## Facts

- Occupy Tucson, an unincorporated political organization, and individual participants conducted an ongoing protest in Tucson parks beginning October 15, 2011.
- The City of Tucson enforced Tucson Code § 21, which regulates park use through closing hours and permit-based restrictions, and issued citations to Occupy participants for violations.
- The encampment moved from Armory Park to Veinte de Agosto Park on November 3, 2011.
- On November 7, 2011, plaintiffs filed a § 1983 action alleging Tucson Code § 21 was unconstitutional on its face and as applied, and that enforcement violated the First Amendment and the Arizona Constitution’s speech and assembly protections.
- Plaintiffs sought emergency injunctive relief to prevent enforcement; the court denied an initial TRO request.
- A third party obtained a permit for use of Veinte de Agosto Park on December 28, 2011, and plaintiffs were warned that police would clear the park to accommodate the permitted event.
- Plaintiffs filed a renewed TRO motion seeking to prevent removal from the park until a hearing could be held.
- Plaintiffs had not applied for a permit to remain in the park after filing suit.

## Issues

1. Whether plaintiffs satisfied the requirements for a temporary restraining order under the Winter factors, including likelihood of success on the merits and likelihood of irreparable harm absent immediate relief.
2. Whether the requested TRO would preserve the status quo or instead alter it by suspending enforcement of park rules and displacing a third-party permit holder.

## Decision

- The court denied the renewed motion for a temporary restraining order (and related preliminary injunction request).
- The court treated the requested relief as altering, not preserving, the status quo because it would prevent enforcement of park rules and interfere with an existing third-party permit.
- On the limited record, plaintiffs did not make the required clear showing of entitlement to extraordinary emergency relief.
- Plaintiffs did not establish sufficiently immediate irreparable harm given their ability to continue expressive activity subject to neutral park regulations.
- The balance of equities and public interest favored allowing the City to enforce generally applicable park regulations and honor existing permits.

## Legal Principles

- A TRO or preliminary injunction requires a clear showing of: (1) likelihood of success on the merits, (2) likelihood of irreparable harm absent relief, (3) equities tipping in the movant’s favor, and (4) consistency with the public interest.
- Emergency injunctive relief is an extraordinary remedy; courts apply heightened scrutiny when the requested order would alter rather than maintain the status quo.
- Even where First Amendment interests are asserted, a movant must show immediate irreparable harm and satisfy the full Winter analysis; courts may consider the availability of alternative avenues for expression and the impact of relief on third parties.
- Governments have recognized interests in administering public parks through content-neutral time, place, and manner restrictions, including closing hours and permitting systems, and in honoring valid permits issued to others.

## Conclusion

The court refused to enjoin Tucson’s enforcement of its park-use ordinance against the Occupy Tucson encampment at the TRO stage, holding that plaintiffs failed to meet the Winter requirements for emergency relief, particularly because the requested order would change the status quo and burden the City’s neutral park-management regime and a third party’s permitted use.


Occupy Tucson v. City of Tucson, No. CV-11-00699-TUC-CKJ, 2011 WL 6747860 (D. Ariz. Dec. 22, 2011)