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Brett Eugene Henke, et al v. Department of the Interior

February 2, 2012


The opinion of the court was delivered by: James E. Boasberg United States District Judge


The background of this case will be familiar to those following news of the "Occupy Wall Street" protest and the progeny of protests it has spawned around the country. Since October 1, 2011, Plaintiffs Brett Henke and Laura Potter, along with numerous others, have participated in a protest, located in McPherson Square in Northwest Washington, DC, known as "Occupy DC." Am. Compl., ¶ 1. It is Plaintiffs' aim "to bring awareness to the[ir] concerns about United States economic policy, wealth disparity and the political process, through [a] peaceful, symbolic, round-the-clock occupation" of the Square by a tent city. Id., ¶¶ 12, 17. As Plaintiffs plan to continue their occupation "for an indefinite period of time," id., ¶ 18, they brought this action and an accompanying Motion for Preliminary Injunction to block the National Park Service from evicting them from the Square.

Eschewing any reliance on the First Amendment, Plaintiffs argue that their tents are protected from seizure and destruction by the Fourth and Fifth Amendments. See Mot. for PI at 2. As they have not shown any imminent actual injury that threatens their tents and as any future closing of the Square remains too hypothetical for the Court to address, Plaintiffs' request for injunctive relief will be denied.


McPherson Square is a park within the National Park System. See 36 C.F.R. § 7.96(g)(2)(ii)(B). Plaintiffs, who have "occupied" the Square for several months, believe that its close proximity to K Street, with its reputation as the home of corporate lobbying firms, expresses their hope that "government will hear the voices of the people" and move toward a more "economically egalitarian society." Am. Compl., ¶¶ 1, 12. On December 4, 2011, the United States Park Police closed off a portion of the Square to create a security perimeter around a large wooden structure that had been erected there. See Opp. to PI, Exh. 1 (Declaration of Kathleen Harasek, Captain, Park Police), ¶¶ 18, 19. Plaintiff Brett Henke's tent was located within the closed area of the Square, and he asserts he was separated from his property while the Park Police removed the wooden structure. Mot. for PI, Attach. 8 (Declaration of Brett Henke), ¶ 1. He also asserts that members of Occupy DC were told by a Park Police officer that tents located within the closed area of the Square would be removed. Mot. for PI, Attach. 9 (Declaration of Jeffrey Light), ¶ 2. It is undisputed that Plaintiffs' tents were not, in fact, removed.

On December 5, 2011, Plaintiff Henke filed a Complaint alleging that the partial closing of McPherson Square and any attendant seizure of his property had violated, and would in future continue to violate, his First and Fourth Amendment rights. See Compl., ¶¶ 24-29. At that time, Henke also sought, by temporary restraining order, to enjoin the Park Police from closing off sections of McPherson Square to Plaintiff and the public except in an actual emergency, and from searching and seizing Plaintiff's or other protesters' personal property without probable cause. See Mot. for TRO, Proposed Order at 1.

This Court held a hearing on Plaintiff's Motion for TRO on December 5, 2011, in which an agreement was reached by both sides. The Government indicated that it did not intend to imminently evict Plaintiff from the Square. The Court, accordingly, denied Plaintiff's Motion for TRO provided that: 1) "The Government will provide 24-hour notice to the Court and Plaintiff's counsel if it intends to enforce its regulations prohibiting camping or sleeping in McPherson Square," and 2) "Absent such notice or exigent circumstances, the Government will not restrict Plaintiff's access to the Square or his camping or sleeping in the Square." ECF Minute Order (Dec. 5, 2011). The Court also set a briefing schedule for Plaintiff's Motion for Preliminary Injunction.

On January 4, 2012, Plaintiff filed an Amended Complaint, which added Laura Potter and also named as Plaintiffs "all others similarly situated." Am. Compl., ¶ 1. Plaintiff Potter also maintains a tent in McPherson Square. See id., ¶ 5. The Amended Complaint alleges that Plaintiffs fear imminent eviction of the Occupy DC movement from the Square. Id., ¶ 29. Plaintiffs assert claims under the Fourth Amendment, to protect their rights to be free from unreasonable seizure, including the confiscation and destruction of their tents, see id., ¶¶ 30, 37, and under the Fifth Amendment's Due Process Clause, to prevent the seizure and destruction of their tents without notice and an opportunity to be heard. Id., ¶ 39. Notably, Plaintiffs have not reasserted their First Amendment claim.

On January 4, 2012, Plaintiffs also filed a Motion for Preliminary Injunction seeking to enjoin Defendant and its agents from "removing their tents from McPherson Square in violation of their Fourth Amendment rights to be free from illegal seizures and destroying their tents in violation of [their] Fifth Amendment right to due process of law." Mot. for PI at 2. Meanwhile, on January 17, 2012, Plaintiffs moved to certify a class under Federal Rule of Civil Procedure 23. The class would consist of "all members of Occupy DC having tents in McPherson Square which have been or will be taken and/or destroyed by the Defendant or those acting in concert with it." Am. Compl., ¶ 7. The Government opposed Plaintiff's Motion for Preliminary Injunction, and the briefing was completed by January 25.

On January 27, 2012, the Government issued to the protesters a Camping Enforcement Notice indicating that it intended to begin enforcing its anti-camping regulations in the Square. See Defendant's Notice of Filing, Exh. A (National Park Service Camping Enforcement Notice For McPherson Square and Freedom Plaza) (ECF No. 17-1). The Notice gave demonstrators almost 72-hours' notice, rather than the 24-hours' notice required by the Court, that, as of noon on January 30, those in McPherson Square who violated NPS's camping ban would be "subject to arrest and their property subject to seizure." Id. The tents, unless deemed to be a bio-hazard, would be impounded and could be reclaimed at the Park Police's District One Station. Id. In issuing this Camping Enforcement Notice, the Government fully satisfied its obligations under the Court's December 5 Order.

Upon learning of NPS's Camping Enforcement Notice, the Court conducted a conference call on January 27 with counsel for both sides. During the call, the parties agreed, and the Court thus ordered, that the "Park Police, consistent with the Notice, may, as of noon on Jan. 30, 2012, begin enforcing the Park Service's anti-camping regulations, including arresting those persons in McPherson Square who are in violation of those regulations and seizing for temporary impoundment their tents and other possessions." ECF Minute Order (Jan. 27, 2012).

The Court heard argument on the remaining issues raised in this Motion -- namely, Plaintiff's claims regarding destruction of any tents, as well as the potential seizure of tents and personal belongings of people in McPherson Square who are not violating the anti-camping regulation -- on January 31, 2012, and now issues this opinion.

II.Legal Standard

A preliminary injunction "is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008). "A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Id. at 374. Before the Supreme Court's decision in Winter, courts weighed the preliminary injunction factors on a sliding scale, allowing a weak showing on one factor to be overcome by a strong showing on another. See Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C. Cir. 1999). This Circuit, however, has suggested, without deciding, that Winter should be read to abandon the sliding-scale analysis in favor of a "more demanding burden" ...

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