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City Of Boston Court Filing On Occupy Boston

City Of Boston Court Filing On Occupy Boston

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COMMONWEALTH SUFFOLK, SS.

OF MASSACHUSETTS SUPERIOR COURT C.A. NO. 11-4152

OCCUpy BOSTON, KRISTOPHER MARTIN, SASHA SAGAN, NOAH MCKENNA, and JENNIE SEIDEWAND, Plaintiff,

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v.
CITY OF BOSTON, CITY OF OF BOSTON POLICE DEPARTMENT, by and through POLICE COMMISSIONER EDWARD DAVIS, and the ROSE FITZGERALD KENNEDY GREENWAY CONSERVANCY, INC., Defendants.

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DEFENDANTS, CITY OF BOSTON AND CITY OF BOSTON POLICE DEPARTMENT, MOTION FOR FILING A BRIEF IN EXCESS OF TWENTY PAGES Pursuant to Superior Court Rule 9A(b)(4), counsel for Defendants City of Boston and City of Boston Police Department, by and through Police Commissioner Edward Davis ("Defendants"), request the Court's permission to file a brief in excess of twenty pages in responding to the Plaintiffs' Motion for a Temporary Restraining Order and, After a Hearing, a Preliminary Injunction. As support for this motion, Defendants state that a brief in excess of twenty pages is necessary due to the breadth of issues raised by the Plaintiffs in their Motion, which include substantial constitutional matters. Defendants can only adequately respond to

those issues by filing a brief in excess of twenty pages. The allowance of this motion will also ensure the Court's ability to consider Defendant's opposition to the extraordinary relief sought by Plaintiffs in full. CITY OF BOSTON, By its attorneys: William F. Sinnott

Raquel ¢ e, B # 658796 Amy Bratskeir, BBO #662034 Julie Ciollo, BBO # 666080 Kevin Corridan, BBO # 662648 Nicole N. Taub, BBO # 663517 Assistant Corporation Counsel City of Boston Law Department Room 615, City Hall Boston, MA 02201 (617) 635-4034

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Michael D. Ricciuti (BBO #550771) Kelly K. McLaughlin (BBO # ) K&L GATES LLP State Street Financial Center One Lincoln Street Boston, MA 02111-2950 (617) 261-3100 (617) 261-3175 (fax) Michael.Ricciuti@k1gates.com CERTIFICATE OF SERVICE I, Michael D. Ricciuti, hereby certify that a true copy om ' served upon Plaintiffs' counsel by hand delivery on November I
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document was

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--~~~-----------MIC L D. RICCIUTI
Dated: November 29,2011

COMMONWEAL TH OF MASSACHUSETTS SUFFOLK, SS.
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SUPERIOR COURT C.A. NO. 11-4152

OCCUpy BOSTON, KRISTOPHER MARTIN, SASHA SAGAN, NOAH MCKENNA, and JENNIE SEIDEWAND, Plaintiff,

v.
CITY OF BOSTON, CITY OF OF BOSTON POLICE DEPARTMENT, by and through POLICE COMMISSIONER EDWARD DAVIS, and the ROSE FITZGERALD KENNEDY GREENWAY CONSERVANCY, INC., Defendants.

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DEFENDANT CITY OF BOSTON'S MEMORANDUM OF LAW IN SUPPORT OF ITS OPPOSITION TO PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION INTRODUCTION
The City of Boston strongly believes in and protects its citizens' and visitors' rights to freedom of speech and peaceful assembly, consistent with the strong protection of such speech in the federal Bill of Rights and Massachusetts' Declaration of Rights. Such speech is at the core of

a functioning democracy and at the heart of the political culture in Boston, which has seen protest playa major role in political discourse in this City since the founding of the Republic. Nevertheless, "[ n]otwithstanding its exalted position in the pantheon of fundamental freedoms, free speech always must be balanced against the state's responsibility to preserve and protect

other important rights." McGuire v. Reilly, 260 F.3d 36, 42 (1st Cir. 2001). The City, and the Court, must balance the City's obligation to protect First Amendment rights with its obligation to ensure the public safety and welfare of the citizens it serves. Since September 30,2011, the named individual Plaintiffs and unnamed others began continuous camping in a public park in downtown Boston known as Dewey Square Park ("the Park") in a demonstration they call "Occupy Boston." The name of the demonstration reflects its goal- the physical and evidently permanent occupation of a public park, overriding all reasonable restrictions governing the Park which, in part, maintain it as a free and open public forum for the public. Stripped to its essentials, Plaintiffs claim that they are legally entitled to permanently occupy a public park, effectively converting it into a private campground for their

necessarily exclusive use subject to no regulations but their own, thereby denying its use to others to promote their interests, including expressing their views. To achieve this end,

Plaintiffs sued the City and the Rose Fitzgerald Kennedy Greenway Conservancy ("Conservancy"), which operates the Greenway, to enjoin them from enforcing any of the reasonable time, place and manner restrictions that ordinarily govern the Park. Plaintiffs' position is plainly meritless, as detailed below. Before addressing the merits, it is important to recognize that "Occupy Boston" is not a proper party in this action. "Occupy Boston" is a website, not a legal entity; it cannot sue in this action. Accordingly, neither the four named plaintiffs nor their counsel speak for "Occupy Boston" nor represent any views but their own. Nor could they; the "Occupy Boston" website emphatically declares that no one speaks for the occupiers in the Park and no one can define or limit the occupiers' varied messages.

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Whether or not limited to the named individuals, Plaintiffs cannot succeed on the merits. There is no doubt that members of "Occupy Boston" are partaking in forms of expression when displaying signs, chanting and marching, all of which have taken place in and around the Park. These are quintessential forms of political expression which the First Amendment protects and the City respects. However, living on public land is conduct, separate and distinct from the speech that may be associated with it, and there can be little doubt that some participants in the encampment - most notably chronically homeless individuals known to Boston health officials and others - are living in the encampment.
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Plaintiffs bear the burden of demonstrating that their

sleeping in the Park is, under these facts, expressive conduct. The First Amendment protects speech; it does not protect Plaintiffs' desire to live in tents unless Plaintiffs show that it is somehow communicative. Even if Plaintiffs could satisfy the legal standard to show that living in a tent is nonverbal conduct within the ambit of the First Amendment, Plaintiffs cannot demonstrate that they are thereby free from all regulation and hence entitled to permanently seize public property, create an unlawful encampment on it, and maintain it in violation of health and safety regulations. It is beyond dispute that camping is subject to content-neutral limitations designed to promote fire safety, public safety, sanitation and other goals.i Plaintiffs' constitutional rights

1 See, ~., Affidavit of Barbara Ferrer, Executive Director of the Boston Public Health Commission, submitted herewith, discussing homeless persons living in the encampment.

2Plaintiffshave argued that by not taking immediate enforcement action to eject the occupiers from unlawfully occupying the Park, the City has somehow waived its right to do so and enforce the law, even where the occupation has dragged on for months and has raised increasingly serious public safety and other concerns. This argument is unsupported either by common sense or the law. The City should not be faulted for choosing to refrain from fully and immediately enforcing the law and ejecting Plaintiffs, especially where they claim that they were engaged in protected expression, nor can it be barred from ever taking subsequent action if the occupiers thereafter refuse to leave. Were the Court to find such a waiver here, it would provide a strong incentive for the City not to exercise such discretion in cases like this, a perverse result in light of the Plaintiffs' goal of promoting First Amendment rights. For much the same reasons, the law does not support such waiver arguments against the government. See, e.g., Wayte 3

are not limitless; nothing in either the Massachusetts or Federal Constitution gives the Plaintiffs unlimited access and use of the Park to the exclusion of others. Essentially, Plaintiffs have asked this Court to issue an order that invalidates the entire regulatory regime that would otherwise prevail at the Park, even health and safety codes, because Plaintiffs assert that they are communicating a political or economic message. The law does not support this extraordinary claim; on the contrary, it has long supported the imposition of reasonable time, place and manner restrictions on conduct, even if that conduct is associated with speech. Prohibiting camping and enforcing other statutes and rules, especially health and safety rules, is fully consistent with this well-established law. Nothing suggests that the tents in the encampment, many of which now constitute "dwellings" and which are thereby subject to the housing, fire and health codes, can or should be immune from such regulations designed to protect health and safety. Even if Plaintiffs could somehow show that they had some hope of success on the merits (and they cannot), their claim for an injunction would still fail on the ground that it would plainly undercut the public interest. Plaintiffs concede that their occupation is subject to health and safety codes, and have baldly argued that their encampment complies with them. They plainly do not. Most critically, Plaintiffs' encampment is a tightly-clustered tinderbox which poses a substantial, worsening risk of uncontrollable fire which would spread quickly throughout an area

v. United States, 470 U.S. 598, 607-08 (1985) ("In our criminal justice system, the Government retains 'broad discretion' as to whom to prosecute.... This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.... Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.").

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where there is inadequate means of escape. Its structures clearly violate the fire code, the building code and health code, as well as Park guidelines and rules. Moreover, permitting the occupiers to effectively adversely possess a public park, invalidating the statute creating it for the public, would subject every public park in the Commonwealth - and, indeed, every public facility - to permanent occupation by protestors so long as they claim to be sending a message. Reasonable health and safety rules would be invalidated wholesale. Public property would quickly be converted to private property, controlled by singular groups intent on pressing their own message, to the likely ifnot necessary exclusion of others, closing public forums to other speakers in favor of those who seize public property first and hold it. This absurd result is not and cannot be the law. Nothing in the First Amendment supports tying the City's hands from enforcing applicable fire, health, inspectional codes, criminal statutes, and guidelines that govern the use of the Greenway. And the threat at the Park is real. The City Fire Marshal, health inspector, building inspector and police have inspected the encampment and concluded it poses an imminent threat of danger to the occupiers and those around it. Efforts to rectify the issues have failed. The leaderless nature of the occupiers' "organization" has made it impossible to effect or maintain change; as a result, violations of the applicable safety and health code are rampant. There is no order this Court could issue which would resolve these concerns; "Occupy Boston" neither legally exists nor, even ifit did, professes any control over its participants. Indeed, some of the occupiers identify themselves as anarchists, rendering futile reasonable efforts at control. Under these facts, Plaintiffs cannot show any likelihood of success on the merits of their claim to a permanent injunction against the City taking action to redress these issues. This Court

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thus should deny Plaintiffs' claim for a permanent injunction against the City taking action to redress these issues. FACTUAL BACKGROUND I. The Park, the Greenway and the Greenway Conservancy

The Park is a public park in the City that is part of the Rose Fitzgerald Kennedy Greenway ("Greenway"). See Complaint, ,,14-15. The Greenway is designated as a public

park and a traditional public forum by the legislature. See 306 Mass. Acts 2008 § 2. The Greenway and the Park are administered by the Conservancy, the other named defendant in this action. The Conservancy is a private non-profit entity. It holds a lease for the Park and other Greenway properties and operates and manages their activities and finances. II. Regulations Applicable to the Park

The Park is subject to a number of regulations imposed by the City: a. State and Boston Fire Codes

The Massachusetts Comprehensive Fire Safety Code (the "State Fire Code"), 527 CMR § 1.00 et. seq., and the Boston Fire Prevention Code (the "Boston Fire Code"), The City of Boston Code, Ordinances, Title 11, Chapter 3, Section 82, (collectively, "Fire Codes"), set fire safety standards for any structures, including tents, in the City. The City Fire Marshal and the Fire Prevention Division of the Boston Fire Department are responsible for inspecting and certifying that tents and other structures used in City parks conform to the State Fire Code and the Boston Fire Code. The purpose of the State Fire Code is to prescribe minimum requirements and controls to safeguard life, property and public welfare from the hazards of fire and explosion created by the storage, handling or use of substances, materials or devices or from conditions hazardous to life, property and the public welfare." 527 CMR §1.01(2). Similarly, the purpose of the Boston Fire

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Code is "to provide the best method of fire prevention currently available throughout the City of Boston." Boston Fire Code, § 1.02(a). The State Fire Code prohibits a host of dangerous or hazardous conditions, such as dangerous conditions which are liable to cause or contribute to the spread of fire or explosion in or on said premises, building or structure or endanger the occupants thereof; conditions which interfere with the efficiency and use of any fire protection equipment; accumulations of rubbish, waste, paper, boxes, shavings, or other combustible materials, or excessive storage of any combustible material; hazardous conditions arising from defective or improperly used or installed electrical wiring, equipment or appliances; and dangerous or unlawful amounts of combustible, explosive or otherwise hazardous materials. 527 CMR §l.06(a)(b)(e)(f)(b)(h)(i)(j). To ensure that these dangerous conditions do not exist, the State Fire Code authorize the fire marshal, inspector or head of a fire department, or anyone to whom they have delegated authority, to enter any building or other premises at any reasonable hour to inspect or investigate conditions. See Massachusetts Fire Prevention Law, Mass. Gen.L. c. 148, et. seq. (the "Fire Prevention Law"), at § 5. If a violation is found, the fire marshal or other official shall order the same to be remedied in writing. Id. ("[t]hey shall, in writing, order such conditions to be remedied, and whenever such officers or persons find in any building or upon any premises any accumulation of combustible rubbish including, but not limited to, waste paper, rags, cardboard, string, packing material, sawdust, shavings, sticks, waste leather or rubber, broken boxes or barrels or any other refuse or useable materials that is or may become dangerous as a fire menace or as an obstacle to easy ingress into or egress from such buildings or premises, they shall, in writing, order the same to be removed or such conditions to be remedied"). The abatement

order is served on the owner, occupant or his authorized agent. Id. "If said order is not complied

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with within twenty-four hours, the person making such order, or any person designated by him, may enter into such building or upon such premises and remove such refuse or any useable materials or abate such conditions at the expense of such owner or occupant." Id.; see also State

