The Law of Occupation

USLaw.com's coverage, analysis, and commentary on law-related issues associated with the "Occupy Wall Street" movement of Autumn, 2011. USLaw.com The infamous pepper spray video that sparked mass media attention and made Occupy Wall Street an international headline story

[uslaw-blog]

NYPD Counterterrorism Bureau's Open Source Assessment of OWS May Day Events

Open Source Assessment of "May Day" activities planned by Occupy Wall Street participants in New York City as published in the NYPD Shield on April 29, 2012 by the police department's Counterterrorism bureau.

Event Assessment reads as follows:

The General Strike is the first of several major global demonstrations that the OWS movement has played a role in planning, including demonstrations scheduled for May 12, May 15, and May 17-21.  As such, it should be expected that organizers have emphasized the importance of turnout and will be seeking maximum media coverage.

Political fissures that are present within the OWS movement may impact the strategies of demonstrators during individual protest actions; in particular, the Wildcat March is not an officially sanctioned OWS march and may attract militant elements from inside and outside the OWS movement that may seek to directly confront law enforcement officials using barricades, riot shields, and possibly weapons such as pipes and rocks.

Although OWS organizers have publicized a large number of the marches, demonstrations, and activities that will take place throughout the day, it should be expected that “pop-up” demonstrations, splinter demonstrations, and flash mobs may occur at any time, especially during “evening actions” that are planned for 7:00pm and later.

In their planning, the OWS NYCGA has endorsed solidarity based on a “respect for a diversity of tactics,” which suggests that autonomous actions of demonstrators using Black Bloc tactics may occur at any time.

NYPD May Day Event Advisory Bulletin 04/29/12

[uslaw-blog]

Occupy Lawsuits against New York City, NYPD, JPMorgan Chase et al.

Running record of select federal lawsuits related to NYPD misconduct arising from Occupy Wall Street and related demonstrations in New York City since 2011.

City Council members Rodriguez et al. v. Winski

"First Amendment Suppression"

City Council members Ydanis Rodriguez, Jumaane Williams, Letitia James, and Melissa Mark-Viverito, journalist John Knefel, and activist Jeffery McClain allege broad pattern of first amendment suppression and general misconduct by the New York Police Department and the Metropolitan Transit Authority conspiring with corporations JPMorgan Chase, Brookfield Office Properties, and Mitsui.  Broad reaching complaint details dozens of specific instances of alleged misconduct-- along with numerous links to video and documentary evidence-- and seeks appointment of federal monitor to reform NYPD.

Plaintiffs: NEW YORK CITY COUNCIL MEMBER YDANIS RODRIGUEZ, NEW YORK CITY COUNCIL MEMBER JUMAANE WILLIAMS, JOHN KNEFEL, NEW YORK CITY COUNCIL MEMBER LETITIA JAMES, JUSTIN SULLIVAN, JEFFERY MCCLAIN, NEW YORK CITY COUNCIL MEMBER MELISSA MARK-VIVERITO, STEPHANIE KEITH, DEMOCRATIC DISTRICT LEADER PAUL NEWELL, JUSTIN WEDES, PETER DUTRO, TIMOTHY FITZGERALD, PAUL SULLIVAN, MICHAEL RIVAS and YONATAN MILLER.

Defendants: DEPUTY INSPECTOR EDWARD WINSKI, THE CITY OF NEW YORK, THE METROPOLITAN TRANSIT AUTHORITY, J.P. MORGAN CHASE & CO., BROOKFIELD OFFICE PROPERTIES, MITSUI FUDUSAN AMERICA, INC., MAYOR OF THE CITY OF NEW YORK MICHAEL BLOOMBERG, NEW YORK POLICE DEPARTMENT COMMISSIONER RAYMOND KELLY, METROPOLITAN TRANSIT AUTHORITY POLICE COMMISSIONER MICHAEL COAN, MTA POLICE OFFICER LAKERAM, POLICE OFFICER ROBERT MATRISCIANI, SERGEANT STEVEN CARO, POLICE OFFICER MARGARET MONROE, POLICE OFFICER FERNANDO TRINIDAD, ONE HUNDRED JOHN AND JANE DOE NYPD OFFICERS, EIGHT JOHN AND JANE DOE MTA POLICE OFFICERS, TEN JOHN DOE EMPLOYEES OF J.P. MORGAN CHASE & CO., TEN JOHN DOE EMPLOYEES OF BROOKFIELD OFFICE PROPERTIES, AND JOHN DOE EMPLOYEES OF MITSUI FUDUSAN AMERICA, INC.

