Starting an Occupation Protest:
Legal Considerations

Starting an Occupation Protest – Legal Considerations
by Sue Basko

Since Occupy Wall Street, or its corollary, Occupy NY, occupation protests have sprung up all over.  Occupy LA is the second largest “Occupy” protest in the U.S., and the most successful with the most positive impact and least amount of trouble.  It is also the one I know the most about.  This blog post explains how to go about setting up an Occupation protest.

What is an Occupation protest?  This is a protest that “occupies” a space. It might be a street or a park.  It might be a symbolic location, such as the Federal Reserve Bank at Occupy Chicago.  It might be a logical gathering place, such as City Hall Park, where Occupy LA is camping out.

Does an Occupation protest need to include sleeping out?  No, but many protest groups would like to try to do that. 

What else can an “occupation” be?   Since the purpose of an occupation protest is to call awareness to the dire financial situation and the need for change, an occupy protest can be anything that does that. Some examples are: 
  •  Having a round-the-clock protest vigil at a certain location, without actually sleeping there.
  • Having a daily or weekly protest at the same time and location.
  • Asking people in their homes to keep one light or LED candle burning in a front window each evening.
  • Having people hang a certain banner in their window in support.
  • Holding a weekly event to honor the cause – such as a bike ride, feeding the homeless, a sing-along or other such event.
  • Holding a monthly event with songs and speakers.
  • Having a website where people can weigh in and share their thoughts.

Planning a Sleeping-Over Occupation: 
Most Occupation protests that involve sleeping over are illegal.  They are illegal because most municipal codes do not allow sleeping or camping on the street or in parks.  Also, most parks have a closing time and Cities are allowed to enforce those things.  Some protests have been able to get a special permit or get the blessing of the municipality in which they are located. Some have been forced out, evicted, kicked out, or whatever term you like – often with many arrests.

Some occupation protests have been carefully planned so they are not technically in violation of the law. Occupy NY is taking place at Zuccotti Park, which a POPS (privately-owned public space), a place created for public use in a zoning deal where the builder trades greater density on the project in exchange for creating a public space. It is open 24 hours a day.  Although camping is not allowed, sleeping is not forbidden.  Therefore, protesters have been able to stay with sleeping bags, 24 hours a day.   Still, since the City has some control over the park, there have been moves to make the protesters leave, ostensibly for park cleaning.   Mayor Bloomberg has said the protesters can stay as long as they like. (Update: Tents are now present in the park. Update Nov.15 - Tents were cleared from the park again.  Also new rules say the park closes at 10 pm, lying down is not allowed, and no tents or sleeping bags are allowed in the park.  )

NOTE:  Zuccotti Park is a POPS - privately-owned public space. POPS parks and plazas come about as a zoning deal where a developer creates public space in exchange for being granted higher density in a building project.  Those spaces  have First Amendment rights because the owner has bargained with the City to create the space for the public.  However, a recent survey of POPS in New York City found that most POPS are not usable for any purpose, let alone for holding a protest.   

 When the Occupy protest first came to Zuccotti Park, the park had no closing time and there was no rule against lying down.   The protesters stayed all night and slept without tents.  Gradually, they started using tents.  Then, the camp was evicted from the Park, and the Park instituted new rules giving the Park a closing time and making it illegal to lie down.   There is a pending court case involving Zuccotti Park and the Occupy protests.  At this time, Zuccotti Park is being allowed to enforce rules similar to the rules of the New York City parks.  If this case follows logic, a POPS-created park such as Zuccotti Park would  be allowed to have reasonable rules, just as any New York City park does, such as closing time, not allowing camping, etc.  It seems logical that Zuccotti Park or any POPS park or plaza should be able to mirror the laws that apply to NYC public parks.  The court ruling will be interesting to read when it comes.  

Does Not Being Allowed to Camp Out as Part of a Protest Violate Our Freedom of Speech?  The U.S. Supreme Court ruled in Clark v. Community for Creative Nonviolence (1984) that free speech expression is not violated when municipalities or parks have laws that prohibit protesters from camping in the park.  The Court found that the laws were intended to protect the park environment and were applied to all people, not just protesters, and that the protesters had other means by which to express their ideas.  Note: in this situation, authorities allowed tents on site as a First Amendment expression, but decided that sleeping in the tents was not a First Amendment act.

Note: Since the Occupy protests began, some municipalities have said that they think camping out is a form of protest.  Irvine, California is one such place.  Some cities, such as Santa Rosa, California are giving approval for a camping protest under controlled conditions.  There, the camp is limited to 100 tents and each tent must have a permit.  To read the permit conditions, please read:  Occupy Santa Rosa Permit Conditions.