Fire Code, 527 CMR § 1.06(7) ("If the notice of violation is not complied with in the time specified by the head of the fire department, the head of the fire department may request the legal counsel of the jurisdiction to institute the appropriate legal proceedings to restrain, correct or abate such violation or to require removal or terminations of the provisions of 527 CMR or of any order or direction made pursuant thereto"). Similarly, the Boston Fire Code also prohibits dangerous conditions in any premises, including but not limited to the existence of any material or condition in or on any building or premises or adjacent property that is likely to cause a fire or explosion, or to increase the intensity or spread of fire (Boston Fire Code, § 1.22); the existence of any material or condition that constitutes an obstacle to free ingress or egress from such building (or part thereof) or premises (id.); and failing to secure a permit under any provision ofthe Boston Fire Code. See Boston Fire Code, § 1.17 ("Any person required to apply for a permit under any provision of this Code, who fails to make such application ... shall be required to pay such fee as is established by ordinance and shall be punished by a fine of not more than one hundred dollars or by imprisonment for not more than one month or both."). Section 31.03 of the Boston Fire Code governs the licenses or permits required for tents. It provides that "[ n]o tent ... shall be erected or maintained except under the terms and conditions of a license issued by the Licensing Division ofthe Mayor's Office and a permit issued by the Head of the Fire Department." The permitting and license requirement applies to

"all licenses and permits issued for the conduct of ... fairs, bazaars ... or similar entertainments,

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and other gatherings held in or near tents." Boston Fire Code, §31.03(c). The Boston Fire Code authorizes the Head of the Fire Department or any authorized member to enter any building to conduct inspections. Boston Fire Code, § 1.22. The Boston Fire Code prohibits the following with respect to tents and gatherings held in or near them: • • Erection oftents that fail to comply with applicable law, ordinances, and approved reference standards. Id. § 31.04(a). The failure to erect tents at locations which have at least two unrestricted means of access from public ways (the public ways must be remote from each other) for fire fighting and rescue operations. Id. The erection of tents in places that are not approved locations that have been cleared of dry or fire hazardous vegetation or other combustible material during periods when the facility is located on the site. Id. §31.04( c). The erection of tents used as a place of assembly that fail to provide means of egress as required for buildings by Articles XI and XXVII of this the Boston Fire Code, which include requirements for marking exits, means of egress, and emergency lighting. Id. §31.06(b). The erection of tents that fail to include space for exit paths from tents and air-supported structures to public ways or approved open areas. Such spaces shall provide at least 10 feet between tents or between such facilities and buildings or fences. The spaces shall be unobstructed by the guy ropes of tents or other objects. Id. §31.06( d).

If the Head of the Fire Department or other authorized member of the Fire Department observes a condition that is (1) likely to cause fire or explosion; (2) increase the intensity or spread of fire; or (3) constitute obstacles to free ingress into or egress from such building, dwelling, or premises, that officer "shall order it, in writing, to be removed or remedied within such time as he shall deem reasonable in the circumstances and so specify in the order. If, in his opinion, such material or condition is extremely hazardous, he may order it to be removed or remedied immediately and order the establishment of a paid fire detail until said hazard no longer exists." Id. § 1.22. Notice of such an order shall be served upon the owner, unless an occupant is responsible for such material or condition, in which case notice may be served upon

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him. Id. "If any such order is not complied with within the time specified therein, the Head of the Fire Department, acting through the agency of a person or persons in the employ of the Fire Department or by an independent contractor ... may enter into such building or part thereof or upon such premises and remove such material or remedy such condition. Any expense incurred in so doing, including the paid fire detail, shall be a lien upon the estate subject to the provisions of General laws, Chapter 148, Section 5." Id. b. Boston Building Code

The Boston Building Code applies to all dwellings in the City to ensure safe conditions for residents of the dwellings as well as others in the City. Boston's Inspectional Services Department, Health Division ("ISD") is responsible for enforcing the City's Building Code and the State Sanitary Code throughout the City. Any structure occupied for 30 days or more is considered a dwelling subject to the Building Code. 105 CMR§§ 410.020, 410.010(A) ("No person shall occupy as owner-occupant or let to another for occupancy any dwelling ... for the purpose of living, sleeping ... which does not comply with the requirements of 105 CMR 410.000"). required: • • • • • To have indoor toilets or written approval for an outdoor toilet not within thirty feet of any dwelling, lot line or street. 105 CMR §410.010 To have indoor showers or other bathing facilities. 105 CMR §410.0 I 0 To have a Board of Health-approved source of potable water in sufficient quantity and pressure. 105 CMR §410.010 To have hot water and indoor temperatures that meet Board of Health requirements. 105 CMR §41O.01O. To be spaced from one another such that there is sufficient space between them to provide safe ingress and egress, as well as lighting to allow safe passage at night. 105 CMR §§410.450, 410.451, 410.750(G),410.253. Among other things, dwellings are

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To have adequate facilities for trash and control over rodents and insects. 105 CMR §§410.750(O)(5); 410.600. To maintain food in appropriately cold temperature. 105 CMR §4l 0.1 OO(A).

c.

Massachusetts Sanitary Code

The State Sanitary Code establishes "Minimum Standards of Fitness for Human Habitation," which are designed "to protect the health, safety and well-being ofthe occupants of housing and of the general public." See 105 CMR §4l 0.000 et seq. ISD and the Boston Public Health Commission ("BPHC" or "the Commission") are responsible for enforcing the State Sanitary Code throughout the City. The Sanitary Code applies to dwellings which includes temporary housing such as "any tent ... on the same premises for more than 30 days." 105 CMR §410.020. Under 105 CMR §4l0.750, certain conditions ''when found to exist in residential premises, shall be deemed conditions which may endanger or impair the health, or safety and well-being of a person or persons occupying the premises. This listing is composed of those items which are deemed to always have the potential to endanger or materially impair the health or safety, and well-being of the occupants or the public." 105 CMR §4l0.750 (emphasis added). When such conditions are found, the local health official is obligated to "order repair or correction of such violations pursuant to 105 CMR 410.830 through 410.833." Id. The conditions that are considered to necessary to ensure health, safety and well-being include: • Freedom from structural defects in a dwelling that may expose the occupant or anyone else to fire, burns, shock, accident or other dangers or impairment to health or safety. 105 CMR §410.750(K). A safe supply of potable water sufficient in quantity and pressure to meet the ordinary needs of the occupant, connected with the public water supply system" (105 CMR §§ 410.750(E), 410.180), as well as "a supply of water sufficient in quantity, pressure and temperature, both hot and cold, to meet the ordinary needs of the occupant in accordance

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with lOS CMR 410.180 and 410.190 for a period of24 hours or longer." lOS CMR §41O.7S0(A). • • Heat. lOS CMR §410.201. Proper venting for use of space heaters or water heaters. lOS CMR §§410.200(B), 410.202,410.7S0(B). Electrical facilities and lighting. lOS CMR §§41O.2S0(B), 410.2SI(A), 410.2S3, 410.2S4,410.7S0(D). Electrical, plumbing, heating and gas burning facilities installed in accordance with accepted plumbing, heating, gas fitting and electrical wiring standards so as not to expose an occupant or anyone else to fire, bums, shock, accident or other danger or impairment to health or safety. lOS CMR §§41O.3SI, 410.3S2, 41O.7S0(L). Toilets and a sewage disposal system in operable condition. 410.300,410.7S0(F). lOS CMR §§410.ISO(A)(I),

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Adequate exits, and exits, passageways or common areas unobstructed by any object, including garbage or trash, which prevents egress in case of an emergency. lOS CMR §§410.4S0, 410.4SI, 410.4S2, 410.7S0(G). Security measures. lOS CMR §§410.480(D), 410.7S0(H).

• • •

A smoke detector or carbon monoxide alarm. lOS CMR §§410.482, 410.7S0(N). Non-accumulation of garbage, rubbish, filth or other causes of sickness which may provide a food source or harborage for rodents, insects or other pests or otherwise contribute to accidents or to the creation or spread of disease. lOS CMR §§410.600, 410.601,410.602,410.7S0(1). Defects in the following which remain uncorrected for a period of five or more days following the notice: (I) lack of a kitchen sink of sufficient size and capacity for washing dishes and kitchen utensils or lack of a stove and oven or any defect that renders either inoperable; (2) failure to provide a washbasin and shower or bathtub or any defect which renders them inoperable; (3) any defect in the electrical, plumbing, or heating system which makes such system or any part thereof in violation of generally accepted plumbing, heating, gas fitting, or electrical wiring standards that do not create an immediate hazard; (4) failure to eliminate rodents, cockroaches, insect infestations and other pests. lOS CMR §410.7S0(0). "Any other violation of lOS CMR 410.000 not enumerated in lOS CMR 410.7S0(A) through (0) shall be deemed to be a condition which may endanger or materially impair the health or safety and well-being of an occupant upon the failure of the owner to remedy said condition within the time so ordered by the board of health." lOS CMR §410.750(P). If an inspection pursuant to the Sanitary Code "reveals that a dwelling .. .is unfit for

human habitation, the board of health may ... issue a written fmding that the dwelling or portion

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thereof is unfit for human habitation. The finding shall include a statement of the material facts and conditions upon which the finding is based." 105 CMR §410.S3l(A). If the dwelling is

occupied, the board provides written notice to the occupants and owner, after which a hearing is normally conducted. 105 CMR §41O.S31(B), (C). However, "[i]f at any time the board of health determines in writing that the danger to the life or health of the occupant(s) is so immediate that no delay may be permitted, then the board of health may immediately issue a finding that an occupied dwelling ... is unfit for human habitation without providing notification or hearing." 105 CMR §4l0.S3l(D). Simultaneous with the board's decision that a dwelling is

uninhabitable, "the board may issue an order condemning the dwelling ... and an order to vacate the dwelling." 105 CMR §4l0.S31(E).

d.

Criminal and Public Order Laws and Ordinances

Those using the Park are subject to criminal statutes and municipal ordinances designed, in part, to maintain the public peace. The Boston Police Department ("BPD") is responsible for enforcing criminal laws on and around the Greenway

e.

Conservancy Regulations

Chapter 306 of the Acts of200S, a special act of the Legislature, enables and authorizes the Conservancy to operate the Greenway and promulgate regulations (referred to as "Guidelines") that govern conduct and activity on the Greenway subject to the approval of the Department of Transportation, as the successor to the Massachusetts Turnpike Authority. The Guidelines adopted by the Conservancy create operating hours which, among other things, prohibit overnight sleeping in the Greenway: Park Operating Hours: To maintain a safe and secure environment at all times within the park, general operating hours for the park grounds will be from 7 AM to llPM. Public access

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and movement through the parks will be permitted on a 24 hour17 day a week basis. No overnight sleeping is allowed. See Rose Kennedy Greenway Park Use Guidelines for Public Programming, Special Events and General Use, Part II, P. 5 (2010). f. Rules of the Boston Parks and Recreation Commission

The Park is also subject to the Rules of the Boston Parks and Recreation Commission ("Recreation Rules"). The Boston Parks and Recreation Department is responsible for permitting events on the Greenway. The Parks and Recreation Department has authority to

issue permits for activities in City parks, including in the Greenway. Among other things, applicable rules governing the Greenway prohibit entering into or remaining in a public park overnight. Thus, the Parks and Recreation Department has not and does not issue permits for overnight camping or sleeping in the Greenway, as such camping is prohibited. III. The Occupation of the Park Beginning on or about September 27,2011, individuals began setting up what became the encampment in the Park. See Complaint, " 14-15. No one sought permission or permitting from any City authority to establish the encampment, and have not sought any such permission to date. The encampment remains in the Park to date. Some number of the occupiers of the Park claim to be affiliated with "Occupy Boston." "Occupy Boston" is not a legal entity and has no legal existence. It is nominally an organization, but purposely has no leadership structure. "Occupy Boston" has a website, which declares: Occupy Boston is a people's movement. It is party-less, leaderless, by the people and for the people. It is not a business, a political party, an advertising campaign or a brand .... Any organization is welcome to support us with the knowledge that doing so will mean questioning your own institutional frameworks of work and hierarchy, and integrating our principles into your modes of action .... We provide a forum for peaceful assembly of individuals to engage in participatory, direct democracy, as 14

opposed to partisan debate and representative democracy. welcome dissent. www.occupyboston.org,

We

Latest News, Statement of Autonomy, consented to 11/22111. However, "Occupy

According to the website, Occupy Boston has a Safety Committee.

