(Updates with lawyer in fourth paragraph.)
Nov. 15 (Bloomberg) -- “Occupy Wall Street” protesters lost a bid to overturn their eviction and the removal of tents and structures from a lower Manhattan park where they had been demonstrating 24 hours a day for eight weeks.
New York City police pushed into the park early this morning, forcibly removing demonstrators who had been camping there to protest inequality of wealth, unemployment and the financial industry.
“The movants have not demonstrated that they have a First Amendment right to remain in Zuccotti Park along with their tents, structures, generators and other installations to the exclusion of the owners reasonable rights and duties to maintain Zuccotti Park,” New York State Supreme Court Justice Michael Stallman wrote in a ruling issued today.
The court’s decision may signal a turning point as municipal officials seek to curtail sister protests that have sprung up in cities across the country including Oakland, California, Portland, Oregon and Salt Lake City, Utah.
“The court recognized the importance of balancing public safety with the protestors’ claim that building tents constitutes speech,” said Sheryl Neufeld, senior counsel with the New York City Law Department, in an e-mailed statement. “Conditions at the park had deteriorated to the point that serious concerns about crime, fire hazards and public health needed to be addressed.”
Return Without Tents
Neufeld said protesters will be allowed to return without tents, tarps and sleeping bags. The park was reopened late this afternoon.
The judge ruled that the owner of the park has the “right to adopt reasonable rules that permit it to maintain a clean, safe, publicly accessible space.” He added that “even protected speech isn’t equally permissible in all places and at all times.”
“The unsafe and unsanitary conditions and the substantial threat to public safety as determined by the police and fire departments” will return if the protesters take over the park as before, Cas Holloway, the city’s deputy mayor for operations, said in court papers.
Zuccotti Park is a privately owned public-access plaza that must be open to the public and maintained for public use every day of the year under a city special permit, according to the decision. After the Occupy Wall Street protests began, Brookfield Office Properties Inc., the owner of the park, announced rules that prohibited camping, the erection of tents, lying on the ground and benches, and the use of sleeping bags, the judge wrote.
‘Recognized the Right’
“I’m gratified Judge Stallman recognized the right of Brookfield to have rules that allow Zuccotti Park to be a clean, safe and fully accessible place,” said Douglas Flaum, a lawyer for Brookfield.
“This was not about public health and safety,” said Yetta Kurland, a lawyer for the protesters. She said they haven’t yet decided whether to appeal the ruling. “This was a pretext to shut down the occupation two days before a large protest is planned,”
The protesters have sued the city, Mayor Michael Bloomberg and the New York City Police Department. The mayor is founder and majority owner of Bloomberg News parent Bloomberg LP.
“I’m very disappointed,” said Peter Mueller, a 25-year- old illustrator who said he has camped out at the park. “I believe tents are an expression of our First Amendment rights. I would hope there would be some redress.”
“That hurts,” said Ray Lewis, a 59-year-old retired police captain from Philadelphia who now lives in upstate New York when told about the ruling. He was protesting in his old uniform. “Anyone who is willing to sleep out in this weather is working from a deep, heartfelt place and the court should have acknowledged that.”
New York City police and Brookfield were acting within the rules that govern privately owned public spaces when they evicted the protesters, Real Estate Board of New York President Steven Spinola said.
“The whole purpose of the plaza is for it to be available to the general public for their use,” Spinola said. “If a park is no longer available because of one particular group, then there would be a violation taking place.”
New York City is home to more than 500 privately owned public spaces, or POPS, which must remain open 24 hours a day unless special permission is granted by the city’s planning commission, one reason why protesters were initially allowed to stay overnight at Zuccotti Park.
The concept of POPS dates back to 1961, when the planning commission created zoning laws that allowed developers to get around building-size restrictions as long as they opened a public space as well.
Since the protests started in September, signs prohibiting tents, tarps and camping have gone up at the park -- rules that had previously gone unenforced.
Brookfield Chief Executive Officer Ric Clark sent the mayor a letter on Monday requesting that the city “enforce the law” at the park and remove tents, sleeping bags and other materials. Conditions “have deteriorated to the point where safety is an urgent issue,” the letter said, citing crimes such as rape, assault, theft, drug peddling and harassment.
Jerold Kayden, a professor of urban planning at Harvard University and founder of the Advocates for Privately Owned Public Spaces, said there are no rules that would allow the park to remain closed into the future.
“The owners are allowed to adopt rules for managing their space,” Kayden said in an interview at a New York City Department of City Planning conference today. “That doesn’t mean closing it to the public, but it does mean managing the kinds of activities that might occur in that space.”
Kayden said that if the protesters claim they have a constitutional right to occupy the space, they will face an “uphill climb.” The First Amendment’s protection of free speech applies to government action. Private companies such as Brookfield are generally not covered by its limitations.
Owners of POPS can impose reasonable rules on the spaces as long as the rules don’t restrict activities that would normally take place, such as eating or lingering, according to the Department of City Planning website.
Under current zoning codes, POPS are intended to provide “light, air, breathing room and green space” at high-density commercial and residential properties, according to the planning department’s website. Owners pay taxes on the spaces and are responsible for maintaining them and keeping them safe.
The case is In the Matter of the Application of Jennifer Waller v. City of New York, 11112957, New York State Supreme Court, New York County (Manhattan).
--With assistance from Chris Palmeri and David M. Levitt. in New York. Editors: David E. Rovella, Patrick Oster
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