BANGOR — An attorney representing Occupy Augusta participants argued in federal court Monday that the group’s physical encampment, and the act of occupying a public space, is an essential part of its message.

Thus, attorney Lynne Williams argued, it is communicative, and protected, speech.

State officials countered that protesters are being asked only to get the same permit other park users are required to obtain, and they don’t have the right to live in Capitol Park indefinitely.

Judge Nancy Torreson said during a federal district court hearing Monday afternoon in Bangor that she expected to decide within 48 hours whether to issue an injunction to prevent Capitol Police from evicting the Occupy Augusta encampment.

Williams, representing James Freeman, of Verona Island, Diane Messer, of Liberty, and other Occupy Augusta participants, said citizens have had the right to assemble to redress grievances with their government since the American Revolution. She said their presence in the park across the street from the State House complex is symbolic of the 99 percent taking back what belongs to the people.

“It’s expressive conduct,” Williams said at the hearing. “There’s a reason that encampment is across from the Capitol dome.”

Deputy Attorney General Paul Stern argued that the state has well-established rules in place requiring a permit to use the park and banning overnight stays in the park. He said the state has the right to set reasonable conditions on the time and place for protests in the public space.

Also, he said, the state has not, and does not wish to, interfere with the First Amendment rights of protesters. However, he said, those rights do not include the right to live in the park indefinitely.

“The reason we’re here is they deem the First Amendment gives them the right to live there forever,” Stern said of protesters in the park.

Freeman, under questioning from Stern on the witness stand, said how long the group will stay is “open to negotiation.” Freeman is one of nine people arrested on the Blaine House grounds on Nov. 27 for refusing to leave during a protest, which came in response to the announcement by Capitol Police that Occupy Augusta needed to get a permit or leave.

“It’s part of a national movement, sir; I don’t know how that will work out,” Freeman said when Stern pressed for his estimate of how long the group planned to stay.

Messer said after the court hearing that the group will stay until it is no longer needed.

Williams filed a lawsuit Nov. 28 seeking a court order to prevent Capitol Police from evicting Occupy Augusta participants. The lawsuit says that requiring protesters to obtain a permit to continue their vigil in Capitol Park violates their rights to free speech.

She said the permitting process, and a ban on using the park overnight, gives authorities “unfettered discretion” in deciding who will be allowed to use the state-owned park.

Torreson, while noting that Capitol Police Chief Russell Gauvin may be a “great guy,” asked whether the state permitting process could be used by a less scrupulous official in his position to pick and choose who would get a permit to use the park.

Stern, however, said there are well-established rules and requirements in place to use the park. If applicants for a permit meet those requirements, Gauvin said, they will get a permit.

Gauvin said the state issues about 50 permits to use the park every year, and he has seen only three permits denied since he has been chief since 2006.

The three times permits were denied, Gauvin said, involved two proposed events that would have involved vehicles coming onto the park grounds, which he feared could cause damage; and a third event that the applicant had proposed to occur at the same time another large group already had received a permit to use the park.

Williams said the ban on overnight use of the park is not a well-established rule, regulation or ordinance.

Gauvin said Freeman was warned, from the start, that overnight use of the park was not allowed.

In an affidavit, Gauvin said the initial decision to not forcefully remove the protesters was made in consultation with state Public Safety Commissioner John Morris. Their concern during the early stages of the national Occupy movement was to avoid a confrontation that would escalate into a larger problem with the potential influx of many more demonstrators.

At the time, he said, there were only two or three light tents. He said as the occupiers made their site more “permanent” and spread to more of the park with the addition of larger tents and proposed bringing in woodstoves, he warned doing so would make it more likely they would be removed. His affidavit states that the occupiers were causing damage to the park, estimating it will cost “thousands of dollars” to repair the turf where they are camped out.

On the witness stand, Freeman said they kept their fires contained and up off the ground to avoid burning the turf below, and they spread hay in an effort to limit their impact on the turf.

Keith Edwards — 621-5647

[email protected]

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