The New York Civil Liberties Union today requested permission to file a brief with New York City Criminal Court arguing that trespassing and other charges against a demonstrator arrested at Zuccotti Park during the eviction of the Occupy Wall Street encampment 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.

“Brookfield Properties had no legal authority to unilaterally deny people permission to be in Zuccotti Park,” said NYCLU Senior Staff Attorney Taylor Pendergrass, the brief's primary author. “The charges against Mr. Nunez are groundless and must be dismissed.”

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.

In January, the NYCLU and other civil rights groups notified the city that its arbitrary and inconsistently applied rules and security measures restricting the public’s access to the park violated city zoning laws. The next day, the city removed metal barricades that had surrounded the park since the Nov. 15 eviction of the Occupy encampment.

Joining Pendergrass on the brief are NYCLU attorneys Rebecca Engel, Daniel Mullkoff and Katherine Bromberg.

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