Occupy New Haven Gets 2-Week Reprieve
by Gwyneth K. Shaw | Mar 14, 2012 12:19 pm
Posted to: Occupy Wall Street
New England’s last standing “occupation” didn’t have to fold up all its tents today after all.
In a dramatic scene in U.S. District Court in Bridgeport, Judge Janet Hall Wednesday granted a request by a lawyer for Occupy New Haven, Norm Pattis, to enjoin the city from removing some of the tents that have been on the upper Green since Oct. 15 as part of the national anti-corporate Occupy Wall Street movement.
Hall announced her decision at 12:15 p.m.—15 minutes after the deadline the city had set for Occupy New Haven to take down its encampment.
The protesters filed suit Tuesday, arguing that their removal would be stifling their freedom of speech. Their complaint raises larger issues about who controls the Green: The city, or the Proprietors of the Green, the real owners of the land.
Hall kept Wednesday’s hearing to the issue of the restraining order—essentially, whether to preserve the encampment while the larger legal issues are sorted out.
A full hearing is scheduled for March 28 before U.S. District Court Judge Mark Kravitz. Hall’s temporary restraining order expires at 11:59 that night. It applies to “structures”—including tents and lean-tos—belonging to the eight occupiers named in Pattis’ motion for the order. It does not apply to other protesters. But the initial sense at the courtroom was that the city will not evict others. Mayor John DeStefano later confirmed that the city will not move against non-plaintiff occupiers.
However, the city convinced Hall to require occupiers to post a $1,000 bond to cover the cost of the toilets that have heretofore been provided for free.
“The city won’t let them pee for free” anymore, Pattis told the Independent after Hall’s announcement.
“A great day for the First Amendment,” Kevin Smith, an attorney working with Pattis, declared after Hall’s decision.
The news hit the Occupy encampment at 12:20. A victory march followed.
City Corporation Counsel Victor Bolden represented both the city and the Proprietors at the hearing Wednesday.
During the 90-minute hearing, Judge Hall was clearly troubled by the vagueness of regulations for the use of the Green, and whether they give the city’s parks director and police chief too much discretion.
Pattis argued before her that the encampment constitutes free speech protected by the First Amendment of the U.S. Constitution.
“These aren’t mere structures,” he said. “What these tents do, though, is they convey messages.”
He noted that some of the tents have messages written on the sides. Even those without writing stand as symbols of shantytowns that cropped up during Great Depression, as well as today’s homelessness problem and foreclosure crisis, he argued.
The city’s Bolden said the Green is effectively a public space—something that Drew Days, the chairman of the Proprietors, said the group doesn’t concede. Days spoke briefly just before Hall rose to make her decision in her chambers.
“It is a space that is private” with limited regulations for the public’s use, said Days, a Yale law professor emeritus and former U.S. Solicitor General.
Earlier, Bolden said that the city and the proprietors are “intertwined” in terms of enforcing the rules set by the Proprietors. The city has a right to limit that speech rather than let a group camp indefinitely on the Green, he said.
Hall agreed with that point. But she declared that the city hasn’t set specific enough rules for how to set those limits.
To grant the restraining order, Hall had to consider several tests: Does the matter involve limits on a constitutional right (in this case free speech)? Are the plaintiffs raising a significant legal question? And was there danger of irreparable harm to the occupiers if she didn’t grant the injunction?
The First Amendment question is a “heavy interest,” Hall said. The government can place restrictions on speech by telling protesters what they can do, where they can do it and for how long. But those restrictions must be “narrowly tailored,” Hall said, and it’s unclear whether the rules involving the use of the Green meet that standard. That means a a real legal question was being raised, she said.
Removing the occupiers (pictured) would cause irreparable harm because of the First Amendment claim, Hall said. While people walking by the Green might not get the message the protesters are sending as easily as they might have last fall, “I think that it is nonetheless still symbolic speech,” she said.
Meanwhile, the city has allowed the occupy encampment to stand for five months, she noted. It has even provided toilets. Another two weeks of the encampment wouldn’t impose a big burden, she said.
Hall said her ruling doesn’t mean that Pattis and the occupiers will prevail on the larger arguments when they land in Judge Kravitz’s courtroom. She at one point earlier in the hearing cautioned Pattis and others not to see a restraining order as a “victory.”
She also was emphatic that her order doesn’t stop the city from enforcing its laws.
Hall made it clear that the city—perhaps in concert with the Proprietors—could solve the problem quickly by simply enacting new rules for the Green. To pass constitutional muster, any new rules would have to apply to any message and create alternative avenues for protest, as well as specifics about the time, place and manner of permissible protest. In other words, “narrowly tailored.”
