One of the interesting things about writing a diary trying to broker legal assistance for the Occupy Wall Street movement (and the Occupy movement generally -- is the generic name something like "Occupy99%"?), as I did this past weekend, is that people start sending you interesting e-mails.
I have heard from lawyers interesting in giving help and current or potential protesters interested in getting help. I'm open to ideas in how to broker connections.
One question that has come up repeatedly is along the lines of "hi, I'm in Orange County, California" -- used as an example only because it's my home base -- and I'm trying to figure out what land we could occupy. Where could we do this without getting arrested, like they are doing in Downtown New York?"
Great question! I'm glad you asked. I have next-to-no idea! But -- maybe by opening the question up to others as well, someone will be able to give an intelligent answer.
Meanwhile, despite that this is not my area of law, I'll put some of my thoughts below.
As was true in my previous diary and will be true of all of them along these lines, nothing I write here is intended or should be taken as legal advice or as a solicitation of representation. I'm writing here in legal scholarship mode, trying to make sense of things in the hope that (as someone wrote over the weekend) posting what may be a wrong answer is one of the best ways to elicit a right one. By my awesome power as diarist, I will dictate that the same admonition will be the default for anyone else posting their thoughts on the legal questions here, although if anyone wants to override the default and provide legal advice to strangers over the internet for free they can do so at their own risk.
I'll say first that I was surprised that the Occupy Wall Street protesters have been able to stay for so long at Zuccotti Park (aka "Liberty Plaza"), and it's worth taking a look at how they've been able to pull it off to see how unusual their situation is. Before doing so, though, let's take a look at why the ability to stay in one place for an extended period of time even matters.
Why "Occupy" matters as much as "Wall Street"
As HankNYNY noted in his "memoir" of the first two weeks of activism in Manhattan, the original idea behind #OccupyWallStreet was this:
Use peaceful resistance by sleeping in public spaces to bring attention to the chasm of wealth in this country and the way it affects our national politics.
That means that OWS was not supposed to be like other protests, where one arrives, does one's thing, and then leaves. The idea of street protest was cross-bred with that of a Hooverville or tent city (at least until tents were banned), to create a base for continual protest, as we saw in Tahrir Square and elsewhere. The basic idea is: show up somewhere and don't leave. Don't be a "one-day story."
Targets of protest are well-equipped to deal with one-day stories -- by sloughing them off and then waiting for people to forget them. This has been identified as the weakness of the initial protests against the Iraq War -- they were too easily weathered.
The problem, of course, is that if you're planning on occupying a space for an extended period -- where can it be? Don't read on looking for an answer, but for the beginnings of a discussion.
Why it works out in Zuccotti Park
The best explanation I've seen of why people are allowed to stay in Zuccotti Park aka Liberty Square -- and if you're having trouble remembering the name, think "Zucchini Manicotti," which doesn't sound half bad! -- comes, unsurprisingly, from this very website, in a diary from last Friday by OllieGarchy:
NYPD Admits that they cannot clear the square.
We've got this confirmed by several sources. Zuccotti Park - Liberty Plaza - is private property. It's also open to the public. The NYPD can't push people off of private property that's open to the public.
Recently, the park's owners claimed that they had the right to remove anyone from the park that violated the park's rules. Specifically, they banned sleeping bags, tarps, and personal property. My current understanding (and what the NYPD seems to be saying) is that the NYPD cannot enforce such private rules. Private security would have to do so. No one wants the bad press and law-suits that would result from attacking the protesters with private security forces, especially when there are plenty of us there without personal property, tarps, and sleeping bags. Even if they pushed a few of the people out, there would be people back the next day. I'd be one of them.
So the situation seems to be a stalemate at this point, with neither the NYPD or the park's owners willing to take steps to go after the protesters, especially when the police brutality we've experienced legitimized us.
Now laws differ from state to state, city to city, district to district, so I'm not going to make any promises, but: it stands to reason that people are going to be looking for this odd combination of large private spaces that are open to the public, ones where the owners for whatever reason don't want the problems stemming from a lawsuit and bad publicity.
One thing to keep in mind, though: allowing people to stay on one's property is dangerous as well. Acquiesce and one might be accusing of violating zoning ordinances. Then there's the problem of liability (and voiding one's property and casualty insurance) -- what happens when someone is beaten or raped, when the porta-potties are full, when someone freezes to death once winter comes (in those areas that have a harsh winter)? Weather was not such a huge problem during Arab Spring, which had the advantages of (1) being North African and (2) being spring.
This is not my area of law, but as a lawyer I would be extremely hesitant to advise a property-holding client that it would be OK to acquiesce to an indefinite occupation (which would be one solution to the "where should we occupy?" problem.) What I guess is going on in Zuccotti Park (and I'd be happy to be corrected) is that the owners are tolerating actions so long as they are being done against their will, so that they can disclaim liability for anything that happens there. The people there (at night, at least) are trespassers, but my vague recollection is that there is no affirmative duty to evict trespassers; one's responsibility is simply to avoid leaving hazards for them (such as, where trespassing kids are concerned, the "attractive nuisance".)
The owners of Zuccotti Park could (I presume, in my relative ignorance) declare it a closed space; if they did so, then at the owners' request the police could presumably arrest people for trespassing. The owners might not want the PR consequences, of course. (Outside of such a visible place, though, the calculus might be different.) What they probably can't do, safely, is cooperate with the trespassers, which turns them into a legal status that imposes greater liability on the owner.
So, as you can see, this is tricky. I don't know who picked Zuccotti Park for this action, but they were either very smart or very lucky. And, if lucky, that luck might run out when the snow falls. I'd be surprised to see an occupation last during nasty New York weather. Perhaps, like the robin, OWS will return to its native habitat only in spring. (Here in Southern California, by contrast, it might be year-long.)
What this means for your occupation
First: I'm not sure. This is not my area of law -- and I'm not even quite sure whose natural area of law it would be. (If they had a day covering this in law school, I may have skipped it.) What it might mean is that (1) an OWS-style group might negotiate with the city/county to see if they will suffer the presence of protesters on a public space or (2) an OWS-style group might identify a property owner with a likely parcel of land and notify but don't seek to negotiate with them or (3) an OWS-style group might identify a property owner with a likely parcel of land and seek to negotiate their withholding active attempts to evict them. There is a possibility of arrests with each of these -- in case (2), for trespassing; in other cases, for misbehavior. The considerations may involve PR as much as (or more than) law.
If it not clear from the above, I can't (and wouldn't) advise anyone about where they could safely set up their protest -- partly because I don't know that anyplace is truly safe, Zuccotti Park included -- but this should at least give you some idea of the general principles at play. I'll leave it to others to apply them. I would be very wary, though, of any suggestion that said "occupying this site would be completely safe according to law." That would be true if you're an invitee -- but if you're an invitee you create trouble for the owner. My guess is that if people do this successfully it will be either trespassing on the land of someone who doesn't care or reaching an agreement with a public agency that wants to be able to control the site of a protest -- but that could, of course, revoke that license at any time.
Our commenter 8ackgr0und N015e recently quoted "an old adage from USENET":
The quickest way to get the right answer is post a wrong answer.
So there is, very likely, your wrong answer -- on which, again, you are not invited to rely. Other attorneys are encouraged to chime in with their ideas as to the right one.