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Judge Rules Occupy Wall Street Protesters Can Return But Without Tents

People re-entering Zuccotti Park at 5.40 p.m. after the early morning raid and subsequent judge's ruling to allow protes...

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DNAinfo / Andrea Swalec

By Carla Zanoni, Sonja Sharp, Shayna Jacobs and Nicole Bode

DNAinfo Staff

MANHATTAN — A judge sided with the city on Tuesday, saying that protesters who have spent two months sleeping in Zuccotti Park could return — but without tents, generators and much of the other equipment that had become a fixture at their encampment.

The protesters "have not demonstrated that they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion ofthe owner's reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely," Manhattan Supreme Court Judge Michael Stallman wrote in his decision.

Half an hour after Stallman issued his decision, protesters were allowed back into the park after a day of high tensions. But they would not be allowed to recreate the tent village they had before the Tuesday morning's raid.

After the city cleaned Zuccotti Park of tents and sleeping bags in the early hours of the morning, Manhattan Supreme Court Judge Lucy Billings issued a temporary restraining order against the city at 6:30 a.m. It barred the city and Brookfield Properties, which owns Zuccotti Park, from evicting Occupy Wall Street protesters or preventing them from returning to the park with their tents and tarps.

More than 200 people were arrested during the overnight raid that saw hundreds of police in riot gear surround the park.

Cas Holloway, Deputy Mayor for Operations, argued that the judge should overturn the restraining order because "unsafe and unsanitary conditions, and the substantial threat to public safety," from the Occupy Wall Street protest.

Holloway also argued that "protesters may have had a significant number of items that could potentially be used as weapons," citing that cardboard tubes with metal pipes inside had been observed at the park and that knives, mace and hypodermic needles had been observed discarded on the road after the Brooklyn Bridge march.

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Alan Levine, who was among the attorneys representing Occupy Wall Street, had argued that the tents and sleeping bags were "an essential part" of their right to free speech, because it allowed them to "protect themselves through the weather."

"The power in this symbolic speech resides in the fact that this is a 24-hour occupation. This conveys a special message," Levine added.

After the decision was issued, Yetta Kurland, another lawyer for the protesters, said "It's our job as attorneys to fight in the courts. Our clients will continue to fight in the streets."

The lawyers said they were unclear on what their next steps would be.

The judge's decision reiterated the rules of the park's owner, Brookfield Properties, including no camping or erection of tents or other structures; no lying down on the ground, or lying down on benches; no tarps or sleeping bags.

Stallman said the city's ban on tents, generators, garbage and human waste in public places and the enforcement of Brookfield's rules seemed "reasonable" to keep the space in a "hygienic, safe and lawful condition."

Mayor Michael Bloomberg praised the decision in a statement, saying the park would remain open "as long as they abide by the park’s rules."

At a Tuesday morning press conference, he had said, "Inaction was not an option."

"We could not wait for someone in the park to get killed, or to injure another first responder," Bloomberg added, referring to an EMT who was injured while trying to help NYPD officers arrest a mentally disturbed man.

While the city awaited its court hearing, protesters displaced from Zuccotti Park and others who came to join them massed in Foley Square starting before dawn. Additional protesters, and a half dozen reporters, were arrested at Duarte Square at Sixth Ave. and Canal Street at noon on Tuesday.

The NYPD maintained the perimeter fence around Zuccotti Park and placed officers in riot gear posted along the entire edge of the park. Protesters milled around outside the perimeter and some tried to get inside, leading to additional arrests.

Brandon Peker, 23, an actor/artist who has been sleeping on and off at Zuccotti Park since Occupy Wall Street started, said he the ruling made it too difficult to stay there.

He doesn't plan to return until it gets warmer, he said. "To take care of others, I need to take care of myself."