Judge Frances McIntyre said the protesters failed to prove that the seizure and holding of public land is protected by the First Amendment and somehow protected from criminal prosecution.
By RODRIQUE NGOWI
BOSTON – A judge on Wednesday rejected a request by Occupy Boston protesters for a court order banning city officials from removing them from their encampment in the city's financial district, saying the protesters failed to prove that the seizure and holding of public land is protected by the First Amendment and somehow protected from criminal prosecution.
Suffolk Superior Court Judge Frances McIntyre ruled that although the protesters are exercising their rights to freedom of expression from government interference, the occupation of state land is essentially viewed "as a hostile act" that is neither speech "nor is it immune from criminal prosecution for trespass or other crimes."
"This decision clears the way, but does not order the plaintiffs and other protesters to vacate the site and request permission to set up tents or other equipment for expressive purposes" if Occupy Boston protesters wish to continue to stay at the encampment located on land owned by the Rose Kennedy Greenway Conservancy, McIntyre said. "Overnight sleeping and living at Dewey Square are not options under the Conservancy guidelines, however."
McIntyre had granted the group's request for a temporary restraining order in November, ruling that police could not remove it or its tents without prior court approval.
At a Dec. 1 hearing, Boston's fire marshal testified that the tent city has numerous serious fire hazards and he feared for the protesters' safety. City officials have said they have no immediate plans to remove the protesters as some other cities have done, including New York City, Los Angeles and Philadelphia. But lawyers for the city argued that police need the authority to evict them without notice if a health or safety issue arises.
"As outlined in the court proceeding and affirmed in the judge's ruling, the conditions at Dewey Square have deteriorated significantly and pose very real health and safety risks," Mayor Thomas Menino said in a statement Wednesday. "The city strongly encourages the Occupy movement to abide by the Rose Kennedy Greenway regulations and remove their tents and refrain from camping in that area."
The Massachusetts chapter of the American Civil Liberties Union and the National Lawyers Guild-Massachusetts Chapter said they were disappointed with the court decision and attorneys are reviewing the ruling with Occupy Boston protesters to determine all of their options.
"Just because the court ruled today that the city can shut down the encampment at Dewey Square does not mean that it should," the two organizations said in a joint statement. "If city officials decide, nonetheless, to do so, how they go about it also sends an important message. Occupy Boston has always been a peaceful political protest, aimed at drawing attention to the growing inequalities in our society."
The protesters have been encamped in Dewey Square since Sept. 30, modeling their demonstration after Occupy Wall Street. Protesters estimate between 100 and 150 activists live in the Boston encampment.
The judge on Wednesday recognized the central theme of the movement.
"The Occupy movement has brought attention to a perceived increasing disparity of wealth and power in the United States. The movement aims to persuade that the wealthiest 1 percent of the population are writing the rules of an unfair global economy," McIntyre said. "The group has sharpened its message to this: A more just, democratic and economically egalitarian society, responsive to people rather than corporations, is possible."