Complaint OccupyMaine.12.19.11

8/3/2019 Complaint OccupyMaine.12.19.11

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STATE OF MAINE SUPERIOR COURTCUMBERLAND, ss. 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 assembly movement known as OccupyWallStreet for

the purposes, among others, of engaging in non-commercial speech and assembly, 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 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.



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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 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 our time, and voice the possibility of a more

democratic, just, and economically egalitarian society and form of government. Plaintiff

Hamilton’s continuous presence in the park is intended to hold that attention until grievances are

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 protest encampment in Lincoln Park.

Plaintiff Curtis’ 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 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 Exhibit

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 a member of OccupyMaine and

is a daytime and overnight demonstrator in OccupyMaine’s protest encampment in Lincoln Park.



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Plaintiff Brown’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


democratic, just, and economically egalitarian society and form of government. Plaintiff

Brown’s continuous presence in the park is intended 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


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, and the Defendant City

of Portland is located in Cumberland County. This Court has personal 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 and 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 continuous

presence for the purposes, among others, of: (a) raising public awareness about the grave

economic, political and social injustices of our time; (b) engaging fellow citizens in a civic

discussion and dialogue about those injustices; (c) creating genuine 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 medical 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 November 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 any 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 public 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 City

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 and 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 – unless 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 best 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 “51

st

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

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 courts; (b) voluntarily

disband the protest encampment; or (c) submit an amended petition for a permit that strictly

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.

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 between 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 conditions 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:

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

OccupyMaine.

b. OccupyMaine’s use of Lincoln Park would “deny other members of thepublic the use of the park for traditional park uses including firstamendment use.”

c. That the group’s Amended Petition of December 5, 2011 – addressingevery single stated concern of the City of Portland in great detail – failedto meet the standards for granting a permit set forth in Chapter 18, Section18-44.

d. Fire code and building code violations for which OccupyMaine wascited on November 18, 2011, and which the group acted upon andresponded to through no fewer than four detailed written submissions tothe City on November 8th, November 15th, November 29th and December5th.

e. The Police Department Report which in the view of the Councildemonstrated the “past and ongoing inability of the petitioners to providea safe environment in relation to the behavior and activities of their owngroup and others who have joined them or simply decide to camp in thepark.”

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

establish a twenty-four hour speech, assembly and community 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:

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 theCity”; and

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

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

counsel, and to individual protestors in Lincoln Park, 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



20

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 occupancy 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,



21

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 any 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 deny 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 they pertain to



22

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 any 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



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

herein.





23










15.






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) Plaintiffs’ 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.



24

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.









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;


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;





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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



(Violation of First and Fourteenth Amendments to the United States Constitution; Violation

of Article I of the Maine Constitution)














15.






26



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 any constitutionally protected speech, assembly or

petitioning activity that may attract twenty-five (25) or more persons or last more 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.



27

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.









unconstitutional under the First Amendment to the United States, and Article I, Sections 1, 2, 4

and 15 of the Maine Constitution;


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;




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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


and

Claim for Violation of Civil Rights















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, housing and feeding



29

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 customary 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.






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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 Constitution 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.


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



Documents

Complaint OccupyMaine.12.19.11