Tuesday, November 01, 2011

For All You Lawyers Types... Please Riddle Me This

The powers that be are allowing the 'Occupy Your Street' vagrants, thieves, toughs, union enforcers, thugs, racists, public masturbators, rapists, defecators, trespassers, drug-dealers and jobless continue their lawless ways.

How can the government be encouraged to act to cleanse our streets and parks of these squatters?

Here's an idea:  The 5th Amendment prohibits taking of private property for public use.   "...nor shall private property be taken for public use, without just compensation."  All the Occupy Your Street squatters in private parks are violating the various laws against loitering, littering, destruction of property, erecting structures (tents), assembling without proper permits and other crimes and misdemeanors.  The do this in the name of a public good.

The powers-that-be refuse to enforce the various laws, for whatever reason.  I'm not a mind reader -- unlike liberals -- so I cannot pretend to know what is in the minds of the mayors and the prosecutors etc.  It really matters not what is in their minds, they aren't doing their jobs.

Since these officials -- through their inaction -- have allowed a taking of private property for an ostensible public but illegal use, doesn't it qualify as a violation of the 5th amendment?  Why isn't there a constitutional issue here?  If so, why aren't you falling all over yourselves to file class action lawsuits against them?  Get to it!

If it isn't a 5th amendment issue, then what can we, the law abiding citizens, do to protect our rights to equal and fair use of private parks and public places?
Post your answers in the comments section, or write me and I'll post for you.

P.S.  Yes I know the park is owned by a corporation, and they have refrained from making a big deal about the status of the park.  The question here is not 'do the park owners have recourse' it is 'does the park-using public have recourse'?  


A_Nonny_Mouse said...

I understand the Tea Party of Richmond VA is suing for a refund of the $10,000 they were required to pay for permits, security/
emergency people, porta-potties, (plus a $1Million insurance policy) for the rally they held. Being good citizens, they followed the laws, they did everything legally and on the up-and-up.

But now come the Lefty Protesters, and oh-my-goodness, would the powers-that-be make THEM file for permits, or provide trash removal, or post a bond for possible damages, or provide sanitation facilities? No-no-no. After all, THESE people are special. We can't force them to abide by the same rules we impose on those nasty conservatives, now can we?

Remember, social justice requires that we punish our enemies and reward our friends -- Hey, some famous person said that no so long ago, didn't he?

Gringo said...

Real homeless people and bums - neer do wells without a political agenda-have been occupying the park. When the OWS people have complained about that to the NYPD, wanting them to be booted out, the cops have replied that the real bums have just as much right to the park as the OWS people.

Larry Sheldon said...

The problem with quoting the Constitution like that is that the part before the ellipses makes is clear that it is a limitation on the federal government, not on individual citizens.

But there are trespass and other lawful laws that should be used.

OBloodyHell said...

>>> P.S. Yes I know the park is owned by a corporation, and they have refrained from making a big deal about the status of the park. The question here is not 'do the park owners have recourse' it is 'does the park-using public have recourse'?

This is the obvious problem, Larry. Without a complaint in this case, the police have limited jurisdiction.

NOW, why they refuse to enforce noise ordinances and so on is another matter entirely. The closest they've come to this is when they removed the fuel tanks, generator, and computers being used there as a safety hazard.

OBloodyHell said...

>>> 'does the park-using public have recourse'?

And bob, as a libertarian, why the heck would any OTHER person have more right to the park than the OWP asswipes? Your argument makes no sense.

The best basis for complaint, as suggested above, is for those who own property around the park. THEY have to deal with constant drum beating, barricades restricting their access, public urination, and a number of other headaches that should've shut down this thing a month or whatever ago.

Bob in LA said...

A_Nonny_Mouse: I love it that the Tea Party of Richmond is suing -- go! That's awesome. Thanks for bringing that to the blog.

