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Court won't dismiss Occupy D.C. case

A federal court has refused the federal government’s request to dismiss a lawsuit from an Occupy D.C. member, who alleges the Interior Department violated his First, Fourth and Fifth Amendment rights when it cleared protesters out of their camp in McPherson Square last year.

U.S. District Court James Boasberg denied a motion to dismiss from the government in Bloem v. Unknown Department of the Interior Employees, allowing the case to move forward.

At issue is the property of David Bloem, who camped out McPherson Square along with other members of Occupy D.C. and contends he lost his belongings when the National Park Service cleared the park on Feb. 4, 2012.

Bloem alleges the property, “a tent and display that included a green indoor/outdoor carpet, a blue tarp, a baby stroller, a tent case, a six-inch-high white plastic fence, and six garden stones stenciled with ‘Occupy DC’ and children’s footprints,” according to the court, was destroyed immediately by officials, giving him no chance to recover any of it.

The government had filed a motion to dismiss, arguing that the doctrine of qualified immunity, which protects government officials from civil liability for damages if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” shields its officials' actions.

In his opinion dated Monday, Judge James Boasberg flatly rejected the government’s assertion, saying the officials plainly should have known that their actions violated Bloem’s constitutional rights.

On the subject of the First Amendment, Boasberg said, “It is simply beyond doubt that citizens have a right to express their political views by words and conduct in public fora. … Similarly, regarding plaintiff’s Fourth Amendment claim, it was also clearly established that ‘an officer who happens to come across an individual’s property in a public area could seize it only if Fourth Amendment standards are satisfied.’”

Additionally, on Bloem’s Fifth Amendment due process claim, Boasberg wrote that precedent has made it “beyond debate” that the government must give notice and some sort of hearing before final confiscation or destruction of an individual’s property.

The government argued that the officials’ actions were merely negligent and that they could have mistaken Bloem’s belongings for trash, but Boasberg didn’t buy it. In fact, he wrote, his court issued an order two days before the cleanup of McPherson Square that warned the government that seizure of property could violate protesters’ constitutional rights.

The opinion only allows the case to proceed; it does not find that the government violated Bloem’s rights, only that it should have known it was a possibility when the actions were occurring.

In deciding this type of motion, the judge assumes the plaintiff’s assertion of facts are accurate. The same will not be true if the case moves to trial.

(h/t Blog of Legal Times)