Menino administration, lawyers for Occupy Boston camp make cases in legal documents

By Martine Powers and John R. Ellement , Globe Staff

As Occupy Boston protesters gear up for a Thursday morning court hearing that could determine their future in Dewey Square, attorneys for the protesters and the city have filed dueling legal briefs to support their positions.

In its filing, the Menino administration repeated examples of what it says are the camp’s fire and health hazards. The city, it says, should be free from judicial intervention if the administration decides to move against the camp near South Station.

But in a brief filed on behalf of the plaintiffs, four participants in the Occupy Boston movement, attorneys from the National Lawyers Guild, and the state chapter of the American Civil Liberties Union argued that the encampment is protected under the law because it constitutes a form of free speech.

A Suffolk Superior Court judge issued a temporary restraining order on Nov. 16 barring the city from evicting the protesters pending Thursday’s hearing unless there is a fire, medical emergency, or outbreak of violence.

Mayor Thomas M. Menino’s spokeswoman Dot Joyce said today the city had filed in the court 200 pages of reports on Tuesday from police and city inspectors detailing arrests and public health concerns related to the tent city in the city’s downtown.

Joyce said the mayor supports the protesters on the issues, but he also remains convinced the city must have freedom to act against them if officials deem the public safety or public health is undermined.

“He remains a supporter of their issues and is very sympathetic to their issues,’’ she said today in a telephone interview. “But he has some real concerns about the conditions of the camp. We continue to monitor the situation and have no plans to remove them at this point.’’

In their filing, city officials say they have visited the encampment numerous times since its creation and have now concluded it is a danger to public safety, a threat to public health, and a fire hazard that poses a threat to occupants as well as responding firefighters.

“It is my opinion that the camp, in its current condition, provides an environment that can facilitate the spread of viruses and communicable diseases,’’ Barbara Ferrer, executive director of the Boston Public Health Commission, wrote in an affidavit.

“Further, the condition of the camp, transient nature of the campers, and lack of an identifiable or accountable person to consistently employ health and safety measures can result in the spread of serious and potentially life threatening illness among the campers,’’ she wrote.

She added, “These health hazards will not abate if the current conditions are allowed to persist.’’

Ferrer said that during site visits, she had seen unsanitary practices used for the storage of food, spotted some occupants defecating in the Dewey Square shrubbery, smelled the pungent odor of human urine and failed to find anyone who would take responsibility for upgrading conditions.

City Fire Marshal Bart Shea said many of the tents used by occupiers are made of flammable materials and that the attempt to “winterize’’ the encampment has increased the fire risk because occupiers have draped flammable tarps onto the already risky tenting materials.

He also said that the ropes used to secure the tents are installed in a haphazard manner, increasing the risk of injury to responding firefighters who may be tripped up by the ropes as they rush to help someone, especially in the dark of night.

The drumbeat of criticism continued from the city Inspectional Services Department, which warned of a rat infestation and noted that there is no clean water supply, bathrooms, or safe handling of food.

Boston police reported spending $750,000 in overtime and having to intervene for minor and major matters 87 times since Oct. 7 when a Bank of America branch was vandalized.

Police said in their report that they have made multiple arrests for alleged drug dealing, stepped in to quell arguments between occupants, and have had to investigate a verbal assault on a female Coast Guard member who was sworn at and called a barnyard epithet when she walked past Dewey Square.

Meanwhile, the brief on behalf of Occupy Boston maintains that the encampment itself provides a model of the kind of community for which protesters are pushing.

“Occupy Boston’s tent city and 24 hour-a-day 7 day-a-week community is … expressing the message that there is the possibility of a more fair, democratic, and economically egalitarian society,” the brief says. “It is the message of the Occupy protests.”

To that end, Occupy Boston’s lawyers also filed affidavits from local teachers and students who said they visited the Occupy Boston camp to learn more about the Occupy movement. Richard Feigenberg, a teacher at Martin Luther King Jr. Open School in Cambridge, described a field trip that he took with his students to learn about the Occupy movement’s message.

“By our direct observation during our visit, we saw Occupy Boston participants demonstrating an alternative way of people relating to each other, as part of their message concerning the control exerted by the 1 percent over our social institutions.”