On Wednesday, Dec. 7, just before 7 p.m., 20 people gather on a hill in frigid Duncan Plaza for the Occupy New Orleans nightly general assembly, just as they did two nights before. "Whose park?" one person yells. "Our park!" comes the refrain from the rest. It's a familiar slogan now, like the "people's mic" or the "one percent," terms that have slipped into the national dialogue as the Occupy movement has taken hold across the country.
Here, it's shifted in tone somewhat from three or four nights ago, during the tense weekend after Mayor Mitch Landrieu announced the "time is now" for the group to end its two-month occupation of Duncan Plaza. Then it had an air of righteous indignation. Tonight it's joyful.
That's because it is, in fact, their park. At least until Tuesday, Dec. 13.
Occupy New Orleans was evicted by the New Orleans Police Department early Tuesday. According to city officials, about 150 people — some there as a political exercise, many more because they had nowhere else to go, a few for both reasons — were inside the park at the time.
Twelve hours later, U.S. District Court Judge Jay Zainey granted the group a temporary restraining order (TRO), which allows the protesters to stay there 24 hours a day for seven days. Attorneys are scheduled to reconvene for a status hearing — likely to be held privately in Zainey's chambers — on Monday, Dec. 12. The meeting may determine whether Occupy New Orleans receives an extension and whether the group's long-term lawsuit — a permanent injunction against eviction from the park — goes forward.
In a press conference on the morning of the eviction, Landrieu described the action, which was peaceful and only included one arrest, as a "very well-organized, well-thought-out and now well-executed plan." It was executed in a fashion "that respected the First Amendment rights of those in the park within the bounds of the law that protected the common good," Landrieu spokesman Ryan Berni wrote in an email.
However, it may have gotten the city into some legal trouble. On Tuesday, Dec. 6, the day of the eviction, Vainey said he was "not happy" with the move. Occupy New Orleans lawyers are pressing on. The group's legal team, which includes local civil rights attorney Bill Quigley, plans to file further actions — civil damages and possibly criminal contempt — against the city for its Tuesday morning eviction. But the Occupy New Orleans legal team says Dec. 13 could be the end of the Duncan Plaza occupation.
Plaintiff Frazer O'Hara, who's been living in the park with his father Robert, says he wasn't given a chance to move out all his belongings. The O'Haras, who lived in a well-appointed area — complete with a movie projector — called the "Rabbit Hole," says he wasn't able to get everything out. "The police only let us make one trip, and then we couldn't come back in," he says. Everything protesters left behind was thrown out, which Occupy New Orleans' lead attorney Davida Finger calls "cruel and disgraceful."
The Landrieu administration disagrees. "Mayor Landrieu asked the 'campers' to come into voluntary compliance immediately on Friday afternoon," Berni wrote. "The NOPD [New Orleans Police Department] passed out nearly 500 fliers warning of violations of the law and impending enforcement over the course of four days. In addition, NOPD gave approximately 30 minutes for campers to remove themselves and their belongings from the park prior to any enforcement action."
As of this writing, lawyers are gathering affidavits from the people who lost property during the eviction. The attorneys say they're considering filing a second civil suit against the city — this one for damages. They're also weighing a criminal contempt suit based on what they say was a Monday night assurance from the City Attorney's Office that no action would be taken until after the hearing in Zainey's court.
City officials acknowledge that a conversation took place but deny any assurances were made. "Yes, they did speak," Berni wrote in an email. "It is untrue to say that someone from the City assured that the camp would not be evicted while the TRO was pending."
What's striking, sitting outside Zainey's courtroom on the afternoon of Dec. 6, is how loud just 30 people, each speaking at a regular volume, can get. Five of the 30 are with the news media, three are U.S. marshals and one is a baby. They've been on the fourth floor of U.S. District Court in New Orleans for two hours, waiting for the end of private negotiations between the New Orleans City Attorney's Office and the Occupy New Orleans legal team.
There's Derrick Morrison, who, prior to Occupy New Orleans, was a leader in the movement to reopen Charity Hospital. In contrast to some of the younger Occupy New Orleans activists, a few of whom have been wearing the same outfit for a while, he never appears in public without a clean, ironed dress shirt. Morrison is also noteworthy for his resounding voice, which might be described as a low yell. He's not optimistic. "The legal system — courts — it's a joke," he says to a small group as he stands across the hall from the courtroom.
Also present are some of the plaintiffs in the lawsuit against the city, like Delia Labarre, who's taking notes on what items people lost during the eviction. And Nadra Enzi, who stands silently waiting.
