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A Victory for Occupy 

Landrieu's only misstep may have been not waiting until Judge Zainey heard the matter

Time and again, public officials across America botched their responses to the Occupy protests. Images of cops beating protesters in New York and pepper spraying peaceful, seated college students on the University of California-Davis campus are among the most vivid examples of the overreactions. In Oakland, Calif., a legal advisor to Mayor Jean Quan resigned in protest over the Oakland Police Department's violent tactics, and in Portland, Ore., police in full riot gear drove protesters through the streets, warning that protesters "may also be subject to chemical agents and impact weapons."

  In contrast to those responses, Mayor Mitch Landrieu and the New Orleans Police Department (NOPD) served up one of the most measured — and humane — responses to date. On Oct. 7, one day following the initial Occupy march and occupation of Duncan Plaza, Landrieu crossed the street from City Hall to shake hands and ask members of the group how they were doing. For the next seven weeks, the city applied a hands-off approach to the small tent city, which grew quite a bit at the end of October, when the Landrieu administration cleared out the Baronne Street homeless encampment under the Pontchartrain Expressway. The city provided portable toilets and for weeks turned a blind eye to anti-camping statutes in the city code.

  Occupy had — and has — every right to protest, but courts elsewhere have correctly held that the First Amendment right to protest peacefully doesn't convey a right to camp on public land indefinitely. On Friday, Dec. 2, the Landrieu administration, along with NOPD Chief Ronal Serpas, cited the anti-camping statutes and declared it was "time to move on." That evening, officers handed out pamphlets to campers that said, in part, "We invited you to express your U.S. Constitutional Rights at Duncan Plaza during the park's operating hours of 6:00 a.m.-10:30 p.m. However, it is against the law to sleep in this park or erect or store tents and other equipment in this public space."

  The next day, Serpas visited the park to answer protesters' questions, and on Dec. 5 the city provided buses to Exodus House, where counselors offered transitional housing and medical services to anyone who wanted help. Few, if any, had left the park, and Serpas reiterated it was time to go. Later that day, a legal team representing Occupy New Orleans sued Landrieu, Serpas and the city in federal court seeking, among other relief, a temporary restraining order barring the city from evicting the protesters. U.S. District Court Judge Jay Zainey scheduled a hearing on the matter the following morning (Dec. 6).

  Shortly before dawn that morning, the administration made its only miscalculation in the whole affair when cops swept the park and ordered campers to leave. By all accounts it was a peaceful and respectful eviction, with only one arrest. Landrieu called it a "very well-organized, well-thought out and now well-executed effort" and an "example to the rest of the country." In all but one respect, he was correct. His only misstep may have been not waiting until Judge Zainey heard the matter a few blocks away in federal court.

  About 12 hours after the sweep, Judge Zainey granted the temporary restraining order — but he also barred weapons, animals, open flames, electrical cords, and protesters' use of the pavilion in the middle of the plaza. Jubilant protesters immediately made their way back to the park and began pitching new tents, even as acting City Attorney Richard Cortizas sent out a statement saying, "We respect the Court's decision, but we respectfully disagree." Meanwhile, legal advisors to Occupy said the city had trashed the protesters' belongings and that they were mulling legal action over that.

  Would Zainey have ruled differently had the administration waited to evict? Impossible to say, but judges often punish litigants who fail to show due deference to the courts' authority. Zainey will conduct a status conference concerning the case on Dec. 12, and occupy protesters can remain in Duncan Plaza until at least Dec. 13. Zainey made it clear his order was only temporary and did not reflect his views on the merits of Occupy's case. It's a fair warning to both sides to proceed cautiously — and respectfully.

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