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. [cont’d.]
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.