City’s Brief: Occupy Was Always Forbidden

After a federal judge told the city to draw up specific rules covering protest encampments on the Green, the city replied: We’ve got rules. We just haven’t been enforcing them.

For instance, you’re not allowed to hold a protest without a permit. And you can’t be on the Green between 10 p.m. and 6 a.m.

The city listed those regulations in a 32-page brief submitted Monday to federal Judge Mark Kravitz. They’re among several that the city claims have been broken by Occupy New Haven, the camp that’s held a spot on the upper Green for over five months.

The lawyer for Occupy, meanwhile, submitted an opposing brief with a rousing appeal to political ideals. Such as: ​“Certainly the First Amendment stands above even the tallest blade of grass when the freedom of speech is threatened.”

The camp is the last standing in New England of those that sprung up last fall as part of the Occupy Wall Street protest movement against corporate greed and the influence of money in politics.

It’s now locked in a legal battle with the city over whether or not it can remain on the Green. The battle comes to a head Wednesday.

A federal judge granted a two-week restraining order on March 14, essentially preventing the city from removing the occupiers.

Another federal judge, Kravitz, will hear arguments in the case on Wednesday afternoon, hours before the two-week stay expires at 11:59 p.m.

Occupiers set up camp on the Green last October with the cooperation of the city, which worked with protesters to pick a site and provided port-o-potties. The occupation never applied for or received a permit from the city. For more than four months the city didn’t question the arrangement.

But that doesn’t mean the city can’t now say that Occupy is breaking rules it wasn’t previously enforcing, Monday’s brief from the city argues.

An attorney for the occupiers disagreed. ​“We are challenging whether that [rule] can be enforced in a content neutral manner when it is used against one group only,” said Norm Pattis, the lawyer who won Occupy’s two-week stay on March 14. He represents eight members of Occupy New Haven.

Pattis also submitted a brief to Judge Kravitz on Monday, arguing that the occupiers’ camp amounts to constitutionally protected free speech. He also challenged the validity of the Proprietors of the Green, the private self-perpetuating group that has legally owned the Green since colonial times.

The battling briefs deal mainly with free speech arguments: Whether the occupiers have a protected right to camp on the Green under the First Amendment.

Pattis’ brief also deals extensively with the question of whether the Proprietors and the city have the right to tell people what they can and cannot do on the Green. Pattis is asking Kravitz to refer the matter to the state Supreme Court.

Pattis’ brief concludes with a request for at least 30 more days to conduct more discovery. The city’s brief concludes that any further injunction should be denied.

Click here to read Occupy’s brief. Click here to read the city’s.

Never Mind ​“The Lorax”

The Occupy encampment is an expression of a political message, and is thus protected free speech under the First Amendment, Pattis argues in his brief. His document is more conversational and political than the city’s offering to the court, and often reads as much like a political manifesto or the transcription of a fiery oration as a footnoted legal document.

“The specific speech and related expressive conduct that is the target of the [city’s] restrictions here — the erection of shanties, tents, lean-tos, and similar symbolic expressions as part of the current Occupy New Haven protest activities against the socio-political conditions that threatens to subjugate a large portion of society to silent, permanent near-servitude— creates an illustrative, educative, and persuasive visual eyesore that the viewer must confront and consider, squarely implicating First Amendment concerns,” Pattis writes.

“The tents remind those with two feet in the economy that others are less fortunate. While the stock market hits 13,000 for the 1 percent, many Americans are without a job, without shelter, without a home, and without hope. The mere presence on the Green of these temporary structures is a symbolic reminder of the other and forgotten America.”

Pattis argues that the city itself conceded that the encampment is the message when it wrote, in its letter calling on the occupiers to vacate the Green, ​“that they ​‘appreciate the dedication you have brought to the cause of economic justice…’”

The city now seeks to limit only one kind of speech — that of the occupiers — and only now that the weather has gotten warmer and Yale graduation approaches, Pattis argues.

“Though at oral argument counsel for the defendants did an admirable impression of the Lorax when he spoke on behalf of the grass [that the occupation has killed], certainly the First Amendment stands above even the tallest blade of grass when the freedom of speech is threatened. Moreover, the defendants’ argument rings particularly hollow when its concern for the grass was non-existent until the approach of commencement ceremonies could be heard closing the distance.”

Pattis later spells out the employment and spousal connections between Yale and the Proprietors, which he argues preclude any fair treatment of people seeking to use the Green. ​“Given the symbiotic relationship between the City of New Haven, the Proprietors and Yale, there is every reason to believe that access to the Green will be regulated under this regime in a non-content neutral manner.”

Pattis also seeks to rebut any argument that other channels of protest are available to the occupiers, should they be booted from the Green. ​“To tell the plaintiffs that they can pack up their tents and tarps and take to the airwaves or television is tantamount to saying ​‘Let them eat cake!’ as those of means as limited as the Plaintiffs simply cannot afford to express their ideas in any other manner. Moreover, as argued above, the location chosen is part of the message, and one which would be lost via alternative channels. “

Finally, Pattis argues that the city is without clear regulations on just what is permitted or forbidden on the Green. ​“To this day, the City of New Haven has not announced any coherent unwritten policy on overnight use of the Green. It is apparently permitted when the Director of Parks, Recreation & Trees decides it’s all right, but only then. It is a standardless policy, if it can be called a policy at all.”

