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In order to keep up with the nature of free, spirited debate, I wanted to place the chat feature at the top of the homepage. This ensures people can come here and share their views on anything they wish and not have it be related to any specific discussion. Here, people can share ideas, links, and views "unmoderated" and an their own pace. To me, this makes The Elephant in the Room blog truly a place for debate.

Tuesday, November 15, 2011

Rights? Right?! RIGHTS!!!

Since the NYPD crackdown and eviction of the Occupy Wall Street Movement overnight (Twitter), the web has been blowing up with Tweets and Facebook posts about Mayor Bloomberg, the NYPD, etc. etc. etc. One of the common themes in these posts is the First Amendment. Interesting... OWS protesters claim they have a right to take over someone's private property.

The First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." That's it. Where in the First Amendment does it say that trespassing on private property is legal?

I guess that brings up another point. What is Zuccotti Park? It's time to settle this. Zuccotti Park is privately owned. That needs to be known above all things. It is owned by a company called Brookfield Office Properties. Honestly, who cares who it's owned by? It is private. Through the various twisting of laws and regulations it is a open to the public and is not subject to the citywide curfew on city-owned parks. 

According to an article in the New York Times: 
"Brookfield Office Properties, the owner of Zuccotti Park, recently posted new rules against camping, lying on the ground or benches, and using sleeping bags, but up until now those rules have not been enforced.

Enforcement would fall to the building’s management company, Professor Kayden said, but if park users refuse to comply, the management may call on the Police Department for help, as it has in an effort to clean out the park."

Yes, as LME has posted on Twitter: it is private. As with any private property, the owner can do with it as he/she sees fit. If I don't want someone in my front yard I can call the police to have them removed. If Brookfield Office Properties does not want protesters in its spaces, and these protesters do not comply with the property owner's regulations, Brookfield Office Properties can utilize the police to remove the protesters. I doubt OWS protesters would stand for people taking over their living rooms, front yards, etc., so why do they think they have the "right" to do the same to someone else's private property? Any thoughts?


  1. The owner (either current or previous) cut a deal with the city that exchanged a public park (complete with private management) for additional vertical bldg area. i am unsure of the exchange's documentation language (which is obviously a critical point) nor the laws that govern the exchange program but the courts will sort that out. i believe if OWS did not have the right to be there, Bloomberg would have evicted them some time ago. i think he's been shopping for a legal opinion that suits his agenda (no proof of that, just my gut feeling). for add'l info:

  2. It appears your assertion of a privately owner parcel is correct. However, it also appears that my contention is also valid in that the owners agreed to certain things... 'Because Zuccotti Park is not a publicly owned space, it is not subject to ordinary public park curfew. New York City Police Commissioner Raymond Kelly said on September 28, 2011, that the NYPD could not bar protesters from Zuccotti Park since it is a public plaza that is required to stay open 24 hours a day. "In building this plaza, there was an agreement it be open 24 hours a day," Kelly said.'

  3. Whatsamattausa. Thank you for your comment. In your second comment, yes, as the NYT article states, it is open 24 hours a day per the special arrangements and legal dancing that was conducted and agreed upon. It is a private park; the owners don't have to regulate against a citywide curfew. That would be the equivalent of saying that people cannot be on their front lawns after a certain time. On private property, you as the owner can do as you wish. While, yes, there was a special agreement made, I'm not sure, but you might have missed this part from the NYT article:

    "Enforcement would fall to the building’s management company, Professor Kayden said, but if park users refuse to comply, the management may call on the Police Department for help, as it has in an effort to clean out the park."

    Just as I can do with my private property, just as you can do with yours, and just as Brookfield Office Properties can do with its, the owner of private property can regulate the activities of the property. If Brookfield Office Properties says that it does not want tents on its property, it can make that a rule. If someone who uses the property comes on and pitches a tent, that would be trespassing.

    In the end, while I acknowledge that this is a privately owned but publicly open park, that doesn't mean that all the rights of the owner are absolved. The owner has a right to use his property as he/she sees fit. It's one of the best privileges of property ownership.

    Thanks for the open and civil comments. I'd love to hear a response. If not, best of luck to you, Whatsamattausa.

  4. LME - we can have this conversation in circles all day long but the fact remains that neither of us really knows with access to the documentation. when the building owner received the right to build higher than is/was allowed by code, they also gave up certain of their rights. neither i nor you know what they gave up (and if i am wrong and you do, please share the documentation). my guess is that they gave it up for public access (though they maintain ownership), 24 hours a day and agreed to finance the maintenance(which i think we can both agree on). depending on how the agreement was framed will be the determining factor of rights. however, if the building owner and/or the city could have evicted them, why wouldn't they have done it sooner? likely because the legal basis is iffy at best.

  5. Whatsamattausa - Yes, it does seem like we agree on some things here. My biggest concern, however, is at the end of the day, it's still private. If the owner of private property can no longer utilize that property at his discretion, what does that do for the country? Our rights as individual citizens with property ownership rights? With regards for eviction, it appears from the NYT article that Brookfield Office Properties did request some sort of assistance in removing the OWS protesters from its property. As you and I can probably guess, they didn't comply, and the police had to get involved. I'm not taking a case for or against OWS with this (though as you can probably surmise, I do not stand with them)... my biggest case is that people keep saying they have the "right" to be there. Yes, I stand by the Constitution, which guarantees the right to peaceably protest. But there is no legal right to protest; there is a right to protest legally. For example, ou can't protest in the middle of a street filled with traffic. You can't protest in courthouse­s or legislativ­e bodies. You can't protest on private property without permission. The third one applies here. If the owner of Zuccotti Park can not remove the protesters at his wishes, is it truly "private" property. Also, I'm not about bashing (I don't know if you've done this or not, but this is in general) Mayor Bloomberg for doing his job and sticking up for private property owners.

