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The order came in response to a court filing asking for a decision before workers are scheduled to begin taking down the fencing tonight. The work was to start today in order to comply with a court order that set a July 2 deadline for its removal, according to the emergency motion by government attorneys.
Updated with information from an appellate court’s order.
In a one-sentence order, the 9th Circuit Court of Appeals said Monday, June 29, it needs more time to consider an emergency motion seeking to delay a deadline for removal of fencing at the Eugene Federal Building.
The order extended until 10 a.m. Tuesday a previous administrative stay set to expire Monday. The extra time will allow a panel of judges “the opportunity to consider Appellant’s renewed emergency motion for administrative stay,” stated the order, which was entered at 2:12 p.m., court records show.
In a June 22 ruling, U.S. District Judge Mustafa Kasubhai cited the “long tradition and history” of the site’s courtyard as a place for protest in granting a preliminary injunction to open the plaza.
The motion filed Sunday by government attorneys representing the General Services Administration sought a response by 5 p.m. Monday, June 29, to their request for a “stay,” a legal term that refers to a temporary halt to a legal proceeding. Among other points, the motion argues that Kasubhai’s ruling “fundamentally misconstrues the First Amendment.”
The emergency motion requested a quick response because to “comply with the district court’s order, the government will need to begin dismantling the fence on the evening of Monday, June 29,” according to the court document filed Sunday, June 28.
It wasn’t immediately clear Monday afternoon if the federal government would halt its plans to dismantle the fence after the order from the appeals court.
The temporary barrier, fully installed April 30, closed off most of the courtyard while leaving open to the public a corner section of the downtown plaza often used by speakers during demonstrations.
Six activists in a lawsuit filed in U.S. District Court in Eugene have said the barrier infringes upon their rights of free speech and assembly. The activists are represented by the Eugene-based Civil Liberties Defense Center.
Kasubhai granted a preliminary injunction Monday, June 22, as requested by the activists, and initially ordered the perimeter fence removed within 48 hours. But after another hearing, he pushed the deadline to July 2.
The General Services Administration has said in court documents the fencing was installed to “protect the property, federal employees, and public visitors visiting the property for government services” after property damage during a protest.
Eugene police declared a riot at the site Jan. 30.
The government’s latest emergency motion follows an earlier emergency motion filed last week, which requested a stay lasting 14 days after the date of Kasubhai’s written opinion outlining his reasons for granting the preliminary injunction to reopen the site’s plaza.
The Sunday motion notes that Kasubhai’s written opinion was filed 5:47 p.m. Friday, and government attorneys, including from the U.S. Department of Justice Civil Division, argue against Kasubhai’s reasoning in granting the injunction.
“While there are limits on the government’s ability to regulate expression in fora that the government has opened for speech by the public, the government obviously retains the ability to physically exclude the general public from federal property by permanently or temporarily closing public fora; if the law were otherwise, the government would need to satisfy heightened First Amendment scrutiny every time it closed a public park to construct a new federal building or restricted access to a street that it was paving,” the Sunday court filing states.
The government “also expects to argue” the government “would incur significant and unrecoupable costs if it were required to remove the fence only to have to install it again after prevailing on appeal.”
The temporary fencing project cost about $270,000, Assistant U.S. Attorney James Blum said during an evidentiary hearing when asked by Kasubhai about the expense.
Kasubhai’s written opinion published Friday stated the case “involves the effective elimination of a long-established public forum in which the people have spoken freely for 50 years.”
The Eugene Federal Building opened in the mid-1970s.
“This case is a reminder that our government can be short-sighted when focusing on protecting certain immediate interests. In so doing, it loses sight of protecting that which will make this nation endure — our speech,” Kasubhai wrote.
