[00:00:01] Speaker 02:
Case number 13-7150, Samuel DeCorey at L, Appellants vs. District of Columbia at L. Mr. Light for the Appellants, Ms.

[00:00:09] Speaker 03:
Anderson for the Appellees.

[00:00:13] Speaker 03:
Good morning.

[00:00:14] Speaker 03:
May it please the Court?

[00:00:15] Speaker 03:
Good morning.

[00:00:16] Speaker 03:
The primary issue in this case is whether two protesters, whether the police had reasonable

[00:00:23] Speaker 03:
whether the police had a reasonable belief that they had probable cause to arrest two protesters for violating an obscure District of Columbia regulation, which prohibits setting up a camp or temporary place of abode in a tent.

[00:00:43] Speaker 03:
I'd like to begin by looking at the plain meaning of those terms.

[00:00:52] Speaker 03:
They were given notice, that's correct.

[00:00:57] Speaker 03:
The question under the 1983 claim and under the false arrest claim, there is no qualified immunity, so it's just a question of whether there's probable cause.

[00:01:13] Speaker 03:
And if we look at the plain meaning of what those terms are, a place of abode that's a residence, it's a home, that's somewhere you live.

[00:01:21] Speaker 03:
And there's no evidence that these individuals who are participating in a protest were attempting to live in that tent.

[00:01:28] Speaker 03:
What time was it?

[00:01:31] Speaker 03:
The complaint does not specify, but it was in the evening, sometime after 10 p.m.

[00:01:39] Speaker 03:
And of course... And they were in the tent.

[00:01:42] Speaker 03:
They're in the tent.

[00:01:46] Speaker 03:
And if we look at the meaning of the term camp, that is, if you say to somebody, I went camping this weekend.

[00:01:56] Speaker 03:
they wouldn't think you sat in a tent as part of a protest.

[00:01:59] Speaker 03:
They would imagine some of the indicia of camping that are laid out, for example, in the federal park police's anti-camping regulation, which lists, which is 36 CFR 7.96 I, which lists, for example, some things like preparations to sleep, sleeping activities, storing personal belongings, making a fire, digging earth.

[00:02:22] Speaker 03:
Those sorts of things which are characteristic of camping, none of those things were present.

[00:02:28] Speaker 03:
Here we have an empty tent which the individuals were simply sitting in as part of their protest.

[00:02:34] Speaker 03:
They had only been there for a matter of minutes.

[00:02:38] Speaker 00:
This is not a case where... The statute doesn't require you to actually be camping if you're setting up a camp.

[00:02:44] Speaker 03:
Setting up a camp.

[00:02:45] Speaker 03:
So if it turns out that later the individuals are determined to be camping, that person who set up the camp, even if they weren't the one who was camping... Well, surely you don't have to wait until later.

[00:02:59] Speaker 00:
If someone's setting up a camp, then that violates the statute, does it not?

[00:03:03] Speaker 03:
It would.

[00:03:04] Speaker 00:
So it doesn't matter if we get to the point of actually setting up your Coleman stove and cooking eggs or anything as long as you're setting up the tent.

[00:03:15] Speaker 00:
The first thing a lot of people do when they set up camp is put up a tent.

[00:03:18] Speaker 03:
It was the first and last thing.

[00:03:19] Speaker 03:
This is not a case where they had a truck and they were off loading

[00:03:24] Speaker 03:
various things to bring in.

[00:03:26] Speaker 03:
They hadn't yet completed that.

[00:03:28] Speaker 03:
There was no indication to any of the police officers that anything more was going to happen there than the simple tent.

[00:03:35] Speaker 03:
That was the beginning and the end.

[00:03:38] Speaker 00:
So what more would they have to have seen before it would have then qualified as a camp or setting up a temporary abode?

[00:03:47] Speaker 00:
What more is missing here?

[00:03:49] Speaker 03:
Well, there are any number of things that could have provided that indicia.

