granting a permit set forth in Chapter 18, Section 18-44.

d.

Fire code and building code violations for which OccupyMaine was cited on November 18, 2011, and which the group acted upon and responded to through no fewer than four detailed written submissions to the City on November 8th, November 15th, November 29th and December 5th.

e.

The Police Department Report which in the view of the Council demonstrated the “past and ongoing inability of the petitioners to provide a safe environment in relation to the behavior and activities of their own group and others who have joined them or simply decide to camp in the park.”

With respect to the City Council’s denial of OccupyMaine’s Petition that the City

establish a twenty-four hour speech, assembly and commu nity building space in Lincoln Park, the, the Mayor’s December 15, 2011 written memorandum cited as the basis for that denial the

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ground that establishing such a space for twenty-four hour speech, assembly and community building could lead to:

54.

a.

“the exclusive use by one group for an unlimited time period”;

b.

“buildings constructed in the park for that use by someone other than the City”; and

c.

a violation of “the current ordinance restriction against being in the park after 10:00 p.m. and before 6:30 a.m.”

On December 15, 2011, the City also issued to OccupyMaine’s undersigned

counsel, and to individual protestors in Lincoln Pa rk, a written notice informing them that, absent the filing of a lawsuit on behalf of the group no later than Monday, December 19, 2011 at noon: (a) individual members of OccupyMaine and others who have placed structures in Lincoln Park must remove those structures no later than noon on December 19, 2011; and (b) members of OccupyMaine and any other individuals who may wish to remain in the Park must refrain from entering the Park for any purpose in accordance with City ordinance during the hours of  10:00 p.m. and 6:00 a.m. A true and correct copy of said notice is attached hereto as Exhibit T. COUNT I The Portland City Code’s Blanket Prohibition of  Speech or Assembly in any Public Park  During Certain Hours is Unconstitutional on its Face Claim for Declaratory Judgment & Injunctive Relief  Pursuant to 14 M.R.S.A. § 5951

55.

Plaintiffs repeat and restate the allegations in paragraphs 1-54 and incorporate

them by reference as if fully set forth herein. 56.

The First Amendment of the United States Constitution and Article 1 of the

Maine Constitution provide the People with broad rights of speech, assembly and petitioning for redress of grievances, among other rights. The First Amendment of the United States

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Constitution is applicable to this dispute between Plaintiffs and Defendant, which is a municipality of a State, by virtue of the Fourteenth Amendment. 57.

Article 1 of the Maine Constitution provides rights and protections for the People

above and beyond the rights and protections guaranteed by the First Amendment of the United States Constitution. Included in those rights are the right to enjoy and defend their lives and liberty, to freely speak, to assemble and consult upon the public good, to petition for redress of  grievances, and to institute government, or alter, reform or totally change the same when their safety and happiness require. Constitution of the State of Maine, Article I, Sections 1, 2, 4 and 15. 58.

Virtually every aspect of Plaintiffs’ ongoing activity in Lincoln Park is expressive

and otherwise protected under the Maine and United State Constitutions, including but not limited to speech, assembly, petitioning, distribution of literature, pitching tents and sleeping overnight, housing and feeding the homeless, conducting teach-ins, maintaining a continuous, round-the-clock presence, and engaging in direct democracy and public discourse. 59.

As demonstrated in the sworn affidavits submitted herewith, Plaintiffs’ use of 

tents and their overnight occupanc y in Lincoln Park is a form of symbolic expression intended to draw the attention of the public and the government to the grave economic, political and social injustices of our time, and their continuous presence in the park is intended to hold that attention until grievances are adequately redressed by those in power. 60.