Boston" has no leadership structure, and claims to operate strictly by consensus. See www.occupyboston.org. Neither the Safety Committee nor anyone else associated with

"Occupy Boston" has authority over the encampment. IV. Unlawful Conditions in the Encampment at the Park Since the occupation began, members of the Boston Fire Department, BPD, lSD, Commission, and the Parks and Recreation Department have conducted numerous inspections of the encampment and identified substantive violations which pose a serious risk to the occupiers and the public. None of these concerns has been corrected. A. State and City Fire Code Violations

During the protesters' occupation of the Park, fire inspectors have visited the encampment on numerous occasions and observed many serious violations of the Fire Code. See generally Aff. of Bart Shea, Fire Marshal, City of Boston, 12. In brief, the site poses a substantial and worsening risk of fire. Some of the fire code violations that have been observed by the Fire Department include the following: • • Shelters made of and/or supplemented with combustible materials, such as tarps, blankets and fabric covers; Positioning the shelters densely, side-by-side and otherwise in close proximity, which could permit fire to spread rapidly and entrap or prevent occupants of the tents from escaping in the event of a fire or emergency; Random distribution of supporting ropes and wires for tents and shelters, creating a network of trip wires which could prevent egress from the site in a fire or emergency, especially at night; Supporting shelters with plywood plats, cardboard, paper, and cloth;

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Maintaining combustible materials, such as hay, cardboard, paper, plastic tarps, plastic materials, plywood crates, nylon sleeping bags, blankets, clothing, adjacent to and inside the tents that would contribute to the acceleration, intensity, and spread of fire through the encampment; The small size of the Park and sheer number of tents on it, combined with their close positioning, presents a substantial risk that people will be trampled before they even get out of their tents should any type of fire or panic ensue; Bringing of wood burning stoves or other heat sources into highly flammable nylon tents and shelters; Use of heat sources inside and near the shelters; Disposal of cigarettes adjacent to tents and surrounding dried combustible debris; Burning incense without proper precautions; and Unsafe use of an electrical extension cord of unknown rating to supply power to the encampment; auxiliary charging devices with unknown and likely improper use and installation. These electrical sources bring a source of ignition to the encampment if not properly used and protected; The consistent smoking of cigarettes in and around the tents despite warnings of the dangers such action posed. On November 28, 2011, during an inspection, I opened one tent cover that was drapped in two plastic tarps and there were five to six very intoxicated men smoking cigarettes without concern. When I asked whether they were aware that they were not supposed to smoke inside tents, they appeared to be unconcerned. They did not extinguish their cigarettes in response to my concern or the concern expressed by other occupiers; and A "generator" tent in which there is a manual cycle capable of recharging batteries and numerous car-size l2-amp batteries. Batteries contain sulfuric acid and, when begin recharged, can give off flammable/explosive hydrogen gas, and thus require proper ventilation and protection from sources of ignition

• • • • •

Id. at ~~ 4,5, 7. The number of unapproved, flammable tents in such an enclosed area constitutes multiple fire hazards and greatly concerns the Boston Fire Department, particularly as winter approaches and occupiers seeks to use heat sources. Id. at ~~ 5, 7, 13. Inspections of the encampment began in October and continue. The Fire Department has made repeated attempts to point out the existing fire hazards and explain how to implement precautions, but these have been ineffective.

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Boston Fire prepared abatement orders dated November 5 and November 17,2011 to address these dangerous conditions. See Shea Affidavit. The November 5 Abatement Order was

prepared to be served on "Occupy Boston" but was not, in part because "Occupy Boston" is not a legal entity. Id. at 110. The November 17 Abatement Order was served on the Conservancy but withdrawn out of concern that its issuance might be seen by the Court as a violation of the terms of the Temporary Restraining Order ("the Order"). Id. B. Building and Health Code Violations

ISD and BPHC have made three inspections of the encampment to enforce the City's Building Code and the State Sanitary Code. See Af£. of Charlie Cook, 11; Af£. of Barbara Ferrer, 1 1. They have found numerous violations and worsening conditions during these inspections. During its visits, ISD observed 134 tents at the encampment. Af£. of Charlie Cook, 1 3. Approximately 90 of those tents have been located in the encampment for more than 30 days. As a result, the tents are now considered dwellings under the Massachusetts Housing Code. See id.; 105 CMR 410.020. Accordingly, such tents must comply with all of the requirements of said code. See 105 CMR 410.010(A) ("No person shall occupy as owner-occupant or let to another for occupancy any dwelling ... for the purpose of living, sleeping ... which does not comply with the requirements of 105 CMR 410.000"). This requires the 90 tents, and any that remain at

the encampment for 30 days or longer, to have: (1) indoor toilets or written approval for an outdoor toilet not within thirty (30) feet of any dwelling, lot line or street; (2) indoor showers or other bathing facilities; (3) a Board of Health-approved source of potable water in sufficient quantity and pressure; and (4) hot water and indoor temperatures that meet Board of Health requirements. See 105 CMR 410.010. None of them do.

17

lSD made another inspection on the site on November 12 and observed several Code violations, including that there were no hand sanitizing stations throughout the camp despite their efforts to convince the protestors to implement these stations (see Aff. of Charlie Cook, ~ 5,8) and that there was food stored in a refrigerator that was not connected to any electricity source; bags of ice were being used to keep cold potentially hazardous foods mold such as liquid eggs, sausage and pizza (id. at ~ 6). As with the Boston Fire Department, the occupiers were unwilling or unable to implement the recommendations made by lSD to improve conditions because there was no

member in charge, nor any identifiable member available to respond to the many issues raised by the inspections. See id. at ~~ 8-10. The failure to respond to lSD recommendations has prompted lSD's increased concern as the camp continues to deteriorate and expose members of the camp and the public to dangerous conditions. See id at ~~ 11-12. For instance: • The tents lack onsite toilet, tub, or shower facilities in violation of 105 CMR 410.150 and 410.750(F). See Aff. of Charlie Cook, ~ 4. There are no security measures to prevent unlawful entry into the tents in violation of 105 CMR 410.750(H). See id. There is not sufficient space between the tents to provide people with safe ingress and egress in violation of 105 CMR 410.450,410.451, and 410.750(G). See id.

Garbage and clutter furthers the obstruction to safe egress and ingress, including bottles of urine, disintegrating cardboard, discarded clothing items, paper trash, and food wrappings that are observed lying outside of tents. See Mf. of Barbara Ferrer, ~ 4. The camp lacks lighting at night to allow safe passage through the camp in violation of 105 CMR 410.253. See Aff. of Charlie Cook, ~ 4. The tents and camp lack adequate sources of potable water in violation of 105 CMR 410.180. See id. There are serious rodent and pest concerns in violation of 105 CMR 410.750(0)(5). Aff. of Charlie Cook, ~ 4; Mf. of Barbara Ferrer, ~ 6. See

18

The camp lacks sufficient trash receptacles in violation of 105 CMR 410.600. See Aff. of Charlie Cook, ~ 4. The kitchen facilities lack hand sanitizer or hand wash facilities, contain clutter and debris, and do not adequately keep food that needs to be kept cold in cold temperature food storage in violation of 105 CMR 41O.100(A}. See id. The Commission received inquiries from the public concerning the health conditions at

the encampment and visited the site on several occasions. See Aft of Barbara Ferrer, ~~ 1, 3. On October 26,2011, BPHC toured the camp and noticed several obvious health hazards, including signs that people had been defecating in the bushes in the Park. Id. at ~ 4. There was litter throughout the camp, which was inundated with homeless people, many of whom were known to the Commission to be homeless and suffering from mental and/or physical illness. Id. On October 30,2011, BPHC toured the camp and observed several unsanitary conditions that were of substantial concern including: • • • • Bottles of urine being kept outside of several tents; Increasing amounts of garbage and clutter around the tents; Damp tent materials hanging to dry all over the encampment; and A disorganized kitchen with food stored in ripped paper bags.

Id. at ~ 5. On this same visit, occupiers identifying themselves as "camp safety" informed BPHC officials that rats had begun to appear around the camp, particularly around the compost barrels. Id. at ~ 6. They also stated that the majority of the overnight campers were homeless people that were engaging in fights and arguments in some cases. Id. The BPHC toured the camp again on November 6, 2011 and observed the following threats to the public health: • A strong smell of urine was emanating from the camp, which was fairly empty;

19

There was noticeable deterioration of the wooden walkways between the tents and throughout the camp, including rotting wood and uneven walking surfaces; and There was an increase of litter and trash throughout the camp.

Id. at ~ 7. Occupiers told BPHC that they had observed an increase of violent activity at the camp and suggested that some of its members should be evicted. Id. at ~ 8. On November 13, BPHC again toured the camp and observed further deterioration in the health conditions in the camp. Id. at ~~ 9, 10. Specifically, they observed a female occupier

was unable get up out of her tent to walk to facilities to urinate. Id. at ~ 9. Conditions at the encampment included cooked food being left out causing great concern about the spread of food borne illness; a filthy food tent filled with dirty dishes; an unattended medical tent with unlabeled liquids and medicines; unenclosed trash receptacles; and a strong odor of urine coming offofthe main pathway of the camp. Id. Several of the camp members informed BPHC that the

camp was very disorganized, and without sufficient safety members to handle all of the problems, which included disputes and drug use. Id. at ~ 10. Those members also stated that the original organizers had left the encampment, which is why it was becoming more difficult to get a response to all of these issues or to implement any ofBPHC's recommendations. Id.

During their multiple visits, BPHC observed worsening unsanitary conditions at the encampment. Indeed, "many of the original organizers had left, making it hard to coordinate activities like dish washing." See id. at ~ 10. As with the Boston Fire Department and lSD, the occupiers were either unwilling or unable to implement the recommendations made by the

Commission to improve conditions because there was no member in charge, nor any identifiable member available to respond to the many issues raised by the inspections. See id. at ~ 13. BPHC made repeated recommendations to the occupiers and were told that they planned to implement a

census as to who was staying in the tents and requiring that only two people stay in one tent. Id.

20

at ~8. During subsequent visits, BBHC learned that those recommendations implemented.

were never has generated

Id. The failure to respond to the Commission's recommendations

increased concern for the Commission, including a serious risk of the spread of communicable diseases caused by food borne illness and the sharing of dirty linens, and the serious risk of the spread of other illnesses such as respiratory infections (M., influenza or, more seriously, tuberculosis) due to the number of people staying in the same tents, the lack of sanitary conditions and the unknown health status of some of the occupiers, including some known to be homeless and ill. Id. at ~ 12. C. Criminal Offenses and Public Safety Violations This is not

Plaintiffs assert that their occupation has been peaceful and law-abiding.

accurate. Even those purporting to speak for the occupiers have recognized the safety issues presented at the encampment. See Pl.'s Memo. Of Law in Support of their Motion for a Temporary Restraining Order and, After Hearing, a Preliminary Injunction, at 8, 9. Notably, "Occupy Boston" has a "Safety Committee," suggesting one was needed to maintain order, even though the Park is less than a football field in size. Further, the Occupy Boston website includes the following posting, purportedly from a member of the Safety Committee and dated November 4, 2011, suggesting that real safety issues exist that are not being effectively addressed by the occupiers: There are situations and incidents where no one has control over. There are no ways to diffuse a situation where those who use the process use it for their own agenda. The knowledge of a violent situation without action is in direct conflict with our mission statement of a peaceful assembly. The condoning of any violence is unacceptable. The enforcement of any violation for one but not another is inexcusable. Enforcing a peaceful block only to allow a person in camp knowing full well of his violent intentions is disturbing. Encouraging any violent incident to play out is detrimental. The willful denial of a possible deadly incident is an issue that needs to be addressed. The trust between Occupy Boston and the

21

general public has to be restored, readdressed, and rebuilt. Whether or not anyone wants to acknowledge this camp is unsafe is beyond the point. As we currently encourage and invite others into the camp, it is our responsibility, and obligation to ensure this environment is safe. To enable, and ignore the problems are only further derailing our message that we are putting out to the general public .... Every night there is a new incident. Our camp is held in a darker shade of grey and continues to darken as the incidents grow more out of hand .... Wikipedia, "Safety," (Nov. 4, 2011), http://wiki.occupyboston.org/wiki/Safety ("This is the

homepage for the Safety Working Group of Occupy Boston"). Further, BPD has identified among the occupiers self-designated anarchists who have resisted efforts by BPD to maintain the peace. BPD has observed a documented increase in criminal activity in Dewey Square since the occupation has begun; as of November 29,2011, BPD has responded to approximately 90 incidents which BPD believes are related to Occupy Boston or individuals involved therein, more than double the total number of police responses to the area from October 1,2010 to November 22, 2010. See Aff. of Chief Daniel Linskey, at ~ 27. This number does not reflect all emergency contacts with occupiers, as it does not include calls for service which did not generate an incident report, calls submitted to EMS for response, and observed but unreported incidents within the encampment believed to reflect criminal activity. Id. Among the documented incidents are the following: • o Guns and weapons Three incidents involved guns, one involved a knife: • An alleged assault by a member of the occupation where he forced to individuals to fight at gunpoint and for one to throw the other into the Fort Point channel (incident 74). An attempt by a "Safety Officer" of "Occupy Boston" where a violent struggle with the suspect following an alleged shoplifting resulted in the suspect trying to take the arresting officer's firearm, (incident 62).

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• • • o Drugs

A complaint by some "Occupy Boston" occupiers that another occupier had a gun in his tent (incident 59). A complaint that a homeless person pulled a knife on occupiers because he had nowhere to sleep (incident 5).