Does making us leave a park at closing time violate our right of Peaceable Assembly?  No, municipalities and States are allowed to place time, place and manner restrictions on the right to peaceably assemble, as long as the restrictions are content neutral and narrowly tailored to meet important government objectives.  Content neutral means the laws apply to everyone regardless of their message.  Cities can close the parks at night, and most cities do.  Some cities require permits for large park gatherings or for any use of a sound system.  Chicago, for example, requires a park permit for any park gathering of over 50 people and for any use of a sound system in the parks.

If you want to protest all night long and not have it end in possible arrest, you have to do one of these:  1) protest on the public sidewalk all night long (but not sleep there, unless you are in Los Angeles);  2) find a place that does not close, such as Zuccotti Park where Occupy NYC is happening (that is no longer an option in Zuccotti Park, as the rules have changed in Zuccotti Park) ;  or 3) cut a deal with local officials to let you stay in a park all night long, as has happened at Occupy LA, Occupy Santa Rosa, and other locations.   A good number of municipalities have agreed and backed the protesters, so do not think it is impossible.    If you are protesting on the street at night, the same laws apply as always apply on the street at night, such as curfew times for children and teens out without their parents, noise ordinances that usually prohibit any loud noise at night, parking laws,  and any other laws that normally apply.

What About Los Angeles?  Los Angeles does have a “tent city” going in City Hall Park.  Los Angeles is a special case.  The protesters at Occupy LA planned to “occupy” City Hall Park, a formal area of lawns, trees, and parquet brick walkways surrounding downtown Los Angeles City Hall.  No camping is allowed in Los Angeles, other than in designated camping locations, such as camps in mountain parks.  City Parks close at times ranging from 9 – 11 pm, and reopen in the early morning.  City Hall Park closes at 10:30 pm and reopens at 5:00 am. 

An interesting glitch in Los Angeles law allows people to sleep on the sidewalks from 9 pm to 6 am.  This is not contained in the municipal law, but is the result of a court case settlement between the ACLU and the City. The settlement was meant to stop the arrests of the homeless who were sleeping on the sidewalk because they had nowhere else to go.  The settlement applied to the whole City and to any person, and did not require any particular motive for sleeping on the sidewalk. This is not contained in the Los Angeles Municipal Code, rather, it is a separate court settlement that inactivates police enforcement of a section of the code.

 The “skid row” area of downtown L.A. has for years now turned into a tent city at night – and in the early morning, the tents’ occupants wake up, pick up their tents, and move away.  Many sleepers can also be seen on Hollywood sidewalks, usually with sleeping bags or bedrolls, rather than tents.  Many people sleep under freeway overpasses.  If you call the L.A. police at night to say a person is sleeping on the sidewalk, they tell you it is legal.

 In some areas of L.A., apartment building managers place old couches on the grass by the curb, waiting for trash pick-up that rarely happens.  These couches are soon claimed by sleepers.  In some neighborhoods, a nighttime walk can feel like tip-toeing through an eerie outdoor dormitory. 

I once saw a large conference table being discarded near the curb by a church in Hollywood.  The space under the table was quickly claimed as “home” by several people.  They had a roof over their heads, Hollywood style.  It’s not all Entourage fantasy in Los Angeles, though the people living under the table did have a view of the famous Hollywood sign up on the hill. 

Suffice it to say, Los Angeles has a strong tradition of sleeping on the sidewalk.  Occupy LA decided to occupy the park by day and move the tents to the sidewalks at night.  After several days of this, the City Council powers-that-be allowed them to keep their tents in the park at night.  So now, it is a tent camp on the lawn of City Hall Park. They have had to move from one side of the lawn to the other several times to accommodate a film shoot or other event.  Some nights, they have been asked to move the tents to the sidewalk so the lawn can be watered by the automatic sprinklers.

Occupy LA includes a food tent, a media tent that hosts live streaming video as well as creates short videos of Occupy LA events, a library tent, a medical tent, and a welcome tent that greets visitors and receives donations.  Occupy LA has its own volunteer security force, hosts many classes, runs a nightly General Assembly meeting, has hosted speakers and musicians, has a noon-time speaker series, and invites people out to local protests at banks or other locations.