The anti-loitering provisions of Portland’s Code of Ordinances (Section 18-18) –

which prohibit any gatherings of people in Lincoln Park for any reason between the hours of  10:00 p.m. and 6:30 a.m. regardless of whether the individuals are engaged constitutionally protected activity – is facially unconstitutional as a plain violation of the rights of the People,

20

including but not limited to the Plaintiffs, under both the United States Constitution and the Constitution of the State of Maine. On its face, the blanket ban contained in Section 18-18 is unconstitutionally overbroad, is an unconstitutional prior restraint, constitutes an unreasonable time, place and manner restriction on constitutionally protected speech, assembly and petitioning activity, and is otherwise not narrowly tailored to serve an y substantial governmental interest. 61.

The anti-loitering parks ordinance is facially unconstitutional for a second

independent reason as well. Section 18-18 of Portland’s Code of Ordinances delegates to the City Manager unbridled, arbitrary discretion to grant or den y written authorization to certain person or persons to assemble or remain in the City’s parks between the hours of 10:00 p.m. and 6:30 a.m., without any promulgated standards or criteria governing such authorization by the City Manager. This overbroad, arbitrary, standardless and unregulated delegation of authority to the City Manager to allow certain persons to assemble or remain in the City’s parks between the hours of 10:00 p.m. and 6:30 a.m. – and to prohibit others from doing so – is unconstitutional and in violation of the rights of people, including but not limited to the Plaintiffs, who seek to use the public parks for non-commercial speech, assembly and petitioning activity. 62.

In denying the Amended Petition of OccupyMaine, the City Council expressly

referenced the City’s ordinance banning on any gatherings of people in Lincoln Park between the hours of 10:00 p.m. and 6:30 a.m. and refused to waive that provision to accommodate OccupyMaine’s ongoing peaceful demonstration in Lincoln Park. The Plaintiffs face impending removal from Lincoln Park based on the City’s stated intention to strictly enforce that ordinance (Section 18-18) against the demonstrators. 63.

Pursuant to 14 M.R.S.A. § 5951 et seq., this Court has the power to enter a

declaratory judgment with respect to the constitutional rights of the Plaintiffs as the y pertain to

21

the Code of Ordinances of the City of Portland, including but not limited to a judgment as to the constitutionality of any provisions of the Code of Ordinances, on their face or as applied. This Court has the additional power to issue an y injunctive relief that is consistent with that declaratory judgment. WHEREFORE, Plaintiffs respectfully request that this Court: A.

Declare that Section 18-18 of the Code of Ordinances of the City of Portland is

unconstitutional under the First Amendment to the United States, and Article I, Sections 1, 2, 4 and 15 of the Maine Constitution; B.

Preliminarily and permanently enjoin the City of Portland from any enforcement

of Section 18-18 of its Code of Ordinances, and from acting upon its decision to remove OccupyMaine and its individual members from Lincoln Park based in whole or in part on the failure of OccupyMaine or its individual members to comply with that unconstitutional ordinance; C.

Award OccupyMaine its costs associated with bringing this action; and

D.

Award such other and further relief as this Court deems just and proper. COUNT II The Portland City Code’s Blanket Ban on Speech, Assembly  and Petitioning Activity in Lincoln Park During Certain Hours is Unconstitutional As Applied to the Plaintiffs Claim for Declaratory Judgment & Injunctive Relief  Pursuant to 14 M.R.S.A. § 5951

64.

Plaintiff repeats and restates the allegations in paragraphs 1-63 as if fully set forth

65.

The First Amendment of the United States Constitution and Article 1 of the

herein.

Maine Constitution provide the People with broad rights of speech, assembly and petitioning for

22

redress of grievances, among other rights. The First Amendment of the United States Constitution is applicable to this dispute between Plaintiffs and Defendant, which is a municipality of a State, by virtue of the Fourteenth Amendment. 66.

Article 1 of the Maine Constitution provides rights and protections for the People

above and beyond the rights and protections guaranteed by the First Amendment of the United States Constitution. Included in those rights are the right to enjoy and defend their lives and liberty, to freely speak, to assemble and consult upon the public good, to petition for redress of  grievances, and to institute government, or alter, reform or totally change the same when their safety and happiness require. Constitution of the State of Maine, Article I, Sections 1, 2, 4 and 15. 67.

