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Case Name Occupy Delaware v. City of Wilmington PN-DE-0001
Docket / Court 7027-VCG ( State Court )
State/Territory Delaware
Case Type(s) Policing
Special Collection Occupy
Attorney Organization ACLU Chapters (any)
Case Summary
On November 9, 2011, Occupy Delaware filed a lawsuit in the Court of Chancery of the State of Delaware under the First and Fourteenth Amendments of the United States Constitution, as well as under Article I, § 5 of the Delaware Constitution, against the City of Wilmington. The plaintiff, ... read more >
On November 9, 2011, Occupy Delaware filed a lawsuit in the Court of Chancery of the State of Delaware under the First and Fourteenth Amendments of the United States Constitution, as well as under Article I, § 5 of the Delaware Constitution, against the City of Wilmington. The plaintiff, represented by public interest counsel, sought injunctive and declaratory relief. The complaint alleges that the City of Wilmington violated the constitutional rights of Occupy Delaware and its members by: (1) denying it and its members the right to use Peter Spencer Plaza in Wilmington as a location for conducting protests unless they pay the City a $200 fee; (2) preventing it and its members from using the plaza at night; and, (3) preventing it and its members from placing tents and other temporary shelter on the plaza. Verified Compl. 1-2. Specifically, Occupy Delaware claimed that the Wilmington City Code provisions that the City relied on in imposing these requirements were by their terms not applicable to Peter Spencer. Occupy Delaware further claimed the provisions were unconstitutionally overbroad and vague in such a manner that they could not be applied to limit rights guaranteed by the First and Fourteenth Amendments of the United States Constitution as well as by Article I, § 5 of the Delaware Constitution.

On November 9, 2011--the same day this suit was filed--Occupy Delaware filed a motion for a temporary restraining order asking the court to prevent the City from depriving Occupy Delaware members from using the plaza. Occupy Delaware argued that if the City were to be allowed to remove Occupy Delaware members from the plaza, or allowed to otherwise prevent them from using the plaza, this would constitute immediate irreparable harm, as it would deprive Occupy members from fundamental constitutional rights--namely the right to assembly and freedom of speech. In contrast, Occupy Delaware argued that there was no alleged harm that would arise from the granting of the temporary injunctive relief.

On November 10, 2011, the Court of Chancery (Judge Sam Glasscock, III) granted the temporary restraining order for 24 hours and scheduled a hearing on the motion for the next day. Order Granting TRO. Later that day, however, the parties reached a settlement. Settlement Agreement. The terms of the agreement provided that Occupy Delaware and its members were allowed to: (1) use Peter Spencer Plaza without paying a fee for as long as they wished, (2) remain on the plaza seven days a week and around the clock, and (3) place tables, tents, signs and other items on the plaza. However, Occupy Delaware agreed to limit the location of where its members were allowed to place their tents, and not to block pedestrian traffic. Occupy Delaware further agreed that it would not establish another encampment in downtown Wilmington unless the plaza became insufficient to host its numbers. The City also reserved the right to "ask the Court to excuse it from complying with [the] agreement if, due to a physical change in the plaza that is in no way attributable to actions by the city or its agents, it becomes unreasonable for the occupation to continue at Peter Spencer Plaza." Id.

Occupy Delaware filed a supplemental complaint on May 7, 2012, alleging that the City was in violation of the settlement agreement. Verified Supplemental Compl. 1. Occupy Delaware alleged that that on April 23, 2012, the City issued a news release in which the mayor directed Occupy Delaware to discontinue its occupation of the plaza. Occupy Delaware argued that in the absence of a finding by the court that it was unreasonable for the occupation to continue "because of a physical change in the plaza that is in no way attributable to actions by the city or its agents," as provided by the settlement agreement, this was an anticipatory breach of the settlement agreement by the City. Occupy Delaware further argued that the November 2011 settlement agreement provided it with a contractual right to occupy the Plaza, in addition to its prior constitutional claims. See id. 4.

On July 16, 2012, the parties requested the court to approve a joint stipulation effectively dismissing the suit without prejudice. Stipulated Order. The stipulation provides that, given that the Plaza was to be renovated beginning September 17, 2012: (1) Occupy Delaware would remove its tents, signs, and other structures and items its members had placed by September 10, 2012, (2) Occupy Delaware would not add any tents, signs or items to the Plaza after July 16, 2012, and the City would not seek to have any removed prior to the termination of the encampment, (3) the November 10, 2011, settlement agreement would be terminated, and (4) each party would bear its own attorney's fees and costs. The court approved the stipulation the same day. Id.

Greg in den Berken - 06/23/2014


compress summary

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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Freedom of speech/association
Content of Injunction
Preliminary relief granted
Plaintiff Type
Private Plaintiff
Causes of Action State law
42 U.S.C. § 1983
Defendant(s) City of Wilmington
Plaintiff Description The Occupy Delaware movement.
Indexed Lawyer Organizations ACLU Chapters (any)
Class action status sought No
Class action status granted No
Prevailing Party Mixed
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Preliminary injunction / Temp. restraining order
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration not on record
Case Closing Year 2012
Case Ongoing No
Additional Resources
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Case Studies Federal Enforcement of Police Reform
By: Stephen Rushin (University of Illinois College of Law, University of California, Berkeley - Jurisprudence and Social Policy Program )
Citation: 82 Fordham Law Review 3189 (2014)
[ Detail ] [ External Link ]

  Panopticism for Police: Structural Reform Bargaining and Police Regulation by Data-Driven Surveillance
By: Mary D. Fan (University of Washington)
Citation: Forthcoming, 87 Washington L. Rev. __ (2012).
[ Detail ] [ External Link ]

  What Happens When Police Are Forced to Reform?
Written: Nov. 13, 2015
By: Kimbriell Kelly, Sarah Childress and Steven Rich (Frontline/Post)
Citation: Washington Post (Nov. 13, 2015)
[ Detail ] [ External Link ]

Docket(s)
No docket sheet currently in the collection
General Documents
Verified Complaint 11/09/2011
PN-DE-0001-0001.pdf | Detail
Document Source: State Court Website
Agreement Between Occupy Delaware and City of Wilmington 11/10/2011
PN-DE-0001-0003.pdf | Detail
Document Source: State Court Website
Order Granting Temporary Restraining Order [For 24 Hours until TRO Hearing] 11/10/2011
PN-DE-0001-0004.pdf | Detail
Document Source: State Court Website
Verified Supplemental Complaint [With Exhibits Attached] 05/07/2012
PN-DE-0001-0005.pdf | Detail
Document Source: State Court Website
Stipulated Order [Overturning November Settlement] 07/16/2012
PN-DE-0001-0002.pdf | Detail
Document Source: State Court Website
Judges Glasscock, Sam Court not on record
PN-DE-0001-0004
Monitors/Masters None on record
Plaintiff's Lawyers Morse, Richard H. (Delaware)
PN-DE-0001-0001 | PN-DE-0001-0002 | PN-DE-0001-0005
Defendant's Lawyers Cochran, Malcolm IV (Delaware)
PN-DE-0001-0002
Levy, Jaclyn C. (Delaware)
PN-DE-0001-0002
Tassone-DiNardo, Rosamaria (Delaware)
PN-DE-0001-0002 | PN-DE-0001-0003
Other Lawyers None on record

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