Permits for Protest Marches

Permits for Protest Marches
by Sue Basko

U.S. Constitution First Amendment 
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

When we protest, this what we are doing -- exercising our freedom of speech, peaceably assembling, and petitioning the Government for a redress of grievances.

Please note the word "peaceably."  This blog tells how to peaceably assemble for a protest.

Although we have the right to free speech protest, our local laws are allowed to limit the time, place and manner of such protests, to balance the rights of others and the safety of the community.

This blog aims to take the mystery and fear out of public protest.  

Public Protest Primer

The safest bet in choosing a legal location to hold a public protest is a march on a public sidewalk or a rally (gathering) in a publicly-owned plaza adjacent to a government building.

 Most public protest takes the form of marches.  This is when a group of people gather and walk, often holding signs or chanting refrains, usually in a call-and-response style, or singing.

A rally is a gathering of protesters in one place, usually to listen to speakers, play and listen to music, etc.  Often, a march ends or begins with a rally.  A rally is often held in a public plaza or on a closed-off street.  A rally almost always requires a permit and significant advance planning, since items such as stages must be inspected for structural safety, toilets must be provided, and traffic usually must be rerouted.  A simple rally in a public plaza, without structures, may not require a permit.

We can protest march on the public way without a permit, as long as we let others also use the sidewalk and as long the protest does not interfere with the normal flow of traffic.  This generally means that your protest can take up half the width of the public sidewalk or part of a public plaza.  That brings up two topics: 1) What is the public way?  and 2) What interferes with the normal flow of traffic?

What is the Public Way?

The public way is the publicly-owned sidewalk.  In some cities and towns, there are also publicly-owned plazas, and those are usually the public way.

What is Not the Public Way?

The public way does not include sidewalk owned by a private owner, such as a business or office or store.  Shopping malls are not the public way.  (Note: There are some free speech  rights in shopping malls in California and New Jersey.  These come not from the U.S. Constitution, but from the State Constitutions as interpreted by the State Courts.  Therefore, these are not "First Amendment" rights , because they do not arise out of the First Amendment of the U.S. Constitution.  Please consult a lawyer and read:  Time, Place, and Manner Restrictions on Peaceable Assembly.  In reality today in California, I think these rights are essentially theoretical, because California shopping malls today take steps to make their malls places to which customers are invited, but the general public is not.  Also, malls in California have instituted their own permitting processes and time, place, and manner restrictions.  Also, these free speech rights are probably not for "big box" stores, but for traditional malls where there is space that is analagous to the public way.)

Privately-owned plazas are not the public way.  Even if the public is generally invited to a space, such as a plaza, if it is privately owned, your First Amendment free speech rights do not extend there. (Please see the note above about the California shopping mall exception, which arises from the California Constitution, not the First Amendment.)   This can differ in a POP --  a privately-owned public space, which is an area for the public created in exchange for getting higher density in a zoning deal.  If you want to protest in a POP, talk with a lawyer.   Most shopping malls and plazas do not allow signs to be carried onto the property, do not allow anyone to pass out flyers, and do not allow protests.   They can kick you out for doing such things, or they can have you arrested if you refuse to leave or if you return.  (Again, see the California exception to this.)  

Are There Limits on Protesting on Public Property?

Yes, generally you cannot protest outside of a person's house. (This can be different for a public official.  Keep in mind that if the house is located in a residential area, there can be strict limits on noise, parking, etc. ) Illinois Criminal Code 720ILCS 5/ Art.21.1) specifically prohibits "picketing" outside anyone's residence, other than outside your own.  Other states may have similar laws.   There may also be limits on protesting outside of someone's place of business; harassment is not a protected form of speech, so what you are protesting and why you have chosen the location do matter.  Also, many locations limit or prohibit protesting outside a medical facility.   Many publicly-owned schools, especially grammar and high schools, do not allow protesters on the property.  There may be limits in parks; most cities require a permit to hold a protest in a park if the group has more than a given number of participants.  Common numbers are 25 or 50.  Check the municipal law.  Most parks contain protest activity to certain locations.  Most parks also limit or prohibit the use of sound amplifying devices, such as amplifiers or megaphones. You need to check the local laws and the rules regulating a place.  If you plan to hold a protest in such a place, you would be wise to consult with a lawyer first.

What Interferes with Traffic? 