Several drug arrests, including incidents 41 (possession of Class A with intent); 42 (possession of Class B); 49 (possession of Class B); 56 (possession of Class A with intent); 61 (three arrested on drug charges); 65 (possession of Class C with intent). Assaults and Sex Offenses

• o

Several assaults, including sexual offenses, have been reported within the encampment. See incidents 13 (assault on Coast Guard officer by occupiers), 14 (prostitution), 78 (fight between occupies), 82 (assault on an occupier by another); 81 (assault on occupier by another), 83 (assault on an officer by an occupier), 86 (reported disturbance; police told to "f-- off'); 88 (fight in camp). Disorderly and Trespassing Several incidents, most prominently an unscheduled march followed by the attempted occupation of a different Greenway property (described below; see incident 4). Others include incidents 12, 57, and 63. Property Offenses and Vandalism

• o

• o
o

One occupier was arrested for breaking into cars (incident 84). There were several thefts reported within the encampment. See incidents 9 (stolen laptop), 11 (stolen laptop); 69 (stolen laptop); 67 (stolen wallet); 70 (stolen dog), 89 (stolen bike recovered at camp). There were several vandalism complaints involving spray painted anarchist or other slogans on buildings and vehicles. See, M., incidents 6, 15, 16, 17, 18, 19, 20,21,22,23,24,25,26,27,28,29,30,31,32,44,34,35,36,37,38,39,43,44, 45,46,54.

o

Because of these incidents and because the occupation is a 24-hour event and includes varying numbers of people in an open and exposed area, BPD has patrolled the area on a 24-hour basis to maintain the safety of the occupiers and the public, requiring BPD to reallocate BPD personnel from other areas of the City. Aff. of Chief Daniel Linskey, at ~ 33. In addition, these deployments to monitor the round-the-clock encampment have required BPD to ask officer to work overtime, imposing a substantial financial burden on the City. Id. at ~ 33, 34. As of

23

November 28,2011 BPD has incurred $750,000 in overtime costs for police personnel relative to Occupy Boston. Id. at 1 34. On weekends, BPD the increases its staffing of the Dewey Square area in anticipation of unauthorized marches and the increased number of observers in the area. Id. at 133. Moreover, officers assigned to specialized units, including the Drug Control Unit and Gangs Unit, have been required to forgo their standard assignments to respond to incidents at the Park. Id. On Thursday, November 17,2011, as a result of an increased mobilization of "Occupy Boston" occupiers and an unauthorized march, these units were required to work in uniform. Id. As a result of their required presence, these officers were unavailable to respond to shooting incident in Downtown Boston. Id. As with the other Boston agencies responsible for the encampment, the lack of any leadership has made it impossible for BPD to effectively address issues with the occupiers, contrary to the Court's preliminary conclusion that the occupiers have worked cooperatively with the City and BPD. For instance: "BPD has made numerous requests that participants in the "Occupy Boston" occupation notify BPD of when and where it will march so that BPD can take proper precautions to protect their safety and that of the public by, among other steps, directing traffic, utilizing police escorts, and aiding in the rerouting of MBT A bus routes. The occupiers have not complied with this request or the requirement of obtaining appropriate permits for marches and demonstrations and instead have initiated and led unannounced marches. These unannounced marches have occurred in high traffic areas including Quincy Market, the Prudential Center, and the Back Bay area. During marches, occupiers have blocked traffic, marched the wrong way down major streets (M., Boylston and Newbury Streets), and posed a safety hazard to themselves and others. This behavior places the safety of all involved, including the protestors, at risk and increases the likelihood for physical injury. Absent prior authorization and/or notice, BPD is hampered in providing the necessary police supervision, such as by utilizing police escorts to shut down street traffic as necessary, which is integral to ensuring the public safety. As a result, BPD has diverted staff to maintain police at the Park and on call to respond to such marches to protect the safety of the occupiers and the public." Aff. of Chief Daniel Linskey, at 14.

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Despite these concerns, BPD has not taken mass enforcement action against the encampment and only took such action on October 10,2011, when occupiers tried to occupy another portion of the Greenway. See id. at ~ 5. Even then, BPD acted with restraint. See id. at ~~ 5-26. On October 10,2011, at 4:27 pm, there was an unannounced march by occupiers to the North Washington Street Bridge, which included passing through the streets toward the North Washington Street Bridge, leading from the North Station area toward Charlestown, and attracted several thousand people. Id. at ~ 5. In addition to those involved, the fact that it was a holiday, near rush hour, and at a time very near the end of the Bruins game that was occurring in the TD Bank Garden, increased the number of people in the area. Id. Prior to the march, there was no communication by the occupiers with the on scene police leadership and personnel that a march would take place, and no permit for one. Id. While significant police attention and resources were responding to the unannounced march, a portion of protestors at the Park moved tents and personal property from the Park to a new area along the Greenway, near Pearl Street, which was comprised of land developed for the public's enjoyment ("Pearl Street Park"). Id. at ~ 6. Twitter feeds associated with Occupy Boston indicated that the occupiers intended to occupy the Pearl Street Park and refuse to comply with any directives to return to the Park. Id. at ~ 7. Other Twitter notifications suggested that some individuals associated with Occupy Boston were monitoring BPD's radio communications and deployment instructions and, based on that information, were directing others in ways to resist or defend against police activity. Id. Some individuals involved in occupying Pearl Street Park physically linked arms and formed a human fence around the new space to prevent removal of occupiers by police. Id. In an effort to stop the protestors from moving beyond their previously authorized area, Superintendent Evans spoke to Jason Pottera, a self-identified member of Occupy Boston

25

member, at 5: 15 pm. Id. at ~ 8. During the conversation, Superintendent Evans asked that the protestors remain in the encampment at the Park. Id. Pottera indicated that he would get back to Superintendent Evans with a response. Id. At 5:45 pm, Superintendent Evans called Pottera and again requested that the protestors return to the Park, and contacted Pottera three more times via telephone, with the last call placed at 8:18 pm, asking that the occupiers return to the Park [or leave Pearly Street Park]. Id. At 7:47 pm, BPD began sending notifications via Twitter (known as "tweets") to Occupy Boston asking occupiers to leave the Pearl Street Park. Id. at 8. In addition, Chief Linskey personally disseminated fliers to occupiers at the Pearl Street Park at 8:45 pm, which reminded occupiers that "[t]he Boston Police Department Respects Your Right to Protest Peacefully," but reminding occupiers of the laws they were violating. Id. at ~ 17. Chief Linskey also verbally informed numerous occupiers that they were expected to remove their tents and belongings from the Pearl Street Park and return to the Dewey Square encampment. rd. BPD also published a posting on its News Blog at 9:30 pm. asking occupiers of the Pearl Street Park to leave, reiterating the laws that were being violated if they chose to remain. Id. at ~ 12. These efforts failed, and occupiers remained on the Pearl Street Park. See id. at ~~ 24-25. At 1:25 am on October 11,2011, Linskey, Evans, and Captain Bernard O'Rourke ofBPD went to the Pearl Street Park. Id. at ~ 23. O'Rourke utilized a bull hom to notify occupies that they were trespassing and were unlawfully assembled and had five minutes to return to the Dewey Square encampment or they would be placed under arrest. Id. Superintendent Evans counted down using the bull hom after the announcement was made. Id. Several occupiers complied. See id. at ~~ 23, 24. However, after almost one hour, the arrest order was given for individuals that remained on the Pearl Street Park. Id. at ~ 25.

26

While officers attempted to effectuate arrests, occupiers of the Pearl Street Park locked arms to prevent action. Id. Numerous occupiers actively fought patrol officers' attempts to effect arrests; 140 of the occupiers were arrested for resisting arrest. Id. at, 25. In total, 140 occupiers were arrested for trespassing and unlawful assembly. Id. Individuals who returned to the Dewey Square encampment were not arrested. Id. at § 24. None of the four individually named plaintiffs were arrested during this incident. D. Violation of Park Permit Requirements and Guidelines

None of the occupiers has sought any permits to come to or remain in the Park, and have violated the rules prohibiting sleeping and remaining in the Park on a continuous basis. In stark contrast, other groups seeking to present their views on public property have done so consistent with reasonable time, place and manner restrictions. See, M., Massachusetts Cannabis Reform

Coalition, Inc, et aI. v. City of Boston, et aI., Civil Action No. 98-3968-G (permitting marijuana protest on Boston Common, subject to reasonable time, place and manner restrictions). ARGUMENT I. PLAINTIFFS LACK STANDING TO BRING THIS MOTION ON BEHALF OF ANYONE BUT THE FOUR NAMED PLAINTIFFS. Before seeking a preliminary injunction, Plaintiffs must meet their burden of establishing that they have standing to bring this matter before the Court. Save the Bay, Inc. v. Dept. of Pub. Utilities, 366 Mass. 667,672 (1975) ("the question whether a party has standing to participate in a judicial proceeding is not simply a procedural technicality but rather involves remedial rights affecting the whole of the proceeding"). "Occupy Boston" cannot meet this burden. The

individual plaintiffs can only meet this burden to represent themselves. A. "Occupy Boston," as an Unincorporated Litigation. Association, Cannot Be a Party to It is well

It is undisputed that Occupy Boston is an unincorporated association. 27

established that an unincorporated association cannot be a party to litigation. Occupy Boston thus lacks standing to act as a plaintiff. Save the Bay, 366 Mass. at 675 ("It is a well established principle that an unincorporated association cannot be a party to litigation"); see also, Pickett v. Walsh, 192 Mass. 572,589 (1906) ("[t]here is no such entity known to the law as an unincorporated association"); Donahue v. Kenney, 327 Mass. 409, 412 (1951) (determining that two unincorporated associations could not be parties to a suit as they were not "separate entit[ies]"); Cheever v. Graves, 32 Mass. App. Ct. 601,605 (1992) ("an unincorporated association may not be a party to litigation''). B. The Individual Plaintiffs Lack Standing To Represent Occupy Boston.

Massachusetts Courts will only impute standing to "representative individual members" who bring suit on behalf of unincorporated associations if they "fairly and adequately protect the interests of the association and its members." Cheever, 32 Mass. App. Ct. at 605. Under this standard, the individual plaintiffs in the instant action do not have standing to bring their motion before the Court.3 Massachusetts Courts have granted standing to individual plaintiffs representing unincorporated associations when the individuals demonstrated that they were (1) officers or leaders of their association; and (2) longstanding members of the association. See, Cheever, 32

Mass. App. Ct. at 605 (upholding grant of standing to individual plaintiffs who were officers of unincorporated association); Mass. Employers Ins. Exchange v. Propac-Mass, Inc., 420 Mass. 39 (1995) (upholding grant of standing to individual plaintiffs who were longstanding members of unincorporated association, demonstrated a shared interest, pled that they were representative members of association, and acted at behest of association's board of advisors).
The City thus respectfully disagrees with this Court's initial determination that the named plaintiffs "have standing." Order on the Plaintiffs' Motion for a Temporary Restraining Order and a Preliminary Injunction, at 1, n. 1.
3

28

The individual plaintiffs claim no such role, nor could they, given Occupy Boston's leaderless structure. Plaintiffs' assertions that they are merely "participants" in "Occupy

Boston" and lack any leadership role in the association, is fatal to their claims of standing on behalf of "Occupy Boston." See Affs. of Sasha Sagan, Jennie Seidewand, Noah McKenna and Kristopher Martin; see also "Proposal to Preserve the Restraining Order Against the City of Boston," occupyboston.org/20 11III /20/proposal-preserve-restraining -order-city-boston/ (Nov.

17,2011) ("We recognize that it is impossible to have any small group of our community represent the interests of our entire community, but it [is] necessary for the immediate and longterm survival of Occupy Boston that we as a [General Assembly] temporarily empower a small group to engage in the mediation"). As the individual plaintiffs have failed to plead any specific and credible facts showing that they are in any position to lead or represent Occupy Boston, they cannot represent any interests but their own individual interests.

II.

BECAUSE PLAINTIFFS HAVE NO LIKELIHOOD OF SUCCESS ON THE MERITS, THIS COURT SHOULD DENY THEIR MOTION FOR A PRELIMINARY INJUNCTION.
Injunctive relief is an extraordinary remedy awarded only upon a clear showing that a

plaintiff is entitled to such relief. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 (1997). A party seeking a preliminary injunction must show that: (1) it has a likelihood of success on the merits; (2) irreparable harm will result from denial of the injunction; and (3) the risk of irreparable harm to the moving party outweighs any similar risk of harm to the opposing party. Cote-Whitacre v. Department of Public Health, 446 Mass. 350, 357 (2006), citing Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-17 (1980). Even were this Court finds that Plaintiffs have standing to bring this motion, the Court should deny the Plaintiffs' Motion for a Preliminary Injunction. In order for Plaintiffs to demonstrate a likelihood of success on the merits, Plaintiffs must 29

establish that (1) living in the Park is protected speech under the First Amendment; (2) the statutes and regulations the City may enforce are not reasonable time, place, and manner restrictions; and (3) the harm to the public's interests if the requested injunction is issued would be outweighed by the harm to Plaintiffs' interests. Plaintiffs cannot show any of these.

A.

Plaintiffs Must Demonstrate That In This Case, Camping in the Park is Protected Speech Under the First Amendment

Plaintiffs bear the burden of demonstrating that their conduct of camping is expressive conduct, and that they (1) have an intent to convey aparticuiarized message with it where (2)

there must be a "substantial likelihood that the message will be understood by those who view it." Spence v. Washington, 418 U.S. 405,409-411 (1974); see also Univ. of Utah Students Against Apartheid v. Peterson, 649 F. Supp. 1200, 1207 ("a court must be convinced that what it is protecting is intended to and reasonably may communicate a 'particularized message"'). they have not and cannot do. There is no doubt that participants in "Occupy Boston" have partaken in forms of expression in and around the Park and the City by displaying signs, chanting and marching, all of which are forms of political expression that the First Amendment protects. However, living on public land in a manner that violates numerous City and State provisions is conduct separate and distinct from the conduct that comprises the protestors' protected expression. The United States Supreme Court has declined to "accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367 (1968). Only in unusual circumstances could camping constitute speech. United States v. Abney, 534 F. 2d 984, 985 (D.C. Cir. 1976) (only "[i]n the unusual circumstances" in the case was a veteran's sleeping in a park "sufficiently expressive in nature to implicate the First Amendment scrutiny"). Further, This

30

this is not a case like Clark v. Community for Creative Non-Violence, Inc., 468 U.S. 288,291-92 (1984), where demonstrators argued that sleeping in Lafayette Park, directly across from the White House, was claimed to be protected expression precisely because it demonstrated the plight of the homeless. In Clark, there thus was a particularized message which was substantially likely to be understood by those who viewed it. Similarly, the shanties at issue in University of Utah Students Against Apartheid 649 F. Supp. at 1208 (D. Utah .1986), which were erected to depict squalid living conditions under apartheid in South Africa, were "understood to represent a strong statement condemning apartheid and protesting university investment in South Africa." 649 F. Supp. at 1205. Plaintiffs have alleged what their individual viewpoints have been but have not, and frankly cannot, show a particularized message for "Occupy Boston." As noted above, "Occupy Boston" is a broad collection of viewpoints and lacks a particularized message. As part of the "General FAQ" section on the Occupy Boston website, the group made the following statement: What are you protesting? Most people who support Occupy Boston call for reforming Wall Street and removing special interest from government, but there is no one single issue or demand that summarizes our movement. People are dissatisfies with how our country is being run and want fundamental, lasting change of many kinds." "General FAQ," http://www.occupyboston.orglfaq/general-faq/ (emphasis added). (as of November 25,2011)