[00:03:54] Speaker 03:
For example, if they saw the individuals carrying backpacks, they were coming in with cooking equipment.

[00:04:02] Speaker 00:
They're just planning to sleep overnight.

[00:04:04] Speaker 00:
They'll get breakfast at Starbucks or whatever.

[00:04:06] Speaker 00:
This isn't out in the wilderness.

[00:04:09] Speaker 00:
They don't need backpacks.

[00:04:10] Speaker 00:
They just, as protesters, want to sit in there overnight.

[00:04:14] Speaker 00:
If they wanted to sit there all night, would you agree that would violate the statute?

[00:04:17] Speaker 03:
If they slept overnight, that would... What if they sat there overnight?

[00:04:22] Speaker 03:
If they were sleeping while they're sitting... Why does it matter if they're sleeping or not?

[00:04:27] Speaker 03:
Well, sleeping is an indicia of camping.

[00:04:30] Speaker 00:
So they're sitting for a really, really long time.

[00:04:33] Speaker 00:
Your position then is that as long as they stayed awake, they could have stayed there all night, or would you agree that if they stayed there all night, it would violate the statute?

[00:04:42] Speaker 03:
It's a totality of the circumstances.

[00:04:44] Speaker 03:
So that would be one, if they were staying there overnight.

[00:04:49] Speaker 00:
I'm not giving you any other circumstances other than they have a tent and they're sitting there all night from, we'll say, 9 p.m.

[00:04:54] Speaker 00:
to 9 a.m.

[00:04:55] Speaker 00:
Does that violate the statute?

[00:04:58] Speaker 03:
If that was just how long the protest was, they were awake and just sitting there, I don't think that would violate the protest.

[00:05:05] Speaker 02:
Why is having to be awake, why is that so essential to one of these public housing items?

[00:05:10] Speaker 03:
I don't think it's so essential, it's just one of the many additions.

[00:05:30] Speaker 03:
If that's the only indicia that we're talking about was whether or not they're sleeping, that might be enough to push it across the line, looking at all of the circumstances.

[00:05:43] Speaker 03:
Here, we don't even have that.

[00:05:45] Speaker 03:
There's no indication that they would have been sleeping overnight.

[00:05:48] Speaker 03:
The police were standing right there.

[00:05:50] Speaker 00:
Do we know how long the tents, because there were a whole bunch of tents I guess that were up, they told them to take them down and then put this one, the single one, back up.

[00:05:59] Speaker 00:
Do we know how long all those other tents were up before the order to disassemble them?

[00:06:05] Speaker 03:
That information's not in the complaint, but my understanding is that this all took place within a relatively

[00:06:13] Speaker 03:
short period of time, minutes not hours.

[00:06:17] Speaker 00:
Is one of the circumstances police get to take into account that the name of the protest is Occupy?

[00:06:23] Speaker 00:
Could that factor into their decision that people plan to stay at a place for a certain, more than a few minutes?

[00:06:33] Speaker 03:
I'm not sure if that was a fact that was known to the police or not.

[00:06:37] Speaker 03:
And if the name of the protest was not known to the police, then that's not something you would have... How far do we have to withdraw from reality?

[00:06:46] Speaker 02:
Well, this was... They were the declared Occupy movement at the time.

[00:06:51] Speaker 02:
And I think you even claim there's a retaliatory motive here because they knew there was the Occupy movement.

[00:06:58] Speaker 02:
They came in here and said they didn't know there were Occupy.

[00:07:01] Speaker 03:
Well, Your Honor, the Occupy movements were taking place at McPherson Square and Freedom Plaza.

[00:07:06] Speaker 03:
This was not in any of those locations.

[00:07:09] Speaker 03:
This was on a sidewalk in front of a bank.

[00:07:13] Speaker 03:
OK.

[00:07:16] Speaker 02:
It's coincidental to all the Occupy movements that they were doing the same thing at the same time.

[00:07:21] Speaker 03:
Well, that's not in the complaint one way or the other, anything about the Occupy movement.

