Occupy Tucson’s Request for an Emergency Restraining Order Rejected on (Mostly) Procedural Grounds

Occupy Tucson v. City of Tucson (D. Ariz. Nov. 8, just posted on Westlaw today) rejects Occupy Tucson’s request for an emergency order blocking the City’s enforcement of its park use ordinances. The plaintiffs, the court holds, haven’t shown a sufficient emergency warranting expedited proceedings (which would have denied the city an opportunity to take the time needed to properly respond), given that the plaintiffs didn’t come to court until weeks after the protest began and the city started enforcing the ordinances. The court also seemed to suggest that the plaintiffs’ case might be a loser on the merits (“Plaintiffs[‘] filings … fail to demonstrate a clear showing of likely success on the merits”), though the court didn’t confront the merits in detail because of the procedural obstacle to the issuance of the temporary restraining order.

A Temporary Restraining Order (“TRO”) is unwarranted in this case. Although the record reflects that Plaintiffs’ counsel spoke with Defendant Michael Rankin about the plan to file the Complaint in this matter, it is devoid of any reasons why Defendants should not be given notice and an opportunity to respond to the allegations at issue. Plaintiffs[‘] activities began October 15, 2011…. Tucson Police Department (“TPD”) officers have cited protesters for violations of the Tucson City Code since Plaintiffs’ occupation commenced. The ongoing activities of Plaintiffs and TPD’s response has remained unchanged. Plaintiffs[‘] filings with this Court fail to demonstrate a clear showing of likely success on the merits and likely irreparable injury. See Winter, 555 U.S. at 20, 129 S.Ct. at 374; Mazurek, 520 U.S. at 972, 117 S.Ct. at 1867; Am. Trucking Ass’n v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009); Warsoldier, 418 F.3d at 993-94; Pratt, 65 F.3d at 805 (9th Cir.1995); Fed.R.Civ.P. 65. Plaintiffs’ counsel failed to certify in his affidavit why notice should not be given to Defendants or why it should not be required. Accordingly, Plaintiffs’ request for a TRO is DENIED.

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