Henke v. Department of the Interior
842 F. Supp. 2d 54
D.D.C.2012Background
- Occupy DC protest at McPherson Square with tents; plaintiffs seek to maintain occupation and protect tents as part of demonstration.
- Plaintiffs allege Fourth Amendment rights against unreasonable seizures and Fifth Amendment due process rights regarding destruction/seizure of tents.
- Defendant NPS/Park Police closed part of the square on Dec 4-5, 2011; tents in the closed area were reportedly separated from property but not removed.
- January 2012 Camping Enforcement Notice announced enforcement of camping ban with near-72-hour notice before arrests/seizures; court earlier approved enforcement without evictions under the Dec 5 order.
- Plaintiffs moved for preliminary injunction and class certification; court reserved decision given questions about irreparable harm, ripeness of potential future closures, and enforcement standards.
- Court denied preliminary injunction, finding no imminent injury or ripe controversy for future park closures or hypothetical seizures;issues center on due process standards and reasonableness of enforcement under NPS regulations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Irreparable harm from destruction of tents | Henke argues tents will be destroyed without notice. | NPS procedures protect property and provide notice; past incidents are not a policy. | Not shown; no imminent/likely destruction demonstrated. |
| Irreparable harm from seizure of tents of law-abiding demonstrators | Seizure of tents from compliant protesters would violate Fourth Amendment. | Seizure could be permissible depending on facts; no present intent to seize. | Injury speculative; no imminent likelihood of unlawful seizure shown. |
| Ripe challenge to future park closure under §1.5 and seizure | NPS could close all or part of the park; constitutional challenges should be heard now. | Closure decisions are contingent; not ripe absent final agency action. | Not ripe; future closure decision too speculative to review now. |
Key Cases Cited
- Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (U.S. 2008) (establishes four-factor test for preliminary injunctions (likelihood of success, irreparable harm, balance of equities, public interest))
- Propert v. District of Columbia, 948 F.2d 1327 (D.C. Cir. 1991) (due process requires notice and some hearing before final deprivation of property)
- Wisconsin Gas Co. v. FERC, 758 F.2d 669 (D.C. Cir. 1985) (irreparable harm analysis; harm must be actual and not speculative)
- Long v. District of Columbia, 469 F.2d 927 (D.C. Cir. 1972) (demonstrates pattern requirement for future harm to justify injunctions)
- Clark v. CCNV, 468 U.S. 288 (U.S. 1984) (First Amendment limits on homeless sleep-in tents; anti-camping regs are content-neutral time/place-and-manner restrictions)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (U.S. 1967) (ripeness and administrative action review principles under Article III)