While those following Occupy Wall Street have their eyes focused on the resurgence of action this month, few have been following a legal case dating back to the famous November eviction at Zuccotti Park — a case which the city is now commenting on through a brief it filed in the courts last week.
Two weekends ago, OWS demonstrators re-occupied Zuccotti park, prompting intense clashes with police and large numbers of arrests. The movement has now found itself in Union Square — a different park, with similar police-protester tensions.
The mayor has repeatedly said that the police tactics are appropriate and that arrests will continue as needed.
Meanwhile, on Friday, the Voice learned of some new developments in a New York Civil Liberties Union case going after Brookfield Properties, which we first reported on in February.
Last month, lawyers from NYCLU filed a brief with the city’s Criminal Court arguing that Brookfield Properties, the owner of Zuccotti Park — which is a privately-owned public space — had no legal authority to exclude people from its property, which became the birthplace of the movement.
This legal action was taken on behalf of demonstrator Ronnie Nunez, who was arrested in Zuccotti Park on November 15th — after allegedly refusing to leave the park when the campsite was evicted at the request of the private property owners. In a brief filed at the time, NYCLU argued that Brookfield could not legally evict occupiers the way it did. When private owners agree to create public spaces like Zuccotti Park, they give up their right to treat them as private spaces, NYCLU says. (It is zoned as a “permanently open park” for “the public benefit.”)
Last Thursday, the city’s attorneys filed an amicus brief for the case in anticipation of a March 30th scheduled appearance of the defendant, who is officially looking to have the charges (of trespass, disorderly conduct, and obstruction of governmental administration) dismissed. The Voice obtained copies of this brief last week and discussed them with a senior staff attorney at NYCLU who has been working on this case.
At the heart of this case, People v. Nunez, are debates around how privately-owned public spaces, or POPS, can be used for protests and demonstrations and in what ways the police and the city can legally regulate and restrict the public’s actions.
Here’s a short excerpt from the city’s brief:
Many of the NYCLU’s assertions misconstrue the nature of POPS in general, the ability of POPS owners to prescribe reasonable rules of conduct for those using the space and the particular provisions of the Zoning Resolution applicable to Zuccotti Park. Moreover, and quite significantly, the NYCLU completely misrepresents the reasons why the defendant and other Occupy Wall Street protestors were required to leave Zuccotti Park on November 15, 2011, and ignores the fact that on that same day, after the Park was cleaned and restored to its intended use, it was once-again open to all members of the public, including Occupy Wall Street protestors.
Reps from NYCLU say that it’s questionable that Brookfield even has the right to implement rules the way that it did for the public space, and further argue that — even if the rules are legal — the property owners have no right to entirely close down the park if some in the park are breaking those rules.
In its brief arguing that the charges against Nunez should not be dismissed, the city says that Brookfield lawfully issued an order to “temporarily vacate” Zuccotti Park of people and their belongings, as protesters continued to violate rules to the point that the park became a safety hazard. The city and Brookfield were not restricting the public’s right to access the plaza, they were not instituting regular nighttime closing hours, nor were they changing the design of the plaza, the brief argues. Rather, officials were clearing out the park for cleaning purposes and informed the public “via bullhorn and written notice” that they could reenter the plaza as soon as necessary maintenance work had been completed.
The city, in its brief, also makes some interesting comments about First Amendment rights of protesters, saying first that “even if overnight sleeping in conjunction with Occupy Wall Street constituted expression protected by the Article I Section 8 of the New York State Constitution or the First Amendment to the United States Constitution, Brookfield’s rules prohibiting camping, the erection of tents and the storage of personal property in Zuccotli Park did not violate the defendant’s free speech rights.” The brief also says that Zuccotti is limited to “passive recreation” since it is not owned by the city, writing: “The fact that Zuccotti Park must be open and accessible to the public, does not mean that it is a public forum for free speech purpose.” (City Council Speaker Christine Quinn suggested last week that it might make sense to have parks like Zuccotti fall under the jurisdiction of the city and not private owners).
“The [city’s] argument is unfounded,” NYCLU Senior Staff Attorney Taylor Pendergrass told the Voice, responding to the city’s arguments about free speech. “It’s disappointing that the city would take a position that the the First Amendment doesn’t apply in those type of circumstances.”
Pendergrass said the city’s arguments on the whole are missing the point since the brief is focused on the rules Brookfield are allowed to implement for Zuccotti and not the issue of closing the park entirely.
“It…doesn’t deal with the fundamental question of whether Brookfield had the right to exclude the public from the park,” he said. While the city argues that it immediately reopened the park, Pendergrass also notes that barricades were put up afterward and the public’s access was still severely restricted — which NYCLU considers a violation of the park’s zoning as a public plaza.
Even if the rules were fair, he said, “They were going far beyond what the written rules said. The way they were enforcing the rules was totally haphazard and arbitrary.”
A spokesperson for the city’s Law Department declined to comment today beyond the brief. The case is expected to move forward on Friday.