We have the right to march in protest, and we usually do not need a permit to do so, unless we will interfere with the normal flow of traffic.  What does this mean?  Usually it means one of four things:

1) If you actually walk or stand in the street, you are interfering with traffic.  If your protest requires street closure, you need a permit.  

Think about this: If streets must be closed, traffic must be rerouted.  Bus routes and stops will have to be rerouted.  Signs will have to be posted in advance so bus riders know what to expect.  Driveways may need to be closed off.  Bicyclists will need to find different routes.  Businesses will be inconvenienced or lose business.  Schools may have students whose parents cannot reach them to pick them up.  If there are medical facilities on the proposed route, patients can be inconvenienced or endangered by not having access to the clinic or hospital.  If there is a fire station, you may be blocking its driveway.   Parking will have to be banned from the streets for that day.   Public works, such as working on cable, sewers, trees, or trash pick-up, will not be able to take place on those streets during your in-street protest.  ALL this needs to be planned and coordinated well in advance.  Your route will have to chosen very carefully.  In most locations, there is a "usual route" that is used for protests.  It is based on the factors just mentioned.

As you can see, an enormous amount of planning goes into closing off streets for a protest. 

2) If you will have a lot of people marching on the sidewalk, and if crossing the streets at the crosswalks is going to cause traffic flow to slow or halt, you may or may not need a permit.  If everyone in your march faithfully stops at each crosswalk and only walks when it is their turn, then you are not interfering with the flow of traffic.  However, if you are planning for a big group, it is wise to seek a permit.  You may also want to assign your own crossing guards.  Sometimes the local police will act as crossing guards.

3) If your group requires lots of parking spots and many cars will be circling around while the drivers look for spots, this might be considered interfering with the flow of traffic, if this is unusual for that location.  Check the laws of the local municipalities on whether you need a permit.

4) If the protesters are waving at cars or engaging in acts that will cause a stop-and-gawk response from car drivers, this can be considered interfering with traffic.  This, of course, depends on what is planned and how unusual it is for that area.  For example, if you are planning some sort of die-in or costumes or any other activity that may alarm viewers, then traffic should probably be diverted so there are no accidents.  Or the protest may need to be moved to a location without traffic.   Even though you do not plan to be in the street, if you are planning  something that could distract drivers, you should get a permit, because the nature of what you are doing is likely to interfere with traffic flow.

The issue came up of whether it is allowable to stand on a highway overpass to try to get the attention of drivers.  Driver distraction is the #1 cause of highway deaths.  This activity, of course, interferes with traffic -- that is the purpose of it.  A permit would be needed and it is highly unlikely one would ever be granted since that would be granting a permit to endanger lives.  We have the right to protest; we do not have the right to endanger lives.  Also, keep in mind that even if you have a legal right to protest, if the way you are protesting causes anyone to be injured, you can be sued for their injuries.

What Is a Protest Permit All About?

Local laws regulate the time, place and manner of protests.   This includes reserving a space for your group; helping you plan your route so it does not interfere with other events and uses; closing streets if needed; letting you know how much noise you can make at that time and location; providing police escorts if needed, especially to block traffic;  protecting your group and separating you from any opposing groups that plan to come and counter-protest; making sure there are adequate toilets and clean-up planned; arranging for City clean-up crews; and inspecting the safety of any stages or platforms or large props or other potentially dangerous items being used. 

The whole object of a protest permit is to make your protest successful and safe.

How to Get a Permit to Hold a Protest

Permits are issued by municipalities -- that is, cities and towns and suburbs.  You should contact them well in advance.  If you have trouble getting a permit or feel you are being denied one for unfair reasons, you should talk with a lawyer.  It is generally illegal for a municipality to charge an application fee for a permit for a First Amendment protest (except some charge fees for an application for a big protest that is more like a "parade."  However, a municipality may charge you for clean-up or repairs or other costs, if they would charge similarly for other groups and events.

Some cities charge an application fee for permits for a big protest that will close streets.  Some cities require those holding a large protest to have insurance coverage for the event.   

A municipality is allowed to deny you a permit to hold a big protest event if you or your group have a bad track record or if it seems  like you do not have the ability to successfully run your event.  Such things can be a past history of violating laws during your protests, past history of property damage, past history of blocking traffic,  past history of leaving flyers or stickers and trash, and other such things.  They will also look at how realistic your plans seem.  For example, if you want to block a mile of streets, and it sounds as if you may only have 100 people, they are not going to let you do that.  You can walk on the sidewalks for that.  Are your plans legal, feasible, safe, and workable?   Are you, your organization, and your people responsible?