Occupy LA has limitations.  Among the things not allowed in the park are cooking, fires, dogs, smoking, alcohol or drug use, and amplified sound.  These limitations apply always to all using the park, not just protesters.  Also, the food tent must get a permit from the Health Department, which is in process.  Porta-potties had to be furnished.  

Occupy LA has been officially endorsed by the Los Angeles City Council.  Most participants and supporters are delighted about this, while a few others complain about it.

How Can We Know if it is Legal to Sleep Over in a Certain Location?  Check the municipal code of the city or town of the park or location.  You can probably find the Municipal code online by googling on the name of the City, State, and “municipal code.”  In the municipal code, to find the applicable sections, search these terms: Streets, Camping, Public Way, Parks, Tent, parkway.  Also, go to the Table of Contents of the Municipal Code and read the header for each section.  You may find multiple areas that apply. 

What if it is Illegal to Camp Over at Our Desired Location?  You can try asking the municipality to grant you permission, if it is land owned by the municipality.  Or you can look at different locations and see if any others have different laws that apply.  Or you can stage your occupation and risk being kicked out or arrested.  In some locations, police evicting protesters have damaged or destroyed items such as tents, sleeping bags, cooking facilities.  Or you can “occupy” in a different way that does not involve sleeping overnight. See the list above on different ways to "occupy" or invent your own way.  

Some Other Main Legal Considerations in a Sleep-Over Occupation Protest: 

Eating/ Cooking / Serving Food: One of the main legal and practical considerations is how people will be fed.  Is it legal to cook on-site?  It is legal to start a kitchen?  Does the food area meet health department requirements?  Several recent "Occupy" protests have had their kitchens or cooking facilities closed or dismantled by local authorities.  These are complicated issues.  In any case, your protest is more likely to last if you deal with these matters cooperatively when they come up.   Health authorities patrol street fairs and street vendors and they know what  is likely to make people sick.    The main issues seem to be having a sanitary food service area, whether licensing is needed, serving homemade food is often not allowed, temperature levels (hot and cold), whether hand washing or sanitizing is available and enforced, and whether cooking is allowed in the location.

Toilets:  Are they available?  If not, or if there are not enough, can you get porta-potties?  Do you need a permit to place them?  How many are needed for the expected number of people?  How often do they need to be serviced by the company?   Who will clean them each day?  This can be a big expense; how will it be paid?   Can you get and place wheelchair-accessible porta-potties?  For an event lasting a full 24 hours (round-the-clock), 4 porta potties per 100 people is recommended, if they are cleaned regularly.  Each porta-potty lasts for about 90-100 uses before it must be emptied.  Prices on porta potties differ greatly, depending on the amenities and style.  Over a 2 week or longer period for a large group, a simple rule of thumb is that rental of basic porta-potties and supplies needed will cost about $1.50 per person per day.  At an occupation protest, the porta-potties are likely to be the biggest expense, greater even than food, since much of that will be donated.   In almost all places, urinating or defecating outdoors is illegal.  And you cannot count on nearby businesses welcoming a steady flow of protesters in to use their bathrooms.   The success of your protest hinges on getting porta-potties.

Noise/ Sound:  Check the municipal laws and park laws and rules regarding noise, sound, and amplification.  In most places, the general rule is that  you need a permit to use an amplifier or megaphone outside.  Another general rule is that even with a permit, sound cannot project too far.  Generally that means that from a distance of 100 feet away, the noise cannot sound louder than a normal conversational tone. Another general rule is that constant or repetitive noise, such as drumbeats or banging noises, is only allowed for short periods of time in certain locations and not at night.   Another general rule is that noise is not allowed at night, which in most places is 9 pm, but may be an hour later or earlier.  Another general rule is that if the police or other authorities or nearby neighbors tell you to lower the noise, you have to do that or you will likely be cited and/or arrested if you are noncooperative.   Some municipal laws or park laws spell out the details of all this, others leave it more vague and commonsense.  Locate the laws that apply to your site and read them carefully.  These may include a municipal code, a county code, a parks code, park regulations within a municipal code, state law, park rules or park postings, signs, etc.

Trash/ Recycling:  You need to plan and budget for trash pick-up and recycling.  There will be many plastic water and drink bottles.  Disposable plates and cups, plastic flatware, and food wrappers can leave an enormous amount of trash.   The area you use must be kept free of any trash, including any cigarette butts.  All of this takes advance planning, supplies and services,  budgeting, and cooperative people willing to help.  Leaving any kind of mess will get you citations or arrests and make you most unwelcome.   This applies to any kind of outdoor event, not just a protest.

 How to Plan and Occupation Protest