Last Friday night, members of the group Occupy Cleveland, which have been demonstrating on Public Square in downtown Cleveland since early October, were told that they must vacate the premises as the permit they had been granted by the city expired at 10pm. Without a permit, city law prohibits camping out between the hours of 10pm and 5am. Several arrests were made, all while the demonstrators peacefully explained that they were expressing their 1st amendment rights to free speech and peaceful assembly. On Wednesday, the group scored huge victory when a federal judge issued an injunction that would allow them to occupy the Tom Johnson quadrant of Public Square at all hours of the day for an indefinite period of time.

The success of the Occupy Cleveland participants in establishing their right to freely assemble and speak may serve as an example for groups facing similar situations in cities across the United States that are also participating in the global Occupy Wall Street movement. Oakland, Cincinnati, and Atlanta, to name a few, may be especially interested in this lawsuit and the subsequent agreement as their "occupations" of public areas were also raided and broken up by police, essentially halting their freedom of speech and assembly.

Six individuals - James Turturice III, Timothy D. Smith, Kathy Smith, Ben Shapiro, Ajoy Hill, and Steven Larson - filed a "Complaint for Declaratory Judgement, Temporary Restraining Order, Preliminary Injunction and Permanent Injunction, Damages and Attorneys' Fees" against the City of Cleveland on Tuesday, October 25, 2011 in the U.S. District Court for the North District of Ohio, Eastern Division.

Attorneys representing the plaintiffs include J. Michael Murray, Lorraine R. Baumgardner, Steven D. Shafron, and Raymond V. Vasvari, Jr. from the law firm Berkman, Gordon, Murray & DeVan, whose offices are located on Public Square.

The plaintiffs sought a Temporary Restraining Order which prohibits the enforcement of Ordinance 559.541, a city law that makes it illegal to occupy Public Square after 10pm and before 5am, unless a special permit is granted. This was the ordinance used by law enforcement on October 21 when the Occupy Cleveland demonstration was raided and participants were asked to vacate the premises.

In the filing, the plaintiffs attorneys argue that the ordinance violates the First Amendment, writing:

"...the Ordinance violates the First Amendment - both on its face and as applied to them - in at least three ways: (1) by prohibiting their mere presence, and by extension, all expressive activity in a traditional public forum overnight; (2) because it allows discretionary exceptions to that prohibition, but provides no criteria whatever to cabin the discretion of the licensing official, and no opportunity for judicial review of an adverse decision, and; (3) because it requires the licensing official to consider audience reaction to a putative speaker’s message."

The plaintiffs met with officials from the City of Cleveland and Judge Dan Aaron Polster on Wednesday, and were able to reach an agreement. The group will be issued a permit to protest on Public Square twenty-four hours a day through November 9. Because an agreement was reached, the court does not have to rule on the request for injunction.

It is not yet known how or if today's agreement between the two parties will affect the 11 curfew violation cases that are still pending, as a result of the Friday arrests.

http://www.clevelandleader.com/node/17710

Oct. 26, 2011