[00:07:26] Speaker 03:
Whether they took on that name or not, Occupy has a variety of projects that do not necessarily relate to sleeping.

[00:07:39] Speaker 01:
So Judge Santel mentioned your retaliatory arrest claim, right?

[00:07:44] Speaker 01:
Yes.

[00:07:45] Speaker 01:
I have two questions about that.

[00:07:49] Speaker 01:
Maybe I missed it, but the district court didn't address it.

[00:07:52] Speaker 01:
And I see you didn't.

[00:07:54] Speaker 01:
I didn't see any place you raised it in the district court.

[00:07:57] Speaker 01:
Was there a reason you didn't raise it in your opposition to the motion to dismiss, or did you?

[00:08:04] Speaker 03:
I believe that we did raise it.

[00:08:08] Speaker 03:
It might not have been as explicit as we did in our brief in this court, but there was clearly a- I know you raised it here.

[00:08:16] Speaker 01:
I'm curious about what strategy led you not to raise it there, because the district court never addressed it, right?

[00:08:24] Speaker 01:
The district court mentioned it.

[00:08:24] Speaker 01:
District court mentioned it, but it didn't address the issue.

[00:08:28] Speaker 03:
The court addressed the first amendment, not specifically the retaliatory arrest.

[00:08:33] Speaker 01:
That's what I asked you.

[00:08:34] Speaker 01:
I asked you about the retaliatory arrest.

[00:08:37] Speaker 03:
That was my question.

[00:08:40] Speaker 03:
What the court needs to look at is whether the complaint, whether the facts in the complaint would support that claim.

[00:08:47] Speaker 01:
Yes, I know that.

[00:08:48] Speaker 01:
I was just asking you the simple question about whether I missed it and you did raise it, or if you didn't, what was the reason why you didn't argue it there, but you're arguing it here?

[00:08:58] Speaker 01:
I'm curious.

[00:09:01] Speaker 03:
I don't think that there's anything you missed, Your Honor.

[00:09:04] Speaker 03:
OK.

[00:09:04] Speaker 03:
Yeah, but how back do you have to where you said it's not in the complaint, but by the Occupy movement?

[00:09:10] Speaker 03:
There's a reference to it being occupied.

[00:09:12] Speaker 02:
My issue was... Yeah, it mentions it.

[00:09:18] Speaker 02:
My issue was whether the police... It's not true that it's not in the complaint.

[00:09:24] Speaker 03:
I didn't say it wasn't in the complaint.

[00:09:26] Speaker 02:
I said the question was whether the police... The question had been whether the word occupied should suggest the place that they meant to stay there.

[00:09:33] Speaker 02:
And then you said that it wasn't in the complaint that they're part of occupied.

[00:09:47] Speaker 03:
Maybe I wasn't clear on it.

[00:09:49] Speaker 00:
What I was saying is not in the complaint is that the police didn't know that it was... The complaint says the tents clearly identified the protest as part of Occupy DC in paragraph 20.

[00:10:00] Speaker 00:
So how could the police not know if the tents clearly identified the protest as part of Occupy DC and larger Occupy movement?

[00:10:08] Speaker 00:
That's paragraph 20 of your complaint.

[00:10:12] Speaker 03:
I'm sorry, I must have been mistaken about that.

[00:10:14] Speaker 03:
That's my fault.

[00:10:15] Speaker 01:
So the government, the district's position here on the retaliatory arrest claim is qualified immunity.

[00:10:25] Speaker 01:
And which raises the question, what, can you cite a case that clearly establishes a First Amendment right to be free from a retaliatory arrest supported by probable cause?

[00:10:39] Speaker 03:
Oh, well, Your Honor, this Court's line of Hartman v. Moore decisions had addressed that.

[00:10:48] Speaker 01:
When the Supreme Court... Those are retaliatory prosecution cases.

[00:10:52] Speaker 01:
This is a retaliatory arrest case.

