Monday, December 12, 2011

City, #OccupyNOLA unable to reach settlement in morning Federal Court meeting

Posted By on Mon, Dec 12, 2011 at 1:17 PM

Lawyers with the city of New Orleans met for an hour in U.S. District Court Judge Jay C. Zainey's chambers this morning with Occupy New Orleans lawyers Davida Finger, Alison McCrary and Bill Quigley. After an hour-long meeting, Finger says, the two sides were unable to reach a settlement that would allow the people camped out in Duncan Plaza to stay and, at the same time, satisfy the city's concerns about potential health violations.

Zainey — who has been substituting on the case for assigned Judge Lance Africk — last Tuesday granted Occupy New Orleans a temporary restraining order allowing them to remain in the park 24 hours a day with tents, even after the city had raided the park and evicted the campers early that morning.

Africk, meanwhile, this morning issued an order for arguments from from the Occupy legal team in response to a city ordinance that bans the erection of "structures" in public places. New Orleans municipal code 146-276 reads as follows:

It shall be unlawful for any person to construct or maintain or operate any structure or service on, above or beneath the public streets and other public places within the city without permission of the council in accordance with the regulations provided in this article. Providers of wireline telecommunications services, as that term is defined in section 30-45 of this Code, shall be governed by sections 30-43 through 30-57 of this Code.

(Continued after the jump)

Finger says she doesn't believe the law applies to temporary shelters like tents.

"We don't think tents are covered by that ordinance," Finger says. "We think it applies to permanent structures."

Africk is also ordering the city to file written arguments explaining its position on the ordinance and whether it applies to the two-month old Duncan Plaza encampment. Both sides must file by 5 p.m. today.

Finger indicated that she sees it as a "good sign" for the protesters that Africk has ordered the wbriefs rather than immediately ruling that the ordinance applies to Occupy New Orleans.

Finger and Quigley say that they do not expect a ruling granting another limited extension to the temporary restraining order. Rather, says Finger, Africk is expected to rule tomorrow morning on whether to grant the protesters a preliminary injunction, which would prevent the city from evicting them while Occupy New Orleans' lawsuit requesting a permanent injunction — allowing for an indefinite occupation without city eviction — is pending.

"Presumably [Africk] will rule before the TRO expires," says Finger. That happens at 10 p.m. tomorrow.

At the same time, the city continues to argue its case citing a multitude of health and safety violations in the park since the encampment's inception in early October. On Friday, the City Attorney's Office filed affidavits with testimony from Mayor Mitch Landrieu's chief adviser on homelessness, Stacy Horn-Koch, Deputy Mayor of Public Safety Lt. Col. Jerry Sneed, Health Commissioner Dr. Karen DeSalvo, other administration officials and officers for the New Orleans Police Department, all of whom cite safety issues.

Below you can read DeSalvo's affidavit, which includes allegations of unsanitary food preparation, unleashed dogs and reports of assault and sexual assault, to name just a few, at the Occupy New Orleans encampment. DeSalvo also reports seeing a dog in the park, the day after Zainey issued the TRO, which banned animals as one of its conditions. The affidavit includes a picture of the dog (not included because you can't see anything in the print-out I got from the court. The dog, however, is certainly visible in the original.)

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