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Boston judge temporarily blocks Occupy removal

By Denise Lavoie
AP Legal Affairs Writer / November 16, 2011

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BOSTON—A Boston judge on Wednesday ordered the city not to remove Occupy Boston protesters or their tents from their encampment in the city's financial district without court approval, except in an emergency.

Suffolk Superior Court Judge Frances McIntyre granted the temporary restraining order sought by Occupy Boston after a lengthy court hearing.

The protesters filed a lawsuit against the city Tuesday, saying they were concerned they could be forced out in the middle of the night as Occupy protesters in New York City were this week.

McIntyre's order is temporary. The judge said she will hear additional arguments on Dec. 1 on Occupy Boston's request for an injunction, which, if granted, would be in effect while the lawsuit is pending in court.

Under the order, the city must refrain from removing the protesters, their tents and their personal belongings except in an emergency such as a fire, medical emergency or an "outbreak of violence." The city also has the right to seek a court order to authorize removal of the protesters.

The judge also ordered the city to enter mediation, a proposal the city's attorneys had rejected.

McIntyre issued the order after she asked both sides to reach an agreement on a proposal that would require the city to give the protesters advance notice before the police made any attempt to remove them. Lawyers for the city said such an agreement would bind police and could lead to violence, if the protesters decided to mobilize against eviction and call in supporters from other Occupy movements around the country.

"It would just create the potential for chaos," said William Sinnott, the city's corporation counsel.

Raquel Webster, another attorney for the city, said the request for a restraining order was premature because the city has not taken any action to evict the protesters.

"As I stand here today, the city of Boston does not have any plans with respect to removing the protesters from Dewey Square," Webster said.

Webster said ordering the city to refrain from evicting the protestors would tie the hands of police, who assess conditions at the encampment on a day-to-day basis, taking into account the health and safety of the protesters and the public.

Howard Cooper, a lawyer for Occupy Boston, said the protesters are living under an "imminent threat" of the impairment of their constitutional rights if police are allowed to tear down the camp without giving the protesters the chance to argue against it in court.

"You can't get those rights back once the moment is destroyed," Cooper said.

"The protest that is happening in Dewey Square is classic protected speech that is taking place in a traditional public forum," he added.

The protesters set up their encampment in Boston's financial district on Sept. 30, mirroring the Occupy Wall Street protest in New York that spawned similar protests around the country decrying economic inequality and corporate greed. In Boston, 200 to 300 protesters have been participating in a tent community dotted by protest signs.

Sinnott asked the judge for a more precise definition of when police would be allowed to remove the protesters without getting a court order ahead of time. The judge said they could be removed if there is an outbreak of violence, but not, for example, for a single incident of assault and battery.

The judge also stressed that her order does no restrain police from arresting people in the encampment for individual crimes.

Philip Anderson, 24, a member of Occupy Boston, said he and some of the other protesters are concerned that police will evict them in the middle of the night. He said the group felt it had to file a lawsuit to prevent that from happening.

"This is not a publicity stunt. This is a true concern that police will act the way they did in New York," he said. "We are taking a pre-emptive approach to prevent that."