A judge issued a temporary restraining order early this afternoon in favor of Occupy Boston. The order prevents the city from having the police raid the camp in the dark of night, as has happened in Oakland, Portland, New York, and other cities. It does, however, allow the city to evict the camp if there is an emergency (for example, if violence breaks out, if there is a fire, if there is a health/medical/sanitary issue, etc).
Judge Frances McIntyre entertained arguments from the ACLU of Massachusetts and the National Lawyers Guild and the city from 10 am to just before noon. There was a recess and then the court reconvened for another forty-five minutes at 12:30 pm.
During the hearing, McIntyre encouraged the city and occupiers to engage in mediation to come to some sort of agreement about when it would be appropriate and inappropriate to evict the occupation. She asked Howard Cooper (who represented Occupy on behalf of the ACLU of Massachusetts and the NLG) if he thought Occupy Boston would disperse from Dewey Square, the site of the occupation, if there were an emergency. She said, “You might point out to them that there are certain advantages to structure,” because Cooper could not answer definitively on behalf of the General Assembly as they had not discussed this yet.
McIntyre presumed the fact the occupiers had come to the court for protection showed they have respect for the rule of law. If the law went against them and required them to disperse, she wondered if the occupiers would obey and pack up and leave. Cooper responded to McIntyre’s questions by stating occupiers were trying to avoid the kind of confrontation that had occurred elsewhere.
Cooper was very open to this idea of mediation. William Sinnott, the attorney representing the city of Boston, was not. Sinnott claimed if the city entered an agreement it would endanger police, protesters and the general public. He said city would decline mediation because police have to be given latitude.
Sinnott said he met with the mayor and police commissioner this morning. He said the city is concerned about whether occupying Dewey Square is expressive conduct. He suggested an order to protect the occupation raised concerns about public safety, health and sanitation.
Additionally, Sinnott described a “theme” that has appeared several times prior to evictions in other cities where “[occupiers] say if there is going to be a take down they will mobilize.” He claimed this would place police officers in “jeopardy.” He asserted “what would be a manageable eviction” would now be “unsafe.” While maintaining the city had no such plan at this point to disperse Occupy Boston, Sinnott said the city “must have latitude” to assess the situation on the ground.
Judge McIntyre listened intently. She asked many questions and indicated that there were key aspects that had to be thoroughly researched and considered before she could offer permanent protection for Occupy Boston. For example, she needed to figure out what was protected speech and what wasn’t protected speech (exact words were “whether establishment of a utopian society is expression”). She wondered if controversy was significantly ripe for such a decision to issue a temporary restraining order.
In the end, McIntyre concluded a temporary restraining order would be in the best interest for both parties. “Irreparable harm” would be done to the plaintiffs—occupiers—if a sudden eviction took place. Not only could their rights potentially be violated but their safety could be endangered.
The defendants—the city—said there were no present plans for an eviction. McIntyre repeatedly informed the city they could come to the court for an order to evict Occupy Boston any time they wanted. And, she established conditions for the order that made it possible for the police to raid the camp if rioting or an outbreak of violence were to occur. (Note: If the city had been open to mediation, the judge may have chosen to not issue a temporary restraining order.)
McIntyre scheduled a hearing on a preliminary injunction for December 1 that would go from 9 to 1 pm. She urged Cooper to have someone from Occupy Boston by then, who would be empowered to speak for the occupation in mediation or in the court and possibly even agree to comply with the judge on certain matters if necessary.
The temporary restraining order was a huge victory for the occupation. It is the first pre-emptive action to succeed in producing some kind of legal defense that prevents the city from running roughshod over the First Amendment rights of occupiers just because they suddenly no longer think the camp should be allowed to exist.
Sinnott’s fear about giving occupiers notice of eviction—what he said about the city being worried people would cross state lines and come to Boston to stop an eviction—showed how the city is willing to protect their concepts for safety and city management ahead of civil liberties. (Also, it showed that he didn’t really think the Boston Police could handle thousands of people, if they were in and around Dewey Square just before an eviction. That may or may not offend the Boston police commissioner, who probably thinks his police are capable of crowd control.)
A judge set a precedent today. Other occupations with camps should now have lawyers go to court to preempt possible evictions. While occupations may only succeed in getting a temporary restraining order in court and then fail to win any injunction against the city, going to court at least establishes where cities stand on civil liberties. The outcomes also indicate what the Occupy movement has to do to strengthen the right to assembly and dissent in this country.
*Below are videos of the attorney representing the city, William Sinnott, and the attorney representing occupiers, Howard Cooper, speaking to press after the hearing. Also, there are some comments from occupiers, one who was listed as a plaintiff for the suit.