Even in Plaintiffs' Memorandum, the "message" Plaintiffs claim to be

sending varies. Plaintiffs initially stated that a core purpose ofthe movement is to bring awareness to the government and citizens of the concerns about the U.S. political process." Pl.'s Memo. Of Law in Support of their Motion for a Temporary Restraining Order and, After Hearing, a Preliminary Injunction, at 4-5. Later, Plaintiffs claim to "express their

31

message of taking back the city, to create a more just, economically egalitarian society." Id. at 7. In the absence of a particularized message, conduct is not expressive. See East Hartford Educ. Ass'n v. Board ofEduc., 563 F.2d 838,858 (2d Cir. 1977) (en bane) (noting that "c laims of speech made [in the case were] vague and unfocused"). If sleeping

merely facilitates the message, and does not convey it, it may not find protection under the First Amendment. Clark, 468 U.S. at 296 ("although we have assumed for present purposes that the sleeping banned in this case would have an expressive element, it is evident that its major value to this demonstration would be facilitative"). particularized message, the public cannot be shown to understand it. If Plaintiffs' cannot show either of these prongs, their conduct in camping on a public park will not be protected under the First Amendment. B. Even If Plaintiffs Could Sustain Their Burden Of Proving That Camping In The Park Is Protected Speech, It Would Still Be Subject to Reasonable Time, Place and Manner Restrictions. And ifthere is no

Even were this Court to conclude that Plaintiffs' occupation of the Park is a constitutionally-protected form of speech, Plaintiffs' constitutional right is not limitless as "[t]he

[F]irst [A]mendment does not offer absolute protection to all speech under all circumstances and in all places." University of Utah Students Against Apartheid 649 F. Supp. at 1208, citing Clark, 468 U.S. at 293. The Supreme Court has firmly established that "even in a public forum, [such as the Park,] the government may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions are '[content-neutral], ... are narrowly tailored to

serve a significant governmental interest, and ... leave open ample alternative channels for communication of the information." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), citing Clark, 468 U.S. at 293-94. 32

That the prohibition on sleeping in the park is a reasonable restriction under this standard is made clear by the Supreme Court's decision in Clark which, despite Plaintiffs' claims to the contrary, is directly on point. As noted above, plaintiffs in Clark argued that sleeping in Lafayette Park was protected by the First Amendment because it was designed to call attention to the plight of the homeless and therefore was a form of symbolic expression this matter. There, as here, plaintiffs argued that a regulation banning them from sleeping overnight in the park was a violation of their First Amendment rights. See Clark, 468 U.S. at 289. The Supreme Court assumed without deciding that "sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment," but nevertheless held that prohibiting camping in the park was a reasonable time, place or manner regulations that, even if it limited the expressive conduct of sleeping, was "nevertheless valid." Id. at 294. Thus, even assuming Plaintiffs satisfy their burden of demonstrating that sleeping in the Dewey Square Park is a form of symbolic expression, the City may still impose reasonable time, place, and manner restrictions that limit these demonstrations. The City has an obligation to protect the health and safety of the occupiers and everyone else who could be affected by the events at the Park. State and City fire, building and health codes, park regulations and the criminal laws, are content-neutral and reasonable time, place and manner restrictions on speech activities which are narrowly tailored to serve these significant governmental interests which leave open ample alternative channels for communication of the information. Accordingly, the application of these regulations to the Plaintiffs' activities does not violate Plaintiffs' First Amendment rights.

33

1.

The Fire Codes, Building Code, Sanitation Code, Park Rules and Greenway Guidelines are Content-Neutral.

"A regulation that serves purposes unrelated to the content of expression is deemed neutral, even ifit has an incidental effect on some speakers or messages, but not others." Ward, 491 U.S. at 791. The City's Fire Codes, Building Code, Sanitation Code, Park Rules and Greenway Guidelines apply to all people in Massachusetts, regardless of whether they are expressing a viewpoint or simply conducting their daily business. For example, camping overnight is prohibited in all City parks; Plaintiffs do not argue that sleeping is "being applied because of disagreement with the message presented." Clark, 468 U.S. at 295. Similarly,

preventing fires, unsafe buildings or health hazards through enforcement of formally-drawn regulations contained in the City's codes which apply to all people in the City and are not aimed at restricting any message. See Clark, 468 U.S. at 293; see Thomas v. Chicago Park District, 534 U.S. 316, 322 (2002); University of Utah Students Against Apartheid, 649 F. Supp. at 1210 ("Formally drawn regulations are necessary to insure that restrictions on free speech are contentneutral."). 2. The Fire Codes, Building Code, Sanitation Code, Park Rules and Greenway Guidelines are Narrowly-Tailored to Serve Significant Government Interests.

The City has a substantial interests, unrelated to the suppression of symbolic expression, in maintaining the Park by banning sleeping there and otherwise enforcing its Fire, Building, and Sanitation Codes, as well as city ordinances and Conservancy's are narrowly tailored to serve significant government interests. The government has an obvious and substantial interest in protecting the health and safety of its citizens - including but not limited to those camping in the Park. Grenier v. Zoning Bd. Of Appeals of Chatham, 62 Mass. App. Ct. 62 (Massachusetts has a "substantial State guidelines. These regulations

34

interest" in "the health, safety, and welfare of the general public as well as that of its individual members"). It simply cannot be disputed, in the wake of such tragedies as the Station nightclub

fire in Rhode Island or the Coconut Grove fire in Boston that the City has a compelling interest in maintaining safe conditions in structures within its borders. Given the myriad of extremely serious violations of the Fire Codes, Health Code and Building Code that currently exist at the encampment, the City has a compelling interest in enforcing those regulations in the Park. But safety is not the government's sole concern. The City has a strong interest in maintaining the Park as a public amenity. As the Supreme Court noted in Clark:
It is also apparent that the regulation [prohibiting camping]

narrowly focuses on the Government's substantial interest in maintaining the parks in the heart of our Capital in an attractive and intact condition, readily available to millions of people who wish to see and enjoy them by their presence. To permit camping - using these areas as living accommodations - would be totally inimical to these purposes .... we seriously doubt that the First Amendment required the Park Service to permit a demonstration in Lafayette Park and the Mall involving a 24-hour vigil and the erection of tent to accommodate 150 people .... there is a substantial Government interest in conserving park property, an interest that is plainly served by, and requires for its implementation, measures such as the proscription of sleeping that are designed to limit the wear and tear on park properties. That interest is unrelated to suppression of expression. 468 U.S. at 296.299; see also Matter of Waller, Case No. 112957/11 (Sup. Ct. N.Y. Nov. 15, 2011) (attached hereto), at 3 (denying Plaintiffs request for an extension ofa restraining order to conduct an "Occupy Wall Street" occupation in Zuccotti Park in New York City; "movants have not demonstrated that 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' reasonable rights and duties to maintain Zuccotti Park ... Neither have the applicants shown a right to a temporary restraining order that would restrict the City's enforcement of law so as to

35

promote public health and safety. To the extent that the City law prohibits the erection of structures, the use of ... combustible materials, and the accumulation of garbage and human waste in public places, enforcement of the law and the owner's rules appears reasonable to permit the owner to maintain its space in a hygienic, safe, and lawful condition, and to prevent it from being liable by the City or others for violations of law, or in tort"). Further, the regulations preserves the Park a public forum, open for all people who wish to use the park to express ideas. "Occupy Boston" has occupied the space to the exclusion of others, in contravention of this goal. 3. The Fire Codes, Building Code, Sanitation Code, Park Rules and Greenway Guidelines Leave Open Ample Alternatives for Expression by the Plaintiffs.

Rules governing the Park leave adequate alternatives open and available for speech activities like those sought by the Plaintiffs. These regulations allow protestors to use the Park to advocate their views within reasonable limits. Plaintiffs mistakenly rely on Coal. To Protest Democratic Nat. Convention v. City of Boston, 327 F. Supp. 2d 61, 72 (D. Mass. 2004) to show that the Park Use Guidelines and the City's codes and ordinances fail to leave open ample alternative channels of communication. Coal. to Protest Democratic Nat. Convention, the court held that the permitting restrictions at issue were unconstitutional because said requirements changed the location of the protest, which was deemed essential to its message. Id. Here, nothing in the rules restrict those currently occupying the Park from protesting there. The Park Use Guidelines and City regulations provide ample opportunity for freedom of expression so long as the rules applicable to the park are followed.4 In

4

Further, violations of Fire, Building and Health Codes provide for notice of violations, but permit the City to take immediate action when faced with substantial risks. No more is or should be required of the City, and especially of BPD. Police require "adequate flexibility to make judgments on the street concerning any emergency or public safety issues." Coal. To Protest Democratic Nat. Convention v. 36

C.

Plaintiffs Will Not Suffer Irreparable Harm If the Injunction Is Denied.
makes clear, Plaintiffs Plaintiffs will not suffer irreparable harm were the in the Park.

As the foregoing injunction to be denied.

can still exercise their right to free expression ability to continue Plaintiffs camping

The denial of the injunction that is a reasonable limitation

may limit Plaintiffs on whatever

on the Park, but as it is

expression

claim sleeping conveys,

lawful and appropriate.

D.

The Public Interest Demands that Plaintiffs' Motion Be Denied.
able to demonstrate a likelihood of success on the merits (which whether to v.

Even were the Plaintiffs

they cannot), the Court would still have to weigh the public interest in determining issue the requested injunction. Cote-Whitacre, 446 Mass. at 357, quoting seeks a preliminary

Commonwealth injunction

Mass. CRINC, 392 Mass. 79,89 government entity, the plaintiff

(1984) (when plaintiff must make an additional

against a order affect

showing "that the requested

promotes the public interest, or, alternatively, the public"). requested

that the equitable

relief will not adversely disserved

Because the public interest would be manifestly the Court should deny Plaintiffs' request.

with the issuance of the

injunction,

City of Boston, 327 F.Supp.2d 61, 76 (D. Mass. 2004), affd sub nom. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8 (I" Cir. 2004). It was for this reason the federal district court refused to issue an injunction over BPD during the Democratic National Convention that "control[led] that discretion." Id. Similarly, Massachusetts courts have recognized that police may eliminate the requirement to "knock and announce" before executing a search warrant "where [there is] concern for the safety of the officers executing the warrant." Commonwealth v. Alvarez, 57 Mass. App. Ct. 1108 (2008); see also Commonwealth v. Cundriff, 382 Mass. 137, 147 (1980) (police do not need to identify themselves when "there was a strong possibility" that such announcement "would have endangered themselves or others"). Similarly here, were the City required to provide advance notice of any intention to take any enforcement action at the Park, the likelihood is very high that it would lead to violence, not prevent it. See Afr. of Chief Linskey, at ~ 36. It is not speculation to conclude that advance notice of any police action at the Park would create a danger for the occupiers as well for any public utility workers, fire officials, police officers and any others involved. When BPD issued advance notice to vacate the Pearl Street Park on October 10-11, 2011, occupiers used social media to increase in numbers and mobilize to resist law enforcement action, posing an increased a risk to individuals involved. See Aff. of Chief Linskey, at ~ 7. 37

Plaintiffs are, in essence, asking this Court to invalidate the entire regulatory regime that would otherwise prevail at the Park, to include health and safety codes and permit them to take permanent possession of a public park. Stripped to its essentials, Plaintiffs' absurd request would lead to a cascade of occupations of other public facilities, eliminating them as public forums. This result would also impose an intolerable public safety risk, as detailed above. The law does not support these dangerous and unreasonable results. Nothing in the First Amendment allows tying the City'S hands from enforcing applicable fire, health, inspectional codes, criminal statutes, and guidelines that govern the use of the Greenway. The City seeks to reserve its right to enforce certain regulations that aim to ensure that people operate in a manner such that they and those around them are safe. Granting Plaintiffs' preliminary injunction would cripple the City's ability to ensure the health and safety of those of occupying the Park and of the public at large. A preliminary injunction would essentially invalidate the applicable laws and regulations that govern the Plaintiffs' current use of the Park, continue exposing the occupiers and the public to serious health and safety hazards, prevent the rest of the public from utilizing the Park, damage the Park and continue to increase costs to the City of patrolling this unlawful campground.
5

CONCLUSION The City of Boston asks this Honorable Court to allow the City to fulfill its obligations to carefully safeguard not only the Plaintiffs' rights and safety, but the rights and safety of the general public. Any injunction in Plaintiffs' favor will put the general public and the Plaintiffs in danger.

5

Indeed, BPD alone has incurred costs of $750,000, a cost that continues to mount. Aff. of Chief Linskey, at ~ 34.

38

WHEREFORE. Plaintiffs' Motion.

the City respectively

requests

that this Honorable

Court DENY

CITY OF BOSTON, By its attorneys: William F. Sinnott

Raquel . We ster, BBO# 658796 Amy ratskeir, BBO #662034 Julie Ciollo, BBO # 666080 Kevin Corridan, BBO # 662648 Nicole N. Taub, BBO # 663517 Assistant Corporation Counsel City of Boston Law Department Room 615, City Hall Boston, MA 02201 (617) 635-4034 Raquel. webster@cityoiboston.gov

Michael D. Ricciuti (BBO #550771) Kelly K. McLaughlin (BBO # ) K&L GATES LLP State Street Financial Center One Lincoln Street Boston, MA 02111-2950 (617) 261-3100 (61 7) 261-3 175 (fax) Michael.Ricciuti@klgates.com CERTIFICATE OF SERVICE I, Michael D. Ricciuti, hereby certify that a true copy of the above document was served upon Plaintiffs' counsel by hand delivery on November 29, 2011. MICHAEL D. RICCIUTI

39

COMMONWEALTH SUFFOLK, SS.

OF MASSACHUSETTS SUPERIOR COURT C.A. NO. 11-4152

OCCUpy BOSTON, KRISTOPHER MARTIN, SASHA SAGAN, NOAH MCKENNA, and JENNIE SEIDEWAND, Plaintiffs,

) ) )

) )
)

)
) )

v.
CITY OF BOSTON, CITY OF OF BOSTON POLICE DEPARTMENT, by and through POLICE COMMISSIONER EDWARD DA VIS, and the ROSE FITZGERALD KENNEDY GREENWAY CONSERVANCY, INC., Defendants.

