Paul O’Hanlon and Helen Gerhardt discuss the BNY/Mellon Hearing – photo: ‘Dmitri’ Beljan used by permission
Arguments concluded today in the hearing to determine whether or not Bank of New York/Mellon should get an emergency injunction to immediately evict Occupy Pittsburgh from property owned by the bank but zoned as open public space. The outcome will not be known for at least two weeks.
Proceedings at times occupied unusual ground of their own – with Rick Astley rolling into the testimony and plaintiffs’ high-powered attorneys extensively quoting snarky tweets and requesting the definition of an “OccuCuddle Puddle”
A better reporter than I would make you wait for the details of the above incidents while he first outlined the pertinent points of the case. But I assume, gentle reader, that you are as lacking in impulse control as I am, so let’s get straight to the surreality, shall we.
The day’s first witness was a young but very self-possessed man named Mike Lawson. BNY’s lead attorney, during cross-examination, pressed him rather hard on questions of how prepared and functional a leaderless organization could be.
“Is Occupy Pittsburgh leaderless?” (Yes and no, everyone is a leader.) “Who does BNY go to with concerns?” (Anyone.) Who sets the rules? (The General Assembly) Have people been removed for rule-breaking? (Yes.) Have the gone peaceably? (Yes.) Does the GA have documented plans for those who won’t? (No, the group de-escalates the sitution.) Are you content to just not plan for this? (Yes.)
The line of questioning ended with this: “Is there any plan for handling the arrival of police to evict the camp” (Yes, the plan is to sing ‘Never gonna give you up’ by Rick Astley.)
BNY/Mellon’s elderly and impeccibly-dressed lead counsel then surprised the courtroom by asking “That is known as being ‘Rick-rolled’ is it not?” Somewhere, the ghost of Eugene Ionesco smiled contentedly to itself.
The cross-examination of the second witness, Don Carpenter, a veteran of Afghanistan, relied heavily on his twitter activity, meticulously documented by BNY’s phalanx of lawyers. (I counted at least 10.) This line of questioning was introduced early on. Trust me, you have not lived until you’ve heard a corporate attorney in a suit worth more than the bluebook value of your car intone the words: “Do you tweet”
Much was made of Mr Carpenter’s dark humor in those tweets as he described the arrest of an acquaintance, an incident (unrelated to Occupy Pittsbugh) involving New Year’s eve property damage and his repeated attempts to get a particularly stone-faced BNY security man to smile.
The BNY lawyer concluded his questioning by reading from a tweet that mentioned the OccuCuddle Puddle.
“i know this is not relevant, but I just have to ask – what is an OccuCuddle Puddle?”
Mr Carpenter went on to describe the phenomenon of people gathering in one tent on cold evenings to talk and laugh and keep each other warm – then eventually falling asleep.
“The OccuCuddle Puddle, is that a good thing or a bad thing?” asked the lawyer.
Oooo, Oooo, pick me. I have an answer. It might be the best thing in court all day.
There’s so much more. The detailed inquiry into a hookah in a BNY photo and all possible uses it could have, the exact purpose of a much talked about turkey fryer – but reluctantly it is now time to leave the realm of Rod Serling and go on to the case itself.
A little background. The park, Mellon Green, where the occupiers have their tents, is zoned as “Open Public Space.” This type of designation is quite old in Pittsburgh, dating back to the post-WWII “renaissance” of the city. Significant downtown property owners are often required to provide such openly accessible and public areas. For the first few weeks, BNY/Mellon offered no objection to the occupation.
This began to change in early November as they presented a list of guidelines, which, among other things, prohibited heaters, cook stoves and fuels. Although there is some dispute as to the timeliness of it, those guidelines appear to have been met. And BNY/Mellon gave no indication at the time that they were unhappy with the compliance to those guidelines Then, on December 9, the bank posted a notice insisting that tents and other gear be removed and occupiers vacate.
BNY/Mellon is asking for an injunction to have an eviction occur immediately, before a full trial. Because of the public nature of the green, they cannot do this based on trespassing. Instead, they have the burden of proving several things. Among them are: irreparable harm being done; activities that are against the public’s interest; a case with such strong merit that it can bypass the normal trial; or an unacceptable change to the status quo of the park.
A lot of the questioning by BNY revolved around the implication that occupiers were ill-prepared to reside in the park, especially with the onset of cold weather. Considerable time was spent on the response to the November guidelines. Much of the testimony looked into the camp’s procedures and habits, and even overall philosophy – even getting into the question of what constituted theft. A claim that security guards had seen and videotaped a fire in a 55 gallon drum resulted in the plaintiffs’ attorneys not being able to produce the videotape
It’s worth noting that Firedoglake’s own Occupy Supply helped Occupy Pittsburgh make the case that adequate preparation and planning had in fact happened. Records of cold weather gear delivered to the occupation by Occupy Supply were entered as evidence and brought up in witness’s testimony.
The hearing ended with an interesting turn of events concerning whether or not the occupation interfered with normal operations of the park, with the aforementioned status quo. This came from the testimony of the final witness, attorney Paul O’Hanlon, who filed an amicus (friend of the court) brief.
Mr O’Hanlon, who is disabled, co-chairs an organization called the “City-County Task Force on Disabilities” and is also a supporter of Occupy Pittsburgh. Part of BNY/Mellon’s case is that they have closed the park each winter because of concerns over snow and ice, and the occupation is prohibiting them from continuing this precedent. However, as Mr O’Hanlon discovered and will apparently put in his brief, the bank may have been violating the zoning requirement. The only part of the park that remains open in winter is a narrow passageway between the green area of the park and the BNY/Mellon tower. This space is comprised of 3 flights of concrete steps and is inaccessible to the disabled.
Aattorneys for the bank offered to meet with Mr O’Hanlon to address his concerns as soon as possible.
The judge hearing the case, Christine Ward, adjourned the court but not before making the statement that it was a privilege for her to hear such a case, which involved what she view as important issues. She also took pains to praise the demeanor of the attorneys and witnesses on all sides.
Members of the legal team of Occupy Pittsburgh were pleased with the testimony of their witnesses. They also felt confident BNY/Mellon had likely failed to meet the burden of proof needed for the temporary injunction.
Both sides will now await the transcripts from the two days of hearings (and, boy howdy, do I want to get my own copy of that) They then have two weeks to file final briefs at which point Judge Ward will make her determination on whether to grant the injunction for an immediate eviction.