Is the city ordinance that allowed Richmond police to break up a protest at Kanawha Plaza last week constitutional? Days after the early morning raid that ousted dozens of Occupy Richmond protestors from their 15-day-old encampment at the public park, a separate group of protestors appeared in Richmond Circuit Court to challenge a city law that prohibits public occupancy of city parks after dark.
At issue, say the protestors, is not whether they are guilty, but whether the law itself infringes upon their First Amendment right to free speech and assembly.
Joseph S. Loughman, Daniel Fargason and David Stubbs were arrested in March along with six others after police broke up their encampment at Monroe Park. The group had set up an overnight camp in protest of the proposed renovation project that would temporarily close park to the public, including homeless people who frequent the park.
All three men are now appealing an earlier court decision that found each guilty of trespassing inside the park after dark, a class-four misdemeanor. City officials cited the same ordinance in their dealings with the Kanawha Plaza protest, part of the Occupy Together movement that began in New York’s financial district in September.
But has the question of the law’s constitutionality, as prosecutors say, already been settled?
For the most part, yes, says John Paul Jones, a law professor at the University of Richmond. According to guidelines set forth by the U.S. Supreme Court, an ordinance that restricts park access remains constitutional, Jones says, if it provides for “optimal accommodation.” As long as the law is enforced reasonably and neutrally, he says, its constitutionality cannot be impeached.
“Obviously, when the Occupy movement takes over a park, it restricts access to those others who want to exercise their own civil rights,” Jones says. “The Occupy movement is stretching the envelope on the interpretation of the law. Whether the envelope is being stretched to the point where it doesn’t stay intact remains to be seen.”
Indeed, the outcome of the case may have direct implications for Occupy Richmond. Media team member Will Carino says the group will be observing the case “to learn from it and use it as a precedent” should the group pursue its own legal challenge of the city’s raid on their encampment in late October.
What they’re not doing, however, is waiting on the judge’s decision before making another attempt to occupy a public space. On Wednesday, Nov. 9, the group plans to set up camp inside Monroe Park, the site of the earlier protest.
The three Monroe Park protestors on trial are due back in court for the final disposition later this month.