The Occupy Movement… is it Legal?

The Occupy Movement- How it affects the public

“Mellon pulled the whistle, Hoover rang the bell, Wall Street gave the signal, and the country went to hell”

This quote was a popular mantra during the time of the Great Depression.  Unfortunately, many believe that this quote mirrors what we see in our economy today.  But while the top one percent in Wall Street mimics the behavior of Bernie Madoff in hopes of becoming the next Charles Ponzi, the lowest one percent camps out in public parks to express their discontent in a system where they must feel they have nothing else to lose.

For the rest of civilized society, however, they prove to be a burden on not only economic and environmental resources but on the law itself.  The first amendment in the bill of rights allows for peaceful assembly, but does it allow for a complete occupation of public land?


First on the list of problems for the occupy movement is a general lack of space.  Large groups of people occupying public-or private if the owner is sympathetic- land, have only a small area to spread out and exist.  Camps such as Zuccotti Park are having such a problem.  To solve this, they have begun buying large, military style tents and installing bunk beds in each tent to allow more people.  Despite this, protesters still find themselves sleeping outside in front of other people’s tents.  Authorities have decided that this is a health risk, and have begun voicing concerns about fire exits and walkways as over 200 tents sit on a mere two-thirds of an acre of land.  This concern is not only present in Zuccotti Park but can be seen in almost every occupy Hooverville.

Zuccotti Park

 In New York, the Zuccotti park owner finally rescinded his support from the occupy movement.  One judge, in accordance with the activists, issued a temporary restraining order against the eviction of the encamped group.  The Brookfield Office Properties representatives faced lawyers from the occupy movement in court, where the judge decided that free speech did not in fact cover camping in a park for two months.  Police evicted protesters from the property after the properties office enforced their decision to empty their privately owned lot, arresting more than two hundred people.  Despite this decision, the judge did allow protesters to be allowed back into the park but barred them from setting up any equipment.  This was not the first incident to occur in Zuccotti Park and the tension had been born from an attempt in the previous month to evict protesters long enough to clean the filth left behind.  Courtesy of pressure exerted by elected officials, the attempt collapsed and created the conflict, which lead to the surprising raid.

San Francisco

In San Francisco the city’s public health department has called for the removal of the tent city because of the health concerns and serious lack of sanitation.  The occupation of Justin Herman Plaza had become such a nuisance that protesters were ordered to evict by the time given or be subject to a raid. “Barbara Garcia, head of the city’s public health department, said the grassy area being used by the campers has been found to contain feces and have inadequate toilet facilities.  Conditions for the spread of respiratory illnesses have also been present, and animal control officials have warned about the spread of canine illnesses.” (CBS) Some serious illnesses include the spread of the deadly parvo virus in canines.  Rather than have activists camp in the once scenic park, officials have attempted to move them to a vacant school lot nearby.  Since this decision, barricades have been erected around the park and less than 100 tents still stand in the park today.

Los Angeles

In Los Angeles the protestors were finally considered an unlawful assembly of people at about 12:30 in the morning and were given 10 minutes to evacuate.  During the surprise raid, more than 200 people were arrested by the police officers who marched through the encampment, keeping themselves in full gear to protect them from a few groups who might have turned violent.  The raid occurred two days after a notice for eviction passed its due date and defiant people continued to live on the property.  After the removal of the remaining people, officers had to inspect the park wearing hazmat suits as they stepped through the layers of trash and debris left behind.  They now have to sterilize the encampment and then must rebuild the whole park after the destruction.

Portland Oregon

Portland Oregon is also a scene of rampant disregard for public restrictions.  The movement that has set itself up in a popular park after being removed from another park is frustrating city officials.  Park rules state that the park closes at 9 pm but protesters refuse to leave, prompting police to begin arresting people as soon as the park closed early. “Normal park hours are from 5 a.m. to 9 p.m., but due to the unsafe conditions and aggressive behavior by some demonstrators, the parks were ordered closed early,” the release said, adding “the protesters hadn’t applied for any municipal permits to march and erect camps.” (UPI) Despite the claims that the first amendment was being violated, the police upheld their convictions that their course of action was correct.  After protesters were successfully removed from both parks, the cost of repairing the damage that they caused is astronomical.  A total of 85,850 dollars is the estimated worth of the damage caused, according to Portland Parks and Recreation.  Additionally, labor for the encampments has already cost the city 45,000 dollars, between police raids and materials.


