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Constitutional Rights Lawyer Michael Ratner: Failed Occupy Wall Street Evacuation Order is Illegal

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Speaking from Zuccotti Park in Lower Manhattan, attorney Michael Ratner of the Center for Constitutional Rights says New York City’s efforts to displace Occupy Wall Street protesters in order to clean the park violates their First Amendment rights and would have led to a major confrontation. “Apart from the illegality of it, it was just too massive,” Ratner says. “It would have been a bloodbath. The idea that they were going to come in here when there were thousands of people all over the place, union people everywhere, they could not have successfully closed this park down… It’s too big now. This park is becoming a permanent feature of the next generation of protests.” Ratner was a co-signer of a letter sent last night from the Occupy Wall Street Legal Working Group to Brookfield Properties, who must maintain the private park for public use, that claimed the enforcement action it requested to New York City in order to clean the park raised serious First Amendment and other legal concerns, and warned that police action in the park without a prior court order would be unconstitutional and unlawful. We also speak with an Occupy Wall Street organizer about plans for a global day of action tomorrow, October 15, called “United for #GlobalChange.” [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We’re staying in Zuccotti Park. Our producers are there on the ground. As of this broadcast, about 7:00 this morning, the protesters got word that Brookfield Properties, which runs the park and has the building at Liberty Plaza across the street, would not be sending in cleaners, fortified by New York City police, to move the protesters. At this point, that’s what we understand.

Michael Ratner is president of the Center for Constitutional Rights, a co-author of the new book Hell No: Your Right to Dissent in Twenty-First-Century America.

Michael, tell us what’s happening on the ground. The Deputy Mayor Cas Holloway said that they would not be moving in. They had just gotten word from Brookfield Properties. But I wonder if they hadn’t simply gotten word overnight, as the people, the groups, swelled in Zuccotti Park, that they would not be moved, and so the city caved, at least for now.

MICHAEL RATNER: Now, Amy, I was here last night at the General Assembly, and it was one of the most moving experiences, as you know, that you can have being here. Incredible experiment in democracy. And I woke up this morning to get down here, with the other National Lawyers Guild and Center people, to be here for what we considered might be a bloodbath. I’ve been in these before. I was in Columbia in '68. And I was totally fearful of coming here. And all of a sudden, when we were down here, at 7:00, we heard the announcement that called off any arrests. And I can tell you, the roar that went through the park and their joy, because it would have been a bloodbath. I think they went back, because the idea that they were going to come in here when there were thousands of people all over the place, union people everywhere, they could not have successfully closed this park down. And I think they recognized it. Apart from the illegality of it, the First Amendment rights of the protesters, it was just too massive. It's too big now. This park is becoming a permanent feature, I hope, of the next generation of protests. So we’re hopeful. We encourage people to still get down here.

JUAN GONZALEZ: Michael, as I mentioned to Councilman Jumaane Williams, I was hearing in the middle of last week from people in the Health Department of the city that the administration was trying to come up with some rationale to use to actually clear the park, and they were looking at a health emergency as the most likely one. But could you talk about this particular park—because it’s—the protesters, in choosing it, really were brilliant, in the sense that it’s not a public park that has a closing hour, but it was actually one of these parks that was allowed to be built by a private developer in exchange for getting a higher building that the developer wanted to build—and what that means in terms of what the legal rights of the protesters are in this particular park?

MICHAEL RATNER: Now, Juan, yesterday we wrote a letter to Brookfield Properties, the Mayor and the police, outlining the fact that the so-called health emergency was a pretext. You’ve been here. You know that this place is cleaner than the streets we live on in New York City, much cleaner. They needed a pretext for exactly the reason you’re saying. It’s a private-public park. While we haven’t seen the agreement, it’s open 24 hours.

We said in that letter, “You can’t come in here. This park cannot be—police cannot come in here. If you want to come in here, you have to get a court order to get in here. There’s no health emergency, and it’s illegal to come in.”

This is a 24-hour open park. And even the, quote, “regulations” they’ve tried to impose in the last few weeks—no sleeping bags, no tarps—those are made up. Our view is those are illegal. You can’t do that in this park. You can’t issue regulations after the fact. It’s a First Amendment-protected territory in this city and in this country. They tried to come up with a pretext. They realized—the letter that we sent outlined all of the cleaning that we’ve been doing, the people in the park worked all night on and all day on. And I can tell you, you can eat off the ground in this park. So it was a BS excuse. But it really—you know, that was part of it, the legality. But really, the main part was the fact that there were thousands of people here this morning at 5:00 a.m.

AMY GOODMAN: You know, Michael, last night, as Ryan Devereaux and I walked around, oh, around 11:00 at night, we saw on the granite stone there is the sign that has always been there. It’s a steel sign that says, “Zuccotti Park. No skateboarding, rollerblading, or bicycling allowed in the park.” That’s been there for a very long time. And for those who are watching, I’m showing that right now.

