This isn’t about agreeing or disagreeing on OWS so please keep that in GD or elsewhere.
How legally could that be done, if the park is a private park and I am under the assumption that Brookfield Office Properties, the parks owners, backed the police action in removing them. What basis did the judge use in this order?
It’s a public place. They are what the 1% refer to as “public”. Hence, allowed in there.
It may be privately owned, but as I understand, it is allowed on the condition it be open to all public. (Why is that? Was it a condition for them to put up a bigger building next door?)
You cannot say “this park is public, but you and you cannot freely and peacefully assemble there.” Either it’s public (a condition of its existence there) or it is not. You cannot bar people unless there is a good reason; rioting or vandalism is a reason, staging a protest is not a good reason. Even then, you can bar only those who have been convicted of something related to why they should not be allowed in the park.
So the real question will be, can you forbid tents in public parks? Obviously a park is not an open campground. What is a tent? Just a tarp? Can I bring a blanket to have a picnic? Can it be waterproof?
Judges prefer to allow people their liberties unless there is a really good reason not to; “I don’t like them, they are an eyesore” is not a good reason.
The thing with freedom is either you have it or you do not.
I’m wondering if this is going to be one big cycle over and over…
Protestors are let in, set up camp, do their protesting thing, and after a month or more it gets too crowded/dirty/unsafe(health or physically) and then they’re all kicked out to have the place swept clean. Rinse and repeat.
If I make a rule about no one wearing shoes in my home I have that right to ask you to leave if you insist on wearing shoes right? This is a POPS park, Brookfield Office Properties apparently is allowed to make rules in its park.
So the question remains the same, what legal basis did the judge have in making that order?
Yes. Brookfield was allowed to build higher if they made the plaza in front of the building a “public plaza”, which is legally different from a “public park”. One of the differences is that a public plaza must be open to the public 24/7, while a public park may have hours of operation.
Surely common sense must prevail, though. If someone tells you that must must have a “public plaza” you understand that you must allow the public to traverse the area, sit down on a bench and have a sandwich, or even stand and deliver a short speech.
You certainly don’t understand that term to mean that people can come from all over the nation and camp on your land for several months with no intention of leaving anytime soon.
I can go to the park and sit on a bench. I can’t move in.
This court apparently disagrees with you.
The temporary restraining order has already been reversed on appeal.
It doesn’t take a lot to get a restraining order in the first place. You don’t have to make any compelling arguments or present evidence. Just go to a judge and say “we want to stop this guy from doing this thing until we can argue about it.”
Let’s spare a second also to commemorate Officer “Sargent Pepper” Bologna of the NYPD who single-handedly turned this from a marginal protest to a continent-wide front-page movement with one wave of his hand. 
IANAL but… a temporary injunction simply says “if they go forward with this before we have a hearing, it will be too late to reverse it.” Then, they had their hearing and the judge (a different one) said “go ahead”. I have heard various ACLU-type activists talk about the heavy-handed tactics the police have used to restrain free speech during this protest. I would like to believe that someday the higher courts will put an end to it, but I’m not holding my breath. After all, the 2004 Convention violations and resultant court cases appear to have had no effect.
You cannot pick and choose your public if it is a public square. You can impose reasonable limits on what EVERYONE can do. If it is too restrictive for no good reason or unevenly enforced, a judge may decide it is not “reasonable”. Many a lawyer’s vacation home and golf membership have depended on how much work it is to define “reasonable”.
One argument put forth by the OWS lawyers is that the 24-hour months-long presence is in itself part of the speech - it certainly makes a statement.
The legal question is whether the protesters’ First Amendment rights are being infringed by Brookfield’s rules it adopted after the protests started, and the enforcement of those rules by the NYPD at Brookfield’s request.
But first, the practical mechanics of a wee hours Temporary Restraining Order in New York. Generally, only the judge assigned to a case will issue orders in the case, but any judge of the Supreme Court (in New York, the trial court of general jurisdiction is for obscure historical reasons, known as the Supreme Court, while the state’s high court is known as the Court of Appeals) has the power to do so in an emergency or when the assigned judge is unavailable. If something comes up during Court hours and you need to file a case and get a TRO, the clerk’s office will randomly assign a judge, who will consider the matter and issue an appropriate order. Usually, where a TRO is requested, the court requires the other side to be notified and given a chance to appear and respond, but will dispense with this requirement when the matter is sufficiently urgent (or there is some compelling reason to issue the order without the other side knowing).
However, if the clerk’s office is closed and the matter requires urgent judicial action, any judge of the Supreme Court can and, where he or she feels it warranted, will issue very a short-term order to deal with the issue until it can be considered in regular order. The judge can even issue an order before the case is formally filed, as apparently happened here.
So, if you can find a judge willing to grant a TRO at 6:30 am, she has the power to do so. Normally, it is considered very bad form to wake a judge up to sign papers, but where a nationally-significant demonstration is being broken up by the police, you can get away with it. Significantly, when you are a group like the National Laywers Guild, you have a pretty good idea which judges wouldn’t mind being woken up and would be willing to sign an order restraining the police in such circumstances (and you have their home phone number to call them to ask).
So, at 6:30 am this morning, Judge Lucy Billings signed a Temporary Restraining Order, which prohibited the City and Bloomfield Properties from evicting protesters or preventing them from re-entering the park with their tents and other property, until a 11:30 am hearing on the matter. Apparently, the only notice given to the other side on this was faxing the papers to the closed office of Corporation Counsel (the attorney for the City), but the judge issued the order anyway. Normally, an order issued in such a situation would only be to preserve the status quo until a more considered action can be taken, and it is unclear what Judge Billings was told of what was going on at the time.
In any event, by the time the order was issued, the City had already cleared the park, and did not let anyone back in (other than the Brookfield cleaners and a phalanx of police) until the matter was judicially resolved this afternoon.
A hearing was held shortly after noon before Judge Michael Stallman, who later in the afternoon issued a Decision and Order dissolving Judge Billing’s order, directing the parties to fully brief the issue over the next several weeks, and denying any further temporary restraing order.
The legal issue Judge Stallman considered was the exent to which Brookfield’s rules were reasonable “time, place and manner” restrictions on the protesters’ exercise of their First Amendment rights. As an initial matter, the First Amendment only prohibits governmental actors from interfering with someone’s free speech rights. If you own private property, you generally don’t have to let people to protest on your property, but where the property is a privately-owned park that is dedicated for 24-hour public access to gain a development benefit, the question of whether it should be really considered “private property” for First Amendment purposes is somewhat murky. In any event. in his Decision, Judge Stallman assumed that the protesters were entitled to full First Amendent protection.
Although the government cannot prohibit people from exercising their First Amendment right to freedom of speech and assembly, the courts have held that the government can impose reasonable restrictions on the “time, place and manner” of the First Amendment exercise. The protesters argued that because they had been “occupying” the park with their tents, tarps and all for almost two months and their staying in the park was an important part of their protest, Brookfield could not impose after-the-fact rules prohibiting tents and tarps. On the other hand, the City and Brookfield argued that those regulations were reasonable under the circumstances, particularly given the security, health and sanitation problems that had come to pass.
Judge Stallman held that Bloomfield’s rules were reasonable “time, place and manner” restrictions and held that they could remain in effect until the motiins ere are fully briefed and decided.