)
) ) ) ) )

) ) ) )
)

AFFIDAVIT OF BOSTON POLICE DEPARTMENT SUPERINTENDENT IN CHIEF DANIEL LINSKEY I, Boston Police Department Superintendent in Chief Daniel Linskey, do hereby depose and state as follows: 1. I have been employed by the Boston Police Department ("BPD" or "the Department") for 25 years. On May 29,2009, I was appointed to the position of Superintendent in Chief, which became effective on September 1,2009.

2. As Superintendent in Chief, my responsibilities include the development, review, evaluation and recommendation to the Police Commissioner of policies, procedures, and programs necessary to ensure the implementation of community policing and the effective delivery of police services to the public.

3. On September 30, 2011, occupiers, claiming the name of "Occupy Boston," set up a camp on the Dewey Square portion of the Rose Kennedy Greenway ("Greenway") and thereafter have remained on the Dewey Square park ("the Park") twenty-four hours per day. BPD did not take action to remove the occupiers from the Park and has not done so to date, despite Greenway and City regulations that prohibit such camping/overnight occupancy.

4. Since the occupation began, participants in "Occupy Boston" have frequently marched and demonstrated throughout the City. Some of these marches have been substantial, involving hundreds and sometimes thousands of marchers. BPD has made numerous requests that participants in the "Occupy Boston" occupation notify BPD of when and where it will march so that BPD can take proper precautions to protect their safety and that of the public by, among other steps, directing traffic, utilizing police escorts, and aiding in the rerouting of MBT A bus routes. The occupiers have not complied with this request or the requirement of obtaining appropriate permits for marches and demonstrations and instead have initiated and led unannounced marches. These unannounced marches have occurred in high traffic areas including Quincy Market, the Prudential Center, and the Back Bay area. During marches, occupiers have blocked

traffic, marched the wrong way down major streets (M., Boylston and Newbury Streets), and posed a safety hazard to themselves and others. This behavior places the safety of

all involved, including the protestors, at risk and increases the likelihood for physical injury. Absent prior authorization and/or notice, BPO is hampered in providing the necessary police supervision, such as by utilizing police escorts to shut down street traffic as necessary, which is integral to ensuring the public safety. As a result, BPO has diverted staff to maintain police at the Park and on call to respond to such marches to protect the safety of the occupiers and the public.

5. On October 10,2011, at 4:27 PM, occupiers from the Park marched in the street from the Park to the North Washington Street Bridge from the North Station area toward Charlestown. Attached hereto as Exhibit 1 is a true and accurate still photograph of the

march from a videotape made of it on October 11,2011 at or about 4:35:30 PM (16:25:30). This march attracted several thousand people. In addition to those involved, the fact that it was a holiday, near rush hour, and at a time near the end of the Bruins game (occurring in the TD Bank Garden) increased the number of people in the area. The occupiers did not give advance notice of the march to BPO, which made it difficult for BPD to effectively protect public safety and maintain public order while the march proceeded through major roadways.

6. While the march and subsequent gathering at the North Washington Street Bridge took place, other occupiers from the Park began to move tents and personal property to a new area along the Greenway, near Pearl Street ("Pearl Street Park"). Attached hereto as

Exhibit 2 is a true and accurate photograph of the occupiers moving the Park to the Pearl Street Park taken from a video at 5:48:40 PM (17:48:40). The new area extended beyond the original occupation in the Park. I served as the Incident Commander to oversee the response to the occupiers' movement at the Pearl Street Park area.

7. During the October 11,2011 movement to the Pearl Street Park, I observed on Twitter feeds which emanate from "OccupyBoston" and others which indicated that occupiers

in the Peal Street Park intended to refuse to comply with any directives to return to the Dewey Square Park. Attached hereto as Exhibit 3 is a true and accurate copy of the Twitter po stings I and other officers reviewed. According to some of these Twitter notifications, many members of "Occupy Boston" were monitoring the Department's radio communications and deployment instruction and, based on that information, were directing others to resist or defend against possible police activity or recruiting others in an effort to resist police efforts, including physically linking arms and forming a human fence around the new space, which later occurred, as discussed below. Attached hereto as Exhibit 4 is a true and accurate photograph taken from video depicting occupiers in the Pearl Street Park locking arms at 12:25 AM (00:25:50) on October 11,2011.

8. Officers reporting to me, including but not limited to BPD Superintendent William Evans, have since the beginning of the occupation of the Park been making frequent visits to the Park, multiple times each day. I directed Superintendent Evans to engage in regular communications with the occupiers, which he has reported to me. On October 11,2011, during the movement of tents to the Pearl Street Park, Superintendent Evans

was in contact with Jason Pottera, a self-identified "Occupy Boston" "leader," to ask that the occupiers remain on the Park at Dewey Square. At 5: 15 PM, Superintendent Evans spoke to Pottera and asked that the occupiers remain in the encampment at the Park at Dewey Square. Mr. Pottera indicated that he would get back to Superintendent Evans with a response. At 5:45 PM, Superintendent Evans called Mr. Pottera again requested

that the occupiers return to the Park on Dewey Square. Thereafter, Superintendent Evans contacted Mr. Perotta on three more occasions via telephone, with the last call placed at 8: 18 PM, and asked that the occupiers return to Park on Dewey Square.

9. At 7:47 PM, BPD sent out a notification via Twitter, called a "tweet," directed to the occupiers. The notification read, "BPD requesting protestors return 2 original Occupy Boston site on Greenway to continue peaceful protest. Thank you 4 ur cooperation." Attached hereto as Exhibit 5 is a true and accurate print out of the Boston Police-initiated Tweets.

10. At 7:49 PM, BPD sent a second notification via Twitter stating, "BPD seeks to curtail additional damage to newly developed green space at second site. Please adhere Occupy Boston. Thank you."

11. At 7:57 PM, BPD sent a third notification via Twitter stating, "Occupy Boston: the Greenway Conservancy recently invested over 150k in new plantings 4 all to enjoy @ 2nd site. PIs return to original."

12. At 8:01 PM, BPO sent a fourth notification via Twitter stating, repeating its previous message, "Occupy Boston the Greenway Conservancy recently invested over 150k in new planting 4 all to enjoy @ original site. PIs return to original."

13. At 8:02 PM, BPO sent a fifth notification via Twitter stating, "BPD requesting protestors return 2 original Occupy Boston site on Greenway to continue peaceful protest. Thank you 4 ur cooperation."

14. At 8: 17 PM, BPO posted a sixth Tweet (retweet) in response to a posting by "Docl.ol.ida" stating "That site [the Park at Dewey Square] has not been renovated yet which is why protestors were given permission to be there."

15. At 8: 18 PM, BPD posted a seventh Tweet (retweet) in response to a posting by "@jerrodwhite," stating "They have been allowed to assemble peacefully."

16. At 8:24 PM, BPD sent an eighth notification via Twitter stating, "Occupy Boston please ask your group to return to original site where you can continue peaceful protest. Thank you."

17. At 11: 15 PM, I personally disseminated fliers to the occupiers on the developed section of the Greenway. The fliers notified the occupiers of the laws they were violating if they remained on the Pearl Street Park of the Greenway and asked them to respect BPO requests to relocate. Attached hereto as Exhibit 6 is a true and accurate copy of the flyers

used. In addition to the fliers, I verbally informed numerous occupiers that they were expected to remove their tents and belongings from the Pearl Street Park. The occupiers were also informed that they could return to the Park on Dewey Square.

18. At 8:48 PM, BPD posted a ninth Tweet in response to a posting by H@GlobeMetro," stating, "This is not accurate. Protestors have been asked to return to their original space on Greenway."

19. At 9:16 PM, BPD sent a tenth notification via Twitter stating, "BPD asking protestors 2 return 2 original Occupy Boston site on Greenway to continue peaceful protest. Thank you 4 ur cooperation."

20. At 9:20 PM, BPD sent its eleventh, twelfth, and thirteenth notifications in response to other Tweets from "@2bkk," "@carabbaass," and "@infobkk." These stated, "This story

is inaccurate. Protestors were asked 2 return to their original spot on the Greenway not to vacate completely."

21. At 9:30 PM, BPD published a posting on its News Blog that instructed occupiers to respect the requests of officers to leave the area and reiterated the laws that were being violated. Attached hereto as Exhibit 7 is a true and accurate copy of the Note to @Occupy Boston.

22. At 11:33 PM, BPD sent its fourteenth notification via Twitter stating, "Occupy Boston The BPD respects your right to protest peacefully. cooperation. " We ask for your ongoing

23. At 1:25 AM on October 11,2011, Superintendent Evans, Captain Bernard O'Rourke and I went to the Pearl Street Park. Captain O'Rourke utilized a bull hom to notify occupiers that they were trespassing and were unlawfully assembled and had five minutes to go back to the Park on Dewey Square or they would be placed under arrest. Superintendent Evans counted down using the bull hom after the announcement was made.

24. Individuals who returned to the Park on Dewey Square at this time were not placed under arrest and the site at Dewey Square remained undisturbed.

25. At 1:40 AM, the arrest order was given for individuals who remained on the Peal Street Park. While officers attempted to effectuate arrests, occupiers locked arms to prevent action. Additionally, numerous occupiers spit at police officers and used profanity. In total, 140 individuals were placed under arrest.

26. By 2:40 AM, the Pearl Street Park was cleared of trespassers and their personal belongings.

27. The calls for police service in Dewey Square have increased throughout the time the occupiers have been located on the Park. In many instances, law enforcement officers have been met with resistance by occupiers associated with "Occupy Boston" when efforts are made to respond to calls for service and engage in any law enforcement activities in the encampment. As of November 29,2011, BPD has responded to 90

incidents at Dewey Square. Attached hereto as Exhibit 8 is a spreadsheet which fairly and accurately summarizes these incidents ("the Spreadsheet"). This number does not

include calls for police services that did not generate an incident report or calls for service made directly to EMS. The total number of police responses is more than double the number of such police responses logged a year earlier, between October 1, 2010 and November 22,2010.

28. One of these incidents took place on October 12, 2011 when a female Coast Guard Officer in full uniform was spit on and called a "military cunt" while running by the Dewey Square camp to catch a train at South Station. This incident has resulted in the victim not taking the train or travelling by Dewey Square. See Exhibit 8, Incident Report No. 110560875.

29. There have also been incidents involving firearms and other weapons. On November 14, 2011, officers responded to assist with a possible fight and victim behind the Intercontinental Hotel (located at 500 Atlantic Avenue). Upon their arrival, officers observed the victim lying face down on the dock. According to the victim, he was forced to the Intercontinental at gunpoint and ordered to fight another individual. The other

individual was then ordered at gun point to throw the victim into the water. The victim stated that all parties involved in the incident were residing at Dewey Square at the time. (See Exhibit 8, Incident Report No. 110624735). A witness who observed the altercation stated that the victim had been surrounded by four to five individuals who pushed him into the water.

30. During a separate incident on October 16, 2011, a homeless individual entered the park and became angry that he had no place to stay. The individual urinated on a tent and then threatened 9 to 10 people with a knife. Responding officers recovered a knife and a needle from the suspect. The suspect informed officers that he was angry that he used to sleep in the park but now has no place to go at night. See Exhibit 8, Incident Report No. 110566351.

31. In addition to violent behavior, there have also been reports of and arrests made for drug activity, including the possession with intent to distribute Class A, Band C narcotics within the Park. Additionally, there have been numerous reports of vandalism, reports of stolen property from Dewey Square (including laptops, backpacks and wallets), and reports of prostitution inside the encampment.

32. I have observed among "Occupy Boston" participants those wearing or carrying symbols which I recognize from my training and experience to be anarchist symbols. Based on my training and experience, I am familiar with the anarchist movement in Boston and with those associated with it and am aware that anarchists often promote violence as a

mechanism to effect social change. In addition, as reflected in the Spreadsheet, there have been numerous instances of anarchist symbols painted on buildings and other properties during and in the areas of the "Occupy Boston" encampment.

33. In order to ensure the public safety, BPD places law enforcement officers at the Park at Dewey Square 24 hours a day, 7 days a week. From Monday to Friday, 24 hours a day, there is 1 sergeant and 3 patrol officers assigned to the area. From 11:00 PM to 7:00 AM, this number is increased through the addition of an officer from the canine unit. In addition to the officers assigned to Dewey Square, there is 1 sergeant and 8 patrol officers from the Mobile Operations Unit assigned to patrol the area daily from 7:30 AM to midnight. On the weekends, BPD increases the staffing in anticipation of unauthorized marches and the increase in observers in the area. This includes the addition of 1 sergeant and 6 patrol officers from 12:00 PM to 8:00 PM on Saturday and Sunday. Additionally, the Safe Street Team that is typically assigned to the Downtown Crossing area has been instructed to focus their efforts on "Occupy Boston" during marches. This includes 1 sergeant and 6 patrol officers on pedal bicycles. In addition to the established staffing stated above, BPD has been required to utilize Emergency Deployment Teams as a result of "Occupy Boston" related events, which requires the Department to pull 3 officers from each District and reassign them to the Park. If possible, BPD attempts to back fill these positions, incurring additional financial costs, in an effort to ensure that the district stations meet the necessary staffing levels to ensure the safety of the public in those neighborhoods. Further, the Department has also utilized the services of its Drug

Control Unit and Gang Unit, which has diverted the attention of these officers from their

standard responsibilities to focus on "Occupy Boston." On at least 1 occasion, the utilization of these 2 units has prevented their response to incidents in other parts of the City. More specifically, the Drug Control Unit and the Gang Unit were required to work in uniform on Thursday, November 17,2011, as a result of an increased mobilization of "Occupy Boston" occupiers and an unauthorized march. As a result of their required presence, these officers were unavailable to respond to shooting incident in Downtown Boston.