Plaintiff Attorneys: Leo Glickman of Stoll, Glickman & Bellins; Wylie M. Stecklow of Stecklow Cohen & Thompson; and Yetta Kurland of The Kurland Group.

Rodriguez Et Al v. Winski et al.

Berg v. NYPD

"Barricades"

Claims related to NYPD's use of barricades to kettle protesters on November 30, 2011 President Obama's at Sheraton Hotel.

Defendants: NEW YORK CITY POLICE COMMISSIONER RAYMOND KELLY; CHIEF OF NEW YORK CITYPOLICE DEPARTMENT JOSEPH ESPOSITO; NEWYORK CITY POLICE DEPARTMENT OFFICERS/SERGEANTS YESENIA AYALA, Sh. No. 13587; BRENDA BATCHER, Sh. No. 18825; MATHEW BETTING, Sh. No. 12343; CYNTHIA BOYLE, Sh. No.6663; STEPHEN CAROLAN, Sh. No. 6693; MICHAEL CASALE, Sh. No. 30092; CHRISTOPHER CLARK, Sh. No. 30815; NATHAN COLLINS, Sh. No. 11773; FRANCISCO COSTA, Sh. No. 20660; JESSE COTTON, Sh. No. 1178; CHRIS DEFEO, Sh. No. 19936; JOSEPH DIAZ, Sh. No. 4744; THANYA DUHANEY, Shield No.5584; JEANETTE FIUEROU, Sh. No. 6040; DEBORAH GARBUTT, Sh. No. 29583; JAMES GATTO, Sh. No.27905; MATTHEW GRESSWELL, Sh. No. 10994;STEPHEN MAZZARD, Sh. No. 31071; MICHAEL RODER, Sh. No. 25253; DOUGLAS SHEEHAN, Sh. No.26759; DIXON SU, Sh. No. 7680; PETER VOLAIRE, Sh. No. 27518; TEN JOHN DOES 1-10 BELIEVED TO BE OFFICERS AND/OR SUPERVISORS OF THE NEW YORK CITY POLICE DEPARTMENT

Plaintiff Attorneys: David B. Rankin, Paula Z. Segal of Rankin & Taylor and Jonathan C. Moore and Jenn Rolnick Borchetta of Beldock Levine & Hoffman

Berg v NYPD

Corbin and Wilson v. McCormack

"Lincoln Center Case"

Samantha Corbin and Robin Wilson allege they were wrongfully dispursed from Central Park by the commanding officer of the 20th Precinct Captain Christopher McCormack while assembling in prepration to protest David Koch's sponsorship of Lincoln Center on June 2, 2011.

Plaintiffs: SAMANTHA CORBIN and ROBIN WILSON

Defendants: THE CITY OF NEW YORK, POLICE OFFICER ALAN SCHLISSEL, POLICE CAPTAIN CHRISTOPHER MCCORMACK, and NINE JOHN DOES NEW YORK CITY POLICE OFFICERS

Plaintiff Attorney: David A. Thompson of The Law Offices of Wylie Stecklow

Corbin v City of New York

[uslaw-blog]

TJ Max Designated Highly Sensitive Location and No Free Speech Zone: Violators Arrested

The sidewalk location adjacent to Wall Street used for more than one week by demonstrators to express their economic fairness related grievances was cleared by the New York Police Department earlier this morning and further use of the sidewalk for any expressive purpose has since been completely restricted by the Department.  Two individuals were arrested this evening for sitting against the wall of the T.J. Max store described by NYPD officers as a "sensitive location".

Seven or eight other arrests were made later in the evening by the NYPD on and around the steps of Federal Hall just opposite the highly sensitive location.  Federal Hall housed the first Congress, Supreme Court, and Executive Branch of the United States of America.  Demonstrators were permitted to congregate on the steps of Federal Hall by United States Parks Department police officers, though some of the NYPD arrests were made in the presence of Parks Department officers.

[uslaw-blog]

The Law of Sleepful Protest: Metropolitan Council v. Safir

A group of Occupy Wall Street demonstrators are relying on a 2000 injunction ordered by Judge Kimba Woods to occupy sidewalks in lower Manhattan near Wall Street.  The case, Metropolitan Council v. Howard Safir, Commissioner of the New York City Police Department; Henry Stern, Commissioner of the New York City Parks Department; and the City of New York, involved a group demonstrating against NYC rent regulations who wished to spend the night on a city sidewalk in the Upper East Side. 

