Noelle Swan

Court Extends Protesters Stay of Eviction

Noelle Swan
New England Post
December 2, 2011

Occupy Boston protesters celebrated partial victory Thursday as Judge Frances A. McIntyre extended a temporary restraining order preventing the City of Boston from sweeping the camp in an unannounced raid. Protesters will enjoy at least two more weeks of respite from fears of a midnight police raid similar to those that have shut down sister encampments in New York City, Los Angeles, Philadelphia, and Oakland. In the meantime, the Suffolk Superior Court Judge has given herself until December 15 to weigh evidence presented by Occupy Boston attorneys and those of the City of Boston.

The hearing addressed a request for a permanent injunction granting protesters advance warning of police action to clear the camp. Three named plaintiffs that have called the Dewey Square encampment home for the past two months independently initiated what has become a closely watched legal battle. The three sought legal protection following violent evictions in Oakland that sent a war veteran to the Intensive Care Unit with a life threatening head wound and in New York City where police beat protesters and impeded media coverage in a brutal sweep of Zuccotti Park.

In the days leading up to the hearing the City of Boston, the Boston Police Department, and the Rose Kennedy Greenway Conservancy voiced concerns of fire hazards, crime, and issues of public health within the tent-city. City of Boston Fire Marshal Bart Shea submitted an affidavit in opposition to the injunction request stating, “I believe the encampment, in its current state, is a substantial threat to public safety.” The affidavit goes on to spell out nine fire code violations found during several inspections of the camp, including extensive use of flammable tarps and insufficient egress for evacuation in an emergency.

Occupy Boston attorney, Howard Cooper told the press after the hearing, “I think that if [Shea] has issues he should present them in a constructive manner, I think they’d be welcome.”

On a walk back to camp, Noah McKennah, a genetics researcher from Jamaica Plain and one of the named plaintiffs, expressed frustration with what he sees as a unwillingness on the part of Shea to work with the occupiers. “He made some really powerful comments and evidence that we have some major safety concerns. We know this.”

Occupy Boston librarian John Ford said that he has approach Shea several times an initiated conversations about fire safety. “I echo his concerns. Every concern of his I have,” he said back at camp after the hearing. “This is a leaderless movement. He can suggest it to me and I can go and suggest it to the community, but it has no weight.” He said that he would like to see the fire marshal help to educate the campers about fire safety rather than simply report violations to the city.

K. Eric Martin, another plaintiff for Occupy Boston told the press following the hearing that the protesters have allocated $12,000 from their donated coffers to purchase tents that would be flame retardant. “We will assemble them in a way that allows for proper evacuation routes and we’re going to have larger tents to accommodate more people and use the space within the encampment… We want to make sure that everyone’s safe.”

That is, if the Boston Police will let them bring these new tents into camp. Martin said that in recent weeks, officers have stopped demonstrators from bringing in any new tents. McKennah said that protesters will try again, this time with cameras in tow.

Just hours after the hearing, protesters attempted to bring an MIT designed industrialized sink into the camp. Boston Police confiscated the sink and arrested three protesters attempting to block the removal.

Thursday’s hearing came on the heels of Occupy Boston’s two-month anniversary. Protesters marked the occasion with cake and a spirited march through the city complete with a rousing rendition of Will You Join in Our Crusade? from the musical Les Miserables depicting the French Revolution. Before returning to camp, demonstrators sat down in the middle of the street in downtown crossing, took a moment to wish themselves a happy birthday before collectively vowing in their now trademark call and response system to occupy the courthouse the following morning, “with smiles and polite discourse.”

So many demonstrators showed up at Suffolk Superior Court that the 60-seat courtroom was quickly closed leaving many demonstrators, supporters, and members of the media to sit outside in the hallway for the four hour duration of the proceedings.

A couple dozen people sprawled out on benches, the floor, and a couple large conference tables chatting about the proceedings, issues relating to the movement, and following live updates on social media sites from occupiers inside the courtroom.

Among the occupiers relegated to the hall were the two organizers that initiated the spark that became Occupy Boston in late September, Robin Jacks and Matthew Krawitz.

Jacks, perched on the edge of a conference table wedged into a corner and explained her hopes for the hearing. “We are trying to protect our first amendment and legal rights. We’re obviously hoping that those rights are upheld but we also wan to set some kind of a precedent for other encampments across the country to be the first ones whose right to stay has been proven in court.”

Matthew Krawitz was less optimistic.

Krawitz paced nearby, sweltering in a suit. He said that he has traveled to over 20 different occupations and has followed the various legal battles waged by protesters in various cities. “I know that in Tucson, Los Angeles, San Francisco, and Oakland judges have already reasoned that time and place restrictions are appropriate reasons to evict protesters.”

Historically, protests have routinely been subject to limitations of time, place, and manner. Occupy Boston attorneys Howard Cooper and Benjamin Wish argue that in this instance, the round the clock timing, place in the shadow of the Financial District, and manner of camping is in itself their protest and therefore protected.

The City has publicly acknowledged the First Amendment rights of protesters but cites extensive safety concerns regarding the encampment. The Mayor has stated that while he does not have the immediate plans to remove protesters, he wishes to retain the right to do so. He has expressed concerns that providing advance warning will give the demonstrators time to call a massive demonstration of civil disobedience potentially resulting in violence.

While 70 protesters signed an affidavit stating under penalty of perjury that they would respect the decision of the court should Judge McIntyre rule against them, other campers have openly declared that they will not heed any call for eviction under any circumstances.

“If evicted, we would not leave. We do not believe that we are legally required to leave,” Jacks said. “We would probably come up with a more specific game plan as to how to remain and make sure that everyone did so non-violently and peacefully.”


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