[00:10:55] Speaker 01:
So you need to find a case which says that you have a First Amendment right to be free from a retaliatory arrest based on probable cause.

[00:11:07] Speaker 01:
Otherwise you're entitled to qualified immunity, aren't they?

[00:11:10] Speaker 03:
Well, I think that it's been clearly established that a retaliatory action is a violation of the First Amendment.

[00:11:20] Speaker 01:
But based on probable cause, because assume I think that there is arguable probable cause here.

[00:11:27] Speaker 01:
Assume for purposes of my question that I think

[00:11:31] Speaker 01:
the police had arguable probable cause, because that's the standard, right?

[00:11:35] Speaker 01:
Under Moore v. Hartman.

[00:11:37] Speaker 01:
Arguable probable cause.

[00:11:38] Speaker 01:
So assume, for purposes of my question, that they had that.

[00:11:42] Speaker 01:
So you therefore need to defeat their claim of qualified immunity.

[00:11:46] Speaker 01:
You need a case which says you have a constitutional right to be free from retaliatory arrest based on probable cause.

[00:11:53] Speaker 03:
I think this court in the Trudeau v. FTC case established a general, generally the elements for any type of retaliatory treatment in violation of the First Amendment.

[00:12:07] Speaker 03:
I don't think we need to find a case which each particular type of retaliatory arrest is established.

[00:12:13] Speaker 01:
All right, that's your best case then.

[00:12:15] Speaker 01:
So if you're going to win, you're going to win on that case.

[00:12:18] Speaker 01:
Do you have any others to cite for me?

[00:12:21] Speaker 03:
I can't think of anything off the top of my head which... So it's Trudeau.

[00:12:25] Speaker 01:
If we don't agree with your reading of Trudeau, then you concede that they are entitled to qualified immunity?

[00:12:37] Speaker 03:
I believe that the...

[00:12:42] Speaker 03:
Hartman versus Moore decision.

[00:12:44] Speaker 03:
I understand it was retaliatory prosecution.

[00:12:46] Speaker 03:
I think it sufficiently gives notice that a retaliatory arrest.

[00:12:53] Speaker 01:
Well, actually, the footnote, you're talking about the 2011 one, right?

[00:12:59] Speaker 01:
Right.

[00:12:59] Speaker 01:
That has a footnote 8, which says it's not resolving the question at all.

[00:13:07] Speaker 01:
It doesn't need to resolve the question.

[00:13:12] Speaker 03:
Well, I guess it wasn't an issue in that particular case.

[00:13:17] Speaker 01:
But that's my point.

[00:13:19] Speaker 01:
Given that footnote, how could it possibly be clearly established if we've already said we're not going to address the question?

[00:13:30] Speaker 03:
Well, I guess my position is just that that specific type of retaliation doesn't need to be specifically addressed.

[00:13:38] Speaker 03:
I've heard I've gone over my time.

[00:13:42] Speaker 03:
You have nothing else?

[00:13:44] Speaker 03:
No.

[00:13:44] Speaker 03:
Okay.

[00:13:44] Speaker 03:
Okay.

[00:13:44] Speaker 03:
Thank you.

[00:13:44] Speaker 03:
Thank you.

[00:13:53] Speaker 04:
Good morning, Your Honors.

[00:13:55] Speaker 04:
May it please the Court, Stacey Anderson on behalf of the District of Columbia Defendants.

[00:13:59] Speaker 04:
Your Honors, we've raised two issues in this case, one dealing with the Court's jurisdiction as a threshold issue, and then of course addressing the merits.

[00:14:07] Speaker 04:
I'm happy to discuss the jurisdictional issue, or if the Court prefers, I can just focus on the merits.

[00:14:12] Speaker 00:
I have a question about your jurisdictional position.

[00:14:14] Speaker 00:
If it's not a final judgment, does that mean you wouldn't have been able to cross-appeal the conversion ruling if you wanted to?

[00:14:24] Speaker 04:
I think that's correct, Your Honor, that it's not final as to... Well, if it's not final as to one party, it has to not be final to the other, isn't it?