Judge Woods determined that so long as participants were not subject to any danger and did not interfere with use of the sidewalks, the First Amendment prevented the city from restricting laying prone on or sleeping on the sidewalk.  Accordingly, her order imposed the following conditions on the sleep-on-sidewalk action:

2. Particpants occupy no more than a 7.5 foot wide swath of sidewalk extending from the sidewalk's edge furthest from the street and extending in length no more than 75 feet

3. Participants not obstruct or impede access to nearby building entrances

4. Consist of no more than 25 persons.

While the restraining order only strictly applied to that year 2000 action, the order did make clear that should First Amendment rights of participants be restrained by arrest, the arrestees would not likely be able to receive any compensating vindication.

On the morning of April 16, 2011, the City of New York under the direction of Commissioner of New York City Police Department Ray Kelly, appears to have decided to test the application of state and local penal codes to the act of sleepful protest which Judge Woods deemed protected by arresting at least four participants.

UPDATE FROM LOCATION APRIL 16 10:30 PM

Reporting has revealed that the NYPD has restricted any use of the sidewalk location upon which demonstrators spent the last week sleeping on grounds that it was in a "sensitive location".  The location is within two hundred yards of the New York Stock Exchange entrance and under heavy and constant police and private surveillance.

[uslaw-blog]

How Protesting Became a Crime in New York City

Here’s how the New York State’s penal code defines disorderly conduct:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:

1. He engages in fighting or in violent, tumultuous or threatening behavior; or 2. He makes unreasonable noise; or 3. In a public place, he uses abusive or obscene language, or makes an obscene gesture; or 4. Without lawful authority, he disturbs any lawful assembly or meeting of persons; or 5. He obstructs vehicular or pedestrian traffic; or 6. He congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse; or 7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

Here's what has precipitated the vast majority of the Occupation-related disorderly conduct arrests in New York City:

Using a megaphone, writing on the sidewalk with chalk, marching in the street (and Brooklyn Bridge), standing in line at a bank to close an account (a financial boycott, in essence) and occupying a park after its closing. These are all peaceful forms of political expression. To the police, however, they are all disorderly conduct.

More.  And another take on the decade of police militarization and tactical changes which have resulted in wide grounds for arrest of those participating in Occupations.

[uslaw-blog]

"The world's most widely used pepper spray in law enforcement and corrections, First Defense has just gotten better. With our complete line of aerosols, we are able to offer an OC level of intensity ranging from .2% Major Capsaicinoids to 1.3% MC. The variations in the MC% means that you can now select the level of intensity of OC for the environment required. We use independent laboratory testing to ensure consistent quality of each product.Defense Technology 56895 MK-9 Stream, 1.3% Red Band/1.3% Blue Band Pepper Spray"

[uslaw-blog]

UC Davis Pepper Spray Photo Draws Parodies

Have a new image or see one that's not in our collection?  Submit it! And see them all.

Have a new image or see one that's not in our collection?  Submit it! 

[uslaw-blog]

Demonstrators' plans to create a drum circle on the public sidewalk in front of Mayor Bloomberg's residence were thwarted by barricades which noted NY civil liberties lawyer Norman Siegel called a "no-First-Amendment zone" on 79th Street between 5th and Madison.

"The Constitution doesn't say you have First Amendment rights except where Mayor Bloomberg lives."

This video a humorous take on a situation which otherwise makes free speech legal scholars weep as an actress from an activist thinktank delivers a message from Mayor Bloomberg who, according to a police officer on scene was "in Bermuda-- he goes there every weekend, he's a billionaire, he goes where he wants-- Learjet.":

[uslaw-blog]

Power of Silent Protest. Right out of Billy Jack.

[Suggestion: Start bottom video for soundtrack, then start top video. Powerful.]

After an hours-long impasse in the aftermath of her order to have university police pepper spray students, UC Davis Chancellor Linda Katehi leaves an administration building accompanied by her husband Spyros Tseregounis and campus minister Kristin Stoneking as a line of students sit silently along the path to her car.  Eerily reminiscent of the moving closing scene of Tom Laughlin great 1970's independent counter-culture film "Billy Jack" which features Coven's theme song "One Tin Soldier Rides Away."

