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Thursday, February 2, 2012

Judge gives Occupy Pittsburgh three days to vacate Mellon Green

Posted By on Thu, Feb 2, 2012 at 3:14 PM

Judge Christine Ward has issued a ruling affirming Bank of New York Mellon's right to evict Occupy Pittsburgh from Mellon Green. Her ruling gives Occupiers three days to remove all their belongings from the site, though it acknowledges that they are not likely to do so willingly.

"The Occupy Pittsburgh movement ... has effectively communicated their message of wealth disparity and corporate greed through the expressive technique of encampment at selected locations," the ruling begins. "Nonetheless, despite the diversity and populist nature of the Occupiers' message, the notion of a permanent encampment on either public or private property ... is untenable and has been rejected by every court which has ruled upon it."

And for the Occupiers, it pretty much goes downhill from there. Ward essentially sided with BNY Mellon, which owns the Mellon Green parklet, on almost every argument. Which is, in fact, what she had to do in order for Mellon to prevail. As previously noted in this space, Mellon was seeking a preliminary injunction -- an expedited court review in lieu of a full trial. The standard for granting an injunction is high: A judge must feel that the plaintiff is likely to prevail in the end, and that it will suffer irreparable harm while the trial process churns along. The fact that Ward has sided with BNY Mellon now means its unlikely Occupy would prevail in her courtroom in a full trial. And while Occupy can appeal the ruling, it's a tough hill to climb.

"There is a chance to appeal," says Mike Healey, one of the attorneys representing Occupy Pittsburgh. But because the whole point of an injunction is to provide an expedited review of a case, "Appeals courts tend to defer to trial judges, with very few exceptions." Healey cautioned that he had not had a chance to review the ruling, nor to speak with Occupiers about potential future strategy. He expects to do so by week's end.

During a two-day hearing in January, the Occupiers were essentially playing for time. With Mellon seeking an injunction to remove them immediately, the defense amounted to "What's the rush?" While there was testimony about a handful of incidents involving drug use and physical altercations on Mellon Green, for example, the Occupiers demonstrated that such occurrences were isolated, and that the camp was orderly.

Ward didn't deny that, but in her ruling, she sided with BNY Mellon attorneys who argued that the very presence of the Occupiers was harming the bank. BNY Mellon usually ropes off the Green in the winter: Denying them the ability to do so not only infringed on their property rights, she wrote, but exposed them to potential liability should something go wrong on the site:

"[T]he record shows evidence of present dangers and potential risks created by trespass and nuisance. As long as the occupation is allowed to continue, BNY Mellon remains unable to manage the risk of serious harms to people using its property.

"Defendant argue that they have corrected any dangerous conditions in their encampment and, therefore, there is no irreparable harm to BNY Mellon. However, ... liability exposure in and of itself coupled with BNY Mellon's inability to be aware of or manage that risk is irreparable harm. No property owner should be forced to wait until some liability-producing event or other harm happens on its property."

And if something did happen, Ward continued, Occupy Pittsburgh would likely be unable to compensate BNY Mellon for the damages: Occupy had only about $4,200 on hand ... whereas Mellon officials had testified that the occupation was costing them $24,000 a week in extra security costs alone.

Ward did allow that the Occupiers had raised some interesting points about whether Mellon Green was public or private property ... at least during times when it's not roped off: "[A] legitimate issue exists as to whether Mellon Green may be a public forum for constitutional purposes during the non-winter months." (Occupiers also raised an argument during the hearing about whether a portion of the Green violated handicap-accessibility laws; while those concerns appear valid, Ward determined that they weren't germane to the eviction.) But ultimately, she decided that the public/private distinction didn't matter. For one thing, she noted, it was winter, a time when the Green has long been closed to the public. And in any case, groups of people aren't allowed to squat indefinitely in public spaces either: "[T]here is simply no history of protection under either the United State or the Pennsylvania Constitution for the indefinite occupation of property, even property that is government-owned and designated as a public forum."

The news wasn't all bad for the Occupiers, though. As Ward pointed out in a brief aside: "BNY Mellon's eviction of the encampment will certainly draw publicity and may even assist in communicating the Occupiers' message."

We'll have more details as they arise.

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