In a legal brief made public yesterday, the NYCLU argues that Brookfield Properties had no legal right to force Occupy Wall Street protesters out of Zuccotti Park on November 15th of last year. The civil liberties group intends to file an amicus brief in support of a protester named Ronnie Nunez, who was arrested when he refused to leave Zuccotti Park after the NYPD raid and eviction. According to the NYCLU, Brookfield had no legal authority to exclude people from the park, which Brookfield is legally required to keep open to the public at all times. . From the NYCLU filing:
City zoning law makes unambiguously clear that private owners must obtain the advance approval of the City Planning Commission (“CPC”) before enforcing any restrictions on public access to a privately owned public space [POPS]. The law also makes clear that before the CPC can authorize any restrictions, there must be strict compliance with important procedural protections that are designed to protect public access.
Since the creation of Zuccotti Park in 1968, the public has had a permanent license to be present. In lieu of CPC approval, Brookfield had no authority to exclude Mr. Nunez or anyone else from Zuccotti Park. Therefore, the accusatory instrument against Mr. Nunez is insufficient and Defendants’ motion to dismiss the information should be granted.
POPS are akin to “an easement held by the public on the owner’s property.” As spaces legally mandated to be open and accessible for the public’s benefit and use, POPS are subject to constitutional protections as traditional public fora under the First Amendment. Indeed, courts have acknowledged that when a space is explicitly designated for public use, like a POPS, it is clear that such areas are “inherently compatible” with First Amendment activity and subject to constitutional protections as traditional public fora.
Mr. Nunez is facing charges of trespassing, obstructing governmental administration and disorderly conduct. His attorney tells the New York Times, "All of those charges have to start with a lawful order, otherwise the cops are just bouncers with badges."