Zuccotti cleared, closed, then re-occupied

NYPD officers blocked Zuccotti Park for most of the day on Tuesday, following the eviction of Occupy Wall Street demonstrators earlier in the morning. Photo by Milo Hess

BY ALINE REYNOLDS, CYNTHIA MAGNUS AND JOHN BAYLES | This time there was no warning, no advance notice and no time to organize; the clearing of Occupy Wall Street demonstrators from Zuccotti Park, in the wee hours of the morning on Tuesday, took everyone by surprise.

At approximately 1 a.m. NYPD officers surrounded the park. Mayor Michael Bloomberg, at a press conference later Tuesday morning said the park’s owners, Brookfield Office Properties, had reached out to him and asked for help in enforcing park rules pertaining to health and safety.

“In our view… it would have been irresponsible to not request that the city take action,” said Brookfield in a statement. “Further, we have a legal obligation to the city and to this neighborhood to keep the park accessible to all who wish to enjoy it, which had become impossible.”

At the press conference, Police Commissioner Raymond Kelly, who led the evacuation said the protesters were given until 3:30 a.m. to collect their personal belongings and leave.

Though Brookfield solicited Bloomberg’s help in temporarily evacuating the park, the Mayor took full responsibility for the action.

“Make no mistake — the final decision to act was mine, and mine alone,” said Bloomberg. “I don’t feel bad, because [protesters] can come right back in.”

While First Amendment rights are “number one on our minds,” Bloomberg continued, “It doesn’t give anyone the right to sleep in a park or otherwise take it over to the exclusion of others. We have an obligation to enforce the laws today, to make sure that everybody has access to the park so that everybody can protest. We also have a similar [and] just as important obligation to protect the health and safety of the people in the park.”

Following the initial displacement from Zuccotti, protesters dispersed to the surrounding blocks. Demonstrator Liesbeth Rapp said later that at one point protesters blocked a sanitation truck from driving to the park, assuming it was on its way to collect occupants’ items. She also said that the camp’s library of 3,000 books had been destroyed.

O.W.S. medical team members Luc Baillargeon and Angeline Richards watched from a bench across Church Street as the camp was dismantled around 2 a.m. Baillargeon said they were able to salvage from the medic tent only what they could carry: two portable [first] aid kits.

Asked why he chose to vacate the park in the wee hours of the morning, Kelly replied, “We think it was appropriate to do it when the smallest number of people were in the park,” noting O.W.S.’s commuter crowds that typically gather in the park during daytime hours.

“I think we were all surprised at the amount of people [at that hour],” said Kelly. “Operationally, it went extremely well, and the officers conducted themselves with great professionalism. There was an awful lot of taunting and people getting in police officers’ faces, and [the officers] showed an awful lot of restraint.”

Temporarily closing the park

The National Lawyers Guild, who has been representing O.W.S. arrestees in court since the occupation began, at 6:30 a.m. Tuesday morning filed a temporary restraining order against the city, enjoining it from evicting protesters from the park “exclusive of lawful arrests for criminal offenses,” according to N.L.G. defense attorney Martin Stolar.

The injunction was temporarily granted until, around 11:30 a.m. Tuesday morning, when State Supreme Court Judge Michael Stallman rendered a decision denying the T.R.O. and approving of Brookfield’s implementation of the park rules.

City Attorney Sheryl Neufeld said following Stallman’s lifting of the T.R.O., issued earlier by Justice Lucy Billings, that the decision recognized the rights of both O.W.S. and general members of the public.

Counsel for Brookfield Properties Douglas Flaum said outside the courthouse that he was “gratified that [Stallman] recognized that the rules Brookfield has put in place are ones that are necessary to ensure a clean, safe and publicly accessible Zuccotti Park for all, and that any regulation we have would be fully consonant with the First Amendment restrictions.”

Spokesman for the Courts David Bookstaver explained the process that led to Justice Stallman presiding over the afternoon hearing – a judge who “signs a T.R.O. in the middle of the night” is not necessarily the same one that will preside over the hearing the following day.

“There are lots of conspiracy theories, which are always amusing, but there is no conspiracy here,” Bookstaver said.