[00:14:31] Speaker 00:
Wouldn't that be a bit problematic?

[00:14:34] Speaker 00:
I don't think so, Your Honor.

[00:14:34] Speaker 00:
Imagine you wanted to appeal it.

[00:14:35] Speaker 00:
When would you ever get to appeal it?

[00:14:40] Speaker 04:
I hadn't thought about that, Your Honor, but I think that if the district court's order does not dispose of all the things, if there's not a final judgment in the case, the district is left to wait until there is a final judgment to appeal.

[00:14:51] Speaker 00:
When would there be a final judgment in this case?

[00:14:54] Speaker 00:
Everything was dismissed.

[00:14:56] Speaker 00:
Let's just assume you chose not to.

[00:14:59] Speaker 00:
That's certainly your right.

[00:15:01] Speaker 00:
Let's assume you wanted to appeal that conversion claim.

[00:15:04] Speaker 00:
Everything else is dismissed.

[00:15:05] Speaker 00:
This court's done with this case.

[00:15:07] Speaker 00:
When are you ever going to be able to appeal that?

[00:15:09] Speaker 04:
Well, I'm assuming – well, I guess we wouldn't have an opportunity in those instances.

[00:15:14] Speaker 04:
It was dismissed without prejudice.

[00:15:15] Speaker 04:
I assume our opportunity to challenge it would be if they filed – That claim wasn't dismissed without prejudice.

[00:15:20] Speaker 00:
I'm sorry.

[00:15:21] Speaker 00:
The conversion claim.

[00:15:21] Speaker 04:
Oh, I'm sorry.

[00:15:23] Speaker 04:
No, I think the conversion claim was just without prejudice, was the false arrest claim that court ruled upon, finding that its probable cause, determination, foreclosed.

[00:15:33] Speaker 01:
But that couldn't be refiled.

[00:15:35] Speaker 01:
Without prejudice was with respect to the common law, right?

[00:15:39] Speaker 01:
Yes.

[00:15:40] Speaker 01:
Without a federal claim, that can't be refiled in federal court.

[00:15:45] Speaker 04:
Not in federal court, correct.

[00:15:46] Speaker 01:
Well, that's my point.

[00:15:47] Speaker 01:
This was, from the point of view of federal court jurisdiction, in all respects, a dismissal with prejudice, right?

[00:15:54] Speaker 01:
Because there's no way that case can come back.

[00:15:57] Speaker 01:
So isn't it different from blue?

[00:15:59] Speaker 04:
I don't believe so, Your Honor.

[00:16:00] Speaker 01:
What about the distinction I just made?

[00:16:03] Speaker 01:
Isn't it true that the district court dismissed without prejudice at the request of plaintiffs so that they could file their common law claim in superior court?

[00:16:12] Speaker 01:
And without a federal claim, they can't refile that in federal court.

[00:16:17] Speaker 01:
Right?

[00:16:17] Speaker 01:
So isn't it effectively with prejudice?

[00:16:23] Speaker 04:
I suppose so, Your Honor, but keeping in mind, of course, that the request here on appeal is that they be given the opportunity to, in fact, re-bring that claim in the event of a remand.

[00:16:33] Speaker 02:
That's always their request.

[00:16:35] Speaker 02:
If they win their appeal, they're back and forth on everything.

[00:16:39] Speaker 02:
You're right, Your Honor.

[00:16:40] Speaker 02:
That doesn't take place.

[00:16:40] Speaker 04:
But I don't think it's distinguishable from blue.

[00:16:42] Speaker 04:
And I don't think it's particularly distinguishable from Robinson Reeder, where we had a Title VII claim and a common law defamation claim, where the Title VII claim was resolved and the common law

[00:16:53] Speaker 04:
defamation claims was dismissed without prejudice.

[00:16:56] Speaker 04:
And again, in Robinson Reeder, the court found that, in fact, the court lacked jurisdiction.

