Occupy Fresno Legal Victory

Occupy Fresno held a press conference today (June 8, 2012) to discuss the settlement of its suit against Fresno County. Bob Navarro, attorney representing Occupy Fresno, Mike Bridges and Richard “Patch” Day spoke and their comments are available on the video (above). According to Occupy Fresno representatives, the settlement is not the victory they were looking for, but it is positive. It upholds the constitutional rights of freedom of assembly and freedom of speech.

Fresno County will remove restrictive ordinances limiting the circulation of flyers, carrying of signs, and holding small gatherings in Courthouse Park. Those arrested will not face criminal charges.

Most importantly, Occupy Fresno has not gone away! Tomorrow is the anniversary of eight months at Fresno County Courthouse Park – the only known Occupy in the movement that has maintained a continuous 24-hour presence in its original location.

Led by young adults and beginning on October 9, 2011, several hundred people of all ages, from all walks of life met in Fresno County Courthouse Park to be a part of the Occupy Wall Street movement. Some engaged in civil disobedience because of their passion for economic justice and freedom of speech. There were 105 arrests.

Fresno County spent hundreds of thousands of dollars to monitor and arrest Occupy Fresno demonstrators. The arrests distracted and deterred supporters of Occupy. But, the national problems that sparked the Occupy movement remain - extreme inequality of wealth, accelerating poverty, and the power of large corporations and financial institutions.

Occupy Fresno can now put the arrests behind them and get back to the business of working for economic justice. The group will celebrate the settlement and look to the future this Saturday, June 10, with a potluck at 5:30 p.m. and a General Assembly at 7:00 p.m.
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SETTLEMENT AGREEMENT

This Settlement Agreement is entered into effective the date set forth below by and between Plaintiffs Occupy Fresno and Vanessa Aranda, Dallas John Blanchard, Jr., Noah Canton, William Delara, Carlos Diaz, Michael Dominquez, Matthew Stephen Duris, Chad Austin Hopper, Joseph Hunter and Ruben Verdugo (collectively referred to as Plaintiffs) and Defendants County of Fresno, Margaret Mims, John Navarette, Jorge Granados, and John Thompson (collectively referred to as Defendants).

This case, No. 1:11-cv-01894 CRB filed November 13, 2011, in the United States District Court, Eastern District of California, Fresno Division, arises out of Plaintiffs’ use of Courthouse Park in the County of Fresno, State of California, as part of the Occupy Movement.

RECITALS

A. The Plaintiffs generally allege that certain provisions of Fresno County Ordinance Code (“FCOC”) chaps. 13.20 (Courthouse Park) and 13.24 (Grounds and Buildings) unconstitutionally impinge upon Plaintiffs’ rights of free speech and assembly.

B. On December 13, 2011, the Court entered an order on Plaintiffs’ Motion for Preliminary Injunction, granting the motion in part, and denying the motion in part. (Doc. 99). The Court found:

• FCOC § 13.20.030 (requiring a permit for public

meeting of more than ten people in Courthouse Park) is

unconstitutional; and {7199/002/00362197.DOC } 2

• FCOC § 13.24.060.c (prohibiting loitering on

Courthouse Park grounds between 12:00 a.m. and 6:00

a.m.) is facially constitutional.

C. On January 10 and 24, 2012, the Fresno County Board of Supervisors held first and second readings of amendments to FCOC chaps. 13.20 and 13.24 and adopted the amendments at the second hearing, which are now effective. Among other things, the amendments:

• Define “public meeting” to involve gatherings of 100 or more persons; and

• Delete the ban on distribution of handbills or circulars.

The amended FCOC chapters 13.20 and 13.24 took effect as law on February 23, 2012 (thirty days after adoption).