Virtually every aspect of Plaintiffs’ ongoing activity in Lincoln Park is expressive

and otherwise protected under the Maine and United State Constitutions, including but not limited to speech, assembly, petitioning, distribution of literature, pitching tents and sleeping overnight, housing and feeding the homeless, conducting teach-ins, maintaining a continuous, round-the-clock presence, and engaging in direct democracy and public discourse. 68.

The anti-loitering provisions of Portland’s Code of Ordinances (Section 18-18) –

which prohibit loitering in Lincoln Park and other public parks between the hours of 10:00 p.m. and 6:30 a.m. – is unconstitutional as applied to OccupyMaine and the individual Plaintiffs, for either or both of two basic reasons: (a) the Plaintiffs are engaged in non-commercial expression, assembly and petitioning activity, not loitering; and (b) P laintiffs’ chosen form of protest, expression and demonstration requires by its very nature and symbolic meaning the ability to maintain a sustained and continuous assembly of individuals in a public space.

23

69.

The City of Portland can reasonably grant a variance with regard to its anti-

loitering law (Section 18-18) for purposes of accommodating the constitutionally protected rights of speech and assembly of the Plaintiffs, without sacrificing any of the legitimate governmental interests underlying its ordinance entitled “ Loitering in Parks”, which ostensibly relates only to the principal object of preventing “loitering” in the City’s Parks past certain hours. 70.

Pursuant to 14 M.R.S.A. § 5951 et seq., this Court has the power to enter a

declaratory judgment with respect to the constitutional rights of the Plaintiffs as the y pertain to the Code of Ordinances of the City of Portland, including but not limited to a judgment as to the constitutionality of any provisions of the Code of Ordinances, on their face or as applied. This Court has the additional power to issue an y injunctive relief that is consistent with that declaratory judgment. WHEREFORE, Plaintiffs respectfully request that this Court: A.

Declare that Section 18-18 of the Code of Ordinances of the City of Portland is

unconstitutional as applied to the Plaintiffs under the First Amendment to the United States, and Article I, Sections 1, 2, 4 and 15 of the Maine Constitution; B.

Preliminarily and permanently enjoin the City of Portland from any enforcement

of Section 18-18 of its Code of Ordinances as to OccupyMaine and its individual members, and from acting upon its decision to remove OccupyMaine and its individual members from Lincoln Park based in whole or in part on their failure to comply with the unconstitutional ordinance; C.

Award OccupyMaine its costs associated with bringing this action; and

D.

Award such other and further relief as this Court deems just and proper.

24

COUNT III The Portland City Code’s Requirement that Persons Seek Advance Permission from the City for Any  Demonstration Involving More than Twenty-Five Persons  or Lasting More than Three Days is Unconstitutional  Claim for Declaratory Judgment & Injunctive Relief  Pursuant to 14 M.R.S.A. § 5951 (Violation of First and Fourteenth Amendments to the United States Constitution; Violation  of Article I of the Maine Constitution)

71.

Plaintiffs repeat and restate the allegations in paragraphs 1-70 and incorporate

them by reference as if fully set forth herein. 72.

The First Amendment of the United States Constitution and Article 1 of the

Maine Constitution provide the People with broad rights of speech, assembly and petitioning for redress of grievances, among other rights. The First Amendment of the United States Constitution is applicable to this dispute between Plaintiffs and Defendant, which is a municipality of a State, by virtue of the Fourteenth Amendment. 73.

Article 1 of the Maine Constitution provides rights and protections for the People

above and beyond the rights and protections guaranteed by the First Amendment of the United States Constitution. Included in those rights are the right to enjoy and defend their lives and liberty, to freely speak, to assemble and consult upon the public good, to petition for redress of  grievances, and to institute government, or alter, reform or totally change the same when their safety and happiness require. Constitution of the State of Maine, Article I, Sections 1, 2, 4 and 15. 74.