[00:16:59] Speaker 02:
The focus is not... Was the claim in that case, and this is an honest question,

[00:17:08] Speaker 02:
jurisdiction from a federal claim or was it?

[00:17:12] Speaker 04:
Yes, the Title VII claim.

[00:17:13] Speaker 04:
It was tied to the title.

[00:17:15] Speaker 02:
Title VII is a federal claim itself.

[00:17:16] Speaker 04:
Right, but the defamation claim was linked to you.

[00:17:19] Speaker 02:
It was only there.

[00:17:20] Speaker 02:
Right.

[00:17:20] Speaker 04:
It was connected with that claim.

[00:17:22] Speaker 04:
It was not separately.

[00:17:24] Speaker 02:
Was that our case?

[00:17:25] Speaker 04:
Yes, Robinson Reeder was the court's case, yes, Your Honor.

[00:17:27] Speaker 04:
And again, I think that is much more factually or more factually analogous to the case we have here.

[00:17:32] Speaker 04:
And again, this court has repeatedly indicated that you look at the nature of the dismissal.

[00:17:37] Speaker 02:
I mean, why isn't the nature of the dismissal here, though, just exactly what Judge Taylor posited?

[00:17:42] Speaker 02:
They can't bring that case back here.

[00:17:44] Speaker 02:
I understand that, Your Honor, but... It came here only by kind of jurisdiction, so... Isn't it for purposes of, as far as the practical effect on jurisdiction, isn't it?

[00:17:56] Speaker 04:
I understand the practical effect.

[00:17:57] Speaker 04:
You're correct, Your Honor.

[00:17:58] Speaker 04:
And again, jurisdiction often turns on technicalities.

[00:18:00] Speaker 04:
And the court perceives this as simply a technical violation.

[00:18:03] Speaker 04:
And nonetheless, the privacy court.

[00:18:04] Speaker 00:
I thought your point was that they may be able to bring it back here if the other side were to win the appeal and go back.

[00:18:12] Speaker 00:
So they're actually sort of just hanging there in limbo.

[00:18:14] Speaker 00:
And we don't know if they're going to try to get them back into federal court or actually go to superior court with them.

[00:18:19] Speaker 00:
Is that right?

[00:18:20] Speaker 00:
Or have they filed them in superior court already?

[00:18:22] Speaker 04:
They have not filed in superior court, Your Honor.

[00:18:23] Speaker 04:
Again, their request to you on appeal

[00:18:25] Speaker 04:
the point be reinstated in federal court in the event of a remand.

[00:18:28] Speaker 04:
So I do believe the authority of cited in my brief both from this court and other jurisdictions involving similar situations is consistent within notions the court does lack jurisdiction as appeal having been taken from a non-final order.

[00:18:42] Speaker 04:
With respect to the merits, the district believes that each of the appellant's claims fails for the simple reason that there was arguable probable cause here for arrest.

[00:18:51] Speaker 04:
The officers in this case had sufficient factual information before them to demonstrate or to give rise to a belief, a reasonable belief that the plaintiffs intended to camp or establish.

[00:19:02] Speaker 00:
How do protesters know or police officers know where the line is between using a tent

[00:19:08] Speaker 00:
as part of a First Amendment protest and using it, I guess, long enough in a manner that's going to violate the no camping regulation.

[00:19:19] Speaker 00:
Is there anything that gives guidance on what the delta is between those two?

[00:19:23] Speaker 04:
There's nothing specific in the regulation that would, Your Honor.

[00:19:25] Speaker 04:
I think a significant fact in this case was that

[00:19:27] Speaker 04:
the protesters actually sitting inside the tent and refusing to leave the tent.

[00:19:31] Speaker 00:
But if it had been middle of the day and it's really hot, they just went inside for an hour to cool off, would that be enough for violating the tent regulation?

[00:19:40] Speaker 04:
Again, I think they're using the tent as a shelter.

[00:19:43] Speaker 04:
Yes, I don't think there's a specific time limitation to talks.

