Judge rules against Occupy Boston protesters, clearing way for eviction; Mayor Menino urges them to leave

By David Abel and Travis Andersen, Globe Staff

Occupy Boston protesters yesterday lost their court battle to stay in a downtown Boston encampment indefinitely, a judicial decision that won praise from Mayor Thomas M. Menino, who, for the first time, told the frustrated demonstrators it was time to pack up and leave.

City officials said they had no immediate plans to remove the protesters. An attorney for the demonstrators said they will file an appeal today.

“We applaud the judge for clearly recognizing the city’s authority to protect all of our residents, including those currently at Dewey Square,” Mayor Thomas M. Menino said in a statement. “Our first priority has always been and will always be to ensure the public’s health and safety. As outlined in the court proceeding and affirmed in the judge’s ruling, the conditions at Dewey Square have deteriorated significantly and pose very real health and safety risks.”

He called on protesters to leave the area and remove their tents. “Today’s decision provides clarity surrounding Occupy Boston’s status at Dewey Square, and the city will act appropriately to fulfill our duty to preserve the public’s peace and safety,” he said.

In a 25-page decision, Suffolk Superior Court Judge Frances McIntyre denied a motion the protesters filed that would protect them from eviction from their encampment in Dewey Square, a fate that has befallen similar protests across the country in recent weeks.

McIntyre also vacated a temporary restraining order that had protected the tent city.

“While Occupy Boston protesters may be exercising their expressive rights during the protest, they have no privilege under the First Amendment to seize and hold the land on which they sit,” McIntyre wrote in her decision.

Drawing a distinction between “occupation” and “living activities” on the land, McIntyre added, “The act of occupation, this court has determined as a matter of law, is not speech. Nor is it immune from criminal prosecution for trespass or other crimes.”

The living activities, on the other hand – such as erecting tents, sleeping, and setting up self-governance on the Dewey Square site – are “expressive conduct and symbolic,” she found. “Nevertheless, it is subject to City and Park regulations and restrictions.”

Ariel Oshinsky, an Occupy Boston media volunteer, said of the ruling yesterday, “Certainly, it’s a disappointment. ... But I don’t think it’s [a decision] that we weren’t prepared for.”

Jeffrey Feuer, a Cambridge lawyer who has represented the demonstrators, urged city officials to avoid “any precipitous action until all of the legal avenues … have been fully followed.”

“The fact that there was a small piece of public land being occupied doesn’t mean that people were prohibited from using that land or from using the vast majority of the [Rose Fitzgerald Kennedy] Greenway,” he said, calling the location “crucial to the message of Occupy Boston, which is that there is a 1 percent controlling our economy and our government, and this is in the heart of the financial district.”

He added: “We think that she took a very limited, legalistic approach and failed to recognize the unique nature of this protest.”

Feuer said that the protesters’ appeal will be filed today.

Elaine Driscoll, a spokeswoman for Boston police, said the city has spent more than $700,000 to cover the overtime costs for police officers to monitor the protests. She described the 10 or so officers in Dewey Square last night as “routine.”

“The police commissioner is pleased with the decision and believes that it is important that the city has discretion in determining how to proceed,” Driscoll said.

Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, which has helped represent the demonstrators, said that while the ruling is disappointing, it acknowledges that their activities are protected under the First Amendment.

She noted the ruling specifies that “creating a model society is expressive speech and is subject to some protections, and that’s actually really important as a matter of future law.”

Harvey A. Silverglate, a prominent civil liberties lawyer in Boston, said he agreed with McInyre’s ruling, as it pertains to the First Amendment. But he called her ruling “wrong” because of its “cursory assumption that the free speech provision of the Massachusetts Constitution is not more protective of speech than the federal First Amendment.”

He said he thought the protesters had a “very good chance” of prevailing in their appeal.

“We have the advantage of a free speech guarantee that is older, and more robust, than the First Amendment,” he wrote in an email.

McIntyre issued a temporary restraining order on Nov. 16, barring the city from evicting protesters unless there was a fire, medical, emergency, or “outbreak of violence.”

On Dec. 1, McIntyre said she would extend the temporary restraining order until she decided whether to issue the preliminary injunction that would permanently protect the encampment in Dewey Square. She set a Dec. 15 deadline for herself to rule on the preliminary injunction.

The judge said her decision “clears the way but does not order the plaintiffs and other protesters to vacate the site and request permission to set up tents or other equipment for expressive purposes.”

She noted, however, that under Greenway Conservancy guidelines, overnight sleeping and living at Dewey Square are “not options.”

At the tent city last night, demonstrators circulated a pamphlet with instructions to prepare for a possible police raid.

The pamphlet suggested the protesters pack valuables in tents, form a buddy system, and keep cellphones fully charged to monitor an emergency texting service.

“If/when a raid begins, please pay attention to safety and other on site folks who are coordinating a safe exit from the camp,” the pamphlet read, noting the plan is for protesters to regroup in front of a city courthouse the next morning and attend a meeting that night on Boston Common.

As twitter messages spread throughout the encampment about the judge’s ruling, the protesters remained calm and said they planned to remain until forced to leave.

“I don’t think a court order really matters,” said John Murphy, a 24-year-old unemployed carpenter, who has been camping out since the protest began on Sept. 30. “All this could have happened on day one, when we camped here without a permit, like we’re doing still.”

Between speeches at a general assembly of about 50 protesters last night, Duncan MacKenna, 25, an unemployed college graduate from Hamilton, said he was not surprised by the judge’s ruling.

“We were expecting they would do this sooner or later,” he said. “I’m glad that we now know that we have no legal protection. We no longer have a false sense of security.”

Martin Finucane, Akilah Johnson, and Andrew Ryan of the Globe Staff and Globe Correspondents Miriam Valverde and Derek J. Anderson contributed to this story. David Abel can be reached at dabel@globe.com. Follow him on Twitter @davabel.