O.W.S. had its two months, Mike says, as park is cleared

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Police wearing riot helmets stood guard outside Zuccotti Park Tuesday. Eventually, protesters were allowed back in, but without any tents, tarps or sleeping gear.
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.

About 1 a.m. police officers surrounded the park. Mayor 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 relating to health and safety.

“In our view, it would have been irresponsible to not request that the city take action,” Brookfield said 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 Ray Kelly, who personally oversaw 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,” Bloomberg said. “I don’t feel bad, because they can come right back in,” he said of the protesters.

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 also have a similar, 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.

O.W.S. medical team members Luc Baillargeon and Angeline Richards watched from a bench across Church St. 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 early-morning hours, Kelly replied, “We think it was appropriate to do it when the smallest number of people were in the park,” noting that the regular visitors to O.W.S. typically gather in the park during daytime hours.

“Operationally, it went extremely well, and the officers conducted themselves with great professionalism,” Kelly said. “There was an awful lot of taunting and people getting in police officers’ faces, and the officers showed an awful lot of restraint.”

The National Lawyers Guild has been representing O.W.S. arrestees in court since the occupation began. At 6:30 a.m. Tuesday morning N.L.G. 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 Martin Stolar, an N.L.G. defense attorney.

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 Brookfield’s implementation of the park rules.

Sheryl Neufeld, a lawyer for the city, said of Stallman’s lifting the T.R.O. — which had been issued earlier by Judge Lucy Billings — that the decision recognized the rights of both O.W.S. and the general public.

Douglas Flaum, Brookfield’s counsel, 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.”

David Bookstaver, a court spokesperson, explained that 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 were eventually allowed back into Zuccotti Park around 5 p.m. Tuesday, people were and will be denied entry if they are carrying tents, camping gear or other equipment conducive to sleeping in the park. Roughly 75 protesters remained in the park overnight on Tuesday, many reportedly wearing ponchos in the drizzle.

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

Kelly stated earlier that the department would enforce rules prohibiting lying down on the park’s ground or benches. A Brookfield lawyer said, 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, the police commissioner 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.

About three-quarters of the arrests occurred inside Zuccotti Park during the eviction, according to Kelly. Twenty-seven others were made at the intersection of Broadway and Cortlandt St. The rest occurred elsewhere in the park’s vicinity.

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

“I haven’t heard of any felonies being charged,” he said.

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

“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, the mayor remained firm in his message to the park’s occupiers.

“Protesters have had two months to occupy the park with tents and sleeping bags,” he said. “Now, they will have to occupy the space with the power of their arguments.”

Unlike the planned clearing out of O.W.S. a month ago, due to the secretiveness of Tuesday’s operation, elected officials on 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, Congressmember Jerrold Nadler and state Senator 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.”

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 New York City 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 N.Y.P.D., 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.”