After the police moved on Zuccotti Park around 1 a.m. this morning, lawyers working on behalf of the occupiers and their allies sprang into action, securing a temporary restraining order from Justice Lucy Billings.
The order stated that until the matter was heard in court, police and Brookfield Properties, the owner of Zuccotti Park, were “prohibited from (a) Evicting protesters from Zuccotti Park….” and “(b) Enforcing the “rules” published after the occupation began or otherwise preventing protesters from re-entering the park with tents and other property previously utilized.”
The Occupier’s legal team invited the city and Brookfield to discuss the proposed order, but they didn’t respond, and the order was signed around 6:30 a.m.
But when displaced occupiers marched down to Zuccotti park shortly after 9 a.m., brandishing photocopies of the restraining order, they were met with a wall of police in riot helmets surrounding the park, and dozens of fluorescent-clad private security contractors hired by Brookfield inside the park. Neither police nor security acknowledged the restraining order, producing a stand-off as protesters circled the park.
The irony of the reversal of roles — protesters on the outside, police and Brookfield holding the park — was not lost on anyone. “You are in violation of a court order! Please disperse immediately!” shouted protesters at the police.
But the direct disobedience of a court order by the city and Brookfield, while probably contempt of court, was a winning strategy. At 11:30, the matter was back in court.
Justice Billings (who the Daily News reports used to work for the ACLU) was off the case, which had instead been randomly reassigned to Justice Michael Stallman. Wylie Stecklow, a lawyer working with the occupiers, said such a reassignment was unusual.
Crowds of reporters and protesters raced around the court complex, reacting to conflicting reports of where the hearing would be held.
When the hearing finally started nearly an hour later, the Brookfield lawyer, Douglas Flaum, argued that Brookfield had every right to enforce its rules for Zuccotti.
“The park is set up as Publicly-Owned Private Park…. It’s not meant to be a tent city,” he said, citing “very specific health and safety concerns” and “issues of real safety” in the occupation, most notably gas generators and other fire hazards.
More fundamentally, Flaum argued, letting the occupiers set up tents in the park prevented others from using it. “Allowing people to live in the park violates the purpose of the park.”
Flaum stressed that Brookfield had no problem with the occupiers returning to the park to exercise their first amendment rights on a 24-hour basis, but couldn’t allow them to set up residence complete with tents.
The occupiers legal team argued that Occupy Wall Street hasn’t become a national movement because it is a camping trip. Lawyer Al Levine said the 24-hour occupation was a central aspect of the popularity and spread of the movement, and that the tents were therefore in effect an act of speech protected by the First Amendment.
Brookfield disputed that they had any First Amendment obligations with regard to use of the park, because they are private property-holders, but the Judge appeared more interested in the question of whether the tents even constituted speech, and if they did, what options for regulating them a property owner like Brookfield would have.
Levine told the judge Brookfield could exercise some control over tents and other doings in the park, but because there is a First-Amendment interest at stake, Brookfield and the city would have to show that their actions were the least drastic actions available — a standard that the total eviction of the entire occupation at 1 a.m. was unlikely to meet.
Sheryl Neufeld, representing the city, complained that it was unreasonable to expect the city to respond to a notice faxed to their offices at 4:30 a.m., but the Occupier’s lawyers quickly countered that if the timing was inconvenient, the city should have reconsidered staging it’s eviction at one in the morning — a line that earned hearty laughter from the courtroom.
Justice Stallman ended the hearing, saying he expected to have a decision by 3 p.m. When it finally came down, around 5 p.m., it contained bad news for the occupiers: “tents, structures, generators, and other installations” would not be allowed back in the park.
Yetta Kurland, another lawyer working with the occupiers, struck a positive note, observing that the ruling made no mention of sleeping bags, and calling on the city and Brookfield to live up to their courtroom rhetoric and allow the protesters back in to the park.
“We’re planning to continue this fight,” Kurland said.
Asked about the refusal of the police to acknowledge the initial restraining order, Gideon Oliver, another member of the occupiers’ legal team, said he considered it a clear case of contempt of court, but that the lawyers would need to consider their options before pursuing the issue legally.
Finally, about half an hour after the ruling was released, police began allowing protesters back into the park, albeit without tents or large bags of any kind.