Also, usually the office that handles the permits will want to talk in person to the main people of the group seeking the permit.  They will want to see if you seem logical, coherent, and well-organized.   Their concern will be whether it seems likely that you can run your protest in a safe and legal manner, without danger to the safety of people or damage to property. 

Steps to Getting a Permit for a Protest 

Check with the municipality where you plan to hold the protest.  Phone them and talk.  Most will want you to fill out a detailed application.  Many will want to meet with you in person.  If you are denied a permit, there is an appeals process.  Ask what it is and do it.   If you feel you are denied wrongly and need help, contact a local lawyer and ask for their help.

Protest Permits in Los Angeles

Los Angeles asks that permits be applied for 40 days in advance.  Any permits applied for less than 5 days in advance are routinely denied.  In Los Angeles, the same police office handles First Amendment permits and Film Location permits.  Other Special Events permits are handled by a different permits office.  Protest marches and film shoots both close off streets, interfere with traffic, make noise -- and cannot interfere with each other.

To get a protest permit in Los Angeles, you should fill out this
  L.A. PERMIT APPLICATION and bring it to:

Los Angeles Police Department
Special Events Permit Unit
1149 South Broadway, 5th Floor, Stop 932
Los Angeles, CA 90015
Phone: (213) 847-1640
Fax: (213) 847-1797 

Getting a Permit in Other Municipalities 
The first step in planning for a protest is to read the local municipal code of the place where you plan to hold the protest.  Many of these are online. Most likely, you will find it online linked to the official website of the city, town, or suburb.  If you cannot find that, google on the name of the town, the state, and the words "municipal code."   

You will want to read the pertinent parts of the municipal code.   For starters, look through the Code's Table of Contents for such sections as:  Permits, Public Assemblies, First Amendment, Protests and Parades, Streets and Public Ways, Noise, Sound, Amplifiers, Camping (if you plan an occupation),  Special Events, and other such possible topic headings.

Here is a link to municipal codes of many California cities: 

The second step is to call the offices of the municipality and say you want to get a permit.  They will tell you how to go about this.  If you are given a run-around, persist.  If you cannot make headway, persist some more or talk with a lawyer.

Sum Up on How to Get a Protest Permit

1. Determine if you need a permit.  If you are staying on the sidewalk or on a public plaza and you don't have a huge crowd, you probably do not need a permit.  If you will interfere with the normal flow of traffic, you will need a permit.  If you plan to hold a large event in a park or plaza, you most likely need a permit.

2. Find the municipal code online and read the pertinent parts.  Search on applicable words and scan the entire Table of Contents.

3. If an application is required, find it online or go in person and get it and study it.  Figure out your answers.   

4.  Call the municipality and say you want a permit.  Ask about the process.

5. Fill out the application, go to the meeting with the officials in charge of permits, and follow through on what they tell you.

6. If you are denied a permit, find out how to appeal and decide if you want to do that.

7. Try to find a local lawyer to assist you, if needed.

Undercover Cops at Occupy Protests

Undercover Cops at Occupy Protests
by Sue Basko

UPDATE November 30, 2011: Last night, Occupy L.A. was raided.  After the camp was closed down, someone took video and stills of about 8 men who were obviously undercover cops from the camp, standing up on City Hall steps and high-fiving it with the uniformed officers.  Some people were surprised that undercover cops had infiltrated their group.  To try to cover the existence of the undercover cops at the camp, one of the ranking officers referred to there being  "about 12 people left in the park, waiting to be arrested," which of course, made no sense.  
* * * 
Undercover cops have been spotted at Occupy protests. Of course. 

What They Wear:  A baseball cap (or sometimes a knit cap), hooded sweatshirt, dark pants or old jeans, and often a dark-colored backpack.  I assume there is a radio communication receiver (like a bluetooth) under the hood and pepper spray and handcuffs or zipties in the backpack.

What They Do:  Just kind of walk around or hang around.

What Their Job Is:  To watch and see if anything out of the ordinary is happening.

Should We Mind If They Are There?   No, not really.  It is fun to play Spot the Cop.  Also, it is possible some nut case may come along and try to commit some really violent act at a big protest, and hopefully, one of these undercover cops will see it beforehand and stop it.  There are always undercover cops at any big crowd event; thinking otherwise is naïve.