[00:19:45] Speaker 00:
So you could just never go inside the tent?

[00:19:46] Speaker 00:
As soon as they go inside the tent?

[00:19:48] Speaker 04:
No, but again, on the facts of this case, I think that's a significant factor.

[00:19:52] Speaker 04:
You can camp without a tent.

[00:19:53] Speaker 04:
I think that's quite possible.

[00:19:55] Speaker 00:
No, because they have a tent.

[00:19:56] Speaker 00:
They want to use a tent as a part of their project.

[00:19:58] Speaker 00:
And it's just part of their street.

[00:20:00] Speaker 00:
We aren't going to second guess that that's part of their message.

[00:20:02] Speaker 00:
Absolutely.

[00:20:02] Speaker 00:
And I think your position is, as long as they're outside the tent, that's OK.

[00:20:07] Speaker 00:
But if they go inside?

[00:20:08] Speaker 04:
No.

[00:20:09] Speaker 04:
I just think the fact that they went inside in this case was a fact.

[00:20:13] Speaker 00:
That's a fact you're using.

[00:20:14] Speaker 00:
I'm trying to ask what happens just where this line is because I think the law also recognizes you can use a tent as part of a legitimate protest.

[00:20:22] Speaker 00:
And so where is that line or what notice did anybody have as to what that line between

[00:20:28] Speaker 00:
protesting and camping.

[00:20:30] Speaker 04:
I think the officers gave notice in this case of their belief that they were violating the law by giving three opportunities to leave the tent.

[00:20:36] Speaker 00:
Is there a clear... When they gave them three opportunities to leave or not sort of begs the question of whether there was actually a violation going on.

[00:20:43] Speaker 00:
I don't care if they told them to leave.

[00:20:45] Speaker 00:
They're actually engaged in a legitimate First Amendment protest.

[00:20:48] Speaker 00:
It doesn't help that they said stop doing that three times.

[00:20:51] Speaker 04:
Right.

[00:20:52] Speaker 04:
Your Honor, I don't think that, again, there's a clear

[00:20:54] Speaker 04:
definition within the regulations, it would say doing X, Y, and Z automatically constitutes a violation.

[00:20:59] Speaker 04:
The officers are in a position where they are at a scene where things are unfolding and they have this regulation and they're interpreting it.

[00:21:06] Speaker 00:
It sounds like all the discretion is in the, it just sounds a little troubling that if the police get to decide when you're stopped speaking and start violating things, there's absolutely no guidance for the police officers at all under a pretty vague statute.

[00:21:18] Speaker 04:
I mean, the common understanding of what camping is, again, on the facts of this case,

[00:21:21] Speaker 00:
I don't know what the common understanding of camping is in this context.

[00:21:25] Speaker 00:
Again, if it's the middle of the day and I'm going in just to cool off, I guess my common understanding is that wouldn't be camping.

[00:21:32] Speaker 00:
But yours is that it would.

[00:21:33] Speaker 04:
Well, again, there's more facts here.

[00:21:35] Speaker 04:
I know there's more facts here.

[00:21:37] Speaker 04:
I'm just trying to understand.

[00:21:38] Speaker 04:
I don't have a definitive answer for you, Your Honor, as to whether or not that would

[00:21:41] Speaker 04:
in and of itself with no additional facts be sufficient to violate the regulation.

[00:21:46] Speaker 04:
But the question here is whether or not the officers, based on the totality of the circumstances known to them, had a reasonable, arguable basis to believe that, in fact, the regulation was violated.

[00:21:56] Speaker 04:
And I believe that they did.

[00:21:57] Speaker 04:
And there's several facts.

[00:21:58] Speaker 04:
Not just the presence of the tent.

[00:22:00] Speaker 04:
The admissions and the complaint that the protesters intent in this case was to physically, actually, literally occupy the space in front of the Merrill Lynch building.

[00:22:10] Speaker 04:
That in and of itself is an indication that they've agreed that they've met two of the three elements of the statute.

