NYC wins Occupy Wall Street lawsuit, ruling Tuesday that protesters cannot re-enter Zuccotti Park with tents

Steve Bergstein, my friend and collaborator for many years, is a civil rights attorney who practices law in New York. He takes on the kinds of cases that address the issues raised in the Zuccotti Park protest hearings today (he is something of a ‘protest in the park’ specialist, truly a legal boutique), and this is his commentary from his legal blog (designed for other attorneys) called Wait A Second. The ‘second’ part is a reference to the Second Circuit of the federal courts, one of the best and the one he practices in. One technical note: an Article 78 proceeding is a lawsuit designed to make the State of New York or any governmental entities within the state follow their own laws. They are notoriously complex. — efc

A State Supreme Court Justice has ruled that the City of New York may prevent the Occupy Wall Street protesters from bringing tents and sleeping bags and other things into Zuccotti Park, where the OWS protests have taken place since September 17, 2011. The ruling denies the OWS request for a temporary restraining order.

The case is Waller v. City of New York, decided on the afternoon of November 15. As everyone knows, the OWS protesters have camped out at Zuccotti Park in lower Manhattan to protest the vast inequality of wealth in this country and other deficiencies of the capitalist system. For many protesters, the park was a home away from home. I visited the park in mid-October and found a lively scene with hundreds of people holding signs, reading books, playing guitar, pounding on drums and generally hanging around.  I don’t know how these people planned on staying there through the winter, but it’s been a mild Autumn and the place was wall-to-wall people with a lot of tourists peeking around as well.

After New York City kicked everyone out of the park in the early-morning hours of November 15, the protesters brought an Article 78 petition seeking to continue with the tents and other gear that made the park a permanent protest location. In rejecting the restraining order, Justice Stallman noted that the park is a privately-owned public access plaza that is open 24 hours a day, unlike other city parks, which close at 11:00 p.m. The Court also noted that the park remains open to the protesters so long as they don’t bring in all their stuff. Summarizing the parties’ positions, the Court said:

The owner of Zuccotti Park has represented that, after cleaning and restoration of Zuccotti Park, it will permit the Occupy Wall Street demonstrators to reenter the Park and to resume using it, in conformity with law and with the owner’s rules. Petitioners contend that, under the First Amendment, Brookfield’s rules are not valid. Petitioners assert that, given the enactment of the rules after the demonstrations began, the rules targeted Occupy Wall Street.

The Court adds that “the owner of Zuccotti Park had not previously published rules regulating its use by the public.” This allows the plaintiffs to argue that the rules were made up on the fly to get rid of OWS in violation of the First Amendment. After assuming that the First Amendment applies to this park, the Court sides with the City of New York. Ultimately, this case turns on “time, place and manner,” a branch of First Amendment case law that allows the government to regulate speech on public property so long as the rules are not intended to stifle the political message and the demonstrators have ample alternatives to promote that message.

Here, [plaintiffs] have not demonstrated that the rules adopted by the owners of the property, concededly after the demonstrations began, are not reasonable time, place, and manner restrictions permitted under the First Amendment. To the extent that City law prohibits the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner’s rules appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of law, or in tort. It also permits public access by those who live and work in the area who are the intended beneficiaries of this zoning bonus.

In short, “[t]he [plaintiffs] 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.”

This case does not go away, however. This ruling only addresses the temporary restraining order. The City has 30 days to further answer the petition so the Court may issue a final ruling on the merits.