34. As of November 28,2011, BPD has incurred approximately $750,000 in overtime for police personnel relative to Occupy Boston.

35. BPD must be able to assess the risks to the public safety, as well as the risks posed to its officers, when determining how to proceed in its duty to enforce the law. While the Department believes in notice being given in certain circumstances (as evidenced by the Department's approach to the October 10,2011 Pearl Street Park event descried above), any requirement that BPD give notice to the individuals currently residing at the Park of law enforcement measures will more likely than not heighten the risk of all involved, including the occupiers. On October 10, 2011, the Department made every effort to notify the individuals involved of their obligations to leave the Pearl Street Park. As detailed above, instead of retreating as ordered, the individuals mobilized and organized an active resistance to law enforcement. Such behavior creates a substantial risk of injury

to the occupiers, others who join them, law enforcement personnel, and members of the public.

36. BPD does not provide notice of impending police action under many circumstances.

This

is based on police judgment as to whether notice will add to or detract from the safety of the operation. Indeed, although I am aware there is generally a requirement to knock and announce the presence of police before attempting to execute a search warrant, I am also aware that the knock and announce requirement is excused if officers believe that doing so poses a risk of harm to themselves or others. Similarly, in this case, I do not believe providing advance notice of any planned police action under all circumstances is appropriate. Based on my training and experience, and my observations made at the

Park, I believe that providing such advance notice of any law enforcement action can significantly increase the risk of harm to the occupiers, law enforcement officers and others.

I hereby declare, under the penalties of perjury, that the facts stated in this affidavit are true and accurate to the best of my know ledge and b~lief.

Superintendent in Chief Boston Police Department

Chief Affidavit Ex. 1

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Chief Affidavit Exhibit 4

occupy_boston:

t'1ost of the people I've talked to are really young, and were really scared. They're b:

occupy_boston:

This has to be the biggest GA since night 1. We are packed in here like sardines.

occupy_boston:

Important:

Any earlier tweets

about the BPD coming to Dewey are "JOTTRUE.

occupy_boston:

Reports that police

from Boston suburbs are being called into town tonight. PLEASE

occupy_boston:

First post-raid

GA is PACKED.

occupy_boston:

Yesterday we had between

5,000 and 6,000 followers.

We just now topped

15/000.

ghostpickles:

Media hint: the process of transparent

democracy is on display for all. Revel in it. The PI

weoccupyamerica:

Boston PO - not quite an iconic image, but good B&W http://t.co/UvKYabq1

occupy_boston:

We thank Veterans For Peace for, as they've done before, protecting

peaceful Amen

occupy_boston:

.:2:: ._)::;, ~

WTF is this "anarchists
ret'/i'.::.::t

took over" rumor the commissioner is spreading?

It's a flat

Ol

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2

occupy_boston:
..::_ ':\j,:l,';
j'-;.:I_.' I,~!::

One person in e-13 in Hyde Park, maybe more .
(~t,~!·/~~t

occupy_boston:

Cops are still beating

and dragging

away protesters.

Zoc(upyboston

.~'~~I 'i-:'i',~, -~;'J(~' (::1,':::'::,

r.:::t'~·'i.:::::t

occupy_boston:

People are being dragged

a'Nay, beaten.

occupy_boston: ~-s j >'~:- ~'~'_l'-

Cops tearing
I-.:::t\'·/.::~t

down tents.

'",1..

occupy_boston:

Police are surrounding
retv>;er~t

the park. Beating

lots of protesters,

many arrests.

=occupvbc

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:ii;j!~' (~I':,-3

-

occupy_boston:

:5 j,-;,.';:

KEEP TAKING PHOTOS.

,;::',1<1

I,':-':',_:-:-- r~t,~,I/..;:.::r

occupy_boston:

We are being beaten.

occupy_boston: Cops arresting ::') ,j,;:t,:: _~~!J(I I.-;I~~~:' ~c:tl"/~et I

everyone.

occupy_boston: REPEAT. POLICE ARE BEATING THE VETERANS FOR PEACE. 25 ,j:; .. ?!,J'} ';'-"l'"c < I'et"i,;:..::t

Occupy_boston:

=5

t'-'lultiple cops beating

individual

protesters.

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3

occupybos_media:
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The police are beating the Veterans for Peace

occupy_boston:
j._ __

KEEP TAKING PICTURES. WRITE DOWN BADGE NUf-tBERS.

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'-:

j::.

I._I

occupy_boston:

Police are going In

nO\,I ,

=occup\'bostGn

occupy_boston:
:: ,;
_',

Cops are beating Veterans for Peace

-

occupy_boston: .,.

Cops moving in. The 99 percent will not be silenced . r "'t:, ·::·::t

occupy_boston:
,

-,

There is no v'Iay that any of this is necessary.

occupy_boston:

Over 100 more police just arrive, also 18 in riot gear. Floodlights on the northwest

(0:

occupy_boston:
; ., ,-:; -, ~ \ t

tvlore police coming.
-~i

occupy_boston:
·1., , ; ·V,'

26 state police vehicles just went by. =O(CUP'iDoStOn

,~,:::,

II~
CC~ '::;-

rc:c .. c:,::t

~ost~;: ;h ~

~t~~:~: ~

ave to go through the vets to get to us. They look nervous, say protester

4

occupy_boston:

I count 17 paddy wagons ... ?

occupy_boston:

Cops give Occupy Boston five minutes to vacate. Nobody is leaving.

occupy_boston:

For every cop at the site there

are five more waiting

in a 2-block radius.

occupy_boston:
:~:; (1,3 iC;?

'J ,) '::'

1'::

HUGE line of police marching I' et','/ ":"= t

in.

occupy_boston:

Any other livestreams?

occupy_boston:

50 cops with batons

marching

on site 2, batons

in hand.

occupy_boston:
:,'~ ,-1,:="
c; -. ~' ,~::, ~

Veterans For Peace appear to be placing themselves s r=tv. .:;-;::t

btwn protesters

and police. --R

occupy_boston:

Take pictures

and upload. Take Pictures And Upload.

occupy_boston:

CAMERAS OUT

occupy_boston:
=5
,j,::tj'?
,j'~Jt~'1

They are here.

1:::13..!.

r~t\tif:.::t

5

occupy_boston:

50 swat with batons readying.

orion_anon:

Hold your ground Boston, we have had a victory in Atlanta!

occupy_boston:

20 cops in gear walking towards the second encampment.

caulkthewagon:

We will rack up arrest records ten miles long. We don't fucking care. We have nothin

occupy_boston:

We believe that BPD is waiting for media to leave before they swarm.

occupy_boston:

Vets for Peace boosting morale at second site with an impromptu march!

occupy_boston:

Police definitely staging on High St but they seem relaxed.

occupy_boston:

We're still here! We're still here! We're still here!

occupy_boston: Boston EMS is on the scene. We hope not to need them but we're glad they're here. :'=, d.:-!',.:, :!'~il:l '.-1 __ 1 ~--::t\v/:!~t

occupy_boston:
~~:, lj,:;'·/

BPD blocking High street.
r>2t\',:,r2~t

s

:\'~lt~' I,-:=I_:~:

6

occupy_boston:

8.

occupy_boston:

7 ambulances.

occupy_boston: Ambulance count at 6. :~c.~,1 j" :' 3<i'~' I:='::) (~t'~J" ~et .

occupy_boston:

The police have set up their mobile command tent.

occupy_boston:

We are unstoppable.

Another world is possible.

occupy_boston: On the scanner: all females arrested :::' -1J\:: .:1'1'.' (:I!:: I·~t\';e~t

will be processed at their respective district.

occupy_boston: ,-.I::, 'j j ~ :;~;~.

We remain peaceful and strong.
- .:

I-I

1~~t\V

.::.::t

occupy_boston:

The whole world is watching.

-

occupy_boston:

When media is told that they can't be there, one more First Amendment right is squas

occupy_boston: EMTs have set up a direct response tent for casualties. ::5 d:'I.:: ·:i'Y· C'~~ retv'le.::t

7

occupy_boston:
.~ 5 d,:; 'r
;

Riot police are at Dewey. Nonviolence
1~.:::t'lfi-2et

is how we win this .

.:-,,~;cJ (;'1 .~.~

occupy_boston:

Media is being told that they aren't allowed
I'''?tv;.::.:::t

to be there.

,~::, ,1 ,:'

0]"

1,-;:"-:'

occupy_boston:

Any officers who may be reading

this:

'yOU

don't have to do this to us.

occupy_boston: Observers: cameras ,-~5 J:;'r: _ (~I..!.J r-.::t\//.::r::t

OUT.

occupy_boston:

The BPD asks reporters

to leave the inside of the camp because they don't want the:

occupy_boston:

~~s j'3\

~~_~·]t,

(~l=<'

r>1indson ice. Hearts on fire .Arms locked. We are the 99 percent.
1--=t\"';'-?2t

occupy_boston: ,::S d·:i .3';('
-f ,~,

Vile have reports
S-:,

that the riot police are continuing

to assemble

and have batons.

1~_1

ret·/;..;:~t

occupy_boston:

;~5 d::f«('; ,31}~1I:;Jl.l

BPD 200 strong, r~tv'/-=~t

blocks avvay.

occupy_hoston: Police mobilizing ,:~S d,'::l";' '-1~, -=: r~=t\·'/-::-=t
~,i ~

across the f'.1etro Area.

jennifer A. Gillis Crime Intelligence Analyst Real Time Crime Center Boston Police Department

617-343-4328
gillisj.bpd@cityofboston.gov

8

Chief Affidavit Ex. 5

LiveWave FirstView®Server

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10/28/2011

Chief Affidavit Ex. 6

Boston_Police C:,' ,F #occupybos\on The BPO respects your right to protest peacefully. We ask for yOU(ongoing cooperation. j.mploOHGzT
1:1

II'· 33f'vVl

Boston_Police e,:s·~ ,Pc:" [7" CJ ','I'infobkk This story is inaccurate. Protestors were asked 2 return to their original spot on the Greenway not to vacate completely, II'· 2..0 f'VV1 Boston_Police [',". F r ,~ 0 ;" carabbaass This story is Inaccurate, Protestors were asked 2 return to their original spot on the Greenway not to vacate completely,
1.

I I . 2- 0 (> """

Boston_Police [\,0, '.', P::" r'~ii (~,I 2bkk This story is inaccurate. Protestors were asked 2 return to their original spot on the Greenway not to vacate completely.
1:,':'1

I)'. '2.-0fVV>

Boston_Pollee to" F',.:c['i:( BPO asking protestors 2 return 2 original Occupy_Boston site on Greenway to continue peaceful protest Thank you 4 ur cooperation,
I' ,'1

ll:l(.;,t0

Boston_Police E ~."', p,i,';>' [':'1." CJ ,VGlobeMetro Thls is not accurate. Protestors have been asked to return to their original space on the Greenway,

....,
A A "'wi

I 0 . '1'b f

IIV""

Boston_Police e S" p .. ,~[.c":' Occupy_Boston Please ask your group to return to original site where you can continue your peaceful protest. Thank you.
1 it

;3', 2-~

f

\tV\

Boston_Pollee CG,L F c [<, C) [errodwhite They have been allowed to assemble peacefully ,

,:'

8 " \"'\~VV'\
r,
t.

Boston_Police

r- "":

c,_

.

,i DocLoliday That site has not been renovated yet which is why

protestors were given permission to be there, 1:·.. -t

1S"\1-~VV\

Boston_Police 8~.,'·"·,P~!"'" [',ocr. BPO requesting protestors return 2 original #occupyboston site on Greenway to continue peaceful protest. Thank you 4 Uf cooperation. 1:',:1 8', O~ f\r~ Boston_Police E;~" . p"C [err #occupyboston the Greenway Conservancy recently invested over 150k in new plantings 4 all to enjoy @ 2nd site. PIs return to original. I::

'b '. D I

~ VV\

A U

Boston_Police r. ," ::>"",~ r.x.: .: Occupy_Boston: the Greenway Conservancy recently invested over 1SOkin new plantings 4 all to enjoy @ 2nd site. Pls return to original

'I "5'

1p V"-"'\
c,

Boston_Police [" r". BPO seeks to curtail additional damage to newly developed green space at second site. Please adhere; Occupy_Boston. Thank

you.
Boston_Police c. :~.' . cBPO requesting protestors return 2 original" Occupy_Boston site on Greenway to continue peaceful protest. Thank you 4 ur ~OI)~eration.

~ ~

1',4 Y P Y'-I

Chief Affidavit Ex. 7

The Boston Police Department Respects Your Right to Protest Peacefully
The Boston Police Department has continued to respect your right to peacefully protest. The BPD is also obligated to maintain public order and safety. We ask for your ongoing cooperation. What the BPD expects from Occupy Boston Participants: • Respect police instructions and, if asked to leave an area, please do so peacefully, taking your belongings with you. • Don't engage in negative behavior, such as fighting, throwing objects, or destroying property. • If you are noticed by the BPD that you are unlawfully assembling, or trespassing, you will not be allowed to remain in the area. Please immediately leave the area with your belongings, or you will be subject to arrest. What Occupy Boston Participants can expect from the BPD: • BPD will arrest those knowingly in violation of the law if necessary. • Police will employ the use of video-cameras in areas surrounding the Rose Kennedy Greenway. The video will be used to capture the images of individuals who are engaging in disorder. Those images will then be used to lodge criminal complaints in a follow-up investigation conducted by Boston Police detectives. • Officers will conduct themselves in a professional, respectful and proportional manner.