The circumstances are reversed as in the film it is the hero, Billy Jack, who is respected by the silence.

Go ahead and hate your neighbor; go ahead and cheat a friend. Do it in the name of heaven; you can justify it in the end. There won't be any trumpets blowin' come the judgment day On the bloody morning after, one tin soldier rides away.

[uslaw-blog]

Email from UC Davis Chancellor Linda Katehi about Occupy Police Action and Pepper Spray

Text of November 18th email from UC Davis Chancellor Linda P. B. Katehi explaining rationale for police action and notorious pepper spray deployment against campus occupiers.  As is the case with many other city and campus overseers (mayors, presidents, etc.), Chancellor Katehi cites the high cost of insuring the safety of occupancy encampments as necessitating their removal.  UC Davis Police Chief Annette Spicuzza also said it would not be safe or sustainable for demonstrators to camp in the quad.  Mayor Bloomberg cited similar safety concerns earlier this week for the eviction of Occupy Wall Street participants from Zuccotti Park in Liberty Square, Manhattan.

Subject: Message from the Chancellor about today's events on campus

To UC Davis Campus Community,

I am writing to tell you about events that occurred Friday afternoon at UC Davis relating to a group of protestors who chose to set up an encampment on the quad Thursday as part of a week of peaceful demonstrations on our campus that coincided with many other occupy movements at universities throughout the country.

The group did not respond to requests from administration and campus police to comply with campus rules that exist to protect the health and safety of our campus community. The group was informed in writing this morning that the encampment violated regulations designed to protect the health and safety of students, staff and faculty. The group was further informed that if they did not dismantle the encampment, it would have to be removed.

Following our requests, several of the group chose to dismantle their tents this afternoon and we are grateful for their actions. However a number of protestors refused our warning, offering us no option but to ask the police to assist in their removal. We are saddened to report that during this activity, 10 protestors were arrested and pepper spray was used. We will be reviewing the details of the incident.

We appreciate and strongly defend the rights of all our students, faculty and staff to robust and respectful dialogue as a fundamental tenet of our great academic institution. At the same time, we have a responsibility to our entire campus community, including the parents who have entrusted their students to us, to ensure that all can live, learn and work in a safe and secure environment. We were aware that some of those involved in the recent demonstrations on campus were not members of the UC Davis community and this required us to be even more vigilant about the safety of our students, faculty and staff. We take this responsibility very seriously.

While we have appreciated the peaceful and respectful tone of the demonstrations during the week, the encampment raised serious health and safety concerns, and the resources required to supervise this encampment could not be sustained, especially in these very tight economic times when our resources must support our core academic mission.

We deeply regret that many of the protestors today chose not to work with our campus staff and police to remove the encampment as requested. We are even more saddened by the events that subsequently transpired to facilitate their removal.

We appreciate the substantive dialogue the students have begun here on campus as part of this week.s activities, and we want to offer appropriate opportunities to express opinions, advance the discussion and suggest solutions as part of the time-honored university tradition. We invite our entire campus community to consider the topics related to the occupy movement you would like to discuss and we pledge to work with you to develop a series of discussion forums throughout our campus.

I ask all members of the campus community for their support in ensuring a safe environment for all members of our campus community. We hope you will actively support us in accomplishing this objective.

Linda P.B. Katehi Chancellor

[uslaw-blog]

Close Quarters Pepper Spray Becomes an Open and Notorious Tactic of Police Departments

When USLaw.com brought to the World's attention the first deployment of pepper spray against Occupy Wall Street participants on September 24th, the use was quick, covert, and swept under the rug by the New York Police Department.  Nearly two months later the weapon has become a preferred tactic of police departments nationwide. Yesterday, the a University of California police department, under the direction of University Chancellor Linda P.B. Katehi, deployed personal spray canisters openly, notoriously, and directly at close quarters on over two dozen passive demonstrators in full view of hundreds.  Many observers noted how John Pike, the police lieutenant seen in the photo above, used the weapon in as casual a manner as one might spray their lawn.

UC Davis English Professor Nathan Brown describes the deployment and resulting injuries:

Police used batons to try to push the students apart. Those they could separate, they arrested, kneeling on their bodies and pushing their heads into the ground. Those they could not separate, they pepper-sprayed directly in the face, holding these students as they did so. When students covered their eyes with their clothing, police forced open their mouths and pepper-sprayed down their throats. Several of these students were hospitalized. Others are seriously injured. One of them, forty-five minutes after being pepper-sprayed down his throat, was still coughing up blood.