D. On March 13, 2012, this Court entered an order (Doc. 115) on the parties’ stipulation, accepting waiver of and dismissing certain of Plaintiffs’ claims and deeming amended Plaintiffs’ Amended Complaint. Among other claims waived and dismissed, Plaintiffs waived and dismissed their facial challenge to FCOC § 13.20.060.c (prohibiting loitering on Courthouse Park grounds between 12:00 a.m. and 6:00 a.m.). Plaintiffs continue to assert that FCOC § 13.20.060.c is unconstitutional, as applied to Plaintiffs. The County Defendants deny this assertion. The Plaintiffs dismissed with prejudice the Fresno County Board of Supervisors and their claims for violation of civil rights against individual {7199/002/00362197.DOC } 3

defendants in their official capacities. The parties now wish to fully and finally resolve any and all claims and issues raised or which could have been raised by this lawsuit on the following terms and conditions.

AGREEMENT

In consideration of the foregoing recitals and for good and valuable consideration, the parties agree as follows.

A. Dismissal With Prejudice of Lawsuit. Plaintiffs shall dismiss their amended complaint with prejudice and authorize and shall execute any such documents as are necessary to provide for the entry of a judgment of dismissal with prejudice of this entire lawsuit as to all claims and all parties.

B. Three Overnight Vigils. Plaintiffs may have three overnight vigils at Courthouse Park, including between the hours of 12:00 a.m. and 6:00 a.m., for three nights, and not more than three nights.

1. First Vigil. The first overnight vigil shall occur, if desired, between July 1, 2012, and September 30, 2012.

2. Second Vigil. The second overnight vigil shall occur, if desired, between October 1, 2012 and January 31, 2013.

3. Third Vigil. The third overnight vigil shall occur, if desired, between February 1, 2013 and May 31, 2013.

4. Conditions of Vigil. Plaintiffs may choose any one night during each of these three time periods, except that no portion of the night or the morning immediately following, shall fall on a holiday or other portion of a holiday-lengthened {7199/002/00362197.DOC } 4

weekend. Plaintiffs shall not choose two consecutive nights, e.g., May 31 and June 1, 2012.

5. Area of Occupancy. Plaintiffs’ vigil shall be confined to the area of occupancy, meaning the area within a fifty (50) foot radius of the center of the columnar structure known as the Ann Woodward Memorial. Provided, however, that Plaintiffs may, without loitering, walk in other areas of Courthouse Park, including to retrieve or place personal property into any vehicles parked in the County-owned portion of the parking lot located in the southeast corner of Courthouse Park.

6. Electronic Notice. Plaintiffs shall provide 72 hours advance notice of the overnight occupancy by email, addressed to all of the following:

a. jnavarette [at] co.fresno.ca.us;

b. Margaret.Mims [at] fresnosheriff.org;

c. Jennifer.horton [at] fresnosheriff.org;

d. jgranados [at] co.fresno.ca.us;

e. jothompsom [at] co.fresno.ca.us;

f. bjohnson [at] co.fresno.ca.us;

g. kbriggs [at] co.fresno.ca.us;

h. owanger [at] wjhattorneys.com; and

i. jerrymorris [at] co.fresno.ca.us.

7. Occupant Limit. The number of persons occupying said area of occupancy during the course of each overnight vigil shall not exceed 150 persons during each vigil. {7199/002/00362197.DOC } 5

8. Sanitation. By 6:00 a.m. of the morning of each overnight vigil, the Plaintiffs shall ensure that the area of occupancy and any other areas within Courthouse Park, but outside the area of occupancy, in which the Plaintiffs may have left any trash, refuse, or other materials, are trash-free, refuse-free, and that other materials will have been removed and all such areas shall be left in reasonably neat and clean conditions.

9. No Camping. In the course of each overnight vigil and at all other times, Plaintiffs, or people acting for, on behalf of, or in concert with Plaintiffs, shall not camp, shall not erect tents, and shall otherwise comply with all provisions of FCOC chaps. 13.20 and 13.24 and with any and all other applicable local, state or federal laws.

10. Permit. For each overnight vigil, this agreement shall serve as the public meeting permit Plaintiffs may otherwise be required to obtain pursuant to FCOC §§ 13.20.020, 13.20.030 and 13.24.020, as amended effective February 23, 2012.