Cop-Spotting at Occupy:

Occupy LA:  Early on at Occupy LA, an undercover cop was spotted hanging around.  What was he wearing? Baseball cap, dark hooded sweatshirt, jeans.  He was better-looking than the average cop, kind of like Jake Gyllenhaal.  He spooked people because they were not sure if he was a cop, a provocateur, or a nut case about to do something.  Once it was confirmed he was a cop, there was a sense of relief. 

Occupy SF, Occupy Oakland: At Occupy San Francisco, OakfoSho (aka Spencer Mills) from Occupy Oakland was out livestreaming on Black Friday, the shopping day after Thanksgiving.  Spencer spotted an undercover cop and asked him, “Are you an undercover cop?” The man answered no, and then said, “I’ve been at this a lot longer than you.” 

Occupy Wall Street, New York: At Occupy Wall Street in New York, a livestreamer (not Tim Pool) asked a man if he was an undercover cop.  The man hit him.  The livestreamer followed the man as he walked away quickly,  trying to escape from the livestreamer and his camera.  The livestreamer followed the man as he walked into several police-only locations and eventually got into a police-only vehicle and was driven away, his cover blown.  This man was slightly too old and chubby to wear  the Undercover Cop uniform, and he had some lumps under his sweatshirt, which could have been a gun or other weapons. 

Occupy Wall Street, New York:  On the day after the OWS campers were kicked out of Zuccotti Park, Tim Pool (theother99, Timcast), the Chicagoan now famous for livestreaming the New York Occupation, was streaming a march to the Goldman Sachs building.  When the protest march arrived at the building, some protesters staged a sit-in.  Tim stood near the curb with a crowd of onlookers.  A man in a dark suit stood next to Tim and elbowed him hard in the ribs.  Tim loudly announced this and asked the man if he was a cop.  Then, another man in the crowd said the man in the suit had elbowed him, too.  The suit man left and joined the cops surrounding the sit-in by the door.  Suit man seemed to be directing some of the police action. Tim called him “a high-ranking police officer.”  I think he was building security for Goldman Sachs.

WHAT'S your cop-spotting story?

See also:

Anonymous vs PERF

Anonymous vs PERF
by Sue Basko

(November 2011) A few days ago, it came to light that PERF, Police Executive Research Forum, an organization in Washington, D.C., held several conferences calls of 40+ mayors or police chiefs from major cities nationwide, talking about their experiences with the Occupy protests.  This was interpreted by many to mean that PERF had coordinated the raids on the encampments.  Anonymous, the hacktivist group, has pledged to take remedial action against PERF.

 PERF denies coordinating the raids, saying it only held conference calls and that in fact, its publications urge a "best practices" method of nonviolent reaction to nonviolent protest.  Yesterday, I tried to download the PERF report  on crowd management, but found I would need to be a member, which involved paying $160 or $300 and having a Bachelors Degree and a job in upper-level police management.    Today, PERF is BEGGING people  to download their report.

Okay, so having read the report -- I have to say -- if followed, it is a good model for police to follow on crowd control.

To me, it sounds like the police that did the most abusive things in the Occupy raids were those from the most unprofessional groups.   For example, in the raids on Occupy Oakland, the Oakland Police Department has said that it was not their officers that did the damage, and that their officers do not even have such weapons.   I have read the  Oakland Police Department Crowd Control policy (download here) and this seems to be the case.  Other smaller police departments were brought in to help.

 I asked a friend of mine  who is a long-time law professor in Civil Rights with much police experience if the other agencies coming in to Oakland would be allowed to bring in weapons not used or allowed by the Oakland Police Department, and he said that police will never take a weapon from another police officer.    This seems really odd to me when we are talking about police hurling and shooting projectiles at people many feet away, people who posed no imminent danger to anyone. 

The situation at UC Davis involves several officers, including John Pike, who is now infamous on the internet, and deservedly so.  Pike is seen on many online videos shooting pepper spray at seated students.  He sprays them as if they are cockroaches.  Rumor has it that Pike is actually some sort of library security guard.  If so, he clearly did not belong in a field position.  He reminds me of security guards I used to see at a shopping mall  at Hollywood and Western in Los Angeles -- brutish people given a tiny bit of authority and using it to attack citizens.