Videos of the incident shared by Youtube users maroony07 and terrydatiger.

While traditionally pepper spray was only authorized for use by most police forces on resisting subjects and/or to thwart imminent  harm, mounting evidence suggests Close Quarter Pepper Spray Deployment (CQPSD) has become a deliberate and favored tactic of police departments seeking to arrest passive demonstrators and intimidate would-be demonstrators.

[uslaw-blog]

Could Past Rulings on Sleep Speech Keep Occupiers in Zuccotti Park?

While it is unclear if the Jennifer Waller and the other litigants who attempted to restrain NYC Mayor Michael Bloomberg's eviction of occupiers from Liberty Square will continue to press their case and/or appeal Judge Michael Stallman's decision to vest control of Zuccotti Park to Brookfield Office Properties, various cases testing whether sleeping can be considered speech, including a 2000 ruling by Judge Kimba Wood, provides one of many grounds on which to do so.  As explained by Andy Humm, a former member of the City Commission on Human Rights:

In that case, the Civil Liberties Union sued the city on behalf of tenant activist  seeking to sleep in Carl Schurz next to Gracie Mansion before the Rent Guidelines Board meeting on rent increases. They hoped to dramatize how excessive rent hikes lead to homelessness.

In ruling for the protestors, Wood wrote, "The city contends that if it cannot stop sleeping at this vigil, then it cannot under any circumstances, regulate the use of city sidewalks in a manner it deems necessary and appropriate to promote the free flow of pedestrian traffic. ... The city has offered no evidence that those who sleep on the sidewalks while intoxicated and/or homeless (the instances cited by the city) will implicate the First Amendment at all."

In an article on the decision, Judge Emily Jane Goodman wrote, "Given the right case, sleep can be considered speech and is thus protected by the First Amendment."

She continued, "The court agreed that this was no mere nighttime nap, but was political expression."

It remains to be seen if Occupy Wall Street can prevail on the same claims, but whatever the courts rule, the police actions against the protests have raised the discussion on police tactics and misconduct to a whole new level. On Nov. 20, State Sen. Eric Adams and civil rights attorney Norman Siegelcalled for City Council hearings into the eviction raid and “said city officials violated a court order by cleaning out Zuccotti Park and should be penalized,” according to NY1.

City Councilmember Rosie Mendez has sponsored a First Amendment Assembly Act that she concedes has been going nowhere since we wroteabout it in 2008, but she hopes current events will bring attention to this bill that would compel the police to be more accommodating of protests.

Reacting to the raid at Zuccotti Park, [civil libertarian and OWS media consultant] Billy Dobbs said, "Bloomberg and the NYPD were itching to do this like authoritarians everywhere – squash a protest desperately hoping that the issues would be stopped. But Occupy's issues are going around the world."

[uslaw-blog]

Kick Barrier, Face Kicked

#OWS Demonstrator bloodied in arrest stemming from New York City’s metal barriers(*) penning Brookfield Office Properties’ Privately Owned Public Space in Zuccotti Park at Liberty Square.

* Analysis of law related to metal barriers to be posted shortly by USLaw.com.

[uslaw-blog]

And so it begins....

Tim Barker, a Minnesota native who has been occupying Zuccotti Park for the last month, was denied entry with his guitar.

Just hours after being granted leave to make it's own rules,  Brookfield Properties  wasted no time changing the nature of the private space that was pledged to public use, establishing prohibitions against musical instruments and an assortment of other items that are typically used in the city's parks.

Presumably the prohibition of musical instruments is the result of Brookfield's desire to eliminate music being performed and/or loud sounds being generated in the Liberty Square.  An alternative means of achieving those ends would be to place prohibitions on certain behaviors-- the performing of music and/or generation of sound above a particular decibel level.  Resorting to prohibiting certain possessions instead of prohibiting particular behaviors is a shortcut that is sure to raise controversy.

Bigger picture, is the ban on musical instruments a reasonable time, place, and manner restriction on park users' first amendment freedom of expression?

[uslaw-blog]

#OWSTRO Temporary Restraing Order Not Extended

Tents and other items which facilitate long-term occupation will remain out of Zuccotti Park.  Brookfield free to set rules for "Privately Owned Public Space" at will.

