Judge says he won’t reconsider order to remove federal building fence

Updated following a Tuesday, June 30, court hearing. The story previously was updated with comment from the Civil Liberties Defense Center and information about next steps in court.

The 9th U.S. Circuit Court of Appeals said Tuesday, June 30, that a lower court must “consider and clarify” alternatives before an order can take effect requiring removal of temporary fencing at the Eugene Federal Building.

The Tuesday order effectively halted a July 2 deadline for fence removal set earlier by U.S. District Judge Mustafa Kasubhai.

Kasubhai had previously 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. Although he ordered removal of the fence, Kasubhai also gave the OK for some fencing to be put in place. He presented attorneys with a diagram in which he marked by hand a fence line stretching mostly alongside the interior wings of the main building.

But during an afternoon court hearing that lasted nearly three hours, Kasubhai made it clear he would not be taking back his order for fence removal.

Assistant United States Attorney James Blum, near the hearing’s end, said he’s likely to make an oral motion for an administrative stay and a stay pending an appeal “if the decision is … to do anything short of keeping the fence up as it stands.”

Kasubhai, however, responded by speaking about why the case returned to his courtroom.

“The court did not remand for having me reconsider my decision and order something different,” Kasubhai said, adding that instead the order instructed him to “provide clarity about what the record includes involving” an alternative fence placement he had referred to in his written opinion.

The court of appeals specified a halt to Kasubhai’s order pending “the issuance of district court’s further order,” and at the close of the hearing, at about 5:30 p.m. Tuesday, Kasubhai said he would issue a written order.

Government attorneys had filed an emergency motion with the 9th Circuit Court of Appeals over Kasubhai’s original order to remove the fence. The appellate court on Tuesday morning issued an order stating that Kasubhai’s court must “consider and clarify what alternative measures the Appellant is authorized to employ,” specifically “the time line for such measures, and whether such alternative fencing can be constructed and accomplished without maintaining the perimeter fence.”

The stay issued Tuesday “shall remain in place until the issuance of district court’s further order,” the one-page document says.

The Eugene-based Civil Liberties Defense Center represents six activists who filed a lawsuit seeking a preliminary injunction.

Despite the order Tuesday, there’s “no reason” to delay dismantling of the fence, said Lauren Regan, the nonprofit organization’s director of litigation and advocacy. Regan pointed to the granting of a city of Eugene traffic control permit and evidence of a contract to dismantle the fence.

“We believe there is no reason the federal defendants cannot comply with the Court’s order given the fact that they have a contractor ready to take the fence down and a city permit to block part of the roadway to accommodate that work,” Regan said in a statement. “It is important that the public is able to use the entire free speech plaza by the 4th of July as emphasized by Judge Kasubhai.”

Tuesday’s order followed a one-sentence order issued a day earlier, when the appellate court extended a temporary stay until 10 a.m. Tuesday, stating it needed more time to consider an emergency motion seeking to halt the order setting the July 2 deadline for fencing removal.

The order Tuesday was issued minutes before the 10 a.m. expiration of a temporary stay, and sets no specific timeline for how quickly the lower court must act to “consider and clarify” the alternatives. The order was written by Senior Circuit Judge Sidney R. Thomas, Circuit Judge Holly A. Thomas and Senior Circuit Judge Carlos Bea.

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. 

They have said the size of the area left open does not accommodate large gatherings, and also that people with mobility issues can no longer access benches or places to sit because they are blocked from doing so by the barrier.

Kasubhai, after granting a preliminary injunction Monday, June 22, 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.

Kasubhai’s written opinion published Friday, June 26, 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.