Proposal to Preserve the Restraining Order Against the City of Boston

Passed Thursday November 17, 2011

Proposal to Preserve the Restraining Order Against the City of Boston

Occupy Boston and certain named plaintiffs brought a lawsuit, as approved by the General Assembly of November 3, against the City of Boston, the Boston Police Department, and the Greenway Conservancy to ensure that Occupy Boston can remain in Dewey Square to express our First Amendment rights, because there was an imminent threat of a police sweep of Dewey Square due to the facts that: 1) police swept the occupations in numerous occupy cities, including New York, Cincinnati, Nashville, Albany and others; 2) the City of Boston refused to agree to provide notice before sweeping Dewey Square; and 3) the Rose Kennedy Greenway Conservancy sent a letter to the City of Boston requesting that the police clear Dewey Square of Occupy Boston. In particular, the Greenway Conservancy wrote a letter to the city of Boston stating: “We believe that the current use by Occupy Boston is not compatible with our obligation to ensure that everyone may enjoy the Greenway, and with the spirit and letter of the rules governing use of the space….In recognition of our responsibilities as members of the Greenway Conservancy Board, we respectfully request that the City of Boston act to enforce our regulations and City permitting regulations.”

This lawsuit has initially resulted in a great success, a Temporary Restraining Order against the defendants preventing them from removing anyone from Dewey Square unless there is an emergency such as a fire, a serious medical problem, or an outbreak of violence. The Order is more positive than we ever expected. In it, the judge states that “Federal courts have established that twenty-four hour protests in public parks and other public forums are expressive conduct and therefore require First Amendment protection.” That Temporary Restraining Order will be in effect until December 1st, when there will be a hearing on a preliminary injunction where we will have the opportunity to argue for the preservation of Occupy Boston’s First Amendment rights to remain at Dewey Square. Based on the judge’s very positive order, we are hopeful that we will be successful at that hearing.

The preliminary injunction hearing will give Occupy Boston an opportunity to secure the First Amendment rights of Occupy Boston and set a key precedent for other occupy cities across the country to protect their First Amendment rights. If we lose the preliminary injunction we will be at risk of being swept out by the police, as we were before the Temporary Restraining Order was entered.

Leading up to that hearing, the judge has ordered that Occupy Boston attempt to mediate with the defendants. Given the court’s concern that Occupy Boston is an amorphous group to no method to make legal decisions, and given the expediency required for certain courtroom and legal decision, we propose to temporarily empower a small number of people to represent the GA to the best of their ability in mediation. While not all situations that may arise can be anticipated, the mediators agree to represent the statement of purpose of Occupy Boston and to be bound by the past and present consensus of the General Assembly of Occupy Boston and will bring any possible final decisions before the GA. We also encourage the GA to equip our reps with any opinions they deem necessary before the mediation.

We propose that the small group be made up of: Jennie Seidewand, Eric Martin, and Alex Ingram. These are two of the named plaintiffs in the case who are also residents of Dewey Square and a third member of the Occupy Boston community. We recognize that it is impossible to have any small group of our community represent the interests of our entire community, but it it necessary for the immediate and long-term survival of Occupy Boston that we as a GA temporarily empower a small group to engage in that mediation. Our reps will make themselves actively available for concerns and suggestions until immediately before the mediation. Court-ordered mediation is a necessary step if we wish to continue to occupy Dewey Square. If we do not do this, we have no chance of winning the case.