The abuse at UC Berkeley seems different. From the videos, it looks to me as if the police had a coordinated plan in place to attack the girls and women, perhaps thinking this would cause the young men to fight the police, thus giving the police reason to attack the young men and arrest them.  The young men did not fight back, but bravely did their best to protect the females, without raising hands to the police.  This sort of technique of attacking the weakest targets, is common among thugs.  It is also considered a form of torture to attack people in front of others whose duty and inclination is to protect the innocent victims, but who cannot due to the power differential with attackers -- in this case, the attackers being the police.

This is all food for thought.  MY OPINION: The better trained and educated a police force is, the less violent they are.  To me, it looks like PERF is an educator on the right track.

Now - as to whether raids were coordinated during those phone calls -- that's a good question.  A "conference call" with that many participants seems impracticable.  I wonder what was actually the content and format.   I have a feeling we will be finding this out in the coming months.

Occupy Protests and the First Amendment

 Occupy Protests and the First Amendment
by Sue Basko

UDATE NOVEMBER 12, 2001:  Yesterday, Occupy Santa Rosa was granted a camping protest permit by vote of the Santa Rosa, California City Council.   They were granted a permit for 100 tents, with the permit renewable every 2 weeks.  Santa Rosa is a gorgeous place, so this is sure to be a wonderful Occupy protest.  

UPDATE (Oct. 27, 2011) - OFFICIALS in Irvine, California decided last night that they think Occupy protest tents are part of free speech.  Stay tuned on this.   ALSO last night, five San Francisco officials from the San Francisco Board of Supervisors came to Occupy SF, amidst great tension because police had been seen amassing on busses in riot gear.  The officials used the peoples' mic to give a press conference and speak to the crowd.  They showed their support and stated they were there to prevent a situation such as happened the night before in Oakland, CA.

The First Amendment to the U.S. Constitution says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."  States and cities are allowed to limit the time, place and manner of free speech and assembly, as long as the limits are content neutral and are geared to public welfare and safety or for legitimate public interests. 

With the Occupy protests, the question has come up whether a City can close a park at night, or if the City must allow protests to carry on all night.  The answer is that Cities can close the parks at night, as long as this is a content neutral law.  In most cities, the law is just the law and it applies to everyone, unless they work out some kind of special deal to stay in the park later, which usually involves getting a permit and paying for security and other expenses.  For example, in Chicago downtown parks, I have seen some special events going slightly past closing time (till midnight rather than 11 pm),  but those events were carefully planned with the City far in advance and expenses were covered.

Chicago: Last night (Saturday October 22), the Chicago police arrived at Occupy Chicago in Grant Park and announced the park was closing and anyone who did not want to get arrested should move to the public sidewalk and that those who remained in the park were going to get arrested.  The public sidewalk is right next to the park and so most people just moved onto the public sidewalk.  A large group with drummers moved just across the street.  About 130 people stayed in the park, and the police arrested them.  No one resisted arrest and the whole thing was very peaceful.   

The City of Chicago was not violating anyone’s  First Amendment rights by enforcing park closure at the stated closing time. People chanted, “Whose park? Our park .”  That is not exactly accurate.  It is a park owned by the people of the City of Chicago, and run by the City for use in ways that provide the most benefit to the people of the City.  That includes scheduling what happens when and where.  Chicago’s downtown parks host many music concerts and festivals, sports, and a wide array of events of all types.  Lollapalooza, the giant rock music festival, rents out the southern end of Grant Park for several days each year.  Millennium Park, also downtown, hosts popular free concerts that bring in crowds so gigantic that the park entrances have to eventually close off to any more entry because the space is at capacity. Grant Park also hosts Blues Fest, Jazz Fest, and Taste of Chicago.  Millennium Park hosts a series of free world-class symphony concerts as well as exhibitions of giant, fascinating art.    All this takes complex planning.  Other areas of the downtown parks are set aside as quiet gardens, seating areas, fountain areas, and other areas for peaceful contemplation, reading a book, or quiet visiting with friends.   So when a group of a few thousand people shout “Whose park? Our park,” the reaction is sure, you can protest there until the park closes at 11 pm and then you need to take it elsewhere.

Please see Where You Can Protest in Chicago and How.

Getting Perspective:  It is easy when you are in a protest group to believe that your group or your cause is the most important thing in the world or that everyone does or everyone should belong to it.   

