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Check out time at Zuccotti Park

Check out time at Zuccotti Park

When I heard that NY City police had cleared out Zuccotti Park overnight, I couldn’t wait to see the NY Post headline.  I was not disappointed:

What do you think of my headline? Do I have what it takes to be a headline writer for the NY Post?

Update: Apparently a judge has issued an order allowing the camping to continue on the ground that it has gone on this long already. It’s rulings like this which give the judiciary a bad name. The next rape or stabbing is on the judge.

Update No. 2 :  Another judge, who held a hearing and gave the city a chance to be heard, has held that the city was within its rights in keeping the protesters from setting up a tent city in Zuccotti Park:

“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 of the 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 a four-page decision.

“Neither have the applicants shown a right to a temporary restraining order  that would restrict the city’s enforcement of law so as to promote public health  and safety.”

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Comments

Tom Wannamaker | November 15, 2011 at 8:47 am

Prof Jacobson, you could be Headliner in Chief at the Post, you have the touch. But please … don’t leave us! We want you on LI, we need you on LI.

(H/t to Jack Nicholson for original movie line.)

Unfortunately, Bloomberg said they could come back sans tents, etc. Some people never learn and are hip deep in social ideology.

judge orders protesters be allowed back in the park. by not enfocing the law for 2 months brookfield and mayor may have waived it. idiots.

Well it looks like a judge has issued a temporary restraining order allowing the “protestors” to return to the park.
How is it that the park owner can’t get these losers evicted permanently?

because owner permitted it. when you have a law or rules and dont enforce them their enforcement is arbitrary. its the same thing tea party was complaining about. they charged the tea party for security etc but not these people. in that case city was approving of some speech and disapproving of others. the protesters actually have a point because they can say you dint enforce it when you liked wha we said but enforce it when you dont like it. thats why law should always be enforced.

Funny …support a liberal and it bites ya on the ass ….so now it seems the hippies may very well own the park

prof the judge is correct. brookfield and bloomberg are wrong. while i dont think it is possible to waive a law and while they didnt adversly possess the park the mayor and owner have put the protesters in the superior position. if tea party set up camp in another park i think theyd have arguement that they couldnt be kicked out either. selective enforcement is arbitrary. i dont know new york law but protesters may have acquired tenants rights since they were there with permission

    spartan in reply to javau. | November 15, 2011 at 10:26 am

    I am pretty sure the judge is incorrect but Brookfield and Bloomie did not do themselves any favors. It seems Bloomie’s girlfriend is sympathetic to OWS and may be on Brookfield’s Board. When Brookfield tried to rid their property of this vermin early on, someone from the mayor’s office and the Brookfield Board interceded and allowed the OWS vermin to stay. I caught some of this on FNC this morning but not all the details.
    I am not sure about how the judge reached their decision but anyone (read the Left)can stretch facts and law to reach their conclusion. I am sure some judge shopping went on.

      javau in reply to spartan. | November 15, 2011 at 10:53 am

      the motives behind the brookfields permission dont matter. but im glad brookfield is getting screwed their cowardice deserves it

    VetHusbandFather in reply to javau. | November 15, 2011 at 12:05 pm

    I think you are right here, but if that is the case, the city can also serve them a 30 day eviction notice.

    Awing1 in reply to javau. | November 15, 2011 at 12:48 pm

    While I haven’t seen the actual motion or order, I’m guessing the judge was incorrect. Tenants’ Rights only apply when there is a clear landlord-tenant relationship. Without a permanent structure, such relationship could not have existed. As for adverse possession, I would agree if they had been there a further 19 years and 10 months. Short of that, adverse possession simply doesn’t apply.

    This also wouldn’t constitute arbitrarily selective enforcement. The argument of the city is that conditions had deteriorated so much that enforcement became required. Unless you’re suggesting the park is often in the state it was in yesterday, which would be an extremely difficult if not impossible argument to make, the enforcement isn’t arbitrary because the situation is materially unique.

