Bloomberg News

Wall Street Protesters Can’t Reverse Park Eviction, Judge Says

November 25, 2011

Nov. 16 (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 State Supreme Court Justice Michael Stallman, responding to a request that he reverse the eviction, ruled the protesters didn’t show “they have a First Amendment right to remain in Zuccotti Park along with their tents, structures, generators and other installations.”

The ruling may complicate demonstrators’ plans to mark the two-month anniversary of the movement tomorrow with calls on its website to “shut down Wall Street” and “occupy the subways.” The protesters said they’ll seek to “confront Wall Street with the stories of people of the frontlines of economic injustice,” then gather at transit hubs at the start of the evening rush across the city’s five boroughs.

New York police pushed into the park early yesterday morning, forcibly removing demonstrators who had been camping there to protest unemployment, income inequality and the financial industry.

The New York eviction may signal a turning point for the movement as municipal officials seek to curtail sister protests that have sprung up in cities including Oakland, California, Portland, Oregon, and Salt Lake City and in other countries, including Australia where protesters were ordered today to remove their tents from a park in Melbourne’s city center.

Officials in New York and elsewhere have cited local ordinances, health and crime as reasons to curtail or end similar demonstrations.

“Conditions at the park had deteriorated to the point that serious concerns about crime, fire hazards and public health needed to be addressed,” Sheryl Neufeld, senior counsel with the New York City Law Department, said in an e-mailed statement. She said protesters will be allowed to return without tents, tarps and sleeping bags.

Park Reopened

The park was reopened yesterday afternoon, with a few dozen people waving American flags while some played instruments or sang “We Shall Not Be Moved.” No tents or sleeping bags were visible as police searched protesters when they entered.

“The court’s ruling vindicates our position that First Amendment rights do not include the right to endanger the public or infringe on the rights of others by taking over a public space,” Mayor Michael R. Bloomberg said yesterday in an e-mailed statement. “Zuccotti Park will remain open to all who want to enjoy it, as long as they abide by the park’s rules.”

The New York Civil Liberties Union said it will review the court decision and explore ways to proceed, Executive Director Donna Lieberman said in a statement.

The NYCLU is “deeply concerned about the NYPD’s heavy- handed tactics” during the eviction, and the union will work to make sure police are held accountable for misconduct, she said.

First Amendment

“The First Amendment sets a floor -- not a ceiling -- for determining whether the government should accommodate free expression,” Lieberman said. “There is no reason why the Bloomberg administration cannot embrace a more expansive understanding of freedom of speech and allow the protesters and their tents back into Zuccotti Park in a way that is consistent with public safety and health.”

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 wrote that “even protected speech isn’t equally permissible in all places and at all times.”

Cas Holloway, the city’s deputy mayor for operations, argued in court papers that “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.

“We’ll have a very large discussion on how to move forward,” said Cecilia McMillan, a 23-year-old graduate student and protester in Zuccotti Park who said she had been working with “Occupy Wall Street” since August. “I’m sure some people will stay in the park.”

New Location

McMillan said options being considered include occupying the park in shifts or moving to a new location. Connie Pankratz, a spokeswoman for the city’s Law Department, said in an e-mailed statement that while the park is open 24 hours a day, “people cannot sleep overnight in the park.”

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 court 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.

“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 the company.

‘A Pretext’

“This was not about public health and safety,” said Yetta Kurland, a lawyer for the protesters. “This was a pretext to shut down the occupation.” She said they haven’t yet decided whether to appeal the decision.

Protesters have sued the city, Mayor Bloomberg and the New York City Police Department for civil rights violations tied to earlier arrests. 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.”

Within the Rules

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.

Prohibiting Tents

Since the protests started in September, signs prohibiting tents, tarps and camping have gone up at the park.

Brookfield Chief Executive Officer Ric Clark sent the mayor a letter 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 yesterday. “That doesn’t mean closing it to the public, but it does mean managing the kinds of activities that might occur in that space.”

Constitutional Right

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.

‘Winter’s Coming’

Alice Sutter, a 63-year-old retired nurse who had been volunteering at a medical tent set up in Zuccotti Park, said the court ruling will create, rather than end, a health hazard.

“Now that winter’s coming they’re going to need those tents and sleeping bags,” Sutter said in an interview. “They’re going to need them for their health and safety.”

Angie Richards, 18, who also worked at the medical tent and said she is training to be an emergency medical technician, said “they can’t change the law just because they don’t like what we’re doing.”

Park protester Ann Ward, 34, a hair stylist assistant from Fort Lauderdale, agreed, saying “You can’t evict an idea.”

In Melbourne, about 80 protesters remained at the Treasury Gardens park in “solidarity” with demonstrators in New York, said Carl Scrase, a spokesman for Occupy Melbourne, in telephone interview.

Dozens of officers encircled the Treasury Gardens site this morning as city council officials demanded demonstrators remove any structures, cooking equipment and bedding, protesters said.

The council order “overrides our constitutional right to free speech and public assembly,” Scrase said. Danielle Murnane, a spokeswoman for the Victoria Police Department, said the council had ordered tents be removed from the site.

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 David McLaughlin, Esme E. Deprez, Henry Goldman and David M. Levitt in New York, Brett Foley in London and Alison Vekshin in San Francisco. Editors: David E. Rovella, Michael Hytha

To contact the reporters on this story: Chris Dolmetsch in New York State Supreme Court in Manhattan at cdolmetsch@bloomberg.net; Christopher Palmeri in Zuccotti Park in lower Manhattan at cpalmeri1@bloomberg.net; Katie Spencer in New York at katiespencer14@bloomberg.net.

To contact the editors responsible for this story: Michael Hytha at mhytha@bloomberg.net; Mark Tannenbaum at mtannen@bloomberg.net; Kara Wetzel at kwetzel@bloomberg.net


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