(Updated with exclusive details of court hearing.) In a victory for City Hall, a federal appeals court ruled Tuesday that the city does have the right to remove the 6‑month-old Occupy encampment from the New Haven Green after one last round of lively courtroom debate.
A panel of three federal judges handed that decision down Tuesday morning in the U.S. Court of Appeals for the Second Circuit, on Pearl Street in New York City.
The judges — Amalya Kearse, Peter Hall and Barrington Parker — sided with the city and denied the Occupation’s request for a further stay against the city’s removal order. The 11 a.m. decision is effective immediately.
The decision clears the way for New Haven to resume clearing out the camp. City Hall’s top attorney Victor Bolden said the city will soon announce its directive to Occupiers on when they should leave.
Mayoral spokeswoman Elizabeth Benton decline to say when the removal would take place.
“The city has respected the rule of law and we expect that members of Occupy New Haven will do the same,” she said.
At the Occupy encampment on the Upper Green, protesters awaited word on the impending eviction. Some packed up belongings. Some also considered resisting arrest, while their lawyer counseled them not to. The lawyer, Irv Pinsky, was pursuing a state housing court appeal to stop the eviction. (Read a story about all that here.)
Thomas MacMillan Photo
Norm Pattis (at right in photo, outside court Tuesday, with colleague Dan Erwin), attorney for the Occupation, said after the federal appeals hearing in New York that he does not plan to appeal the case to the U.S. Supreme Court. He’s done.
Moments later, in Thomas Paine Park nearby, Pattis said he was feeling “like shit.”
He said he found Judge Parker’s line of questioning to be “blood-curdling.” The Occupiers had to justify their actions rather than the city justifying its regulations. If that’s the state of First Amendment rights in the country, then “God save America,” Pattis said.
Tuesday’s decision is the latest twist in an ongoing legal battle between the city of New Haven and the members of Occupy New Haven.
The camp of protestors has occupied a portion of the upper Green for six months. The city has been trying to remove it for at least two.
The city’s efforts have run into an obstacle in the form of ponytailed civil rights lawyer Norm Pattis, who took up the Occupiers’ case in March. Pattis has twice come through with 11th-hour Hail-Mary plays that have blocked the city from blitzing the camp. On March 14, he scored his first victory by convincing a federal judge to restrain the city from kicking out the campers.
When a different federal judge ruled against the Occupiers, Pattis took the case to the Second Circuit, where he won a stay last week that stopped the city’s payloaders in their tracks just as they commenced crunching the camp.
“Whom Should They Have Asked, King George?”
Tuesday’s defeat for Occupy New Haven came after brief arguments from both sides, during which Pattis endured skeptical questioning from the justices.
The hearing began shortly after 10:30 a.m. in a ninth-floor courtroom, where the Manhattan Bridge was visible between buildings to the east.
Pattis had barely begun his arguments before he was interrupted by Judge Parker, who wanted to know how long the occupiers had been on the Green, and if it had been continuous.
“It’s like a beehive,” Pattis said. People come and go from the camp and it’s hard to pin down numbers, he said. The camp has existed since October, he said.
And how long do the occupiers expect to stay? Parker asked.
Until there are “valid regulations” covering the Green, until they are “lawfully removed,” Pattis replied.
But the Green is private property, Judge Hall said. Can’t the owners simply remove them?
The Proprietors of the Green (the private body that technically owns the space) would have to level trespassing charges, which they have not, Pattis said.
The relationship between the Green, the city, and the Proprietors is the heart of the problem, Pattis said. There’s nothing else like it in the whole country. He pulled out a comparison he’s used before: It’s like if Skull and Bones ordered everyone to eat Chinese food. “I’m not buying the menu.”
In the case of the Proprietors, “the menu is served at their home,” Judge Kearse said.
Why should the Occupiers be able to “pitch tents in perpetuity,” Parker asked.
The rule of law means that the city can remove them only by lawful means, Pattis replied. “I sense that I’m moving into a stiff breeze.”
“You’re not seriously arguing that there’s an infringement on First Amendment rights, are you?” Parker asked.
“Of course we are,” Pattis said.
But the Occupiers have had six months to say whatever they want to say, Parker said.
Are you suggesting that there’s a “time-limited warranty on the Bill of Rights?” Pattis asked. “If so, this is not my republic.”
So “anybody can go on the Green and do anything?” Hall asked. “That the logical extension. … Am I right or am I wrong?”
“You’re wrong,” Pattis said.
The Occupiers didn’t ask to use the Green, Hall said.
“Whom should they have asked, King George?” Pattis said.
“Perhaps the Native Americans,” Hall said.
Grass “Obliterated”
John Horvack, a private attorney representing the city, rose to speak. The Occupiers “seek the right to monopolize a public place” and “continue to destroy” it, he said.
There’s destruction happening? Kearse asked.
The grass has been “obliterated” on “25 percent of the Green,” Horvack said. Century-old elm trees are suffering; some of them have not bloomed.
The encampment is also “fostering and a magnet for crime,” Horvack said.
There was a sexual assault at the camp recently, “at night, in the dark,” Horvack said.
The Occupiers never applied for a permit and their presence there is subject only to reasonable “time, place, and manner restrictions” but the city, Horvack said. “The city has the right to coordinate the space for the benefit of all.”
“Motion for stay is denied,” Hall said. He said a written decision would be forthcoming. “We deny the stay.”