    Also, the judge that entered this TRO is a 25 year veteran of the ACLU and was specifically selected by the OWS lawyers. That doesn’t mean her decision was wrong, but short of seeing her arguments, it weighs heavily against her in my mind.

      javau in reply to Awing1. | November 15, 2011 at 1:46 pm

      im not sticking up for the judge. the protesters are not trespassers bc they have permission. brookfield prob did not donate park out of goodness but bc of some kind of zoning deal green space. if there was no zoning or some other public law there was no option to kick them out using the police on day one. they were violating some public rule and the city chose not to enforce it until now. i think city got the mess it deserved.

    logos in reply to javau. | November 15, 2011 at 2:06 pm

    Easy to declare when you know the family men and women of the Tea Parties are going home to cook supper for their children, pick up their grandchildren from day care and sleep in their own bed before arising the next day and reporting to their JOB/CAREER in order to collect their paycheck so they can pay the ‘butcher, the baker and the candlestick maker’…

    The unwashed, diseased wannabe anarchists defecating in public parks will still collect their entitlement checks from the fedgov – compliments of the 53%.

Midwest Rhino (not RINO) | November 15, 2011 at 10:02 am

Will pooping on cop cars now be allowed city wide? Surely it occurred more than once.

What other standards were set by bending the law to accommodate the leftists?

As I understand it though (and IANAL, so I’ll defer to the Prof)the privately owned Zuccotti park doesn’t have to be held to the same standard just because they didn’t enforce the rules up until now. It’s there propery, if they choose not to enforce the rules to avoid bad publicity, they can adjust their rules. Similarly, when I worked at McDonald’s we’d occasionally bend the “customer parking only” rule for people whose car broke down (to avoid bad publicity) but we still had the right to enforce it if we felt it became needed.
But again IANAL, but I don’t htink they have a legitmate discrimination case and I can’t think of any other case they’d be able to use.
Also that order was joke, it was ladened with tainted language (“so called rules”) that was crossed out, clearly in a hurry. Who writes those things? And why was that Judge stupid enough to sign it.

There appear to be a lot of messy ties between Zuccotti owner, Brookfield Properties, the Bidens, and the Obama administration.

one interesting side effect is that the party seeking the injunction had to have represented itself as some kind of legal entity. if thats the case the have exposed their 500k to lawsuits on behalf of injured police protesters andthe city

    VetHusbandFather in reply to javau. | November 15, 2011 at 12:03 pm

    hmm… interesting.

    logos in reply to javau. | November 15, 2011 at 2:15 pm

    If Bloomberg had a spine, he’d sue this “legal entity” created by virtue of judge lucy billings’ ruling granting the squatters (mental image invited) the right to continue to poop in the park – for the cost of clean up.

    edgeofthesandbox in reply to javau. | November 15, 2011 at 11:37 pm

    I’m sure there is going to be a lot of parties interested in that 500K. I hear the surrounding businesses estimate their losses at about that number.

That TRO is a perfect example of a bootstrap argument. Effectively these plaintiffs – btw who are they; what particularized interest do they have in public property to be even able to file for a TRO (possible abuse of process, an actionable tort against them and their lawyers) – are using the concept of Adverse Possession to convert quasi-public/private land belonging to Brookfield (albeit used by the public with NYC’s assistance) into their own domain, all based on the fact that they have been “there” squatting for 2 months. Their presence has effectively deprived all non-OWSers from the enjoyment of this land as intended.

A stitch in time saves nine.

Had NYC, Brookfield acted promptly and enforced its laws and regulations way back when, none of this brinksmanship would have come to pass.

“Do I have what it takes to be a headline writer for the NY Post?”

Professor, if headline writing is the soul of journalism, you are the Godfather of News.

LukeHandCool (who might mosey on by the corner record store and pick up the Hardest-Working Man in Blogging’s classic, “Say It Loud — I’m Veit and I’m Proud.”)

And now they are breaking into Trinity Church. At what point does enough become enough?

Is this rabble the long dreamed of “civilian national security force”? In that event, they will soon form a Union (a la the TSA) and the National Labor Relations Board will countersue any attempts to remove this collective public health hazard.

