By Alan Torres
Eugene Register-Guard

The federal government removed the fence around the Eugene Federal Building the evening of July 1 after both a district and appeals court said the fence must come down by 7 a.m. July 2.

The last-minute flurry of legal action began after the General Services Administration appealed the original order by U.S. District Court Judge Mustafa Kasubhai to remove the by July 2, and the U.S. Circuit Court of Appeals issued a one-page remand telling the District Court to “consider and clarify what alternative measures the Appellant is authorized to employ” and “the time line for such measures.”

Kasubhai wrote in a new opinion released late June 30 that the deadline remained, which an appeals court sustained the afternoon of July 1.

The last oral argument before the fence came down was in the afternoon on June 30.

For most of the 3-hour hearing, the federal government argued Kasubhai’s July 2 deadline and proposal for what an alternate fence would look like are impractical and told him he should reconsider. In his formal opinion, Kasubhai disagreed and the appeals court let his opinion stand.

People celebrate as fence comes down

Fence removal was a low-key affair compared to its installation. Work began around 6:30 p.m. with workers taking down the fence panels along Seventh Avenue, and shortly after placing cones to divert traffic.

As work started there were less than a dozen protestors, no visible federal police, and Eugene Police drove by but did not exit their cars. The protestors cheered on the contractors, and moved when contractors asked them to make room for equipment.

At 7:16 p.m., the forklift staged onsite came out of the federal government well to begin moving the concrete blocks.

At a 9 a.m. court hearing, lawyers on both sides confirmed the fence was down. General Services Administration lawyer James Blum said the GSA called Eugene Police “a few times” regarding protestors interfering with fence deconstruction. EPD was unable to confirm it responded in time for publication.

Government argued to keep fence

During the hearing before removal, Ryan Anderson, the federal employee who manages the Eugene Federal Building, told Kasubhai the agency had taken steps to prepare to remove the fence: The GSA obtained a permit from the City of Eugene to close traffic again, staged a restroom for the crew who would remove the fence and staged a forklift to move the concrete blocks holding the fence in place.

But challenges remained, Anderson said. He said the fence was designed with the contours of the federal grounds in mind and the GSA may not simply be able move the existing fence up against the windows of the federal building as Kasubhai suggested.

Anderson said the agency may need to order new pieces to move the fence. He also said he wanted to leave space to put the concrete blocks on the inside of the fence, otherwise protestors could climb the blocks.

Anderson also argued the fence is justified because the federal property is about to become a construction zone. He said he now had a timeline for replacing and hardening the windows and doors of the federal building, which is scheduled to start July 15 and end Dec. 22.

Kasubhai ordered plaza reopened by deadline

In his latest opinion, Kasubhai explained his reasoning for keeping the 7 a.m. July 2 deadline.

Kasubhai reiterated his view a fence like he proposed, one that blocks the windows and doors of the federal building but not the plaza, would be allowed.

He wrote anything short of that, such as moving the fence far enough back to open up the benches but not the rest of the plaza, as the government proposed, would continue to violate the First Amendment and is not authorized under his order.

Kasubhai wrote that at the June 22 hearing, the General Services Administration “failed to provide any meaningful details about timing and process for moving the existing perimeter” nor did the GSA “express any serious interest in undertaking the authorized alternative.”

He also said he believed the fence could be removed on the timeline he ordered, noting among other factors, the GSA had obtained a contract for workers staged in the Eugene area to disassemble the fence, and the City of Eugene permit authorizing night work at the federal building from June 29 to July 1.

He also refuted the government’s position that removing the fence would pose a security risk.

Kasubhai noted the federal building “annex” (the smaller building on the Pearl Street side) is vacant, placing blocks on the outside of the fence shouldn’t be a problem because anyone who did use them to scale the fence would be trapped inside and easily arrested, and that, for decades, the federal building has remained open to protests without major harm to the building or its employees.

He noted while the GSA plans to harden the glass on the first floor, there are no plans to do so on the higher floors, discrediting the government’s argument that a closer fence would pose a security risk because protesters could throw rocks at the second story.

On the morning of July 1, Blum had filed a new appeal and request to delay Kasubhai’s deadline until the 9th Circuit Court of Appeals hears the case.