 Keep in mind that in a big city like New York, Chicago, or Los Angeles, there are different groups protesting each day.  Yours is not the only protest group – not by far.  Each weekend, there will be major protests.  Each group has its special interests.  Each group believes their viewpoint and goals are crucial.   Cities have to accommodate all the protest groups, not just yours.  Most major cities have a system worked out for how they accommodate protests.

Try dropping by protests of groups you don’t belong to, groups protesting about things far removed from your experience.  It will help give you some perspective.  You will start to understand the level of responsibility the City and the police have in enforcing basic laws in the context of protesting.  Also, if you are white and educated, it may make you think about your privilege.  You may think your group should be allowed to protest all night in a downtown park.  Would you feel the same way if a group of Blacks or Arabs decided to stand all night in the park shouting, set up tents, and claimed the park was theirs?  Or would you be relieved when the cops kicked them out?   If you are with a group you consider progressive, do you think other groups, such as neo-Nazis, the KKK, or the Westboro Baptist Church should also have the right to stay in the parks all night?  That is what is meant by content neutrality: if your group were allowed to protest all night in the park, all other protest groups could protest all night in the park.  

A protest group can influence positive change.  Many or most positive societal changes begin in such ways.  Protest is important.  Just keep in mind that time, place, and manner restrictions do not violate First Amendment rights if they are the least restrictive way to meet a legitimate State goal (such as keeping the parks nice) -- and that the restrictions apply to all groups.        

Why Do Cities Close Parks at Night?  Chicago's first park lands were purchased and planned back in the 1860s  to provide a green area respite from the noise, dirt, and congestion of the streets.  Those living in apartments and congested areas of the city use the parks as their place for fresh air, contemplation, relaxation, exercise and sports.  Parks close at night for a lot of reasons.  One is to prevent crime, such as rapes, robberies,  assaults, drug dealing, trash dumping, gang activity, and very serious things such as the dumping of murdered bodies.  Another is to prevent drifters from making it their home.  Another is to give the space a time to rest, give the grass and other plants a time to breathe without humans on them.  If there are sprinklers, they often come on at night.  Also, night-time closings are a good time for cleaning and repairs, which are often done late at night or very early morning.  Closing at night also gives a somewhat more natural environment to the birds and animals there, who do better with natural rhythms that involve some quiet and dark.  All in all, closing at night gives the parks a rest and keeps them in better, greener condition for use by all.

Who Decides What the Constitution Means and How Do they Decide?  It is said that the Constitution is the supreme law of the land.  Then people ask:  How is it that a petty park closing law can trump the Constitution?  States and cities are allowed to make laws that limit the time, place and manner of peaceable assembly or free speech, if the laws are content neutral and if they are for some important state purpose in the public welfare.  For example, I just listed above many reasons why cities often close parks at night.  Sometimes people who are arrested under one of these laws will challenge the law.  If they keep challenging it to a higher court, they may get to the point where they can challenge it before the U.S. Supreme Court.  The U.S. Supreme Court gets to decide if it will or will not hear a certain case.  When the Court rules on a case, it usually sets a precedent in law for similar situations.  Therefore, the Court chooses cases that seem important and like they will affect many people.  

The people on the U.S. Supreme Court are called Justices.  There are 9 Justices on the U.S. Supreme Court.  They are appointed by the President and approved by Congress.  Once a Justice is on the Court, they are on for life.  Once in a while, a Justice retires for health reasons.  Being a Justice is a very lofty position.  People talk about conservative or liberal people sitting on the Court.  It is very important who is appointed to the Court.  There are certainly people sitting on the Court at any given time that some people think should not be there. 

The issue of whether parks can close at night is firmly settled and clear.  This does not interfere with anyone’s freedom of speech, because they can go anywhere else and keep speaking.  It does not interfere with anyone’s right to assemble, because they can assemble on the public sidewalk all night long, they can come back during park hours and assemble there then, they can rent a meeting room and talk all night if talking all night is what they want to do, and on and on.

I heard some young men saying they wanted to challenge the park closing laws in court so they could set a precedent.  Theoretically, this is possible, although for such a case to wind its way to the U.S. Supreme Court would likely take more than 10 years and cost millions of dollars in legal fees.  Then, the Court would not likely hear the case, since the right of Cities to close parks at night is firmly established.     