Dear Professor:

You haven’t read the papers, you did not hear the oral argument, and I assume you know butkus about Landlord-Tenant Law (including squatters rights) in NYC. Yet you still feel entitled to state: “It’s rulings like this which give the judiciary a bad name.”

I submit that one who makes such a statement w/o knowledge and based purely on political feelings, gives professors a bad name.

    Awing1 in reply to Mutaman. | November 15, 2011 at 5:28 pm

    There is no definition that I have seen in any NYS or NYC law or code under which this situation would have created a landlord-tenant relationship. If you’re going to make positive claims, I suggest you back them up.

      Mutaman in reply to Awing1. | November 15, 2011 at 7:03 pm

      My claim is that Jacobson had not read the papers, heard the arguments, or was familiar with any of the applicable laws when he accused the Judge “of giving the judiciary a bad name”. He has not denied that claim. The fact that another judge ruled differently is not an excuse for an ill-informed partisan attack on the first judge. Simply not very scholarly.

      For what its worth, a squatter may not be removed in New York without resort to legal proceedings , if such removal might cause violence. P & A Bros. v City of N.Y. Dept. of Parks & Recreation

        Awing1 in reply to Mutaman. | November 15, 2011 at 7:30 pm

        You should probably read that decision more carefully, the court explicitly rejects the argument that legal process is required to remove squatters.

        “The Supreme Court was simply in error that plaintiff could only be removed by legal process.”

          Mutaman in reply to Awing1. | November 15, 2011 at 9:42 pm

          The decision says only if the removal can take place without the possibility of violance.

          Awing1 in reply to Awing1. | November 15, 2011 at 10:11 pm

          All right, at this point the only plausible explanation for your ignorance is that you’re referring to the portion of the decision that discusses, briefly, NYS RPAPL § 853. I was trying to give you the benefit of the doubt. What that statute does is allow an individual who is WRONGFULLY ejected from property by force to recover treble damages (that’s triple, since you appear to be fairly unversed in the law) in a tort action. It doesn’t stop a landlord from forcefully evicting someone, it is only designed to make them stop and think, because if they’re wrong, they will have to pay punitive damages.

          Wanna try again??

          Awing1 in reply to Awing1. | November 15, 2011 at 10:16 pm

          And, of course, this statute wouldn’t apply to the government anyway. The way you have insanely construed it, the police would have to get a court order to remove anyone from anywhere, even a home invader, and that is simply not the case.

          Awing1 in reply to Awing1. | November 15, 2011 at 10:34 pm

          Sorry, I was reading that wrong. Were they a squatter, and where this the action of a private entity, you would be right, force would allow for an action in tort. However, neither of those aspects apply. These individuals are not squatters under NYS RPAPL § 713 and therefore don’t qualify for the protections afforded them. And of course, there’s still the problem that this is the government, and not a private individual.

          Mutaman in reply to Awing1. | November 16, 2011 at 1:22 am

          Apology accepted.

          1. Why aren’t they squatters under 713(3)?

          2. Why doesn’t the RPAPL apply to the government?

        William A. Jacobson in reply to Mutaman. | November 15, 2011 at 7:31 pm

        I was right. One didn’t need to read the papers filed by the OWS supporters to know that they had no legal right to continue an encampment where sexual assaults, violence, drug use, unsanitary conditions and disease were rampant, particularly when done in a space they did not own and had no legal right to occupy for living (as opposed to protest) purposes. Even before OWS went to court Bloomberg had announced that they could protest 24 hours per day, they just could not reconstitute the public safety and health hazards caused by the tent city. The order was issued by the first judge without giving the city a full and fair opportunity to be heard. That did not reflect well on the judiciary, and I’m glad that the second judge showed more sense.

          Its called an Order To Show Cause- A TRO. Its an ex parte remedy. They are signed every day. How can it “not reflect well on the judiciary.”

          You really need to spend more time in the law library and less time with your blog.

    William A. Jacobson in reply to Mutaman. | November 15, 2011 at 5:54 pm

    Another judge ruled in favor of the city after a hearing. The judge who issued the order early this morning acted precipitously and without justification. This was a health and public safety issue not a landlord tenant dispute.

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