<![CDATA[// <![CDATA[ // <![CDATA[ (function() { var scribd = document.createElement("script"); scribd.type = "text/javascript"; scribd.async = true; scribd.src = "http://www.scribd.com/javascripts/embed_code/inject.js"; var s = document.getElementsByTagName("script")[0]; s.parentNode.insertBefore(scribd, s); })(); // ]]<![CDATA[> // ]]]]><![CDATA[>]]>

Excerpt of Stallman Ruling: The movants have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owner’s reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely. Neither have the applicants shown a right to a temporary restraining order that would restrict the City’s enforcement of law so as to promote public health and safety.

[uslaw-blog]

Waiting on Zuccotti Park TRO Decision: Will #tentsandtarps be Allowed Back?

Judge Stallman will almost certainly not stand in the way of both City's and Brookfield's expressed permission for Occupiers to return to Zuccotti Park.  Question is whether they can bring tents, tarps, and sleeping bags with them.

[uslaw-blog]

#OWSTRO Hearing: Liveblogging

[Will not go in the books as one of the best litigated 1st Amendment Cases.]

1:51 Judge retires to read papers and consider the issue.  Hopes to have some decision about whether TRO should be extended by 3:00. Not extending TRO until he makes decision.

1:50 Petitioner: Odd that today's violation cite generator hazards when there were no generators on the site since they were seized weeks ago.

1:48 Petitioner: City was notified of oppty to participate in Judge Billings TRO hearing. City did not respond.

NYC: City doesn't receive faxes early in the morning.

Petitioner: To laughs, then why try to evict them at 4 in the morning?

1:45 Occupation Attorney: It's not about tents, not about camping. 1st Amendment is not just about speech, it's also about assembly.

Judge: Nothing in TRO preventing city from issuing violations.

1:39 Petitioner: City can police Park without clearing it.  City can control situation & enforce law w/o sweeping demonstration off map.  For instance, Community Board One has worked effectively with Occupiers to modify conduct, for instance restricting drumming to certain times of day.

NYC Attorney: Cigarette butts all around near electrical outlets, steps and planters at boundary of Park create fire exit hazard.  (Think of all the kindling in Central Park-- run for your lives.)

NYC Attorney: Occupiers are preventing intended use of the park by public.

Brookfield: People can't erect tends that prevent other people from using park for intended use.

1:34 Judge asks if analagous to Sheep Meadow of Central Park.  Petitioner: Sheep Meadow has pre-existing rules. J: Can't owner implement rules now? P: Can they adopt rule, never having adopt a rule? Yes, but it must be reasonable, must be consistent with 1st Amendment.  (USLaw.com suggests rulemaking should be subject to approval by NYC CIty Planning-- issuer of Special Permit.)

1:22 Judge: What about issues of public waste and garbage?

Petitioner (#OWS Attorney): Have a garbage problem, pick up garbage. You have human waste problem, let protesters undertake responsiblity to put up portapotties.  B and C have issues, we are prepared to deal with them.  For instance, protesters took up cleaning when city first raised issue several weeks ago.  Random photographs don't prove it's continuing problem.  Brookfield has not responded to letters sent by #OWS asking how sanitation concerns could be accommodated.  Neither City or Brookfield has attempted to negotiate, though Occupiers have shown willingness to do so.  City seized generators and fuel several weeks ago; occupiers contacted city asking why none of the normal steps were taken by city to seek cure before seizing equipment.

Judge: Dismissed concerns about whose hands was extended to whom.  Focusing on situation on the ground now.  Are you saying use of the generators or the use of semi-permanent structures is protected as speech, either symolic speech or as a necessary aspect of the exercise of the Occupiers freedom of speech (KEY QUESTION).

Mr. Levine: They say you can stay in the cold for 24 hours but can't bring sleeping bag.

Judge: Doesn't answer question. Are you saying that this sort of conduct can't be prohibited anywhere?

Mr. Levine: Only subject to limitation if least drastic limitation. For example generators, leaving aside whether pretect of removing right before blizzard, the city can ask for specific problems (proximity to tents, nature of fuel flamability, etc.) to be addressed by less drastic correction.  THE POWER OF THE SYMBOLIC SPEECH RESIDES IN THE FACT IT IS A 24 HOUR OCCUPATION.  THIS CONVEYS A SPECIAL MESSAGE.

