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The fence removal is a victory for activists after the fence went up April 30. But with the legal battle continuing, the judge who ordered the removal said in a July 2 hearing that “activities by the public and law enforcement engagement” will be scrutinized by an appeals court.
At 4:45 a.m. Thursday, July 2, workers finished dismantling and removing temporary fencing at the Eugene Federal Building, a government attorney said at a morning court hearing.
Six activists won a preliminary injunction June 22 to have the fencing taken down. But the legal battle has continued, even after a victory in their fight to access the building’s courtyard for protests and demonstrations.
U.S. District Judge Mustafa Kasubhai, in granting the preliminary injunction, referred to the “long tradition and history” of protest in the courtyard when granting the request from activists, who contended that the barrier infringed upon rights of free speech and assembly. He set a 7 a.m. July 2, deadline for fence removal to be completed.
At an upcoming appeals court hearing — set for July 8 — the government is expected to argue the order should be halted pending an appeal.
It’s uncertain what action the government would take if the appeals court overrides Kasubhai’s order. A court filing on Wednesday seeking to block the fence removal order referred to costs for the government “to reinstall the fence were it to prevail on appeal,” suggesting the fence might be put back up if the government wins on appeal.
Assistant U.S. Attorney James Blum previously said in court the government spent about $270,000 on the fence installation. Kasubhai, in an opinion and order published June 30, noted a cost of $58,790 to disassemble the fencing and store it on site.
At the hearing next week, government attorneys likely will argue for a right to close off access to properties without considering free speech rights, so long as the denial of access isn’t only for those with a particular viewpoint.
The General Services Administration previously 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 Jan. 30, when Eugene police declared a riot at the site.
Work to put up the fence was finished April 30. While it closed off most of the courtyard, it left open a corner of the building’s plaza often used by speakers during demonstrations.
In their lawsuit, activists represented by the Eugene-based Civil Liberties Defense Center argued that the remaining space didn’t accommodate large gatherings, and that people with mobility issues could no longer access benches or places to sit because they were blocked.
Kasubhai wrote in granting the injunction that a “single night of violence here does not justify entirely closing off a traditional public forum with a long and rich history as a free speech plaza.”
The fence also served to protect the property during “ongoing security renovations,” according to the GSA.
The fence removal began shortly after 6 p.m. Wednesday. Perhaps a dozen or so people gathered by 8 p.m. to cheer — and occasionally jeer — the work being done.
“F— finally,” one person shouted.
Multiple emergency motions filed by government attorneys asked for a halt to enforcement of Kasubhai’s order, but the 9th Circuit Court of Appeals ultimately denied a request to extend an administrative stay beyond the July 2 deadline Kasubhai had set.
Blum, the assistant U.S. attorney, gave the update Thursday morning on fence removal at a court hearing called by Kasubhai. The judge spoke to Blum and Civil Liberties Defense Center attorney Marianne Dugan about the attention likely to be paid to the site as next week’s hearing approaches.
“I’m sure both of you are acutely aware that what happens on this site is going to be considered very thoughtfully and closely by the Ninth Circuit,” Kasubhai said, referring to “activities by the public and law enforcement engagement.”
Blum had earlier in the hearing referred to a report from the building manager, Ryan Anderson, that overnight “911 had to be called on a few occasions while the work was being done due to some interference with the panel removal and some of the operation of the heavy machinery.”
Online dispatch records reviewed by Lookout Eugene-Springfield did not list any reports of disorderly conduct at the Eugene Federal Building, however.
Under questioning from Kasubhai about the time and exact number of 911 calls, Blum said he had no further information about what behavior took place except that Eugene police officers “were able to handle it.”
When the fence went up, beginning on the evening of April 29, more than 15 Eugene police officers at one point lined up near the building as protesters demonstrated against the project and yelled at site workers. But there was no visible police presence at the site early Wednesday evening.
In granting the original preliminary injunction, Kasubhai authorized that some fencing could 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.