During the hearing, Hall clearly struggled with the conflicting principles in the case: The First Amendment (and the occupiers) on one side, and the rights of everyone else to enjoy the Green on the other.
Bolden noted that the city has been as accommodating of the occupiers as other city in the nation, if not more. He said the city has no problem with ongoing protests at the Green, just with long-term encampments like the one there now. He said the city has tried to negotiate with the occupiers, but failed, at one point joking that he expected to be called into housing court next to argue over whether the protesters have tenant rights.
“The city has tried to figure out how to accommodate people who are, in some ways, fundamentally unreasonable,” Bolden said.
A restraining order “would basically give fodder to those who believe they can do anything they want on the Green,” he said. “Their position is, we can stay forever.”
If everyone has the right to protest indefinitely, Bolden said, that effectively becomes a limitation on everyone’s right to protest, since there’s only so much public space.
Pattis responded that the city’s notice to vacate, issued earlier this week, was much more pointed than the proposals that had been floated during negotiations with the protesters—which included the possibility of their return at a later date. The notice, Pattis said, basically told the occupiers to take down their tents and get out.
The camp is small enough that it doesn’t interfere with other people’s ability to enjoy the public space, he said.
“There’s plenty of room to throw Frisbees on the Green,” Pattis said.
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NO! i do not want to pay for you and your out of town friends to “pee for free” any longer. Thank you new haven!
Why not evict the others not named in the case? I feel that by not doing so you are opening the door to let anyone and everyone, in more numbers, from coming back or moving in because they now feel have a place to go.
The proprietors should suspend outside use of the green, as is their right as property owners, and then have the police arrest everyone for trespassing. They had to see this was going to turn into a problem for them.
and please take away the porto-potties until they hand over the 1K
nh104- The proprietors should NOT close the green to all because of the squatters camped out on the upper green. That is the type of thing that grade-school teachers pull when a few misbehaving kids ruin all the fun for everyone. There’s nothing fair about that.
I agree with many that the green needs to be cleaned up and reopened for the enjoyment of all. The encampment has overstayed its welcome and is no longer a constructive voice for social and political reform.
What kind of a lawyer is Victor Bolden anyway? This should have been a chip shot. The Green is private land held in trust for limited public use. The proprietors denying ONH the right to camp out doesn’t mean ONH has been stripped of rights, it means they’ve been stripped of privledge. Besides, they can walk ten feet to the west and demonstrate on the public sidewalk if they want.
I could have been a bit more clear in my words. I’m not saying that they should close the green but as property owners they do have a say on what its used for and how. They would have every right to contact NHPD and request that the camp and campers be removed. Same as you would legally if you had a unwanted guest at your home or on your property. you get to decide who stays and can use the place or who goes and/or when its time to go. I’m sure that is not what they want to do but if the jamboree keeps pushing them it wont work out in the camps favor. The proprietors allow a great and wonderful area to be used by all with minimal intrusion but things could change at a cost for all by the misuse and disregard by a few
Oh no. If the City takes away the porta-potties the residents will have to live in their own filth. Isn’t this a health hazard? Doesn’t the City have a responsibility to protect the vagrants from the possible cholera outbreak that will certainly occur. I bet the ONH movement (no pun intended) is sorry they didn’t save the papers they used in the mock “bottom” wiping at City Hall.
What, the New Haven Green doesn’t belong to the people of New Haven? I’m not conceding that one bit, despite the Proprietors’ feudal claim on our town square.
Fwiw, who has been paying the darn up-keep for the last how every many years? Why would the City pay to maintain someone else’s property, and if so, where is the written agreement?
The Proprietors need to go. At least the lifetime appointment ridiculousness,—and those who don’t even live in New Haven. There are plenty of ways a healthy board of stewards could continue to exist, post-reform. But the current set-up is an affront to democracy.
At the least let’s have the Five appear in a public forum to argue for their continued necessity, and for their right to claim special ownership of the Green, as opposed to it belonging to all of us.
“During the 90-minute hearing, Judge Hall was clearly troubled by the vagueness of regulations for the use of the Green, and whether they give the city’s parks director and police chief too much discretion”.
The problem appears to be the city does not now, nor did it ever, have a regulation or ordinance in the charter or code of ordinances which conveys ownership to the Proprietors headed by Days. Days says that state statue conveyed such authority in 1910, but he does not cite the CT. state statue in court.
“Hall made it clear that the city—perhaps in concert with the Proprietors—could solve the problem quickly by simply enacting new rules for the Green. To pass constitutional muster, any new rules would have to be applicable to any message and create alternative avenues for protest, as well as specifics about the time, place and manner of permissible protest”.
The question is:
Can the Corp.Council ever win one for the “gipper”.