In Boston, a judge followed the example set in New York and issued a restraining order against police that barred them from evicting the tenants of the park.  The order was issued after a series of events, starting with a raid on a portion of Dewey Square lead to hostility between the occupiers and lawmakers.  The initial raid ended with 147 arrests including the media and other observers.  The city is of course irritated by the judge, stating that there is nothing in the first amendment about restricting action against code violations, criminal statutes, and park guidelines.  While the protesters insist that camping out is a part of their first amendment rights, the city attorney Michael Ricciuti begs to differ. “Plaintiffs do not have the right to take a piece of public property perpetually and establish their own society on it.  Because what has happened in reality, your honor, is that this now is not a symbolic location, it’s a housing development.  After 30 days those tents became dwellings and they don’t comply with the law.  Period.”

But does Michael Ricciuti have a lawful basis for his argument?  In fact, he does.  The first amendment right to free speech and the right to assembly have always been limited by time, place, and manner restrictions.  When a park closes at nine o’clock, general knowledge would tell you that the park has a reason for its restriction and that it is time to pack up the picnic hamper and go home.  Time, place, and manner restrictions have historical basis and one can draw an expected conclusion that for occupiers, this is not a free speech right but an infringement on the cities right to a safe, healthy park.

U.S. Supreme Court

In the 1951 court case of Feiner v New York, the Supreme Court lay down one of the foundations for time place and manner restrictions.  A man who drew in a large crowd of people was demonstrating on a sidewalk. He spoke for a good half an hour about the evils of his government and began inciting the crowd to minor restlessness at best.  When the crowd began to stall traffic and cause a disturbance the police finally stepped in and arrested the man for disturbing the peace.  In the majority opinion, Judge Vinson spoke about enforcing proper restrictions on the right of free speech, if there was a concern to do so.  One of the most notable quotes in the majority opinion sums up how this court case has been utilized since it was decided more than sixty years ago:

After weighing this contradictory evidence, the trial judge reached the conclusion that the police officers were justified in taking action to prevent a breach of the peace.  The courts below recognized petitioner’s right to hold a street meeting at this locality, to make use of loud-speaking equipment in giving his speech, and to make derogatory remarks concerning public officials and the American Legion.  They found that the officers in making the arrest were motivated solely by a proper concern for the preservation of order and protection of the general welfare, and that there was no evidence which could lend color to a claim that the acts of the police were a cover for suppression of petitioner’s views and opinions.  Petitioner was thus neither arrested nor convicted for the making or the content of his speech. (UMCK)

Clark v. Community for Creative Non-Violence

Clark v. Community for Creative Non-Violence is a case much more similar to the Occupy Wall Street situation.  In 1982 the National Park Service issued a permit to the Community for Creative Non-Violence that allowed them to conduct a demonstration in their park designed to bring attention to the homeless problem in the area.  When the group requested to stay the night in Lafayette Park, however, the National Park Service denied their request.  The National Park Service has regulations, especially regarding camping only in designated camping areas-not including Lafayette Park.  The group filed a lawsuit in federal district court. The District Court ruled in favor of the National Park Service but the Court of Appeals reversed the decision.  When it was presented to the Supreme Court, the original ruling of the District Court was upheld and it was found that the Park Service’s refusal to grant a permit did not violate the first amendment.  Justice White delivered the opinion of the court, stating that the parks had every right to defend their property from the abuses of camping and that the regulations that the National Parks Service had codified were not a burden at all on the free expression of the group requesting the permit.  He also makes an argument against the unlawful camping on park property:

Damage to the parks as well as their partial inaccessibility to other members of the public can as easily result from camping by demonstrators as by nondemonstrators.  In neither case must the Government tolerate it. All those who would resort to the parks must abide by otherwise valid rules for their use, just as they must observe the traffic laws, sanitation regulations, and laws to preserve the public peace.  This is no more than a reaffirmation that reasonable time, place, or manner restrictions on expression are constitutionally acceptable. [sic] (Caselaw)

These are just a few examples of court cases that have brought up the constitutionality of certain types of rallies.  The consensus of the occupy movement is that public property simply means that just about anyone can inhabit a spot there indefinitely.  This wave of entitlement has engendered the very nuisances that the codes were adapted to prevent: health dangers, waste removal quandaries, trash issues, and even threats to individual safety.  The hazardous conditions, spawned from a lack of reverence for rules, are just one indicator that the Occupy movement has more to worry about than the top one percent and how they handle their taxes.  They should be worried about how the law will act against them once they are arrested.  The judges have plenty of court cases to look back on and can easily practice stare decisis to make an informed decision on how to handle the hordes of people who roost in their tent cities at public expense.

Samantha Heggum

Short URL: http://www.smithheggumreport.com/?p=2626

Posted by on Dec 7 2011. Filed under Current, Political, Sacramento, Samantha Heggum, United States. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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