Well, right next to it is what looked like another steel sign that had been there for a long time. But when I just peeled it back a little, it clearly had just been put up with tape, but it looks like metal. And it says this—people said it had just been put up: “Notice: Zuccotti Park is a privately-owned space that is designed and intended for use and enjoyment by the general public for passive recreation. For the safety and enjoyment of everyone, the following types of behavior are prohibited in Zuccotti Park: camping and/or the erection of tents or other structures; lying down on the ground or lying down on benches, sitting areas or walkways, which unreasonably interferes with the use of benches, sitting areas or walkways by others; the placement of tarps or sleeping bags or any other covering on the property.” Now, again, this is—looks like it’s written in a metal plaque, but in fact this is a plastic sign that was put up right next to the official one that says don’t skateboard. “Storage or placement of personal property on the ground, benches, sitting areas or walkways, which unreasonably interferes with the use of such areas by others.” And then it goes on to say what it always had said: the use of bicycles, skateboarding and roller blades, roller skates. And that—it goes on from there. That metal plaque—this is very creative, though actually it was plastic—put up right next to the sign that said the standard, no skateboarding, roller boarding—rollerblading.

MICHAEL RATNER: You know, Amy, it shows how desperate they are. They have a set of rules here that allow exactly what’s happening right now. And now they’re trying to change the rules once they don’t like the way it’s come out for them. They can’t do it. They can try and go to court and do it, but they certainly can’t, because a private owner decides I want this rule or that rule, can’t just call up the cops and say, “Hey cops, why don’t you come in and arrest the people here, because we just made up a new set of rules?”

AMY GOODMAN: Michael, this raises—

MICHAEL RATNER: Can’t do it.

AMY GOODMAN: This raises an interesting quesion. Looking at the New York Times story that was called “Privately Owned Park, Open to Public, Has Its Own Rules” that was in yesterday’s paper, it reads, quote, “Zuccotti Park, the half-acre plaza in Lower Manhattan now synonymous with Occupy Wall Street, exists in a strange category of New York parkland, identified by a seeming oxymoron: a privately owned public space.

“The park was established in a wave of development that spurred corporate plazas after changes were made to the city’s zoning laws in the early 1960s. The laws generally give real estate developers zoning concessions in exchange for public space. There are now at least 520 such parks, arcades and plazas in New York City, both indoors and out, [providing] a total of 3.5 million square feet of space.

“Zuccotti is unusual in that it does not adjoin the 54-story office tower, 1 Liberty Plaza, that spawned it. Rather, it is bounded on all four sides by streets: Broadway, Trinity Place, and Cedar and Liberty Streets.

“And while the developer did not win the right to build a larger structure in exchange for the park, it was given leeway on certain height and setback restrictions, according to Jerold S. Kayden, a lawyer and professor of urban planning and design at Harvard University.”

This idea of who owns this park anyway, and the name of it, of course, the CEO of Brookfield Properties, that is across the street. Michael, if you could just comment on that use of this public property.

MICHAEL RATNER: Yeah, I don’t think you could—I don’t think it’s a good argument that Brookfield somehow owns this park. Brookfield got the right to do certain things to its buildings, so that the public could really have access and use this park. So the idea that Brookfield, a private developer, can start issuing all kinds of regulations on a park that really belongs to you and I and the rest of the people here in Liberty Park is really outrageous. It is not a private park in that sense at all.

AMY GOODMAN: I want to thank you, Michael Ratner, for being with us. Was there, by the way, a Wall Street march today, leading from Zuccotti Park to Wall Street?

MICHAEL RATNER: There were two marches. There was one that I was on up to the City Hall, completely peaceful, on the sidewalk, but militant, brought tears to my eyes when you hear people say, “The people, united, will never be defeated.” Then there was one down to Wall Street, a separate one, going down to the Wall Street bull, with some amazing slogans down there, such as “castrate the bull.” So it’s been an incredibly vigorous time here in the park. I encourage people to get down here, get to your own Occupy Wall Streets, and get to this park.

AMY GOODMAN: I want to thank you for being with us, Michael Ratner, speaking to us from the heart of the park, from the heart of the Occupy Wall Street movement in Zuccotti Park.

And finally, Yotam Marom is with us, one of the Occupy Wall Street organizers. Yotam, what are the plans for today and for tomorrow? Three marches planned for tomorrow.

YOTAM MAROM: Well, yeah, so basically a [inaudible] plan. The idea is, well, we’re standing in solidarity with hundreds of thousands of people from around the world all arising on the same day. And the plan for New York is a bunch of different actions on a bunch of different issues—education, housing, jobs, war, the environment—all over the city, all day, culminating in a huge convergence at Times Square at 5:00 p.m.

AMY GOODMAN: Yotam Marom, I want to thank you for being with us. Again, on Saturday, there are major plans for marches on Chase Manhattan Bank, on Times Square, and we will of course continue to follow this on Democracy Now! and at, when we are not on the air. We have just been following Twitter, which a tweet has just gone out: ”NYPD arrested four on Maiden at Water—and Water. Saw one man fall from rear of police van, face bloodied.” That’s all we see right now on the Twitter feed.

This is Democracy Now!,, The War and Peace Report, as we turn now to our next segment. Keep tuning in. Go to our website. Follow us throughout the weekend as we continue to follow not only Occupy Wall Street in the United—in New York, but all of the different occupations that tare taking place in this country. We heard police raided Occupy Denver in the last hours. And a few nights ago, Occupy Boston was also raided. In Manila, there are marches. I’m going up to Quebec City tonight. And I was just on the CBC this morning, and the news anchor was saying that there are protests planned across Canada this weekend, tomorrow. And we will continue to follow all of these developments.

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