Judge tells Occupy Wall Street: You can't sleep in Zuccotti Park anymore

It looks as if the Occupy Wall Street protesters will have to bundle up real good this winter.

A New York State judge has ruled that they can return to Zuccotti Park to protest – but not with their tents, tarps and generators. In short, protest, yes. Occupy, only with mittens on.

The decision by New York State Judge Michael Stallman is a victory for New York City, which had shut down the tent city at 1 am on Tuesday. The protesters’ lawyers had argued they had a constitutional right to assemble on the site and part of that assemblage included a 24 hour occupation.

However, Judge Stallman, after hearing oral arguments, ruled that the owners of Zuccotti Park had the legal right to set rules for the use of the park. Brookfield Properties rules – enacted after the occupation began – outlawed camping, the use of tents, tarps and sleeping bags.

The protesters “have not demonstrated they have a First Amendment right to remain in Zuccotti Park, along with their tents, structures, generators, and other installations to the exclusion of the owners’s reasonable rights and duties to maintain Zuccotti Park, or to the rights to public access of others who might wish to use the space safely,” wrote Stallman.

Does this mean the Occupy movement is dead?

“The battle for Zuccotti Park is far from over,” says Randy Mastro, a former deputy mayor under Rudy Giuliani and a lawyer at Gibson Dunn & Crutcher in New York. “I have no doubt the protesters will seek to appeal.”

After the ruling, the police allowed the protesters back into Zuccotti Park but without any large bags, tents or sleeping bags, said Karanja Gacuca, a spokesman for the protesters. He said Occupy Wall Street planned a general assembly this evening starting at 7 p.m.

Mr. Gacuca said he anticipated the group would indeed appeal. To overturn Stallman’s ruling they will have to go to Albany to the state’s highest court, the Court of Appeals.

However, Mr. Mastro says he expects New York will win any appeals. “The protesters have no rights to occupy the park and live there 24 hours and put up tents,” says Mastro.

Lawyers for the protesters argued before Stallman that part of their protest involved 24 hour assemblage.

However, at a press conference earlier in the day, Mayor Michael Bloomberg declared the city needed to act for safety and health, and to allow first responders to do their jobs.

“Inaction was not an option,” said Mr. Bloomberg at a morning press conference. “The city could not wait for someone to get killed before acting.”

Bloomberg cited a situation last week when a first responder was injured when an individual within the tent city was threatening to hurt people. Also in recent weeks, homeless people had arrived at the encampment which provided free food.

After they were evicted, many of the protesters ended up walking the streets of the city for hours. Through the day they migrated to different parks only to be evicted repeatedly by the police. According to news accounts about 200 protesters and at least four journalists were arrested.

“This is a setback for Occupy Wall Street, but it is not the last chapter,” says Mastro.