Camping or Sleeping Out in City Parks or on City Streets:  Most cities do not allow camping, other than in designated camping sites, if the city has any.  This will be found in the municipal ordinance of that particular city.  Cities define “camping” in different ways.  Some codes define camping as  any use of a tent or sleeping bag in a park or on the public way.  Some codes prohibit public sleeping.  Some codes prohibit lying down on a sidewalk.  If you are trying to plan an Occupation protest, or trying to figure out your chances of being arrested, you need to know all the pertinent parts of the law.  All these factors will come into play: Park closing time, sleeping, camping, use of the public way.

Or, if you are planning to use a plaza, you need to know:  Is this plaza a "public space" or is it private?  Is the plaza part of a park?  Parks almost always have different rules than the public sidewalk or a public plaza.  Then you need to know the rules regarding sleeping and/or lying down on the sidewalk or plaza.  You also need to know the laws about camping or tents.   You will find these things scattered all throughout a typical municipal code.  Your best bet is to skim the entire municipal code and read carefully any pertinent part.

Does Not Being Allowed to Camp Out as Part of a Protest Violate Our Freedom of Speech?  The U.S. Supreme Court ruled in Clark v. Community for Creative Nonviolence (1984) that free speech expression is not violated when municipalities or parks have laws that prohibit protesters from camping in the park.  The Court found that the laws were intended to protect the park environment and were applied to all people, not just protesters, and that the protesters had other means by which to express their ideas.

Read the note above that the City Council of Irvine, California announced that they view camping with a tent as part of a First Amendment protest right.  The City has a right to decide this, as does any city.  However, the interpretation must be content neutral.  This means Irvine will not be able to deny another protest group the right to camp based on their protest message -- although they may be able to deny another group the right to camp based on other factors, such as poor planning.

Some Cities have Occupation Protests Going.  How?  The ability to hold an Occupation legally usually depends on a quirk in the law or in bargaining with the municipal officials to allow it.  

New York: For example, at Occupy New York, Zuccotti Park is open all night, camping is not allowed, but sleeping is not prohibited.  So the protesters are sleeping all night on the sidewalk, but without tents.  Many of them are getting sick.  But they are allowed to stay there by following the technicalities of the law.  (Update:  Tents are now present in the park.  Update Nov. 15 2011: Protesters were removed from the park, tents and facilities were destroyed, protesters allowed back in with no tents or sleeping bags, no no lying down allowed, and park now closes at 10 pm.)

Smaller Cities: In some smaller cities or towns, people who want to hold an Occupation protest overnight are bargaining with their local officials to permit a limited-time overnight protest, for example, for a weekend.   Some people think this is corny or defeats the purpose or idea of an occupation, which they think must be the taking or conquering of some territory.  This possibly has to do with so many Occupy participants being  recent military vets from the wars in Iraq and Afghanistan.   They are home from the war now, but they are still thinking strategically in terms of seizing territory, encamping,  and occupying.  The average protester usually wants to attend a protest for a few hours and then go home and take a shower and sleep in a bed.  The idea of making a protest into a home and a lifestyle is somewhat new, I think.  (Update: I have since hear of the Bonus Army, which  set up camp in Washington DC after World War I to protest not being paid promised bonuses.  Their protest was violently crushed by government forces.)    It is a sign of how desperate people are with the current bad state of our economy and society, and how badly they want major change.  Still, for many groups, a bargained-for short term  Occupation protest works, is peaceful, and gets people thinking about change.   It may not be an occupation in the military terms of an occupation, but as a protest, it works.

See: 25 Ways to Occupy Without Camping
See: Occupy Santa Rosa Permit Conditions for discussion of a permitted Occupy protest.

Los Angeles: Los Angeles law does not allow camping, and parks close at night.  However, there is a court case settlement that allows sleeping on the sidewalk from 10 pm to 6 am.   Occupy LA made use of this and then after several days, the City allowed the protesters to keep tents on the park space at night. However, the lawn has sprinklers that have been damaged, the grass is now dry, and this may pose a situation where the protesters will have to be asked to leave since dry grass poses a serious fire hazard in Los Angeles.  Also, although smoking is prohibited in all Los Angeles parks, some protesters at Occupy LA are smoking.  The combination of flammable tents, dry grass, and cigarettes and matches may force the Fire Marshall to end the tent city.  Update:  Occupy LA was raided on Nov 30, 2011, the park was fenced off.  The group now meets on City Hall steps for  GA several times per week, with many protests and activities taking place each week.

