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Federal judge: Occupy Boise's tents can stay

By Alex Morrell

Associated Press

Published: Monday, Feb. 27 2012 3:50 p.m. MST

A cooking facility that will likely have to be removed under a federal judge's decision is shown in the Occupy Boise encampment across the street from the Idaho Capitol on Monday, Feb. 27, 2011 in Boise, Idaho. The tents can remain, though U.S. District Judge Lynn Winmill wrote that people will no longer be allowed to sleep in them.

John Miller, AP Photos

BOISE, Idaho — A federal judge ruled Occupy Boise can keep its tents up for now, but barred protesters from sleeping, cooking and other camping related activities on land across from the Idaho Capitol.

In a decision released Monday, U.S. District Judge B. Lynn Winmill decided the group's protest against income inequality at the old Ada County Courthouse qualifies as protected free speech.

He granted a temporary restraining order against a new law, signed by Gov. C.L. "Butch" Otter last week, meant to boot them from the property surrounding the vacant, Depression-era courthouse where they've been a constant presence since early November.

Protesters who gathered on the courthouse steps at noon Monday gave a resounding cheer as leaders of the group told them the tents could stay.

"I wouldn't call this a full victory. It's only a step of progress with many steps to come," Albert Garcia, a protester from Jerome, said. "I don't need to sleep here. I don't need to eat here to continue making my point."

While the recently-minted law prohibits camping-related activities like sleeping or fire building, Occupy Boise can still maintain an around-the-clock vigil at the encampment, Winmill wrote in his 16-page decision.

Given the potential infringement on First Amendment free-speech rights, Winmill says Idaho has an "extraordinarily heavy burden" of demonstrating the law is the least restrictive way of achieving a compelling state interest. He ruled the state's plan to dismantle the tent city — a symbolic political expression — by 5 p.m. Monday exceeds the scope of the law.

"Such action is simply not authorized by the statute," Winmill continued. "This creates the appearance that the state is stretching to suppress the core political message of Occupy Boise — its tents— as presented in a public forum."

His injunction lasts at least until an evidentiary hearing can be scheduled for the case. No date has been set.

Otter's administration declined to comment on specifics of the ruling, saying they're still looking it over.

"We have to go back in front of" Winmill, Jon Hanian, Otter's press secretary, said Monday. "We're not going to be able to say much more beyond that."

Winmill gave protesters until the end of the day Friday to remove camping gear from the courthouse grounds before Idaho officials can move in and seize property.

The state would still have to store it for up to 90 days, before throwing it away, to allow Occupy campers to reclaim their items, according to the law.

Occupy Boise lawyer Bryan Walker said the group plans to press ahead with challenging the issue of camping rights as the litigation proceeds.

"I know there is some disappointment about not being permitted to camp," Walker said. "We're going to take another bite at that apple at the evidentiary hearing."

Aside from the symbolic tents, Winmill's decision doesn't provide specific guidelines about what items can remain on the courthouse grounds.

Some of the more than a dozen tents are outfitted with bedding, pots and pans, food, fire wood and a wood-burning stove that churns out smoky clouds that hang over the encampment.

The decision also leaves open just how officers with the Idaho State Police will enforce the sleeping and cooking ban, which might require inspecting the interior of tents.

Walker and others leading Occupy Boise's legal fight said they'll meet with state officials to clarify ambiguities this week.

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