Know the Laws:
Unlawful Assembly • In the event that 5 or more armed people or 10 or more people are unlawfully, riotously or tumultuously assembled, the police can demand that they immediately and peaceably disperse. • Any person who unlawfully assembles and does not disperse after being ordered is subject to arrest and imprisonment of up to 1 year or a fme between $100 and $500. Trespassing • Remaining upon land of another after having been forbidden to do so by a person who has lawful control over the premises • Any person who trespasses is subject to arrest and imprisonment of up to 30 days or a fme of up to $100.

Chief Affidavit ex. 8

Note to @Occupy Boston: The Boston Police Department respects your right to protest peacefully. We ask for your ongoing cooperation.
Posted by MediaRelations on October 10, 2011 . Leave a Comment (Edit) The Boston Police Department has continued to respect your right to peacefully protest. The BPD is also obligated to maintain public order and safety. We ask for your ongoing cooperation. What the BPD expects from Occupy Boston Participants: • Respect police instructions and, if asked to leave an area, please do so peacefully, taking your belongings with you. • Don't engage in negative behavior, such as fighting, throwing objects, or destroying property. • If you are noticed by the BPD that you are unlawfully assembling, or trespassing, you will not be allowed to remain in the area. Please immediately leave the area with your belongings, or you will be subject to arrest. What Occupy Boston Participants can expect from the BPD: • BPD will arrest those knowingly in violation of the law if necessary. • Police will employ the use of video-cameras in areas surrounding the Rose Kennedy Greenway. The video will be used to capture the images of individuals who are engaging in disorder. Those images will then be used to lodge criminal complaints in a follow-up investigation conducted by Boston Police detectives. • Officers will conduct themselves in a professional, respectful and proportional manner.

Know the Laws:
Unlawful Assembly • In the event that 5 or more armed people or 10 or more people are unlawfully, riotously or tumultuously assembled, the police can demand that they immediately and peaceably disperse. • Any person who urilawfully assembles and does not disperse after being ordered is subject to arrest and imprisonment of up to 1 year or a fine between $100 and $500. Trespassing • Remaining upon land of another after having been forbidden to do so by a person who has lawful control over the premises. • Any person who trespasses is subject to arrest and imprisonment of up to 30 days or a fine of up to $100.

Elaine Driscoll Director of Communications, Boston Police Department For Boston Police news and information, please visit:
1

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COMMONWEALTH SUFFOLK, SS.

OF MASSACHUSETTS SUPERIOR COURT C.A. NO. 11-4152

OCCUpy BOSTON, KRISTOPHER MARTIN, SASHA SAGAN, NOAH MCKENNA, and JENNIE SEIDEWAND, Plaintiffs,

) ) )

)
) ) ) ) ) ) )

v.
CITY OF BOSTON, CITY OF OF BOSTON POLICE DEPARTMENT, by and through POLICE COMMISSIONER EDWARD DAVIS, and the ROSE FITZGERALD KENNEDY GREENWAY CONSERVANCY, INC., Defendants.

)
)

)
)

) ) ) ) )

AFFIDA VIT OF BART SHEA, FIRE MARSHAL, CITY OF BOSTON

I, City of Boston Fire Marshal Bart Shea, do hereby depose and state as follows:

1. I am the City Fire Marshal for the City of Boston ("the City"). I have worked for the Boston Fire Department for 23 years. As Fire Marshal, I manage the fire inspection process and supervise fire prevention throughout the City. As Fire Marshal, I have direct knowledge of the Boston Fire Department's inspection activities, interactions, reports, and involvement with the "Occupy Boston" encampment at Dewey Square Park ("the

Park") on the Rose Fitzgerald Kennedy Greenway ("Occupy Boston encampment" or "the encampment").

2. I submit this affidavit in opposition to Plaintiffs' request for injunctive relief. Based on my training and experience, and for the reasons that follow, I believe the encampment, in its current state, is a substantial threat to public safety. Due to these safety concerns, I believe that any restraint over the enforcement of the Codes under my responsibility threatens the well-being of those occupying the Park as well as the public at large.

3. I and other Boston Fire Department officials have visited the Occupy Boston encampment at the Park on several occasions and each time have witnessed numerous serious fire hazards and violations of the Boston Fire Prevention Code ("Fire Code"), §§ 1.21 and 1.22, and the State Fire Code, Code of Massachusetts Regulations ("Regulations"), 527 C.M.R. § 1.06. True and accurate copies of these sections of the Fire Code and Regulations are attached hereto as Exhibit 1 and Exhibit 2, respectively. In brief, the site poses a substantial and worsening risk of fire. See Exhibit 6 (photographs of the site taken on October 23,2011).

4. I and others in the Fire Department have observed the following fire code violations that at the encampment: • Shelters made of and/or supplemented with combustible materials, such as tarps, blankets and fabric covers. In an effort to "winterize" the tents, the occupiers

2

have draped and secured what appear to be combustible tarps on top of their tents, which poses an increased fire risk; • Positioning the shelters densely, side-by-side and otherwise in close proximity and on a small parcel could permit fire to spread rapidly and entrap or prevent occupants of the tents from escaping in the event of a fire or emergency and presents a substantial risk that people will be trampled before they even get out of their tents should any type of fire or panic ensue; • Random distribution of supporting ropes and guy wires for tents and shelters, creating a network of trip wires which could prevent egress from the site in a fire or emergency, especially at night; • • Supporting shelters with wooden platforms, cardboard, paper, and cloth; Accumulating combustible materials, such as cardboard, paper, plastic tarps,

plastic materials, wooded crates, nylon sleeping bags, blankets and clothing, adjacent to and inside the tents that could contribute to the acceleration, intensity, and spread of fire through the encampment; • • Burning incense without proper precautions; Using one or more electrical extension cords of unknown rating to supply power to the encampment, as well as the use of auxiliary charging devices to recharge multiple 12 amp (car-type) batteries, which bring a source of ignition into the encampment if not properly used and protected; • The consistent smoking of cigarettes in and around the tents, and disposal of cigarettes adjacent to tents and near surrounding combustible debris, despite

3

warnings of the dangers such action posed.

On November 28, 2011, during an

inspection, I opened one tent cover that was draped in two plastic tarps and there were five to six very intoxicated men smoking cigarettes without concern. When I asked whether they were aware that they were not supposed to smoke inside tents, they appeared to be unconcerned. They did not extinguish their cigarettes in

response to my concern or the concern expressed by other occupiers; and • Use ofa "generator" tent in which there is a manual cycle capable of recharging batteries and numerous car-size 12-volt batteries. Batteries contain sulfuric acid and, when being recharged, can produce flammable/explosive hydrogen gas, and
I

thus require proper ventilation and protection from sources of ignition.

5. Members of the "Occupy Boston" encampment ("Members") have described plans to use a wood-burning stove as part of winterization. The District Fire Chief informed a

member that use of a wood-burning stove or any similar heating source is not allowed due to the serious fire hazards this would pose to the encampment and members.

6. Members also described plans to use a mobile propane-powered water heater. I immediately voiced disapproval and warned members of the serious dangers of bringing such heat sources to the encampment.

7. None of the tents have been approved for fire safety by the Boston Fire Department and are therefore in violation of the Fire Code and Regulations. Further, based on my

observations of the tents, observations reported to me by Fire Department officers who
I Additionally,

I observed some smaller 12-volt batteries powering lights around the encampment.

4

report to me, and my 23 years of fire fighting and fire inspection experience, I believe that many of the tents at the encampment are made of highly flammable nylon or similarly flammable synthetic material. Moreover, many of the tents are covered by tarps and blankets which is not only improper but poses an obvious increased risk of fire.

8. I have reviewed photographs taken by Fire Department officials of the visits to the encampment. These photos, attached hereto as Exhibit 3, are true and accurate depictions These photographs depict conditions, such

of the general condition of the encampment.

as the close spacing of tents and extensive presence of combustible materials, which I believe are in violation of the Massachusetts Code of Regulations 527 C.M.R. 1.06 and the Boston Fire Prevention Code, § 1.21 & 1.22.

9. On several occasions, I and other members of the Boston Fire Department have visited the encampment. Attached hereto as Exhibit 4 are true and accurate copies of reports of

conditions at the encampment submitted by Fire Department officials to me and maintained by me as Fire Marshal, which reflect observations made. In my visits, I encouraged Members to obtain tents from a reputable source that meet flame retardant specifications. I also repeatedly advised Members of the encampment to implement other

fire safety practices such as increasing the number of fire extinguishers, keeping heat sources out of tents, urging a camp-wide prohibition against smoking in or near tents, and extinguishing cigarettes in buckets of water. While some members informed me that they would try, they voiced concern to me and other Boston Fire Department personnel that many "marginal" members of the encampment were likely unwilling to observe my fire

5

safety recommendations.

See Exhibit 3, Report dated November 6, 2011; see also

Exhibit 3, Form 5As. As far as I am aware, the camp has not implemented my recommendations.

10. The Boston Fire Department prepared abatement orders dated November 5 and November 17,2011 to address these dangerous conditions. Attached hereto as Exhibits 4 and 5 are true and accurate copies of those Abatement Orders. The November 5th, 2011 Abatement Order was addressed to "Occupy Boston." As 'Occupy Boston" is not a legal entity, it could not be served on it. The November 17,2011 Abatement Order was served on the Conservancy, but was withdrawn out of concern that its issuance might be seen by the Court as a violation of the terms of the Temporary Restraining Order ("the Order").

11. The information in this Affidavit only includes the fire hazards and violations of which the Fire Department is aware. There may be other hazards at the site of which the Fire Department is not currently aware.

12. As detailed above, I believe the encampment poses a grave fire safety hazard and places those at encampment, passersby, and surrounding public and private property alike at risk of injury by fire.

I hereby declare, under the penalties of perjury, that the foregoing is true and accurate to the best O~f. knowledge and belief. m B T SHEA Boston Fire Marshal

~~a lSh

_II/c_~)-L-;4_(/
Date

_

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Chief Shea Affidavit Ex. 1

BOSTON FIRE PREVENTION CODE

ORDINANCES OF 1979 CHAPTER 28

EFFECTIVE DATE, AUGUST 7,1979

[Document 69 - 1979

ORDINANCES OF 1979, CHAPTER 28

ADOPTING THE BOSTON FIRE PREVENTION CODE OF 1979

In the Year Nineteen Hundred and Seventy-nine
Be it ordained by the City Council of Boston as follows: SECTION 1. The City of Boston Code, Ordinances, Title 11, chapter 3, is hereby amended by inserting after section 81, the following section: Section 82. (Boston Fire Prevention Code of 1979, attached hereto and incorporated herein.) SECTION 2. Chapter 3 of the Ordinances of 1959 is hereby repealed.

2

BOSTON FIRE PREVENTION TABLE OF CONTENTS

CODE

Page ARTICLEI.GENERALPROYmIONS Section Section Section Section Section Section Section Section Section Section 1.01 Title 1.02 Purpose 1.03 Definitions 1.04 Organization 1.05 Duties of the Head of the Fire Department 1.06 Duties of the Fire Marshal 1.07 Investigation ofHannful Fires 1.08 Investigation of Suspicious Fires 1.09 License for Hazardous Materials and Operations 1.10 Certi ficate of Registration I. f I Revocation of License 1.12 Replacement and Alteration in Construction 1.13 Right of Persons Aggrieved by the Grant of a License I .14 Permits 1.15 Revocation of Penn it 1.16 Fees 1.17 Failure to Secure a Permit 1.18 Right of Person Aggrieved by Grant of a Permit 1.19 Approval of license Applications 1.20 Determination of Flammability 121 Right to Inspect 1.22 Investigation and Removal of Fire and Explosion Hazards 1.23 Division Records 1.24 Frequency of Inspections 1.25 Reports to Other City Departments 1.26 Penalties 1.27 Amendments and Reference Standards ARTICLE II. AUTOMOBILE TIRE REBUILDING PLANTS 2.0 I General 2.02 Permit Required 2.03 Construction and Protection Requirements 2.04 Dust Collection System 2.05 Ventilation ARTICLE In. AUTOMOBILE WRECKING YARDS, JUNK YARDS, SALVAGE YARDS, AND WASTE MATERIAL HANDLING

II JI
12 13 12 14 14 15 16 16 16 16 17 18 18 18 18 18 19 19 19 20 20 21 21 21

"

Section
Section Section Section Section

Section
Section Section Section Section Section Section Section Section Section Section Section

Section Section Section Section Section

22 22 22 22 22

PLANTS
Section 3.01 General 22

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Section Section Section Section Section Section Section Section Section Section Section

3.02 3.03 3.04 3.05 3.06 3.07 4.01 4.02 4.03 4.04 4.05

Section Section Section Section Section Section Section Section Section Section Section

5.01 5.02 5.03 5.04 5.05 6.01 6.02 6.03 6.04 6.05 6.06

Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section Section

7.01 7.02 7.03 7.04 7.05 7.06 7.07 7.08 7.09 7.10 7.11 7.12 7.13 8.01 8.02 8.03

Permit Required Location Fencing Roadways Motor Vehicle Fuel Tanks Construction and Protection Requirements ARTICLE IV. BOWLING ESTSBLISHMENTS General Permit Required Lane Resurfacing Operations Pin Refinishing Requirements for All Finishing Operations ARTICLE V. COMBUSTIBLE FIBERSSTORAGE AND HANDLING OF Definition, "Combustible Fibers Permit Required Loose Storage Baled Storage Indoors Baled Storage Outdoors ARTICLE VI. COMBUSTIBLE METALS Scope Permit Outdoor Storage Storage in Buildings Processing Operations Conflicting Requirements ARTICLE VII. CONSTRUCTION AND DEMOLITION OPERATIONS Scope Permit Required Public Hydrant Service Fire Extinguishing Service Public and Private fire Alarm Service Fire Alarm Services Portable Fire Extinguishing Service Guard Service Access for Fire Department Apparatus and Personnel Fire Doors and Opening Protecti yes Temporary Heating Equipment Temporary Construction Waste Materials and Debris ARTICLE WELDING AND CUTTING Scope Permit for Welding and Cutting Certificate of Competency Required

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