This is another example of how law works: A Fire Marshall is an official who must make determinations of safety and has the power to revoke permits or close events.  For example, there is a weekly Farmers Market that for years has held a permit and used the space adjacent to the filled with tents by Occupy LA.  Last week, the Fire Marshall determined that since some of the Farmers Market vendors cook and use flames, that this could not take place within 100 feet of the tents.  That is good decision-making for safety, since tents are highly flammable, people are staying in them, and the grass is very dry.  All it would take is one misplaced spark for the whole thing to ignite.  The Fire Marshall moved the market to a nearby location away from the tents.

Fire Marshalls and Safety Inspectors:  When the Fire Marshall is doing his job, he or she is empowered to make determinations for safety.   Most cities require large group gatherings to get permits.  Part of the permit process is inspection by the Fire Marshall as well as by building inspectors.  This is all content neutral – that means, these people show up to inspect  for safety, whether you are running a protest, a movie premiere, a sporting event, or a street concert.   Generally, what they inspect will include any structures, such as stages or platforms; anything overhead, such as lights, poles, domes, big tents; any large props or puppets or mechanisms; and anything made of paper of fabric, checking to see if it is fireproof and if it is hung or suspended properly.

Food Safety: Another area of inspection at an Occupation protest has to do with food service.  The same laws apply to food service at a protest as would apply at a street festival or church carnival.  It is content neutral.  They don’t care what your political agenda is – they want to be sure people are not going to get food poisoning.  That usually involves having some kind of food service sanitation permit or licensing as well as having facilities to keep food sufficiently hot or cold, which an inspector measures using a thermometer.  Food inspectors are not violating your right to peaceably assemble, they are just making sure you do not all end out assembling in an emergency room with food poisoning. 

Rights Violations:  It is possible, though rare today, that a municipality will enforce laws based on the content of a group’s message.  If that is actually happening, contact a lawyer or rights group.

To help you understand the process of running a protest, please see these other posts:

25 Ways to Occupy Without Camping

25 Ways to Occupy Without Camping
by Sue Basko

You can “occupy” your town without camping.  In many places, running a camping protest is illegal or too much hassle.  In most locations, winter weather and camping don’t go together.  You can still start an “occupy” group, because the point is to occupy peoples’ minds with building a better future.  In fact, you may be able to do that better without worrying about tents, police, arrests, rodents, porta-potties, etc.

Even if there is a camping Occupy protest going in your town, that will just be a small portion of the local people.  Many others will want to participate without camping.  Here are some ideas how.  If you come up with ideas, please email them in to

25 Ways to Occupy Without Camping:

1) Form a group in your area and meet once a week.

2) Hold a town hall or open mic at a public space, such as a library.

3) Get a coffeehouse or café to host an Occupy Music night.

4) Gather food donations and hold a dinner for whoever wants to come.

5) Hold a potluck vegetarian dinner.

6) Hold a meaningful protest for an afternoon.

7) Volunteer to do a clean-up of a park or beach.

8) Paint or do repairs on a shelter or other place that needs it.

9) Find a local house that is being foreclosed upon and protest the lender asking them to refinance so the people don’t lose their home. 

10) Hold a family event with activities for children and adults.

11) Start a time share or time bank so local people can trade their skills with each other.

12) Have a group where everyone reads the same article and meets to discuss it.

13) Hold a discussion group where people give ideas on what they think would work to improve the economy.

14) Make a list of locally-owned businesses and ask the local people to patronize those businesses.

15) Plan a holiday donation drive to provide food and gifts for local families in need.

16) Gather volunteers to help local seniors with chores such as shopping, shoveling snow, etc.

17) Start a website or facebook for your local Occupy group.

18) Hold a local gathering for tea and cookies and a protest music sing-along.

19) Try to find and identify the local homeless and give them a list of any local resources.

20) Identify and make a list of local resources where people can apply for food stamps, where they can get medical or dental care for free or lower priced, food pantries, shelters, etc.  Distribute the list locally.

21) Identify empty houses in the area and see if families can rent them at cost. 

22) Have nonviolence training.

23) Start a bicycle group that shows people how to ride bikes for transportation and how to maintain their bikes.

24) Have a skateboard awareness group that shows how skating is good for transportation and also keeps teens out of trouble.