Judge Frances McIntyre extended the temporary restraining order, barring Boston from evicting the Occupy Boston campers, until she issues her decision on a preliminary injunction -- which she hopes to do "on or before December 15."
That's a short-term victory for the movement, and in my opinion not a small one -- the city provided some compelling testimony regarding the safety hazards at the encampment, which could easily have persuaded McIntyre to act more swiftly, or even to lift the restraining order. My interpretation -- and it's just my own -- is that the extension of the temporary restraining order suggests that McIntyre will focus her decision on the bigger legal issues that I overviewed in my article last week.
More on those issues below, but first, the testimony of Fire Marshall Bart Shea. As he described it, the encampment is a death trap waiting to happen. Any number of things Shea observed at the camp could start a fire -- he was particularly apalled at the cigarette butts strewn all over the ground. Any small fire would spread rapidly, due to the closeness of the tents, and the large amounts of combustible material. If such a fire started, particularly at night, occupants would be trapped and/or trample one another, because of a variety of egress issues, including narrow passageways, and tent stakes that would serve as trip wires. In addition, Shea could find only two or three extinguishers, which would be too far away to likely be much help.
It's understandable that Shea said the conditions "made the hair on the back of my neck stand up." Images of the Station fire catastrophe loomed in my head during his testimony. Judge McIntyre seemed to take interest in the safety issues, interrupting Shea's testimony with some of her own questions. (For example, about the specific hazard posed by blue tarps that Shea mentioned.) And fire is only one safety issue; others are mentioned in affadavits submitted by the city and the Greenway Conservancy. (They are both defendants in the case; McIntyre allowed only one witness for the defense and one for Occupy Boston as the plaintiffs.)
But Shea's case was undermined to an extent by Mayor Tom Menino, who in recent public statements (referenced in the hearing by Occupy attorneys) has seemed to indicate that there is not, at this point, an immediate public-safety threat. In addition, Shea and the fire department do not seem to have taken the kinds of action one might expect from those anticipating an imminent, horrific, mass-casualty conflagration.
On the other hand, it didn't help that Shea testified to problems persisting, or escalating, even after he had pointed them out to someone he took to be in a position of leadership or responsibility. That's part of the problem, of course: Occupy Boston is so leaderless and horizontal and so on that there is nobody who can simply implement changes. In a way, it seems that Boston would need to treat individual campers individually, serving each of them abatement orders (instructions on safety problems they must fix). But if that's the case, that these are all essentially separate individuals each making their own personal, independent decision to camp in Dewey Square, then how can you claim that the encampment delivers a symbolicly expressive message about operating as a more equal society, which is the heart of the argument for the need to have this full-time occupation?
In any event, my guess is that McIntyre sees the imminence of the safety threat as ultimately irrelevant to her decision. (Regardless, I hope the campers and fire department quickly work together to address the hazards, which are real.) Unless there is a sense of real immediate danger -- which clearly McIntyre doesn't see -- the real question for this court is whether the City of Boston has the right to evict the campers if and when it feels it necessary. I don't see how you can argue that the city has no interest at stake in the maintenance, access, and safety of the public space (particularly given legal precedent, which sets a pretty low bar on such interest), or that any amount of abatement can fully erase those issues. So the question really is one of balancing the rights of the protesters against the rights of the city.
And that's where the attorneys on both sides concentrated their arguments. The city and conservancy argue that the Clark case, which I mention in my previous article, is a straightforward precedent on the limits of 1st Amendment protection in a nearly identical situation.
The Occupy attorney, Howard Cooper, made two main lines of argument against that. First, he suggested that in Clark the protesters had ample alternatives for their particular kind of expressive protest -- there are other open sites for camping in Washington DC -- whereas there are no such available sites in downtown Boston. Secondly, he argued, the Occupiers should actually be afforded more protection than the 1st Amendment, because the legislation creating the Greenway included a specific provision relating to its use for public protest. In essence (as I understood him), he was arguing that we must assume that the legislature intended for more protection (under the Massachusetts Constitution's Declaration of Rights) than what would be offered had they not included that provision -- ie, the usual 1st Amendment protection.
Judge McIntyre seemed highly skeptical of that latter argument, in a back-and-forth with Cooper. She suggested that in other cases where the Declaration of Rights was found to offer more protection than the Bill of Rights, there were differences in the language to base that upon; there was no such meaningful difference in the language pertaining to the right of protest, she said. Of course, McIntyre could come to a different conclusion as she works through the details.
In any event, it appears that the occupation has a couple more weeks to work with -- and probably more, since they will immediately appeal if they lose, and by her actions so far I would imagine McIntyre would extend the temporary restraining order pending that appeal. That may or may not mean a Merry Occupy Christmas on the Greenway, but it at least keeps that possibility alive.
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