While i have generally stopped posting on NHI anymore, unless ROBN is an attorney with federal court experience, the slap at Bolden is uncalled for. Blame the Judge if you want, though a 2 week stay is common in these matters. But Bolden is a class act and an excellent attorney.
When I walked through the encampment this afternoon, I noticed several very large placards thumb-tacked to the large Buckeyes that have lived on the Green far longer than the Occupy Movement.
Whether Occupy stays or not, is not my battle.
However, this ‘movement’ really need to respect the trees. I think the Proprietors should have some concern over this.
Otherwise, the protesters are no different than the Public Works employees who use the same tactics when posting No Parking signs late at night to ensure an early tow.
Since there is so much focus on the Green and the Proprietors - Can we start a conversation (and maybe an article?) about the need to renovate the Green? It’s in really, really bad condition (and I don’t just mean the dead grass in the ONH camp). The metal and stone fence around the perimeter is broken or missing in a number of spots and rusted through in others. Many of the benches are missing or in disrepair. The once beautiful bus shelters are in horrible condition. The NHI reported this week that the Green last underwent a major renovation in the 1980’s. I think doing so once every 25-30 years is certainly justified.
Drew Days, Rob Smuts - what do you think?
So is Bolden’s outstanding skillset why the city is paying millions of dollars to settle the Ricci case?
@ East Rocker-
Yes. We’ve been doing some piecemeal stuff - taking down the old stage (http://www.newhavenindependent.org/index.php/archives/entry/shows_over_for_green_stage_draft), renovating Bennett Fountain (http://www.newhavenindependent.org/index.php/archives/entry/bennett_drinking_fountain_to_flow_again/), giving a lot of care to the Elms, etc - but the Green needs more attention, you’re right. We’ve actually started internal discussions about what issues to engage and rough ideas of costs, and will look to start public discussions in the near future.
- Rob Smuts, Chief Administrative Officer
Westville man, I am 100% down with robn (which I am 99% of the time) on Victor Bolden. I read Atty. Bolden’s blog on this issue, and it left me very unimpressed. He speaks of New England Grrens as traditional spaces, but then takes issue with The Proprietors—the traditional body that has done such a good job of preserving a space that we ALL ought to be able to enjoy for longer than New Haven has been part of the United States.
Let me say “thank you” to the Proprietors right now. Without pay, they have done this thankless job, and now a bunch of selfish protesters want to sue them. I for one, do not automatically take issue with an elite. Our Army has its Rangers and Special Forces. Our colleges and universities have Yale and Harvard. Our local building trades have Russo Roofing and Izzo Masonry. I would not own a Ferrari I could, but I salute thoses who drive them for letting us see such works of art on our roads. Any elite that fully accepts its noble obligation is okay in my book.
Anyone in our green and pleasant land would immediately see the Proprietors and The Green as a ancient and standing tradition that carries the weight of Common Law.
Good to see my friend Lt Sweeney demonstrate her deep understanding of community policing (not that she ever hugged me). She one of the many members of the NHPD that make such a difference.
posted by: OccupyTheClassroom on March 14, 2012 10:03pm
Larger issue: proves to the people of New Haven that you can fight eviction and foreclosure! You have that power!
Occupy New Haven has become exactly like the 1% they claim to be opposing. They are no longer looking out for the interests of the majority but just their own self-interests. Corporations use the courts to assert their personhood. Occupy uses the courts to assert their ownership of the Green. Both are equally absurd. Their lawyer claims that the tents without signs are “symbols of shantytowns”. Symbols? It is a shantytown. The Green is our most beautiful public space and they have turned it into an eyesore. We the People of New Haven own the Green. We the 99%. Occupy New Haven does not own the Green. The people want them off the Green. Our democratically elected representatives have asked them nicely, after six months, to leave the Green. I don’t recall ever voting for a member of Occupy New Haven. The longer they stay the more damage they do to their message.
Do we get PILOT payments for this privately owned land?
I’d caution all those beating their chests in triumph, this not NOT a victory as you’ve proclaimed all over the media you so disdain. It is a status quo stay. I thought that was covered in Law 101. Maybe some of your lawyers missed that course. In any event, the City and the Proprietors now know what they need to do as for establishing regulations. I think it’s very telling that setting regulations hasn’t been needed since 1683. Until now. Very sad comment on our current world. In any event, IF the City does not step up and address this(and I have a feeling they certainly will) I and many others will flood City Hall with permit requests (which Occupy never did) for any particular cause we may believe in. Maybe a Wavy Gravy for President occupation. Or Gingrich for dogcatcher occupation. If one group is allowed to then EVERY group is allowed, otherwise you’re discriminating. My point is, you’re not allowed to declare that one space is your own, for your view, for extended periods of time. Unless you own that space. Then feel free to do what you want. Yeah, I know, you welcome all to participate, but it’s only if they adhere to your limited views. You’ll deny that, but if anyone thinks it’s untrue just take a walk down there and try to state your views if they’re conservative. You’ll be ridiculed. With predictable rhetoric and fourth grade insults. I know.