While O.W.S. protesters have since been allowed back into the park — which under city law must remain accessible 365 days a year — people will be denied entry if they were carrying tents, camping gear or other equipment conducive to sleeping in the park. Roughly 75 protesters remained in the park overnight Tuesday.

Brookfield’s regulations governing Zuccotti Park bars people from lying down altogether, as well as from erecting tarps and tents and using sleeping bags.

Kelly stated earlier that the department would enforce rules prohibiting lying down on the ground or benches. A lawyer for Brookfield said at the afternoon hearing, however, that O.W.S. would be welcome to use the park furniture. The issue may turn, in the coming days, on the definition of what is deemed “appropriate.”

If park users violate the rules, Kelly said they would be asked to leave the premises immediately, adding, “And if they don’t leave, they’ll be arrested.”

At around 6 p.m. Tuesday evening, Stolar reported a total of 218 arrests, many of which involved disorderly conduct, resisting arrest and obstructing governmental administration.

Approximately three-quarters of the daylong arrests occurred inside Zuccotti Park during the evacuation, according to Kelly; while 27 others were made at the intersection of Broadway and Cortlandt Street. The rest occurred elsewhere in the park’s vicinity.

“I don’t think any of these arrests are serious today,” said civil rights lawyer and Tribeca resident Daniel Alterman, the Guild’s former president who will be representing some of the arrestees in court. “I haven’t heard of any felonies being charged.”

Like Stolar, Alterman found flaws in Bloomberg’s strategy with respect to the evacuation.

“I think the mayor should have left it alone and let it take its course, and the community would have policed itself,” said Alterman. “First Amendment trumps the inconveniences [of the local community] when the health, safety and quality of life issues are not great.”

Nevertheless, Bloomberg remained firm in his message to the park’s occupiers: “Protesters have had two months to occupy the park with tents and sleeping bags. Now, they will have to occupy the space with the power of their arguments.”

Pols respond

Unlike the planned eviction a month ago, elected officials on Tuesday did not have an opportunity to negotiate with Brookfield or the city prior to the clearing of the park. Most of them learned of the eviction just moments after it occurred.

In a joint statement, Congressman Jerrold Nadler and NY State Sen. Daniel Squadron said, “We agree that Zuccotti Park must be open and accessible to everyone – O.W.S., the public, law enforcement and first responders – and that it is critical to protect the health and safety of protesters and the community. We have also been urging the city to have a zero tolerance policy on noise and sanitation violations, and to make the results of its enforcement public. But we must balance the core First Amendment rights of protesters and the other legitimate issues that have been raised.”

“The city’s actions to shut down O.W.S. last night raise a number of serious civil liberties questions that must be answered,” the statement continued. “Moving forward, how will the City respect the protesters’ rights to speech and assembly?  Why was press access limited, and why were some reporters’ credentials confiscated?  How will reported incidents of excessive force used by the police be addressed? On the issue of Brookfield’s rules, we are very concerned that they were promulgated after the protesters arrived; the specific legal questions on this topic are being addressed where it is appropriate – in the courts.”

Manhattan Borough President Scott Stringer alluded to numerous reports of members of the press being kept away from the park during the eviction and even arrested.

“Last night, the administration acted to end the occupation of Zuccotti Park by forcible eviction, and I am greatly troubled by reports of unnecessary force against protesters and members of the media, including the use of ‘chokeholds’ and pepper spray,” said Stringer. “I am also troubled by reports of media being forcibly kept away at a distance from these events. American foreign correspondents routinely put themselves in harm’s way to do their jobs, in some of the most brutal dictatorships in the world. And their NYC colleagues deserve the freedom to make the same choice. Zuccotti Park is not Tiananmen Square. I call for a full explanation of police behavior in this evacuation.”

City Council Speaker Christine Quinn echoed the B.P’s statement concerning the treatment of the media.

“Today’s actions include reports of excessive force by the NYPD, and reports of infringement of the rights of the press,” said Quinn. “If these reports are true, these actions are unacceptable.”

Asked why members of the media were denied access to the park’s immediate surroundings during the evacuation, Bloomberg replied, “The Police Department routinely keeps members of the press off to the side when they’re in the middle of a police action, to prevent a situation from getting worse and to protect the members of the press.”

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