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Occupy protesters can stay - for now

Judge extends order barring their eviction

By Martine Powers
Globe Staff / December 2, 2011
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A judge extended a temporary court order yesterday, barring city officials from suddenly evicting Occupy Boston protesters from their downtown encampment.

Suffolk Superior Court Judge Frances A. McIntyre said at a hearing that she would decide no later than Dec. 15 whether Mayor Thomas M. Menino’s administration will be barred from forcibly shutting down the camp without prior court approval. Until then, protesters will be able to continue residing on the half-acre property next to South Station.

Yesterday the courtroom was filled to capacity a half-hour before the hearing began, leaving Occupy Boston supporters crowded in the hallway throughout the proceedings.

In the hearing, which lasted four hours, lawyers for the city and the Rose Kennedy Greenway Conservancy asked whether Occupy Boston’s continued presence in the square is safe - and fair to other residents.

Michael Ricciuti, a lawyer representing the city, said Occupy Boston members have extended beyond the reaches of free speech by establishing permanent residence on the park and preventing others from using the space.

“This now is not a symbolic location, it’s a housing development,’’ Ricciuti said. “Those tents became dwellings. And they don’t comply with the law, period.’’

Much of the city’s argument centered on Occupy Boston’s egalitarian structure: There are no leaders or representatives, and all decisions are made by a vote in general assembly meetings.

That lack of leadership or official membership, Ricciuti said, makes it impossible for the city to work with the protesters to ensure the safety of the site.

Howard Cooper, a lawyer for the protesters, said the group’s democratic nature does not make it impossible for the city to partner with them.

Cooper submitted 70 affidavits to the judge from individuals who said that they are participants in the Occupy Boston movement and that they would agree to obey any decisions made by the court.

“A different kind of democracy may look strange, it may feel strange, but dismissing it as a leaderless society that you don’t have to deal with does not follow the rule of law,’’ Cooper said.

McIntyre allowed each side to present one witness. For two hours, lawyers questioned and cross-examined Boston Fire Marshal Bart Shea, who has inspected the camp many times, and Kristopher Eric Martin, a Harvard doctoral student who has been living at the camp for almost two months.

While Menino has maintained that he has no immediate plans to move protesters from the site, Shea took a more dire tone during yesterday’s proceedings.

“I think people need to be removed from that site immediately,’’ Shea said.

Shea said he was appalled by what he saw at the encampment: A dense tent city made of flammable materials; tarps and rugs hanging over and inside the tents; smoking throughout the camp; andgenerators and electrical cords without proper safeguards for the outdoors.

He said that although he has been giving advice to protesters on how to make the encampment more safe, he would not provide a permit to the group so long as the camp continues to use the tents and tarps.

“A fire could rip right across the top of these tents before someone could get out,’’ Shea said.

He said the city had sent three notices to the encampment, although he did not know whether anyone had received them. When asked if he approached the group to voice his concerns, he repeatedly said he spoke with one person in the camp who was a member of the Occupy Boston safety committee but “didn’t waste the effort’’ to speak with the group’s general assembly.

Cooper said the fire marshal’s attempts to notify the demonstrators about safety concerns in their camp were inadequate.

Martin, who is currently on medical leave from Harvard after injuries received from a bicycle accident, said he has worked with city officials to help make the camp’s dwellings safe.

He said he was not made aware of notices or abatements given to the Occupy Boston protesters by city officials because of health or safety hazards.

In recent weeks, he said, when officials have approached him about safety issues, he has worked to address those issues.

Moving the camp to another location, he said, would hurt the group’s intended message about economic equality.

By setting up camp two months ago, he said, protesters were speaking directly to workers in the Financial District office buildings that surround the encampment.

“We are providing an example to all those who come through here on how to have a better society,’’ he said.

Martine Powers can be reached at Follow her on Twitter @martinepowers.

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