[00:22:16] Speaker 04:
They set up a tent and they intend to occupy it for a lengthy period of time.

[00:22:22] Speaker 04:
The fact that the tents clearly identified them... Well, I think you're adding the lengthy period of time.

[00:22:26] Speaker 00:
It doesn't say how you can occupy something for a very... I'm occupying this chair right now.

[00:22:31] Speaker 00:
It doesn't tell how long I'm doing that.

[00:22:33] Speaker 04:
Well, again, I think if you look at the totality of the complaint and you put it in the context of the Occupy Movement and their

[00:22:39] Speaker 04:
admitted desire to take over that portion of the public space for the protest for a period of time.

[00:22:46] Speaker 04:
I think that that's a fair inference that it was not as simply a two hour stay as your honor suggested might be when you're trying to get out of the sun.

[00:22:54] Speaker 04:
It was in the middle, it was at night.

[00:22:56] Speaker 04:
late at night.

[00:22:57] Speaker 04:
They were inside the tent.

[00:22:58] Speaker 04:
And again, the officers did have information regarding other protesters' activities with respect to this movement, with which these protesters clearly identified and aligned themselves.

[00:23:08] Speaker 00:
And so I think all of that... Well, it was a little unclear then as to your position as to what the

[00:23:14] Speaker 00:
how it was appropriate for the police to use their knowledge of other protesters at other locations and to impute it to these individuals because you seem to be kind of having your cake and eat it too because there's problems obviously with

[00:23:27] Speaker 00:
I think someone's violating the law because someone else is doing something different somewhere, somewhere else away.

[00:23:32] Speaker 00:
On the other hand, right, you know, occupy, get occupied here, you got it there.

[00:23:36] Speaker 04:
Right.

[00:23:37] Speaker 04:
It was again, the rest in this case were based on the individual's conduct, which was setting up the tent, sitting in the tent late at night.

[00:23:45] Speaker 04:
The fact that other

[00:23:47] Speaker 04:
members of the movement also use their tents for camping is certainly a fact that the officers could have taken into account.

[00:23:54] Speaker 04:
It's not imputing guilt by association.

[00:23:56] Speaker 04:
It's rather simply an understanding that the tents have a dual purpose in this context, that they can be used as a symbol, expressive symbol, and they can also be used simultaneously as a tent for camping, which violates the regulation.

[00:24:09] Speaker 04:
And again, the officers here gave three warnings.

[00:24:11] Speaker 04:
They didn't order the protesters to leave the vicinity of where they wanted to protest.

[00:24:16] Speaker 04:
They simply

[00:24:18] Speaker 04:
required them not to establish a camp through the use of tents.

[00:24:22] Speaker 04:
And that, I think, is a proper limitation on the First Amendment rights under district law and under the First Amendment.

[00:24:29] Speaker 04:
And the officers in this case, again, have reasonable, arguable, probable cost to believe that this was a violation.

[00:24:35] Speaker 04:
The court has anything else?

[00:24:37] Speaker 01:
Thank you.

[00:24:37] Speaker 01:
Did Mr. Light have any more time?

[00:24:40] Speaker 01:
You can take one minute, Mr. Light, if you'd like it.

[00:24:47] Speaker 03:
Thank you, Your Honor.

[00:24:47] Speaker 03:
There's just one additional thing I wanted to point out, which is that the orders by the police officer were not, don't camp in here, don't set up a place of residence in here.

[00:24:58] Speaker 03:
It was take down the tent.

[00:25:00] Speaker 03:
You can no longer use that as part of the protest.

[00:25:03] Speaker 03:
And that was, that prop was an essential part, and therefore that order violated the First Amendment.

[00:25:12] Speaker 03:
Do I have any questions?

[00:25:12] Speaker 01:
Okay, thank you.

[00:25:13] Speaker 01:
Thank you.

[00:25:13] Speaker 01:
Case is submitted.

[00:25:14] Speaker 01:
Thank you both.