by Thomas MacMillan | Apr 9, 2012 1:33 pm

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Posted to: Occupy Wall Street

The city can begin removing Occupy New Haven for good starting at noon Tuesday, a federal judge has ruled. Occupy’s attorney vowed to appeal to a higher court to prevent the city from moving against the camp.

U.S. District Judge Mark Kravitz issued the 26-page ruling Monday afternoon. He said that New Haven has the right to dismantle New England’s longest-standing encampment affiliated with the Occupy Wall Street movement.

In his decision Kravitz agreed with the movement’s lawyer, Norm Pattis, that the protest constitutes constitutionally protected free speech.

But the judge agreed with New Haven that the city has rules that reasonably govern the exercise of that speech.

On a separate issue, Kravitz called it “troubling” that a local government is carrying out rules for the Green on behalf a private entity. A self-perpetuating group dating back to Colonial times—the The Committee of the Proprietors of Common and Undivided Lands at New Haven, a.k.a. the “Proprietors of the Green”—owns New Haven’s Green. The city polices it and enforces it on the group’s behalf.

However, Kravitz rejected an argument by Pattis that the Properietors’ ownership of the Green violates the state’s constitution.

Click here to read the decision.

Occupy attorney Norm Pattis Monday afternoon tweeted his plans to prevent any dismantling of the camp. “We’ll be occupying the Second Circuit [Court of Appeals] in Manhattan tomorrow bright and early seeking another stay,” he wrote.

Dan Erwin, a lawyer who works with Pattis, said that attorneys for Occupy will file not a direct appea, but a “stay pending appeal.” He said it’s “fairly technical” but that’s “probably the way it will go.”

The anti-corporate protest encampment has been on the upper Green for more than five months, longer than any such encampment in the region. Recently however many of the original organizers have packed up as infighting has thinned the movement’s ranks. Last week public works staffers dismantled barricades that remaining protesters had set up. Barricades returned Monday.

Kravitz ordered that the city can start removing the encampment at noon Tuesday.

“Since Plaintiffs are being required to alter only the time, place, or manner of their protest—not, by any means, to stop protesting entirely—the Court finds that the balance of the equities does not favor a stay,” wrote Kravitz, a former First Amendment lawyer. “Thus, unless the Second Circuit determines otherwise, the City will be allowed to begin enforcing its rules governing the use of the Green.”

In his ruling, Kravitz wrote that he “expects” the city do any needed dismantling “during daylight hours, that it will make every reasonable effort to avoid destroying personal property, and that, when possible, it will allow owners a chance to reclaim any property that is removed.”

In a press statement Monday afternoon, Mayor John DeStefano said the following: “Today, the Court has spoken and denied the request of members of Occupy New Haven to stay on the New Haven Green indefinitely. This decision, the first ruling to address the full range of legal arguments and facts involved in this case, means that the New Haven Green will once again be a place for all and not serve as a private residence for a few. The Court has asked the City to allow the plaintiffs until noon tomorrow to clear and clean the encampment area. The City will honor the Court’s request and we expect the members of Occupy New Haven to do the same.”

“Victory For ... Secrecy”

“Obviously we’re disappointed,” Pattis said of the ruling Monday afternoon.

He said the ruling still leaves key questions unanswered. “The decision begs the question of who ultimately calls the shots on the New Haven Green. We’d expected an answer to that question. We didn’t get one.”

Pattis called the decision a “victory for the forces of secrecy.”

He said occupiers now have to decide whether to send him to New York tomorrow to appeal the decision. “They’ve got to give me my instructions.”

It’s clear that they will be removed sooner or later, Pattis said. “The handwriting is on the wall. ... But if they want to go another round, we’re good to go.”

He said Kravitz “sidestepped” the question of the legitimacy of the Proprietors of the Green. Pattis said he had hoped that the judge would remand that question to state Supreme Court. Since he did not, it would require an independent action. There again, Pattis awaits instruction from his clients.

“All it takes is one plaintiff,” he said. “I don’t know if they have interest in bringing a claim or not.”

“These are, admittedly, murky matters,” Judge Kravtiz wrote of the Green-ownership question. “It is one thing, legally, for the Proprietors to establish rules governing the use of land they claim to own. It is another and more troubling thing for a private group to require a public official enforce those regulations and, especially, to do so in a manner and on a scheduled decreed by the Proprietors.”