And you have perfectly captured my point -- the government (Federal, State or Local) is treating the Occupy Your Street (OYS) squatters differently than the Tea Party, i.e., there is discrimination. Search this blog for 'treating similarly situated people differently' it may be the most repeated phrase in here. The powers-that-be are discriminating against the Tea Party and for the OYS.

The question as to whether it violates the 'takings clause' is to be determined. While I don't know, its' a legal question, so I'm hoping a lawyer will chime in on the legality.

They have granted OYS a privilege of using the private park to the exclusion of all others. Certainly people that used to walk their dogs or jog or picnic in the park no longer have those options, is that a 'taking' under the 5th amendment? I don't know. No others can reasonably use the private park in the manner they were accustomed to just a few weeks ago. Is this a 'taking'?

Then Gringo I agree -- the bums have every right to the park. They are in fact on a witch hunt to get rid of them with accusations of rape and other crimes. Who knows if they are guilty or not, they won't let the police investigate. Indeed, in Oakland they wont let them in the park.

Bob in LA said...

Larry -- On the question of Federal vs. State, actually the court has determined that the 14th amendment extends the 5th amendment protections against to the state and local action. I raise the question in this post as to whether we are also protected by 'inaction'.

Before posting this, I asked Carl about 'inaction' and he said we have 'no right to police protection.' However, if the police practice discrimination through inaction, then is there protection from that? Admittedly, the harm is small, inability to use a park. However, what about 1st amendment rights of others that wish to express them? Are they not prohibited from doing so by the squatters? (Allowed to squat by the discriminating government?)

The discrimination by the government in treating Tea Party and OYS squatters differently may be covered by the 14th amendment equal protection clause or due process clause... or the takings clause (5th amendment) as I described in the post.

The question is simple -- where is the constitutional protection preventing OYS from taking over private parks to the exclusion of others?

The takings clause also requires 'just compensation' so I don't think it will stretch to cover a 'borrowing', how would we as park users be justly compensated?

Again, if there isn't a 5th amendment argument, is there a 14th amendment argument?

If you are still confused OBH then I refer you to the title of this post. Check your resume for anything that says 'Lawyer' or 'Of Counsel' and let us all know what it says. And kindly refrain from vulgarities, it adds nothing and leaves much to be desired.

Larry Sheldon said...

The real problem is that the courts and the rest agree with the OWS, so they don't see a need for action.

They do not agree with the tea party movement, so....

Warren said...

Open letter from Oakland police union: Why is the mayor encouraging city employees to join the “Occupy” movement’s strike?

"... That’s hundreds of City workers encouraged to take off work to participate in the protest against “the establishment.” But aren’t the Mayor and her Administration part of the establishment they are paying City employees to protest? Is it the City’s intention to have City employees on both sides of a skirmish line?

It is all very confusing to us.

Meanwhile, a message has been sent to all police officers: Everyone, including those who have the day off, must show up for work on Wednesday. This is also being paid for by Oakland taxpayers. Last week’s events alone cost Oakland taxpayers over $1 million.

The Mayor and her Administration are beefing up police presence for Wednesday’s work strike they are encouraging and even “staffing,” spending hundreds of thousands of taxpayer dollars for additional police presence – at a time when the Mayor is also asking Oakland residents to vote on an $80 parcel tax to bail out the City’s failing finances.

All of these mixed messages are confusing...."


OBloodyHell said...

>>> Certainly people that used to walk their dogs or jog or picnic in the park no longer have those options, is that a 'taking' under the 5th amendment? I don't know. No others can reasonably use the private park in the manner they were accustomed to just a few weeks ago.

I'm not an attorney, but this seems rather highly improbable. I haven't been there, but I don't see that it actually STOPS you from walking your dog or jogging there, it just makes you not WANT to do so. That's a legal difference that's very important.

And, since it's a private park, I can't see as the public is likely to have any standing whatsoever as they almost certainly have no explicit right to use the park at all in the very first place.