Virtually every aspect of Plaintiffs’ ongoing activity in Lincoln Park is expressive

and otherwise protected under the Maine and United State Constitutions, including but not limited to speech, assembly, petitioning, distribution of literature, pitching tents and sleeping

25

overnight, housing and feeding the homeless, conducting teach-ins, maintaining a continuous, round-the-clock presence, and engaging in direct democracy and public discourse. 75.

Pursuant to Section 18-41 of the Portland Code of Ordinances, the Director of 

Parks and Recreation is the exclusive permitting authority for events in City parks in twenty-five (25) persons or more may gather and participate, and such events require a written permit from the City in advance. The Code provides no exception for constitutionally protected activity such as non-commercial expression, assembly or petitioning activity. 76.

Pursuant to Section 18-41 of the Portland Code of Ordinances, the Portland City

Council is the exclusive permitting authority for events in City parks that are proposed to last longer than three (3) days – regardless of the expected number of participants – and such events require a written permit from the City in advance. The Code provides no exception for constitutionally protected activity such as non-commercial speech, assembly or petitioning activity. 77.

The City of Portland required OccupyMaine to submit a Petition to the City

Council in part based on the conclusion that only the City Council could grant a permit for a demonstration lasting more than three consecutive days. 78.

The City’s Code provisions requiring individuals to obtain advance written

permission from the City before engaging in an y constitutionally protected speech, assembly or petitioning activity that may attract twenty-five (25) or more persons or last mo re than three (3) consecutive days is an unconstitutional prior restraint on such activity, contrary to the rights of  the people, including but not limited to the Plaintiffs, under the United States Constitution and the Constitution of the State of Maine.

26

79.

The City of Portland announced its intention to remove the Plaintiffs from

Lincoln Park, as a direct and proximate result of the City’s imposition of the permitting requirement upon the Plaintiffs and its outright denial of the Amended Petition seeking such a permit for an ongoing demonstration lasting more than three consecutive days and involving more than twenty-five persons. The Plaintiffs thus face impending removal from Lincoln Park  based on the City’s stated intention to strictly enforce provisions of its code of ordinances – specifically those set forth in Section 18-41 – that constitute an unconstitutional prior restraint on speech, assembly and petitioning activity in public parks. 80.

Pursuant to 14 M.R.S.A. § 5951 et seq., this Court has the power to enter a

declaratory judgment with respect to the constitutional rights of the Plaintiffs as the y pertain to the Code of Ordinances of the City of Portland, including but not limited to a judgment as to the constitutionality of any provisions of the Code of Ordinances, on their face or as applied. This Court has the additional power to issue an y injunctive relief that is consistent with that declaratory judgment. WHEREFORE, Plaintiffs respectfully request that this Court: A.

Declare that Section 18-41 of the Code of Ordinances of the City of Portland is

unconstitutional under the First Amendment to the United States, and Article I, Sections 1, 2, 4 and 15 of the Maine Constitution; B.

Preliminarily and permanently enjoin the City of Portland from any enforcement

of Section 18-41 of its Code of Ordinances, and from acting upon its decision to remove OccupyMaine from Lincoln Park based in whole or in part on OccupyMaine’s failure to comply with that unconstitutional ordinance; C.

Award OccupyMaine its costs associated with bringing this action; and

27

D.

Award such other and further relief as this Court deems just and proper. COUNT IV The City of Portland’s Denial of  OccupyMaine’s Amended Petition Violated the Constitutional Rights of the Plaintiffs Claim for Declaratory and Injunctive Relief  Pursuant to 14 M.R.S.A. § 5951  and  Claim for Violation of Civil Rights Pursuant to 5 M.R.S.A. § 4682

81.

Plaintiffs repeat and restate the allegations in paragraphs 1-80 and incorporate

them by reference as if fully set forth herein. 82.

The First Amendment of the United States Constitution and Article 1 of the

Maine Constitution provide the People with broad rights of speech, assembly and petitioning for redress of grievances, among other rights. The First Amendment of the United States Constitution is applicable to this dispute between Plaintiffs and Defendant, which is a municipality of a State, by virtue of the Fourteenth Amendment. 83.

