We are still awaiting an Occupy Trenton ruling from Judge Mary Jacobson of the Mercer County Superior Court. This ruling will follow the hearing on Wednesday between Occupy Trenton and Alexander Higgins, as plaintiffs, v. Raymond Zawacki (Department of Military and Veterans Affairs), Rick Fuentes (NJ State Police), and John Does 1-11, as defendants. The heart of the suit deals with the legality of both the rules the State Troopers are enforcing at the World War II Memorial park and of the troopers’ seizure of Occupy Trenton (OT) property.
Even with a ruling in OT’s favor, occupants will be subject to applicable statutes or ordinances such as prohibiting destruction of property, city noise ordinances, obstruction ordinances, etc. Nationally police have used a variety of tactics against occupiers, particularly when their numbers are large and they engage in demonstrations. OT has not launched a demonstration, rarely has more than 20 people in the venue at any one time, and maintains a civil relationship with both local and state police. Nonetheless, even with a victory it is likely that participants have not seen the last of police interference.
Being able to erect temporary tent shelter for this 24/7 occupation is critical as winter cold and even snow now appear imminent. Having access to electricity (they now use a gas generator) is important in maintaining their livestream and in providing creature comforts like hot coffee. As items of value were seized by State Troopers, occupants naturally seek their return.
Lead attorney Bennet Zurofsky for Occupy Trenton (OT) in his brief argued that there are no permit requirements to use at the park, nor are there any regulations or restrictions pertaining to use of the park which OT occupies. Indeed, as recently as August 8 NJ-Can, which planned a demonstration there, was informed there was no permit requirement nor restriction on tables or erecting a canopy, except for cleaning up afterward and showing respect for the facility. Nonetheless, on October 14 State Troopers used a letter from Mr. Zawacki, setting forth never before existing restrictions on use of the park, as the basis for removing all “unattended” items, referring to them as “trash.” (The letter curiously has been removed from its internet site here.) Workmen under supervision of troopers (the John Does) spent about an hour removing almost everything there, including food, first-aid items, literature, and media equipment.
Attorney Zurofsky, working with ACLU NJ, its Legal Director Ed Barocas, and with David Perry Davis, asserted that by imposing new invalid restrictions upon OT and by seizing its property, the State had violated OT’s rights to due process and had infringed on its freedom of assembly. He said, “The State was making up rules over a property for which they don’t even have authority. Time, manner and place of restrictions can’t be made up as you go along.” By seizing and confiscating signs and media equipment, Mr. Zurofsky further argued the State had unlawfully interfered with OT’s right to free speech. He cited OT’s use of livestreaming and the need for media equipment to do so as an important part of its free speech. In the brief OT seeks relief to include a declaration that the restrictions and prohibitions contained in the Zawocki letter are invalid and unenforceable and that all seized items be returned.
The Defendant attorney Robert Lougy for the State failed in an attempt to transfer the case from Superior Court to the Appellate Division. He argued in his brief that the guidelines governing the use of the property are reasonable, do not constrain freedom of assembly, comport with due process and allow freedom of speech. He further asserted that the public’s interest weighed against the plaintiff’s harming and denigrating the State property and that no irreparable harm had been done to OT.
Tomorrow is National Occupy Your State Capitol Day. OT events will start at 12pm, with a seminar at 2pm on how to set up your own Occupation. You can spend part of your Saturday in Trenton across from the State House while simultaneously supporting some of our most important constitutional rights.