CHARLOTTE, N.C. -- A judge has refused to grant Occupy Charlotte's request for a temporary restraining order against the city of Charlotte for its handling of the protesters.
In an email to the mayor and city council, City Attorney Bob Hagemann wrote that Superior Court Judge Forrest Bridges informed him this afternoon that, with one limited exception, he is denying Occupy Charlotte's request for a temporary restraining order.
The exception is that Occupy Charlotte is allowed to an information tent/canopy at the Old City Hall lawn, so long as it is attended and not used for sleeping purposes, Hagemann wrote. It is important to note that CMPD had previously agreed to that arrangement.
Police in January dismantled most of the Occupy Charlotte protest site at the old City Hall, arresting seven and ripping up tents at the campsite erected last fall.
Occupy Charlotte members had asked the judge for an order preventing governmental interference with their constitutional rights to occupy the old City Hall lawn. Their lawyer, Ken Davies, also has asked for a judge's order declaring unconstitutional the city's anti-camping ordinance.
Hagemann noted in the e-mail some of the things that Bridges indicated he had taken into consideration in reaching his decision.
The ordinance is not drafted nor is it being applied in a manner as to inhibit or encroach upon freedom of speech, verbal or symbolic nor upon freedom of assembly, Hagemann wrote. Particularly since the Plaintiffs still have the opportunity to assemble on the site and express themselves verbally and through other peaceful means of protest 7 days per week, 24 hours per day, within the parameters set by the ordinance.
Hagemann wrote that the judge also considered that any legislative act, whether on the state or local level, is presumed to be constitutional and the burden is on the complaining party to show that the ordinance violates some constitutional provision. Occupy Charlotte, in this case, has not carried that burden.
The judge also considered the city's governmental interest in prohibiting the erection of tents or other structures for sleeping purposes on the premises, including matters of aesthetics, preservation of public space, preventing damage to the grounds, and preserving the health of the community.
The legal battle may not be over though.
The Plaintiffs have the right to seek a preliminary injunction and to prosecute their lawsuit to conclusion on the merits, Hagemann wrote in the e-mail. However, in light of Judge Bridges' ruling, I think it unlikely that they would be successful in obtaining a preliminary injunction. It is also not likely that they would be able to schedule another hearing in the immediate future.