Judge Rules Protesters Can Reenter Liberty Plaza; No Tents, "Semi-Permanent Structures"
The question of whether the protesters could stay all came down to tents.
The decision [PDF], from Judge Michael Stallman, read in part:
To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner's rules appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of law, or in tort. It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus.
According to Alan Levine, one of the attorneys arguing the case on behalf of the National Lawyers Guild and Occupy Wall Street, "Based on this order, the park should be fully open." He said, further, "There is nothing to prevent them from sleeping there tonight." But whether tents and other gear would return was a question still up in the air, as protesters headed back to the park. At press time, reports on Twitter said that the folks in the Plaza were People's Mic-ing the First Amendment to the police.
The rule, lawyer and National Lawyers' Guild member Janos Marton told me, is that there are no "permanent structures" allowed in the park -- but the question of their permanence was effectively quashed at 1 a.m. last night, when the New York City Police Department swept in with their riot gear and cleared the park, slashing tents with razors, dumping books into a garbage truck and arresting protesters. (OccupyJudaism later tweeted that Tanakhs, Hebrew bibles, were among the books destroyed).
Evangelina Jimenez, who had been sleeping in Zuccotti and left to take a shower when the eviction crew came in, told me she missed being arrested by minutes, as her friends just ahead of her were caught on the wrong side of the barricades and arrested. She reported seeing the police destroying tents and trashing books.
"We've been preparing for this for weeks," Marton told me.
Judge Michael Stallman heard the case after Judge Lucy Billings granted a temporary restraining order early this morning that should have allowed protesters back into the park, tents and all. According to lawyers for the occupiers, at 4:45 a.m., they served the city with the motion for the restraining order; the city failed to appear to argue the motion, and the order was granted and again served to the city at 7 in the morning.
The attorney for Mayor Michael Bloomberg complained that there was no one in their office at 4:45 to be served via fax; the rejoinder from the Occupiers' side: "You shouldn't evict them at 1 a.m., then," brought laughter from the entire courtroom -- a rare moment of levity in a tense scene.
As I said before, it all came down to tents. Brookfield Properties (the corporation that owns Zuccotti Park/Liberty Plaza, and where Mayor Bloomberg's girlfriend Diana Taylor is a board member) at first tried to claim that the public/private park was not a traditional forum for First Amendment expression, saying instead that it was for the "passive enjoyment" of the public, then shifted to saying that they were more than happy for the park to serve as a forum for the protesters but that they were not allowed to erect "semi-permanent structures."
An attorney for the Working Families Party, New York Communities for Change, and two locals of the Transit Workers' Union joined the protesters' attorneys and argued that there was no reason for a massive police action in the middle of the night; he noted that he himself is a member of Community Board 1, the community board with which the occupiers have been negotiating their presence in the park since the beginning, and commented that there were much less drastic solutions available for any problems that were happening in the occupation.
And attorney Alan Levine argued eloquently for the protesters' ability to bring back their tents and sleeping bags. "The power of their symbolic speech resides in the fact that it is a 24-hour occupation," he said. "This conveys a special message." It is a message, he noted, that has inspired the world. They cannot continue to do so without some means of protecting themselves from the weather.
Attorneys for the occupiers also raised the question of the timing of the raid and the supposed violations, attributed to Deputy Mayor for Operations Cas Holloway, which were dated today, November 15. Were they, an attorney asked, actually issued before the raid? They certainly weren't served on the occupiers before the riot police came in and the press were blocked out.
The question of whether Mayor Bloomberg, Police Commissioner Raymond Kelly and the NYPD were in contempt of court over their refusal to allow protesters back in was tabled for the moment, but when I was at Liberty Plaza before heading to the courthouse (about 11 a.m.), the entire park was barricaded off and the NYPD were the only occupiers remaining.
As we hovered in the hall, meanwhile, waiting on the decision from the judge, occupiers who had been evicted last night told me their stories -- one confirmed the use of a "sound cannon", the "long-range acoustic device" used earlier, during a meeting of the G20. A local lawyer reminded us that this case could be precedent-setting, that it could go all the way to the US Supreme Court, and that we were very near the site of the city's first free speech case, the trial of John Peter Zenger.
Attorney Yetta Kurland, another of those who represented OWS in court, said to the press, "I think the city has acted so arrogantly this morning, they were served with a clear order to let protesters back into the park, they refused to do that." Mayor Bloomberg, she noted, is already acting in bad faith.
Asked what next steps were, Kurland, Levine and the rest of the legal team vowed to continue the fight.
"Win, lose or draw, the 99 percent will continue to show up, continue their protest," Kurland said.