    Thanks again for the comment. I hope to hear one back. If not, good luck, and I hope to see further posts from you.

  6. you keep saying, "it's still private" when that may not be true. just because it is owned privately doesn't mean that they enjoy the full rights that you or i would in our front yards. they may have relinquished, or set aside certain rights, in order for the additional building height which translates into increased property value. the people gave them that value and, in return, the owner gave to the people the park (that is the premise anyway... again, i've not seen the documentation). this is the crux of our debate. i'm going to see if i can get an electronic copy of the agreements affecting the site.

    btw - yes, i have bashed Bloomberg. the mayor chooses the confrontational route because he likely doesn't feel the courts will support him. so, in the meantime, he squanders taxpayer dollars on these police actions which in turn will cost the taxpayers much more in adjudication. he is a thug for the corporations and uses the NYPD as his personal goon squad.

    i am working on evicting tenants in NYC right now and, though none of them have a lease, i can't simply change the locks. i need to go get a court order to have them removed. what is the difference?

    I do enjoy our debate. It is good to know that people can have a respectable discussion without throwing insults around as I have found is the norm. that is also a huge problem in this country. zero tolerance and no desire for open discussion and a willingness to accept differing points of view. that's modern day trickle down politics!

  7. Whatsamattausa - If the owner doesn't have rights to govern his property as he sees fit, is he really still the owner? ( I know that sounded quasi-philosophical) :-)

    As far as the Bloomberg bashing, that is obviously your right. I don't really have a position on it since I don't live in NYC. As far as him being a thug, I can understand your feelings on that because any time the police get involved it doesn't create a "pretty" situation regardless how brutal or professional the police are. As an outsider, I commend him for doing this, and I respect your opinion while disagreeing with it.

    With regards to eviction: it's the same in my state. It's a long, drawn-out process that can hurt landlords. I think this is different though because with a house or apartment, there are ways to lock people out as well as ways for tenants to lock themselves in. With the use of a park, unless the owner put up high concrete walls (which really wouldn't make it a park any more), he has no way to keep people he doesn't want in out (which, again, as a believer in property rights, I believe he has the prerogative to do).

    The last thing. Dead on, brother. Hit the nail on the head (but was the trickle-down part a snipe at my boy RR?) :-P

    LME exists to give people a place to discuss their opinions (hopefully with proof, feelings and evidence and without pejorative and degrading attacks). Obviously, I don't hide that I lean a certain way. This blog starts with a point of view (namely, mine) and challenges the opposition to counter. I will always be respectful, and I ask that posters do as well. The only time I would ever delete a post is if it was violent, used hurtful language, and all that. Your posts, though I disagree with them, have been great, and I truly do appreciate you taking the time to write out your thoughts and feelings. I really hope you continue to post not just on here, but on other posts. You're on the "other side," but you're a pleasure to discuss the issues with.

  8. LME - they are still the owner but they forego certain rights. similar to if you owned real estate that had the local subway running under it. you would have granted an easement (or the government would take one) and established certain rights that go along with the easement (example: land owner takes something in consideration for granting the easement, money perhaps, and, in return, has to forego some rights (can't kick the subway out, can't use subway for personal purposes, etc.). yes, the landowner still owns the land but has relinquished certain rights. in the Zuccoti example (and again, i haven't seen the documents so this is solely a logical guess), the owner gave up rights to be able to select who can and can't use the park in exchange for the hieght increase (land value increase). if the developer wants to be selective than they would likely have to give up the floors above what would be permitted by code. it was a fair trade off.

    we'll agree to disagree on Bloomberg. he cannot determine the 1st Amendment unilaterally. at this very moment, he should be arrested for contempt of court for not allowing the people back into the park. but he is not. why? (off topic i know.. perhaps another blog for you!).

    i am a big believer in real estate rights which is why i think the opposite should be true with regard to eveiction. if i have a lease (in my area it would be a commercial lease) and the lease expires, the tenant should be out unless there is a holdover provision. why should i have to spend time and money to get them out. it would seem that the city SHOULD have to get a court order to evict people from a public place (assuming it's public). once you start to limit the constitution, you go down a slippery slope. our fore fathers were all liberals and, in that sense, i believe the constitution is meant to be interpreted liberally so as not to limit it. limiting the powers of the constitution is dangerous to us all.

    yes, it was a knock on Reagan. his policies have esentially been proven to be the underlying reason for the nations economic inequality. trickle down never makes it down!

  9. Whatsamattausa - Another blog for me, you listed like 7 more debates! :-P

    For your top paragraph, I'm in the same boat as you. If an agreement was there (big IF here, I still err on the side that it doesn't exist since I haven't see it in any article I've read) I still don't believe he relinquishes the right to protect and free his property from/of trespassers. With this one, too... we might have to agree to disagree.

    With real estate rights, we sound like we have some common ground there. I agree with the statement "why should I spend my time and money to get them out..." I would extend it to "they are the ones that are in the wrong; why should I suffer?"

    As far as our forefathers all being liberal, I'm definitely going to have to disagree with that one. They were a healthy mix. For example, there were many that took the position of having a strong federal government, and there were many states' rights forefathers. Luckily, the healthy mix of both opinions lead to various compromises that make the U.S. great today. It would be a good debate, and perhaps another blog post at sometime, though, I want to get back to some more economic posts soon.

    Which leads me to Reagan. As a conservative, I'm going to respectfully disagree for now. Trust me, I can post all day about why I am a conservative, and why I believe that Reagan's policies did not cause today's financial disaster, but, as you have said, that might be for another blog post :-)