I had a bit of hope for this so-called movement in the beginning. Back years ago I was a member of SDS (probably foreign to you folks) and we actually accomplished things, didn’t just camp out. You shame the memory of SDS. Please, what have you accomplished in your five months of 15 minute fame? One of you actually told me that the murder rate in NH is zero because of your encampment. Really?
What really turned me was the upside down flags, and the butt wipe on City Hall steps. Classy.
And, 1K for potties? Where’s the other 64K New Haven has doled out for you? My dime, I guess.
I don’t usually get involved in this type of politics, but my concern is that summer is coming, the kids will soon be out of school and during the summer, New Haven hosts many activities on the Green. Is this ‘camp’ what we have to look forward to seeing? It’s an eyesore to say the least, and to just see people hanging around doesn’t say alot for the ‘movement’. there must be a better way to have their voices heard without making just about everyone around them miserable. It is extremely unfair to the tax payers and the kids who have no idea what their issues really are to have to be put off and put out by this.
posted by: OccupyTheClassroom on March 15, 2012 11:11am
The real message is this: the citizens CAN fight evictions and foreclosures!
I’m not a big fan of aristocracy but the proprietors don’t really fit that description.
a) The Proprietors system isn’t hereditary. Ask Drew Days if his ancestors came over on the Mayflower. If-and-when he stops laughing he can give you a detailed description of why this label is incorrect.
b) The Proprietors have been good stewards of the space and it’s hosted many great events including entertainment and political actions. Not elitist, but inclusive.
c) Just because one political group (which has been given a lot of license…much more than ever before) doesn’t get its way, it’s not right for them to claim the space in the name of the other 99.99% of New Haven citizens who mostly just want to enjoy the space.
d) Asking ONH to leave isn’t limiting their freedom of speech. They can walk 10 feet to the west and protest on a public sidewalk all they want. Asking them to leave is simply stopping them from monopolizing (and damaging) a large portion of a public space.
Glad to see “HhE” and “westville man” posting again!
Your comments were always appreciated!
Please don’t stay away!
Brutus2011, thanks Mate, and right back at you.
Yet, Anderson Scooper is driving me batty. His argument against The Proprietors seams to be since it violates his sensibilities, it must go. How democratic is that? How strong an argument is that against over 300 years of successful stewardship?
Now I don’t like Lexus cars. They violate my gestalt, but I respect them, and I could hardly argue against someone else buying one. Their build quality is fantastic. They have introduced many great innovations, and their cars are very safe. I have driven both of my parents’. My Dad’s first Lexus saved his life when he augured into a stone wall at speed (driving after having too much to drink on icy roads may not be one’s best plan.). He went ought and bought another one. My mother is on her third, and they have been very reliable, In a few years, she is sure to get another. So while I think they are boring and have too much ride or float, I can hardly fault anyone for buying one.
So I guess the lasting accomplishment of ONH is to tear down something that works really well for the benefit of all - 1% and 99% alike, but since this is New Haven, mostly the 99.
As ‘batty’ as Anderson Scooper might sound, your Lexus argument falls way short. There is a difference between public and private.
If the New Haven Green were to be traded on the New York Stock Exchange, it might be a different story.
Thanks Brutus2011. I enjoy reading your posts as well! But the new policy at NHI is a too heavy-handed and unevenly applied, in my humble opinion. But i won’t stay away completely.
I think one of the problems many of the posters here (and members of the legal profession) is confusion over the status of The Green. While my legal training is limited to high school civics and a few trips to the court house (most of which left a very bad taste in my mouth), I think I do understand its status to some degree. The New Haven Green is a space held for common use by The Proprietors. So it is not private in the way my back yard is, nor is it public in the way East Rock Park is. It is a Commons.
Westville man, I opine that the new policy is not too heavy handed, it certainly is very unevenly applied.
@ HhE—Is the Green held in trust? Or do the Proprietors think they out and out own it?
Do please notice how silent the Five are on this point. And from everything I’ve gleamed from several hours on this, the exact nature of their title, (or claim to title), is very nebulous.
In terms of how great a job the Proprietors have done, the question I have to ask is how have all the other central parks managed to survive without their gentry? Should we find five more elites and give them title to East Rock Park? Maybe we just grant Wooster Square to the DeLauros in perpetuity?
It’s all quite laughable, and a lazy argument for a status quo that has the equivalent of a Yale secret society, somehow thinking they hold title to New Haven’s public square. Yuck.