Tuesday, December 13, 2011

#Occupy denied: Judge refuses preliminary injunction, protesters must leave Duncan Plaza tonight

Posted By on Tue, Dec 13, 2011 at 5:38 PM

The details are still coming together, but U.S. District Court Judge Lance Africk has denied a motion for a preliminary injunction that was filed by some of the Occupy protesters who have taken up encampment in Duncan Plaza.

Short version: The temporary restraining order issued last week has been rescinded. City statute dictates no camping in public parks after 10:30 p.m., so anyone who chooses to challenge the law by staying in Duncan Plaza may be subject to arrest.

Mayor Mitch Landrieu's administration has yet to issue a statement on the ruling.

Under the jump: the judge's ruling as it came down a few minutes ago. Edited to add: Also, a statement from the Occupy NOLA group.

Edited again to add: reaction from the mayor.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NADRA ENZIAYA, ET AL.
VERSUS
MITCHELL J. LANDRIEU, ET AL.

CIVIL ACTION
NO. 11-2977
SECTION I
ORDER
Before the Court is a motion
1
for preliminary injunction filed by plaintiffs, Nadra
Enziaya, Donald L. Chopin, Katherine D. LaGarre, Ronald Morrison, Norman L. Oaks, Frazer L.
O’Hara, Robert S. O’Hara, and Malik Rahim. Defendants, Mitchell J. Landrieu, Ronal Serpas,
and the City of New Orleans, have filed an opposition.
2

In order to obtain a preliminary injunction, the movant must show: (1) there is a
substantial likelihood of success on the merits, (2) there is a substantial threat of irreparable
injury, (3) the threatened injury to the movant outweighs the injury to the nonmovant, and (4)
that granting the injunction will not disserve the public interest. PCI Transp., Inc. v. Fort Worth
& W. R.R., 418 F.3d 535, 545 (5th Cir. 2005). “[A] preliminary injunction is an extraordinary
remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of
persuasion’ on all four requirements.” Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d
192, 196 (5th Cir. 2003) (quoting Miss. Power & Light Co. v. United Gas Pipe Line Co., 760
F.2d 618, 621 (5th Cir. 1985)).

1
R. Doc. Nos. 2, 10. Both parties requested that plaintiffs’ motion for a temporary restraining order be converted to
a motion for preliminary injunction. R. Doc. No. 9.
2
R. Doc. No. 11.
Case 2:11-cv-02977-LMA-DEK Document 18 Filed 12/13/11 Page 1 of 22
Having considered the arguments of counsel, the memoranda and evidence filed into the
record, and the law, the Court finds that plaintiffs have not carried their burden of establishing a
substantial likelihood of success on the merits as well as other requirements which would justify
granting preliminary injunctive relief.
Accordingly,
IT IS ORDERED that plaintiffs’ motion for preliminary injunction is DENIED with
written reasons to follow and the temporary restraining order issued on December 6, 2011 is
RESCINDED.
New Orleans, Louisiana, December 13, 2011.


____________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

Occupy NOLA Vows to Continue Despite Court Ruling

New Orleans, LA—Today’s ruling in Federal Court permanently evicting demonstrators from Avery Alexander Plaza (also known as Duncan Plaza), though a defeat for the First Amendment, will not nullify our efforts nor dissuade us from future action. At personal sacrifice, hundreds of Occupy NOLA members have been living in Alexander Plaza since October 6th, building community, sharing resources such as food, fueling positive social change, educating each other on the issues of poverty, economic injustices, and homelessness, and embodying the freedoms of expression, speech, and assembly guaranteed in the First Amendment to the U.S. Constitution.

Individually, we have spoken out for what we believe in. We have questioned others and have been forced to reconsider our own assumptions. We have learned the habits and practices of engaging in robust political and ethical debate—skills often absent in our present political climate.

Collectively, we have forged lasting bonds and mobilized for the common good. Occupy NOLA members have held numerous marches addressing diverse issues of economic and social justice. We have protested irresponsible financial practices as part of the national Bank Transfer Day. “Occupy the Stage” events, held at Alexander Plaza, have provided an outlet for creative expression, art, music, and healing. Marching in the streets and demonstrating in front of our elected representatives’ homes, we have asked for a real plan to eradicate homelessness. We have spoken out against the unjust seizure of foreclosed homes, formed economics discussion groups, held civil disobedience trainings, and provided mutual aid—including the provision of over 1500 meals for free to those most in need in our city.

Seeking to expand and reinvigorate the public sphere, we carved out an egalitarian and non-hierarchical space for individuals to amplify their voice and be heard. Nationally, the Occupy movement has reoriented political discourse toward long neglected issues of social and economic justice.

Our collective bonds, though recently forged, are durable and strong. Neither last Tuesday’s 3:30am forced eviction while a ruling on the Temporary Restraining Order was pending nor this morning’s 5:00am attempted eviction while the Permanent Injunction was pending before the federal court prevented us from building a community to create change. The Mayor and NOPD’s actions in contempt of court only further demonstrate the grave unconstitutional patterns of violating citizen’s civil rights and complete disregard for the judicial process. We move ahead in a spirit of cooperation and democracy for the common good. In the coming months, we invite all to join us on the streets, in foreclosed properties, in meetings, in vacant lots, and at the daily 7pm General Assemblies in Alexander Plaza as we advocate for economic justice.

Occupy NOLA 1300 Perdido St. New Orleans, LA 70112

Content provided by Occupy NOLA Press

www.occupynola.net

STATEMENT FROM MAYOR LANDRIEU REGARDING DUNCAN PLAZA

“Judge Africk’s decision is a welcome decision. The Constitution and the Bill of Rights are precious documents that govern our behavior and help maintain both freedom and liberty. That is why wherever there is a right, there is also a responsibility to exercise that right in a way that does not infringe on the rights of other American citizens. A person’s right to free speech, perhaps the most precious right in a democracy, is tempered by and balanced with the rights of other citizens.

“Last Tuesday, the City moved forward with well-planned, well-executed enforcement of city and state laws in Duncan Plaza. We did so in a fashion that respected the First Amendment rights of those in the park within the bounds of the law that protected the common good. Our actions—successfully cleaning the park, housing homeless individuals, and reducing the threats to public health and safety—were lawful, fair, and reasonable.

“As Mayor I believe that we have balanced the rights and responsibilities of all citizens of New Orleans according to the law. In this regard, we have preserved liberty and justice for all.”

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