People v. Nunez (Challenging trespassing arrests of Occupy Wall Street protesters at Zuccotti Park)

This case concerns the validity of trespassing and other charges against a demonstrator arrested at Zuccotti Park during the eviction of the Occupy Wall Street. On Feb. 16, 2012, the NYCLU filed an amicus brief in Criminal Court of the City of New York arguing that the charges should be dismissed because Brookfield Properties, the park’s owner, had no legal authority to exclude people from the public space. The demonstrator, Ronnie Nunez, was arrested in Zuccotti Park on Nov. 15 after allegedly refusing to leave the privately owned public park when the Occupy campsite was evicted at Brookfield Properties’ request.

In the criminal court papers filed against Mr. Nunez, the prosecution asserts that Brookfield Properties had the ability to withdraw its permission for the public to be in Zuccotti Park, and that it had done so prior to the eviction. When private owners agree to create public spaces like Zuccotti Park, they give up their right to treat them as their private property in exchange for valuable zoning concessions. A special zoning permit granted in 1968 established Zuccotti Park as a “permanently open park” for “the public benefit.”

The NYCLU maintains that city zoning law makes clear that owners of privately owned public spaces cannot unilaterally restrict people’s access to those spaces. The City Planning Commission is the only entity that could authorize such restrictions, after public comment, and only if there is sufficient evidence to justify them. This procedure did not occur prior to the eviction of protesters from Zuccotti Park. Therefore, the NYCLU argues, Brookfield Properties had no right to order Mr. Nunez or anyone else to leave the park, providing no basis for the trespassing charge. The brief also notes that Zuccotti Park, like hundreds of other “privately owned public spaces” throughout New York City, is dedicated to public use and protected by the U.S. Constitution. On April 6, 2012, Criminal Court Judge Matthew Sciarrino allowed the trespassing case to move to trial. The judge ruled that Brookfield Properties had a right to evict Nunez from the park if it necessary to remedy unsafe condition. He said that whether conditions at the park actually were unsafe is a matter to be determined when the case goes to trial in June 2012. 

Criminal Court, New York County, Docket No. 2011 NY 082981 (amicus)