In OWS Eviction Case, Defense Fires Back at City: ‘Brookfield is the Lawbreaker Here’


On Monday, we reported on the developing court battle surrounding the famous eviction of protesters from Zuccotti Park in November — an important legal case that is moving forward just as Occupy Wall Street resurfaces in full force with the arrival of spring.

And late yesterday, the Voice received some new documents in the legal battle, which is headed to court tomorrow.

The case is centered around Ronny Nunez, a demonstrator who was arrested in Zuccotti on November 15th after he allegedly refused to leave the park when the campsite was evicted at the request of Brookfield Properties — the private owners of the public park.

Last week, the city filed an amicus brief in Criminal Court arguing that the property owners have a legal right to restrict activity in the park and temporarily kick people out if things get out of hand.

The city also made some interesting comments about first amendment rights in its brief, arguing that Zuccotti Park — which is mandated by city code to be open and accessible to the public — is not necessarily a “public forum for free speech purpose.”

The case gets at a core question about how protesters can occupy a public space like Zuccotti. On one side, the city is arguing that the private owners can write and enforce rules as needed to limit the kinds of activity taking place on their property. The city frames the November events as a “temporary vacating” of the space for health and safety purposes (OWS set up tents and camp sites in the fall). But the New York Civil Liberties Union and the attorney for Nunez argue that the mass eviction and shutdown of the park violates the mandate that it be open and accessible. These advocates also question how much authority the private owners should actually have to implement rules, and they further criticize Brookfield and the city for repeatedly restricting access to the park after the eviction, by putting up barricades.

(Mayor Mike Bloomberg and mayoral hopeful Christine Quinn have both argued that these kinds of situations would be much less complex if the Parks Department had control and could implement its own rules, instead of the confusing oversight that arises with a private owner of a public space).

Yesterday, the NYCLU and an attorney for Nunez both filed responses to the city’s amicus brief, which an attorney from NYCLU sent to the Voice. Nothing too surprising there, but their replies offer a glimpse at how back-and-forth arguments might play out in court. Nunez is officially asking that the judge dismiss charges against him, which include trespass, disorderly conduct, and obstruction of governmental administration.

The attorney for Nunez disputes the city’s framing of the situation, writing, “What occurred in the early morning hours of November 15, 2011 was unquestionably a closure of Zuccotti Park.” (That’s pretty much how it appeared to reporters on the scene). The attorney’s reply continues:

The “emergency” conditions that are offered as an excuse for Brookfield’s failure to comply with the law had existed in Zuccotti Park for more than a month. Brookfield had time to follow the law and has no excuse for having failed to do so. Brookfield is the lawbreaker here, and it is thus fundamentally unfair to criminalize the actions of Ronny Nunez, a member of the public, who simply insisted on his privilege to be in Zuccotti Park.

The incident on November 15th also should not be considered in isolation — since restrictions at the park changed dramatically after the park’s closure, the attorney, Jethro Eisenstein, argues. It was not a reopening of the park under the same terms prior to the police raid, the attorney’s response says.

The NYCLU, in its response to the city’s amicus brief, notes the timeliness of this case given the recent activity of OWS, which has prompted the reappearance of barricades on at least two occasions this month:

The importance of Mr. Nunez’s motion to dismiss has only increased in recent weeks, as Brookfield Properties has again unlawfully closed down and barricaded Zuccotti Park on at least two additional occasions, once on March 17 and again on March 20. City law prohibits private owners from acting unilaterally to exclude the public from privately-owned public spaces in New York City. The Court’s ruling on Mr. Nunez’s motion should make clear that individuals who have done nothing more than be physically present in these public spaces, like Mr. Nunez, cannot be subject to criminal prosecution when private owners act in contravention of City law.

The NYCLU also paints this picture of the post-eviction Zuccotti restrictions: “Brookfield did not re-open the park to full public access after a “brief closure” as asserted by the People, but instead significantly restricted public re-entry by permitting the public to re-enter only through two narrow gaps in the barricades, conditioning re-entry on searches of personal belongings, and denying re-entry entirely to the public in some circumstances.”

When we spoke with NYCLU Senior Staff Attorney Taylor Pendergrass last week about the case, he reminded us that this debate is really about how authorities are treating protesters. Issues around how public places are regulated need to be addressed, but ultimately, the city needs to do a better job of protecting first amendment rights, he said.

“Given what we’ve seen…with the NYPD being extremely aggressive against protesters — whether in Zuccotti Park, on the sidewalk, or in Union Square — the fundamental underlying problem has to do more with the way police are policing protests than where the protests are located,” he said.

Update, 5 pm: A spokesperson for Brookfield Properties declined to comment to the Voice, since the case is ongoing. Earlier this week, a spokesperson from the city’s Law Department also declined to comment beyond its amicus brief.

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