OBloodyHell said...

>>> where is the constitutional protection preventing OYS from taking over private parks to the exclusion of others?

Ah, BOB. It's the Constitution.

You make the classic error of what the Constitution is, and does, deal with:

It doesn't limit the actions of private entities, it limits the actions of government. Or at least, that's how it is supposed to work (civil rights laws and such aside)

There is no Constitutional protection here, nor should there be. It's a private park. It is up to the owners -- and only the owners -- to deal with the issue by complaining to the police about people misusing their granted usage of it. Unless a clear crime has been committed, the police have no standing in which to act, otherwise.

Bob in LA said...

Relevant information:

Privately owned public space

I believe Zucotti is "high-quality public space that attracts employees, residents, and visitors from outside, as well as from, the space's immediate neighborhood. Users socialize, eat, shop, view art, or attend a programmed event, although they may also visit the space for sedentary, individual activities of reading and relaxing. The design supports a broad audience: spaces are usually sizable, well proportioned, brightly lit if indoors, aesthetically interesting, and constructed with first-class materials. Amenities are varied and frequently include some combination of food service, artwork, programmatic activities, restrooms, retail frontage, and water features, as well as seating, tables, trees, and other plantings."

also see

plaza standards.

NYC regulates the use of privately owned public spaces. These are created, and Zucotti specifically was created by an agreement allowing a developer to do a specific development, and in exchange created and maintains a space for the public good.

Anyone that glances at the second link above, you can see how the occupation by the squatters violates the spirit and intent of the regulations. The phrase "not adversely obstruct access into and throughout the public plaza" is included and 'obstruct' or 'obstruction' is included 17 times.

So if the park, exists for the public good, and must conform to the regulations, then doesn't the public have standing?

OBloodyHell said...

Now THAT is a reasonable argument. I would suspect that the answer is still somewhat "no", in that the actor in standing would have to be the city, not a member of the using public. The city would have to decide to sue the owner for failure to provide the services expected, which is highly improbable since, if they wanted to clear them out, they could almost certainly already have found an excuse under all sorts of regulations.

Again, I'm not legally trained, but I do actually read contracts, and, in a couple instances where I've written some for myself, have had an attorney see it and commend me for doing a fairly good job of it.

I personally find the modern legal concepts and interpretation of "standing" to be rather obnoxious -- it often prevents suit from being brought by people who have an unofficial vested interest though not an official one -- while allowing people with expensive attorneys to find ways around that -- and it's my experience with such that I've gotten a mediocre feel for where standing exists or not.

Hence, I would not be the least surprised to be wrong, but in the case you've specified, I would suspect that the city has standing to bring suit against the park owners for failure to provide proper utility, and the private owners have standing to ask for the police to act to remove the protesters (and to sue the city for failing to do so, should they ask), and it's likely that the local residents have standing to sue either or both of the city and the park owners for creating/allowing a "public nuisance" or some similar thing... but neither they nore any member of the public is likely don't have the capacity to sue for their inability to use the park, as much because they have no more right to it than the mass of idiots currently (ab)using it.

OBloodyHell said...

Re: Obstructions.

I believe a casual reading of the documents you link to suggest that what is being referred to are permanent and semi-permanent obstructions: Planters, Walls, Hedges, Trees, Outdoor Cafes, Railings, and the like.

Even the references to "awnings" and the like is connected to awnings tied to the permanent structures and generally unlikely to be removed at any point in a six-month period. None of this is likely to apply to temporary structures erected by the OWP idiots.

Bob in LA said...

Obstructions: did you miss that phrase "violates the spirit and intent?" What are the Obamaville structures, if not permanent or semi-permanent? I'll tell you what they are, they are obstructions. The city clearly doesn't want block access to the park. The intent of the reg is for the park to be enjoyed by the public, not by squatters. No it doesn't say 'you can't erect a tent city here' does it really need to say that? I don't think so.