"Who knew I'd make a good activist?" says Derik Brazzell, taking a cigarette break outside. Brazzell came to New Orleans from central Illinois in early October looking for work after his landscaping business folded. He's been living in Duncan Plaza since he arrived and has, to his surprise, emerged as one of the group's leaders, though Occupy New Orleans participants might take issue with that characterization in this nominally leaderless movement.
Brazzell seems to be well-liked by nearly everyone at Occupy New Orleans. He helps maintain order in the group during its sometimes chaotic general assemblies. On Sunday, when a fight broke out between two men near Duncan Plaza's pavilion, Brazzell was the first to break it up. He's been appointed one of the legal liaisons for the group.
Then there's Norman Oak, one of several dozen campers who on Monday were transported by an NOPD bus to Exodus House, a homeless services center on Ursulines Avenue. "It's probably not going to be a lot of housing. It's going to be a lot of services," like medical treatment and food stamps, Exodus House director Donald Wilkerson said that day. "Housing might be available for some people. That's the end goal. But we've got to get that other stuff out of the way."
Since then, Wilkerson hasn't responded to repeated requests for information on how many of Duncan's Plaza's homeless were placed into some type of housing. According to Oaks, Exodus was able to arrange for some people to move to a temporary shelter, though such shelters typically only offer a limited number of free stays.
Oaks, however, has returned to the park despite suffering from chronic obstructive pulmonary disease [COPD] and hepatitis C. He frequently has to take long breaks, mid-conversation, for terrifying coughing fits, after which he'll pace quietly until he recovers his breath. "The COPD and the hepatitis, those are the ones that'll kill me," Oaks says. "I've got a couple other small ones."
Because of those conditions, he says, he can't live in a communal shelter. "Sleeping in close quarters, I'm a danger to others, and they're a danger to me. I'm at extremely high risk of infection. If someone near me has a cold and they cough, it could kill me," he says. "And because of the hepatitis, my blood is toxic."
Oaks says he had no complaints about Exodus House itself. The staff there was doing its best to help him. They were simply overwhelmed and underresourced.
The hearing in front of Judge Zainey originally was scheduled for 11:30 a.m., then is pushed back to 2:30 p.m. Finally, after 4 p.m., Occupy New Orleans attorney Miles Swanson walks out, followed by Finger and Quigley, then City Attorney Richard Cortizas, Assistant City Attorney Nolan Lambert and the rest of the city's legal team.
The ruling is announced, and Quigley and Finger say they believe it's the first time a judge has nullified an Occupy eviction after the fact.
"This is a victory for the First Amendment," Quigley says. "It's a victory for the Occupy actions, the right to peacefully assemble, the right to freedom of speech and expression, and the judge recognized that. That's really, really important." But Quigley urges caution. Just after the ruling came in on Tuesday, he said the city argued that Occupy New Orleans' encampment was rife with health and safety violations: trash, bodily waste, unleashed dogs, open flames and electrical cords running through the park.
The state of the park cost taxpayers a lot of money, according to Berni. The eviction and clean-up took more than 200 police, fire, EMS workers, sanitation, parks and parkways and property management employees and cost more than $40,000. Add the cost of the portable toilets the city maintained throughout the encampment, and the cost was more than $50,000, Berni says.
The Occupy New Orleans complaint cites a number of court decisions where similar protests were found to be protected speech, including one 1976 federal appeals court decision, United States v. Abbey, which found that arresting someone for sleeping in a public park was a First Amendment violation.
The City's response, however, cites other cases including a number of Occupy protest cases where courts ruled against similar protests, including Occupy Minnesota v. County of Hennepin and Occupy Sacramento v. City of Sacramento.
"The First Amendment does not guarantee access to property for speech activities just because it is government-owned," the city argues in its response.
There is also a city ordinance that bars anyone from staying in any city park between 10:30 p.m. and 6 a.m. Occupy New Orleans claims that law was invalidated in a local 1986 U.S. District Court decision — Thompson v. City of New Orleans — and the Occupy side gives as evidence an unspecific summary judgment against the city in that case. The case files themselves were unavailable from the U.S. District Court , and the Occupy New Orleans legal team couldn't produce them either.
There's been talk around the camp that Duncan Plaza soon may become irrelevant. In other cities, Occupy groups have moved out of parks and into offices or foreclosed properties.
But where is this ultimately going? Why do the protesters need the park? Do they want to stay there forever? What are they saying by sleeping there?
"We suffer from the highest per capita homeless rate of any major city in America today," says Mike Howells. Occupying Duncan Plaza is necessary, at least now, he says, in order to bring the city's biggest issues to its leaders' doorstep — across the street from New Orleans City Hall.
"We're saying that the economic and political status is unacceptable," Howells says. "And in practice, it's really driving us out of our homes. And what better way to say that than having people camping in the park?"