NLG Motion to Dismiss Occupy Boston Mass Arrests as “Unconstitutional”


Boston, Februayr 1, 2013.     Occupy Boston defendants arrested in the October 2011 middle of the night raid by the Boston Police department on their encampment on the Rose Fitzgerald Kennedy Greenway are seeking to have all criminal charges against them dismissed on the grounds that the arrests were an unconstitutional infringement on the protestors’ exercise of their constitutional rights to free speech and assembly.  A hearing on their Motion to Dismiss will be held in the Boston Municipal Court on Monday, February 4, 2013 at 2:00 p.m.

The five Occupy Boston defendants, Andrea Hill, Ashley Brewer, Brianne Milder, Tammi Arford, Kerry McDonald, represented by volunteer attorneys from the National Lawyers Guild, contend that the Massachusetts legislature and Massachusetts law explicitly recognized their right to assemble on the Greenway in order to exercise their rights to seek redress of their grievances, most notably social and economic inequality, from their local, state and federal governments.  Therefore, arresting them and charging them with criminal conduct for exercising those rights was plainly unlawful and in violation of their constitutional rights to assembly and free speech under the First Amendment to the United States Constitution and Articles 16 and 19 of the Massachusetts Declaration of Rights.The Greenway was created by the Massachusetts Legislature through Chapter 306 of the Acts of 2008, and specifically provided “that the greenway shall be treated as a public park and a traditional open public forum without limiting free speech….” Id. at § 3 (emphasis supplied).   As was noted more than 55 years ago by the Massachusetts Supreme Judicial Court, “even when all allowance is made for valid regulation, there must remain, we think, many places, times and conditions at and under which in the parks of Boston and on Boston Common there exists, according to the decisions of the Supreme Court of the United States, a constitutional right of peaceable public address….” Commonwealth v. Gilfedder, 321 Mass. 335, 341-342 (1947).

Moreover, prior to the mass arrests in October 2011, the private agency charged with managing the Greenway, the Rose Fitzgerald Kennedy Greenway Conservancy, Inc., had issued a written statement recognizing the protestors’ exercise of their constitutional rights, stating that the “Rose Kennedy Greenway is a public park and is available by law for the expression of free speech…. Occupy Boston is a spontaneous event and an expression of free speech….”  and that, even though the park is normally “closed” between 11 p.m. and 7 a.m., “Occupy Boston is an extraordinary situation.  We are prepared to allow Occupy Boston to maintain the status quo….”

The United States Supreme Court has agreed with the Massachusetts legislature and courts that public parks, such as the Greenway, must be available for citizens to exercise their rights to assembly and free speech, holding that there is a constitutional right to use “‘streets and parks for communication of views.’  This right to use is based on the fact that ‘streets and parks * * * have immemorially been held in trust for the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing questions.’”
Capital Square & Review Advisory Bd. v. Pinette, 515 U.S. 753, 757–770 (1995) citing Hague v. Commt. for Indus. Organization, 307 U.S. 496, 515 (1939).

Despite these well-established constitutional rights, the Boston Police arrested more than 140 peaceful demonstrators in the middle of the night on October 10, 2011 and charged them as criminals engaged in “trespass” and “unlawful assembly.”  The police had no legal basis for doing so, and the defendants are now asking the court to uphold their constitutional rights and dismiss all of the charges against them.

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