The judge didn’t agree with the Proprietors’ and city’s legal arguments on that score. But he said legal precedent allows for looking at how government agencies enforce rules in practice in this kind of instance. New Haven’s parks department has clearly allowed free speech on the Green and has not denied permits in violation of the First Amendment, he wrote. And its reliance on the Proprietors’ rules is “well-established.”

Despite “serious shortcomings in the text of the rules governing the Green,” Kravitz wrote, “Defendants are saved once again by the fact that courts do not look only at the language of rules being challenged, but must also “examine the practice of the licensing body.”

“We Don’t Need Tents”

Dan Erwin, one of the attorneys who worked on the case for Occupiers, hit the Green Monday afternoon following the release of Kravitz’s decision. He sought to put a positive spin on the ruling. He told occupiers they succeeded in making the protest “a very real part of the conversation” in New Haven and beyond.

So you don’t know when the city’s going to come kick us out? asked an occupier who spoke from behind a peace-sign bandanna covering her mouth.

Sometime after noon tomorrow, Erwin replied.

The scene Monday on the Green marked a contrast with previous removal deadlines. On March 14, the first date set by the city for removal—when Occupy was filled with occupiers, supporters, and onlookers—the mood was defiant and festive. On March 28, the day of a second court date, fewer people were on the Green. On Monday, a cluster of only about a dozen occupiers gathered. The mood was subdued, resigned.

Ty Hailey, a named plaintiff in the suit against the city, said he feels “really positive” about the judge’s decision. “I’m not here to camp. I’m here to protest.”

If the city clears off the camp, maybe Occupy will again comprise serious protesters and less casual campers, he said. People haven’t wanted to be involved in the movement because it developed a bad image, he said. Maybe more will come out and join if the camp is removed.

“We don’t need tents to occupy,” he said. “We might be able to do more now that we don’t have to deal with this exhausting mess.”

Hailey said he’s not planning to ask Pattis to file an appeal of Kravitz’s decision. “I’m really bored of this argument with the city. ... I don’t think we need permission, and I’m not going to fight for permission anymore.”

He predicted some non-violent resistance if and when cops come into remove occupiers. “I won’t resist, but if they choose to arrest me for being here, so be it.”

“We’re going to stand our ground,” said Danielle DiGirolamo, another plaintiff. “We’re not going to go down without a fight.”

That doesn’t mean violence, she said. Occupy is a peaceful protest.

The city’s going to come in and take the land from Occupy “the way they did to the Native Americans,” she said.

Ray Neal (pictured), another plaintiff Occupier, said he thinks Kravitz made the wrong decision, especially in light of the U.S. Supreme Court’s decision on Citizens United, in which the court decided that money is speech. “We don’t have money, but we have our bodies and our tents and our bedrolls,” Neal said.

He said he can’t predict what will happen when the city comes to evict. It depends on who’s on the Green, he said.

Neal said it’s also hard to say how many occupiers there are. “It’s hard to tell who’s here who’s here,” he said. Some people are just camping, he said; others are protesters.

Neal said some 15 or 20 “hard-corists” remain living on the Green in protest. Others are just sleeping there for their own reasons.

Social worker Kenneth Driffin was making the rounds of tents Monday, as he has done on previous Occupy evacuation deadlines, lining up moving help for homeless people to leave the green.

“People are ready to go,” he said. “We’ll be out here tomorrow. ... We didn’t run into anybody that says they’re not leaving.”

Bogus Grass Argument

While siding with the city and Proprietors, Judge Kravitz did tear apart some of the city’s arguments in his ruling.

For instance: “Plaintiffs [the occupiers] are not claiming, as the City’s counsel did at oral argument, that damaging the grass on the Green is an expressive activity. This would be akin to claiming that organizers of parades think of traffic disruption as an expressive act. Damage to the grass is a cost or byproduct of Plaintiffs’ expressive activity here, just as road closures are a cost of allowing parades.”

Similarly, Kravitz didn’t buy the city’s argument that the occupation presented a murky message, therefore rendering it not covered by the First Amendment.

“One would have to have lived in a bubble for the past year to accept Defendants’ claim that Occupy’s tents ‘could simply mean that plaintiffs enjoy camping.’ ... The City’s eviction notice did not seem confused on this point when it congratulated the protesters’ commitment to ‘economic justice’ rather than their love of the great outdoors.”

But courts have long held that authorities can place “reasonable limits” on protests even if they involve protected speech, Kravitz noted.



Click here to read about the passionate arguments heard before Kravitz two weeks ago at a hearing on the movement’s motion to be allowed to stay on the Green.