If egress is not being permitted by location of Occupiers' possessions or conduct, city as right to assure it is permitted. If tents are in the path, they can be moved someplace else.  B and C must define their specific interests (concerns)-- can't impose blanket solution of prohibiting all tents outright. 

1:21 Petitioner: POPS spaces can be designated limited forums, but this park hasn't. Lincoln Center has been held to be a limited forum.  It is for all purposes a public forum for constitutioanl purposes.

1:15 Petitioner: There was no particular emergency this morning.  They swept the whole thing out. They put everything in garbage trucks that crunch things up, not flatbed trucks.  This was deterrernt to most profound speech event in this counry since the 1960's.  The theme "99%" is on the lips of everyone in the country, including Republican candidates.  This is a speech chase.  Brookfield's response is response to speech activity and therefore court must apply strict scrutiny. 

Brookfield: It is a private space. We are not a "state actor".  Issue is whether we are allowed to promulgate reasonable rules. We are not in any way trying to stop speech. We would like everyone to come back. We are not in any way restricting expression.

Judge; Once space is clean, will you allow protesters back. And you will not place restriction on the times of the day in which they can use the space. Does that mean then that they will be permitted to use the street furniture that is there, sit on the benches. Is it your position that the use of a tent has no first amendment purpose and that there is no symbolic speech aspect to a tent?

Brookfield: Yes.  They are allowed to speak, talk, chant, but they are not allowed to erect structures.  But again, we do not feel 1st Amendment applies to us.

1:05 Judges' Questions:  Privately Owned, Public Spaces ("POPS") created as a public amenity in exchange for development rights.  Not disputed.  Space traditionally used for current protest as a place for traditional 1st Amendment activity.

NYC: While it is POPS that is open to public, not take position that it is a traditional public forum While 1st Amendment activities is appropriate subject to reasonable restrictions comparable to sidewalks.  Other than 9/11 memorial events, no other events have taken place in park in past.

Brookfield: Park has not traditionally been used for these purposes.  Brookfield has denied requests for use in past, for example by Muslim group. Cites the Downs Case (2010) to illustrate not traditional forum for public debate; not it's historical use.

Petitioner: Refers to it as "Liberty Park."  Cases uphold right to use POPS for public debate.  POPS Special Permit language does not include any restrictive language such as "for passive or quiet enjoyment".  Brookfield made up rules after start of protest such as rules restricting "expressive association".  Flubs answer to Judge's question about whether Brookfield ought to have right to establish rules.  Responds that Brookfield probably has right, but rules must be reasonable.  Better answer would have been requiring public hearing and approval of NYC Planning Dept-- issuance of POPS Special Permit.  Co-counsel: Both Brookfield and City bound by 1st Amendment.

Judge; Must owner of POPS show compelling public interest when setting rules?

Petitioner: Yes.  They are sleeping there for expressive purposes.  Not a Camping Case, it's a Speech Case.  In order for the State to restrict that, must have compelling interest.  All of the city's complaints, such as sanitation, egress, etc., can be addressed without restricting use of Park for expressive purposes.

Intervener: Fire Dept issued Summons this morning w/o providing time to redress. 

1:01 Unions, WFP, NY Communities for Change: "All have planned activities around Park, participated in events, etc, therefore have standing." Judge agrees. 

12:59 Fire Dept notice about flamable materials and rubish.  Judge: "If those issues were addressed and those materials were eliminated, would Brookfield's position be the same?"  Brookfield: People living in Park violates purposes of Park, Park was not meant for habitation or for structures.  Park must be maintained in a way to fulfill it's purpose including the observance of 'very reasonable rules' and that 'people aren't allowed to live in the park'.  Now that park is cleaned, we are happy to have protesters back, but not to have them "live" in the park. (paraphrased).

12:57 Brookfield: "Park not meant to be tent city.  Very specific health concerns.  According to Fire Dept safety and access to park issues.  Primary issue is erection of tents.  Brookfield has liability and responsibility to maintain park.  Only obligation is that Park must be open at all times.  Rules don't allow erection of tents or people to live in Park."

12:55 Reviewed Justice Billings Temporary Restraining Order ("TRO") signed at 6:30AM, John Samertson (spelling?) on behalf of Working Families Party and Officer of Transport Workers Union.  No answering papers from Brookfield.

12:53 Back in session.

12:41 Receives Responsive papers from City and Interveners' papers from Local 101.  Judge retires to chambers to review.

12:37 Approves pool video and still photography.

12:30 Judge Michael Stallman presiding.