At 2:05 p.m. July 1, the appeals denied that request. The Appeals Court didn’t rule on the case’s merits and is scheduled to hear the case July 8.

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U.S. District Court Judge Mustafa Kasubhai has delayed his previous order to take down the fence around the Eugene Federal Building, saying the government now has until July 2.

In a motion filed June 23, James Blum, attorney for the General Services Administration, requested the government delay fence removal until July 5.

Blum and James Anderson, manager of the federal building, said it would not be possible to remove the fence that quickly because GSA would need to get a traffic control permit from the city, obtain funding, hire contractors and coordinate with Eugene police to separate contractors and protestors like they did when the fence was installed.

In a video conference, Kasubhai rejected that long of an extension, giving the federal government until July 2.

Blum also has appealed Kasubhai’s order to remove the fence to U.S. Circuit Court of Appeals.

The GSA said upgrades would include hardening doors and tempering glass, and the exact extent of the project would depend on how much funding GSA could obtain.

Marianne Dugan, lawyer for the Civil Liberties Defense Center, argued the fence’s placement was not tailored to that purpose, saying the window and doorÌý³¦´Ç²Ô²õ³Ù°ù³Ü³¦³Ù¾±´Ç²ÔÌýdoesn’t justify fencing off 90% of the outdoor area around the federal building.

Dugan said the fence violates the First Amendment rights of Eugene residents who gather at the historic protest area, especially protestors with disabilities who no longer have access to the courtyard benches.

Kasubhai sided with Dugan.

Kasubhai noted protests since Jan. 30 at the federal building have been peaceful, even though the fence wasn’t up for most of that time, and the GSA had only fenced off the courtyard area, not the exterior of the building which also has breakable windows, suggesting the true purpose of the fence is to stifle speech.

During the first day of arguments, the GSA made the case that it accommodates free speech by letting protestors apply for permits. Kasubhai rejected this defense, noting the gates on the fence are locked from the inside, and even if propped open for a permitted event, would provide three choke points and a safety hazard to attendees who may need to escape the grounds.

Kasubhai had previously said he would only tell the GSA to move the fence, but after GSA officials explained the complications behind such a move, he ordered full removal.

Blum, the attorney for the GSA, argued for only moving the fence far enough back so the public can access the courtyard benches again. He said the GSA was concerned about protestors using the hill in the courtyard to throw rocks at federal building windows.

Kasubhai was skeptical and instead suggested moving the fence to only block the windows and doors of the federal building, which he believed would balance free speech rights with the government’s goal of protecting the building and the people inside.

Ryan Anderson, building manager for the Eugene Federal Building, said doing so posed logistical complications.

Anderson said the current fence was designed for its current space, and replacing it with a smaller fence would require bringing back the Illinois-based contractor who designed the fence, possibly buying new parts, and coordinating with the City of Eugene for a permit to block traffic while new fencing is brought in and provide police to keep protesters back while the fence is moved.

Doing all of that would likely take months, Anderson said, although he wasn’t able to provide a specific timeline.

In response, Kasubhai ordered the GSA to tear down the fence and restore the “status quo” of the unfenced building that had existed for decades. He said the GSA would be allowed to install a smaller fence like he’d proposed at a later date, but in the interim, the fence should come down.

“I’ve attempted to provide guidance (for a) fence that would work within the First Amendment,” he said in court. “Given we have frozen without direction … I’m ordering the fence removed. There doesn’t seem to be any other solution. … The status quo is ordered and (the GSA has) 48 hours to accomplish that.”

Kasubhai gave this 48-hour order at approximately 3:30, giving the GSA until then on June 24 to tear down the fence.

“It’s very symbolic to be cut off from a free speech plaza,” lead plaintiff Naphtali Renshaw, who helps organize the weekly “singing for our lives” protest said, adding the fence has “blocked, hindered and chilled (people) from expressing First Amendment speech.”

Anderson had argued on the first day of the hearing that only the lower portion of the federal grounds is the free speech plaza. Renshaw refuted that, saying they’ve been part of many protests and memorials that used the upper plaza.

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