11. Public Meeting. If, by 8:00 a.m. of the morning immediately following the overnight occupancy, “a public meeting” is still in progress, then the meaning of FCOC § 13.20.020 shall apply and if a public meeting permit is otherwise required at said time, Plaintiffs shall immediately apply for a public meeting permit in accordance with FCOC §§ 13.20.020, 13.20.030, and 13.24.020, as amended effective February 23, 2012. {7199/002/00362197.DOC } 6

C. No Admission. Plaintiffs agree the County Defendants offered the overnight vigils without admitting that FCOC § 13.20.060.c (prohibiting loitering between 12:00 a.m. and 6:00 a.m.) is unconstitutional, facially, or as applied. The County Defendants believe and contend, consistent with the Court’s ruling on the Motion for Preliminary Injunction, and consistent with Plaintiffs’ agreement to waive and dismiss their facial challenge to FCOC § 13.20.060.c that said ordinance is facially and in all other respects, constitutional.

Plaintiffs further acknowledge that the County Defendants contend that they have not enforced FCOC § 13.20.060C in discriminatory fashion, and that that ordinance provision is constitutional as applied.

D. No Evidentiary Value. Plaintiffs acknowledge and agree that pursuant to Fed. Rule Evid. 408(a), this Settlement Agreement and communications leading to this Agreement, constitute conduct or statements made pursuant to compromise and settlement negotiations and all such conduct and statements are inadmissible in any future proceedings to establish liability or relating to the enforcement, publication, comment on, or other implementation of this Agreement and that judgment of dismissal with prejudice be entered thereon, and in any future independent lawsuits relating to Plaintiffs’ or any other parties’ use of Courthouse Park. Plaintiffs acknowledge and agree that if any future independent lawsuits are filed in state court, this Agreement dismissing and the communications that led to this Agreement, are inadmissible under California Evidence Code § {7199/002/00362197.DOC } 7

1152(a), to the prejudice of or as evidence of a party’s conduct or statements made during settlement negotiations.

E. Attorneys’ Fees and Costs. Plaintiffs shall recover as and for attorneys’ fees and costs, the amount of $37,500.00. Plaintiffs acknowledge that they were granted in forma pauperis status at the commencement of this litigation. Each party shall bear his, her, or its costs of suit if any. County Defendants shall bear their own attorneys’ fees

F. Non-Prosecution. The County of Fresno has declined to request criminal prosecutions based on any and all arrests made prior to April 1, 2012, associated with Occupy Fresno activities in Courthouse Park and/or under FCOC § 13.20.060.C, and/or lodging in Courthouse Park without the permission of the County (Penal Code § 647(e)). Plaintiffs agree that this provision shall not be construed to preclude arrests on or after April 1, 2012 and/or prosecutions based on said arrests.

G. Dismissal with Prejudice and Final Judgment. Plaintiffs agree that this lawsuit shall be dismissed with prejudice pursuant to Fed. Rule Civ. Proc. 41(a)(1)(B). Plaintiffs also agree that a judgment of dismissal with prejudice of this lawsuit shall be entered by the presiding judge. Plaintiffs intend that the judgment entered be final and waive and forever relinquish any right to appeal and will not seek any review of any kind by a higher court.

H. Release of all Claims. Plaintiffs, and each of them on their own behalf and for and on behalf of their spouses, heirs, successors, executors, and/or assigns, fully release, {7199/002/00362197.DOC } 8

acquit, and forever discharge all Defendants, their spouses, Board Members, officers, agents, employees, attorneys, heirs, successors, and assigns from and against any and all past, present, or future claims, actions, causes of action, of any kind and of any nature, including but not limited to compensatory or punitive damages, costs, attorneys’ fees, except as provided herein, losses, expenses, and compensation or based on tort (including constitutional tort), contract, violation of statute, statutory theory of recovery, now or ever existing, or arising in the future, known or unknown, suspected or unsuspected, that each party has or at any time had, or claimed to have had, from the beginning of time through the effective date of this Agreement including, without limitation, any and all claims arising from or related to the allegations made or which could have been made in connection with this lawsuit.

