Judge Rules Not to Dismiss Charges for Zuccotti Trespasser; OWS Legal Battle Moves Forward

zuccotticsmuncy1.jpeg
C.S. Muncy
Zuccotti Park last month.
A judge has ruled not to dismiss charges against a protester who is at the center of an ongoing court battle surrounding the legality of the famous shutdown of Zuccotti Park at the peak of Occupy Wall Street's demonstrations in November.

This latest decision sets the stage for a contentious trial this spring where opposing sides will debate what actually happened on November 15th when police raided OWS and removed all protesters from Zuccotti Park, which is a privately-owned public space.

It's a pretty complex legal fight, but here's a quick recap: The New York Civil Liberties Union, on behalf of a protester named Ronny Nunez, has argued that Brookfield Properties, the park's private owners, had no legal right to kick everyone out of the park, which is zoned as a public space that must be accessible all day. The private owners, with the support of the city, have argued that Brookfield can implement rules and regulations and that it rightfully -- and only temporarily -- removed people from the park due to safety hazards tied to the campsites OWS had set up.

Nunez -- who is charged with trespass, disorderly conduct, and obstruction of governmental administration -- became a trespasser once he refused to leave the park, according to Brookfield's arguments. But the NYCLU and Nunez's attorney say that the private owners and the city did not follow proper procedures and also argue that the city had no right to set up barricades and limit access to the park after the eviction, even if a temporary shutdown was justified.

The latest tactic of Nunez and the NYCLU was to ask the judge to dismiss the charges against him -- but on Friday, Criminal Court Judge Matthew Sciarrino Jr. said that the case would move forward and that Nunez had no right to refuse to leave the park.

In his decision, sent to the Voice this morning, the judge writes:

It is clear that if the allegations are proven true, the conditions in Zuccotti Park at the time of the order to vacate posed a serious hazard to the health and safety of those occupying the park, the City's first responders, and the surrounding community. Moreover, the conditions also interfered with the community and general public's ability to utilize the park for the passive recreation activities for which it was built. Faced with these deteriorating conditions, Brookfield temporarily revoked the license of the occupiers to remain in the park so that it could be cleaned and various fire and other safety hazards could be addressed. The People argue that these actions were lawful and within the scope of Brookfield's authority. This court agrees.

The private owners were allowed to implement reasonable rules and did not violate free speech rights, the judge argues, noting, "There exists no basis to conclude that Brookfield's prohibitions were applied to the defendant and other members of Occupy Wall Street because of any disagreement with their message. These rules applied to anyone using the park."

The tent city as described by the property owners was a hazard, the judge continues, and officials told the protesters that they needed to temporarily leave: "It is clear that when the defendant was ordered by the police to vacate the park, he was not legally entitled to refuse."

This latest development in the case means that the two sides will have to debate what the conditions in the park were like, NYCLU Senior Staff Attorney Taylor Pendergrass told the Voice this afternoon.

"It seems to me that the next stage of the case...will involve some fact-finding about what actually happened on November 15th," he said.

Pendergrass' interpretation of the decision is that the judge feels Brookfield and city acted appropriately, if in fact the conditions were as horrible as they describe it in their arguments. The NYCLU, he said, has continued to question whether or not the activity in the park actually merited a temporary closure and has also continued to question whether the shutdown really was "temporary."

"We thought that there was ample, objective evidence that this was not...[an emergency situation] and that the charges should've been dismissed," he said, adding that Brookfield should have obtained permission from the City Planning Commission for the park closure.

In one interesting comment, the judge says that the case is far from black or white, writing, "It should be noted that it is reasonable to assume that given that numerous lawyers, and countless hours have been spent on what is a fairly complex legal issue, that the prosecution will have a difficult case to prove an actual intent to trespass. Clearly whether or not the defendant intended to trespass was not a simple issue due to the many complexities of the eviction."

Pendergrass said it's far from over: "The major questions I think in some ways must still be answered at trial."

A spokesperson for Brookfield declined to comment.

A court date is scheduled for June 18th.

[SamTLevin / @SamTLevin]

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