Article 1 of the Maine Constitution provides rights and protections for the People

above and beyond the rights and protections guaranteed by the First Amendment of the United States Constitution. Included in those rights are the right to enjoy and defend their lives and liberty, to freely speak, to assemble and consult upon the public good, to petition for redress of  grievances, and to institute government, or alter, reform or totally change the same when their safety and happiness require. Constitution of the State of Maine, Article I, Sections 1, 2, 4 and 15. 84.

Virtually every aspect of Plaintiffs ongoing activity in Lincoln Park is expressive

and otherwise constitutionally protected, including but not limited to speech, assembly, petitioning, distribution of literature, pitching tents and sleeping overnight, hou sing and feeding

28

the homeless, conducting teach-ins, maintaining a continuous, round-the-clock presence, and engaging in direct democracy and public discourse. 85.

The City of Portland’s denial of OccupyMaine’s Petition was based on its

application and enforcement of unconstitutional provisions of its code of ordinances, including but not limited to Section 18-18 and Section 18-41 of the Code of Ordinances. 86.

The City of Portland’s denial of OccupyMaine’s Petition to continue its

constitutionally protected activity in Lincoln Park was based on the imposition of unreasonable time, place and manner restrictions that were not narrowly tailored to serve any substantial governmental interest, and therefore violated the rights of the Plaintiffs under the Maine and United States Constitutions. 87.

The City of Portland’s denial of OccupyMaine’s Petition to continue its

constitutionally protected activity in Lincoln Park was based on the nature of the group’s activity, its highly controversial message, and/or a desire to end or lessen the public and the media’s fixation on the Occupy movement, not on the “public safety”, “fire safety”, “building code” or other concerns voiced by the City as the basis for shutting down the Plaintiff’s highly controversial demonstration in Lincoln Park. The City of Portland’s refusal to grant any waivers or variances with respect to its Code of Ordinance to accommodate constitutionally protected non-commercial activity – as contrasted with the City’s regular and cu stomary accommodation of commercial interests that seek and obtain such variances and waivers – demonstrates that its strict application of the City Code to OccupyMaine and its members is not context neutral. 88.

Pursuant to 14 M.R.S.A. § 5951 et seq., this Court has the power to enter a

declaratory judgment with respect to the constitutional rights of the Plaintiffs as the y pertain to the Code of Ordinances of the City of Portland, including but not limited to a judgment as to the

29

constitutionality of any provisions of the Code of Ordinances, on their face or as applied. This Court has the additional power to issue an y injunctive relief that is consistent with that declaratory judgment. 89.

Pursuant to 5 M.R.S.A. § 4682, this Court has the power, upon the request of any

person, to grant legal or equitable relief when another person acting under color of law interferes with their rights under the United States and/or Maine C onstitution through any threatened use of  force. 90.

The City of Portland and its officials, including but not limited to the Members of 

the City Council, the Mayor and the City Manager, acted under color of law when they denied OccupyMaine’s petition request and demanded that OccupyMaine and its members vacate Lincoln Park and their belongings by noon on Monday, December 19, 2011. Absent the issuance of injunctive relief by this Court as requested by the Plaintiffs hereby and in their Motion for Preliminary Injunction submitted herewith, the Plaintiffs face immediate interference in the exercise of their constitutionally protected rights of speech, assembly and petitioning activity under threat of force, namely, forcible removal by the Portland Police Department of themselves and their belongings from Lincoln Park where they have been peaceably exercising their constitutional rights since October 3, 2011. WHEREFORE, Plaintiffs respectfully request that this Court: A.

Permanently enjoin the City of Portland from taking any action upon its decision

to deny OccupyMaine’s Petition, including but not limited to any removal of OccupyMaine and its individual members from Lincoln Park; B.

Award OccupyMaine its reasonable attorneys’ fees and costs associated with

bringing this action; and

30

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