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Occupy’s court win preempts eviction

Temporary order bars park removal

Stephan Savoia/ASSOCIATED PRESS

A judge told the city of Boston not to remove demonstrators or their tents from Dewey Square without court approval.

In a temporary legal victory for Occupy Boston protesters, a Suffolk Superior Court judge issued a restraining order against the City of Boston yesterday, barring police from removing the protesters from their downtown encampment at least until a Dec. 1 hearing.

While the city maintained in court that it had no current plans to evict the protesters, Judge Frances A. McIntyre said she was, for now, ruling in favor of the protesters to protect their right to express their views on public property.

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“The abridgement of First Amendment rights is an irreparable crime,’’ McIntyre said. “The potential for irreparable harm to the plaintiff is very real.’’

Yesterday’s proceedings were prompted in part by Tuesday’s clearing of the Occupy Wall Street camp in Zuccotti Park, where New York police removed the encampment and arrested hundreds. Protesters have been allowed back in the park, but without tents and sleeping bags.

Boston occupiers fear the same thing could happen to them, and filed a civil lawsuit Tuesday in Suffolk Superior Court to stay indefinitely on the downtown property they have inhabited since Sept. 30.

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At the Dec. 1 preliminary injunction hearing, attorneys for both sides will argue the terms of the Occupy movement’s continued presence on Dewey Square until the case goes to trial, which may happen weeks after the hearing.

Until then, Mayor Thomas M. Menino still holds a fair bit of leeway in his dealings with the Occupy Boston camp: The judge stipulated that her order not to evict the protesters applies unless there is a fire, medical emergency, or “outbreak of violence.’’

Last month, 141 protesters were arrested in Boston when they attempted to expand their encampment to a section of the Rose Kennedy Greenway adjacent to Dewey Square. Law enforcement officials have confirmed to the Globe that all officers are undergoing training in crowd control and dispersal.

Still, Raquel Webster, an attorney for the City of Boston, argued before the judge that the temporary restraining order was “untenable’’ because the city and the police have never attempted to evict protesters from Dewey Square and have no immediate plans to do so.

“They’re asking the court to prevent us from doing something in the future that we have not done,’’ Webster said.

But Howard M. Cooper, the attorney representing Occupy Boston, argued that the rights of the protesters must be guaranteed, regardless of whether the city has a current plan to conduct a removal similar to the one in New York City.

“It’s beside the point, Your Honor, if the City of Boston has or has not done something yet,’’ Cooper said. “There is an imminent threat of the impairment of civil rights in the middle of the night.’’

McIntyre also ordered the city and the protesters to enter mediation, though the city’s attorneys balked at the idea.

Speaking before attending a violence-prevention event in Dorchester yesterday, Menino said he did not understand Occupy Boston’s action.

“We haven’t made any moves on this Occupy Boston, and I think it’s a move by them to get more publicity for their movement,’’ Menino said. “It’s just unfortunate that they’re seeking this injunction because I have no intention right at this time to do any movement of the folks off the site, and I think our police department has worked real well with them over the last several months.’’

William F. Sinnott, Boston’s corporation counsel, argued in court that police need latitude to make decisions - including the right to remove protesters - based on the circumstances at the encampment.

He also addressed Occupy Boston’s idea of having a mandatory warning period, where police are required to notify protesters hours or days before they move to close the camp.

“If they think there is going to be a takedown in Boston, they will mobilize. They will call out the troops. . . . They will use social media, deploying as many protesters as possible in Dewey Square,’’ Sinnott said. “That would place police officers in jeopardy. It might place the public in jeopardy.’’

Much of the discussion at the hearing centered on the definition of “speech,’’ and whether the 24-hour occupation of Dewey Square is in itself an act of expression.

Cooper argued that protesters are making a public statement by living together on public land in the heart of the city’s financial district, providing a model of how an egalitarian, Democratic society operates.

“The medium itself is the message, because they have a working community,’’ Cooper said. “They’re saying, ‘Let us show you how you we can do better.’ ’’

While McIntyre ruled in favor of the protesters, she said she had several concerns about the organization’s legal standing.

Occupy Boston has no leaders - instead, they have a general assembly that votes on all actions.

That lack of established leadership, McIntyre said, makes it difficult for the group to have legal standing, because there is no guarantee that protesters will adhere to any agreements made in court.

McIntyre also worried that Occupy Boston’s presence prevents others from enjoying the public park. “They’re occupying, to the effective exclusion of others who might like to use the space,’’ McIntyre said.

Kristopher Eric Martin, one of the plaintiffs on the lawsuit filed against the city, called yesterday’s decision “a huge victory’’ for the Occupy movement, in Boston and around the world.

Martin said that the lack of a traditional leadership structure was part of the purpose of the movement. He gained approval from a majority of Occupy Boston’s general assembly before he agreed to be a party to the lawsuit.

“We’re providing an example of a more Democratic society,’’ said Martin, a doctoral student in applied physics at Harvard. “Our leadership is democracy.’’

Brian Ballou of the Globe staff contributed to this report. Martine Powers can be reached at mpowers@globe.com.
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