Rules? We’ve Got Rules

Not so, argues the city’s brief, which was prepared by attorney John Horvack of the Carmody and Torrance law firm at 195 Church St.

“The City has duly enacted rules and regulations that govern the use of all parks, including the Green,” the brief states. ​“These City Regulations prohibit: (1) any type of organized event, gathering, or assembly without a permit, (2) erection of any type of temporary structure, (3) entering the Green after sunset in unlit areas and after 10:00 p.m. in lighted areas, (5) digging or otherwise disturbing the grass, (6) damaging trees or plants, and (7) taking in, depositing or leaving any type of trash. There can be no dispute that plaintiffs have violated each of these regulations, and likely more.”

These regulations — enshrined in Title III, Chapter 19 of the New Haven Code of Ordinances — are reasonable, ​“content-neutral,” and ​“narrowly tailored to further significant governmental interests,” and do not thus violate First Amendment rights, the brief argues.

Besides, camping on the Green isn’t any kind of speech, nor is it ​“akin to speech,” the brief states. ​“Camping and sleeping overnight on the Green conveys no particularized message. That conduct could mean a host of things or nothing at all, and certainly without more, there is no likelihood that a ​‘particularized message’ would be understood by anyone viewing it.”

The brief goes on to detail the myriad ways that occupiers have violated regulations covering the Green, based on attached declarations by Downtown top cop Rebecca Sweeney, parks directors Bob Levine and Christy Hass, and fire Chief Michael Grant, as well as photographic evidence, much of it taken from Independent coverage of Occupy New Haven.

The brief also states that calls for police service to the Green have more than doubled during the time that Occupy has been camped there, and includes charts to back up the claim.

Among the ​“governmental interests” that would thus be ​“furthered” by enforcing the regulations and removing Occupy: increasing public safety, limiting fire hazards, preserving the Green’s flora, ensuring that everyone can enjoy the space, and ensuring that everyone doesn’t try to do what Occupy is doing.

So what about the fact that the city is only just now deciding to enforce the rules?

“To the extent plaintiffs now suggest the City waived its right to enforce regulations and/or is estopped from doing so, that decidedly cannot be the case as a matter of law,” the brief states. ​“It is well settled that mere delay by the government in exercising its police powers does not constitute a waiver and does not give rise to a claim of estoppel.”

As for Pattis’ ​“let them eat cake” argument, the city states that occupiers have ​“ample alternative avenues to convey their message, including rallies, marches, speeches, pamphlets, blogging, tweeting, and facebooking.”

And if occupiers want to have a protest on the Green, well, they can apply for a permit, the brief states.

“The Servant Of A Colonial Master”

While Pattis’ brief addresses First Amendment concerns, a full two-thirds of the document is dedicated to challenging the authority of the Proprietors.

He traces the history of the Green back to the establishment of the colony of New Haven by Puritan settlers in the 17th century. The Green was held in common by the original colonial settlers until 1805, when the five-person committee now called the Committee of Proprietors of the Common and Undivided Lands at New Haven was formed to represent the interests of the original owners, Pattis writes.

But it’s difficult, if not impossible, to establish that the Proprietors in fact hold title to the Green, the brief states. ​“Although title has never before been disputed in a court of law, a study commissioned by the Proprietors in the late 1970s or early 1980s could say no more than that it appeared that the Proprietors had title in fee simple absolute.”

Fast forward to the present day, where a private body now holds a central town park that is overseen and managed by the public government. ​“It appears as if this private entity has attempted something unique and unheralded in post-colonial American law: a transformation of its private interest and right to manage land into public law absent any adoption by the municipality of laws, regulations, ordinances or acts of any kind agreeing to behave as the servant of a colonial master.”

This situation becomes ironic in light of the political message of the Occupy movement, Pattis writes. ​“Ironically, given the Proprietors’ claim to lineal descent from the original purchasers of the land, and the profoundly anti-democratic manner in which the Green is both owned and governed, the New Haven Occupy’s expressive protest takes on added poignancy: They remain on space commonly regarded as public in defiance of what amounts to the orders and commands of a secretly and self-selected committee of five claiming what amounts to an hereditary interest in land managed by the public.”

That ​“hereditary interest” is prohibited by the Connecticut Constitution of 1818, which raises a question of legality that ought to be referred to the state Supreme Court, Pattis writes.

What’s more, the Proprietors have no right to determine what can or cannot be done on the Green, which is essentially a public space, the brief states. ​“Where a private actor seeks to limit the substantive liberties of another individual, he must have a legitimate grant of power to do so. There is no such delegation of power in the constitution or other bodies of law: this is what separates the police from vigilantes. This is legitimacy. As a lawmaking body, whatever rights the Proprietors may have had under the colonial theocracy to govern matters both private and public, the Proprietors lack any vestige of legitimacy now.”

Head Proprietor Drew Days argues that the ownership arrangement is well enshrined in law. Click here for a story with his detailed arguments.

Judge Kravitz will hear oral arguments on Wednesday afternoon.