I. Waiver of Civil Code § 1542. Plaintiffs, and each of them on their own behalf and for and on behalf of their spouses, heirs, successors, executors, agents, employees, affiliates, attorneys, and/or assigns agree to waive the benefits of § 1542 of the California Civil Code which reads as follows:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release which, if known by him or her, must have materially affected his or her settlement with the debtor (Defendants).{7199/002/00362197.DOC } 9

J. No Admission. This Agreement pertains to disputed claims and defenses and does not constitute an admission of liability or fault by any party.

K. Warranty of Voluntary Agreement. Each Plaintiff represents and warrants that (1) this Agreement is freely and voluntarily executed and that he or she has been advised of all the relevant information in connection with the Agreement; and (2) that he or she has not relied on any inducements, promises or representations made by any other party or his, her, or its representatives, or any other person, except for those expressly set forth in writing in this Agreement.

L. Warranty of Understanding. Each Plaintiff represents and warrants that he or she and their authorized representative has read this Agreement and that he or she has had the terms used herein and the consequences of this Agreement explained to him or her by his or her attorneys or has specifically declined to do so after having been afforded full opportunity.

M. No Assignment. Each Plaintiff represents and warrants that no other person or entity has or claims to have any right to the claims, demands, causes of action, obligations, damages, or liabilities that are released by this Agreement.

N. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective spouses, directors, board members, officers, agents, and employees, attorneys, heirs, successors, executors, and/or assigns. {7199/002/00362197.DOC } 10

O. Governing Law. This Agreement shall be governed by and interpreted under the laws of the State of California and the United States. Any legal action in law or in equity with regard to this release shall be brought only in the United States District Court for the Eastern District of California, Fresno Division.

P. Enforcement of Settlement. The parties agree that this Agreement is binding and enforceable under the provisions of California Code of Civil Procedure 664.6 or by any other procedure permitted by federal law, the provisions of California Evidence Code § 1119 notwithstanding. The parties expressly agree that this release and any other settlement documents prepared to carry out this settlement will be admissible into evidence only for the purpose of enforcing the terms of the settlement.

Q. Reserved Jurisdiction. The parties consent to and agree the United States District Court, Eastern District of California expressly reserves jurisdiction to enforce the terms of this Settlement Agreement.

R. Counter-Parts. This release may be executed in counter-parts, by individual signatures on separate true and accurate copies or facsimile copies of the original, all of which, when taken together, shall be deemed one original agreement.

///

///

///{7199/002/00362197.DOC } 11

Agreed to by all Plaintiffs.

Occupy Fresno, an Association

By________________________

__________________________

Vanessa Aranda

__________________________

Dallas John Blanchard, Jr.

__________________________

Noah Canton

__________________________

William Delara

__________________________

Carlos Diaz

__________________________

Michael Dominquez

__________________________

Matthew Stephen Duris

__________________________

Chad Austin Hopper

__________________________

Joseph Hunter {7199/002/00362197.DOC } 12

___________________________

Ruben Verdugo

Approved as to form:

_________________________

Carolyn Phillips, Esq.

Co-Plaintiffs Counsel

_________________________

Robert Navarro, Esq.

Co-Plaintiffs Counsel

Agreed to by all Defendants.

County of Fresno

By_________________________

___________________________

Margaret Mims

___________________________

John Navarette

___________________________

Jorge Granados

___________________________

John Thompson{7199/002/00362197.DOC } 13

Approved as to form:

WANGER JONES HELSLEY PC

By_________________________

Oliver W. Wanger

Co-Defense Counsel

FRESNO COUNTY COUNSEL

By_________________________

Kevin B. Briggs

Co-Defense Counsel

FRESNO COUNTY COUNSEL

By_________________________

Bruce B. Johnson

Senior Deputy

Co-Defense Counsel{7199/002/00362197.DOC } 14

ORDER

The Court, having reviewed the foregoing recitals and Settlement Agreement, as to all its provisions, and good cause appearing therefore; ORDERS the Agreement is approved and Plaintiffs’ Amended Complaint is DISMISSED WITH PREJUDICE.

DATED: May ____, 2012.

___________________________

Charles R. Breyer

UNITED STATES DISTRICT JUDGE

EASTERN DISTRICT OF CALIFORNIA (SITTING BY

ASSIGNMENT)