published Thursday, January 12th, 2012

Hamilton County sues Occupy Chattanooga

Larry Simpson, with Occupy Chattanooga, warms his hands at a fire Wednesday in front of the Hamilton County Courthouse.
Larry Simpson, with Occupy Chattanooga, warms his hands at a fire Wednesday in front of the Hamilton County Courthouse.
Photo by Angela Lewis.
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Hamilton County suit against Occupy Chattanooga
Hamilton County suit against Occupy Chattanooga

The standoff between the Hamilton County Commission and Occupy Chattanooga over tents on the lawn of the County Courthouse has moved to the federal courthouse.

On Tuesday, Commission Chairman Larry Henry filed suit in U.S. District Court, asking for a declaration that new rules governing public use of county land are compatible with the First Amendment and can be applied to protesters who've been on the lawn since November. The suit names Occupy Chattanooga, nine individuals and unnamed "John Does" and "Mary Does."

"At no time has Hamilton County attempted to deny anyone their constitutional right of free speech and it does not seek to do so here," Henry said Wednesday. "Rather, because Hamilton County respects the rights of its citizens and others to express their views, Hamilton County felt that these issues should be affirmatively addressed by a neutral court before any further action is taken."

But David Veazey, an attorney representing the Occupy group, said the suit is premature because the U.S. Constitution requires that a claim arise from a case or controversy.

"There's no real controversy to settle," Veazey said, because the county hasn't taken any formal action against the protesters.

"I expect I'll be filing a motion to dismiss because it's an inappropriate forum to handle this issue," he said.

David Hudson, a lawyer with the First Amendment Center in Nashville, said this is the first instance he can recall of a government suing an Occupy group.

"Usually it's the Occupy people that sue," Hudson said. "That's what's a little different about this one."

County Attorney Rheubin Taylor said he sought the court's judgment because constitutional issues are involved.

Last week, the commission approved rules that require those seeking to hold activities on county property to seek permits. The rules also prohibits -- except for the benefit of those with disabilities -- tables, chairs, grills, open fires, tents and other structures erected for overnight sleeping.

Taylor said the rules merely formalize county practice going back 30 or more years.

Hudson said county government must prove it consistently has applied the rules over the years and meet other tests.

"Whatever rules, they have must provide clear guidance to law enforcement officials to ensure compliance with the policy, and the rules; they must provide fair notice to the public of whatever rules restricting free expression they apply," Hudson said.

Taylor said he thinks the rules will hold up in court.

Formalized rules

HIGHLIGHTS OF THE SUIT

County Commission wants the court to declare:

* That the rules and regulations governing public use of county land can be applied consistently with state and federal constitutions;

* That those protesting on the courthouse lawn aren't entitled to "camp on the Courthouse lawn overnight, erect or maintain monuments or markers without approval, maintain open burnings, or damage or deface government property."

Defendants are: Occupy Chattanooga; Hope Alexander; Patricia Bazemore; Heidi Davis; Joy Day; Frank Eaton; Howard Hayes; Landon Howard; Sam McKinney and Shane Pinson.

Since the Occupiers moved in, the commission has sought legal advice about how to regulate the space without running afoul of the protesters' First Amendment rights.

In Nashville, when protesters pitched tents on the Legislative Plaza, the state changed the rules of the site and arrested about 50 people. The group, with the help of the ACLU, won an injunction to stop enforcement of the new rules, and Gov. Bill Haslam sought to have charges dropped against protesters.

When the Chattanooga group occupied the courthouse lawn, Sheriff Jim Hammond visited with protesters and raised concerns about such aspects as types of campfire fuel, stakes driven into the ground and tents on sidewalks, said Frank Eaton, a group member.

"We had, in good faith, followed all the regulations they told us," Eaton said Wednesday.

Since the commission approved the rules last week, no one from the county has spoken to the Occupy group about them, said Occupy spokeswoman Beth Foster. The county's lawsuit took her by surprise.

"We just found out," she said Wednesday.

The group posted the news on Facebook and plans to discuss next steps Sunday, she said. The group is organizing legal strategies and some plan to file a motion to dismiss the county's lawsuit in the next few days, she said.

Several of the named defendants were active early in the protests but haven't physically been at the courthouse site in weeks, she said. Others who regularly camp out, including Foster, weren't named in the suit.

Of the named parties the Times Free Press attempted to reach Wednesday, only Frank Eaton commented.

"Perhaps they've done the citizens a favor in hastening a judgment," Eaton said. "I don't think many of us who were named were expecting it."

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about Ansley Haman...

Ansley Haman covers Hamilton County government. A native of Spring City, Tenn., she grew up reading the Chattanooga Times and Chattanooga Free Press, which sparked her passion for journalism. Ansley's happy to be home after a decade of adventures in more than 20 countries and 40 states. She gathered stories while living, working and studying in Swansea, Wales, Cape Town, South Africa, Washington, D.C., Atlanta, Ga., and Knoxville, Tenn. Along the way, she interned for ...

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