I usually enjoy arguing in appellate courts, and one of my favorites is the United States Court of Appeals for the Second Circuit. The federal appellate courts are, for most people, the most powerful courts in the land. Yes, the Supreme Court is the top of the pyramid, but that court agrees to hear so few cases that for almost everyone else the last stop on justice’s train, at least in so far as federal claims are concerned, is a federal appellate court.
I was in the Second Circuit this morning on the Occupy New Haven case, appearing before a three-judge panel on our motion for a stay of a lower court order permitting the city to evict the protestors who have lived on the city’s Green for the past six months.
Co-counsel Dan Erwin and I appeared early for the argument. After a quick cup of coffee in the courthouse cafeteria, we headed up to the ninth floor courtroom. It was there that I learned that Amalya Kearse was to be one of the the judges. My heart sank. I cannot recall how many times I have argued before her, but I do know that in all but one occasion she made short work of me. She may be the smartest judge in the United States, a world-class bridge player who regards counsel appearing before her with the wary eye of cat toying with a trapped mouse. I was nervous.
The court gave each side seven minutes for argument. At the lectern from which you are required to argue, a digital clock marks your time. The light remains green until you have but a minute remaining. Then a yellow light goes on. This is a court that treasures each moment. Truly bad cases are given five minutes; if you get 12 minutes you know the judges are puzzled about something. I had 420 seconds to make my case.
It was a hot panel, as appellate court lawyers like to say. Each judge was active and pointed in their questions. Barrington Parker led the attack. Haven’t your clients had their right to protest on the Green?, he asked. I was stunned by that question. Are you suggesting, judge, that there is a time limited warranty on the Bill of Rights? He smiled the way debaters do when a barb strikes home.
How long do folks intend to remain? Until lawful rules compel them to leave, I responded. If it is private property, can’t the private owners of the Green evict them? Yes, but they have not sought to do so; for five months they welcomed them. The city is acting under regulations pertaining to public parks, not private property. There are no valid regulations for this space. The court was not hearing these latter claims.
I was going nowhere fast, and I could sense it.
The presiding judge, Peter Hall, at one point reminded me of how little time I had left to argue. I was on death row, with the seconds ticking down. Savor your final breaths, his demeanor seemed to suggest.
Somehow I was in one of the highest courts of the land defending first amendment rights to speak and to assemble, and judges a heart-beat away from the Supreme Court seemed unwilling to hear the simple proposition that in a republic the people do not have to justify the assertion of their rights, the government must be made to account for its assertion of power. This morning’s panel seemed to regard the right to speak as something government gives. It was chilling, terrifying. It felt like a mammoth iceberg were bearing down upon me, power sweeping away all within its path.
The city’s lawyer stood to recite the same old gibberish. The protestors had destroyed grass on the green. Their presence, somehow, puts trees at risk. Despite no evidence to support the assertion, he contended others could not use the Green because the protestors were present. All simple nonsense: The protestors occupy one small section of the 16-acre Green. We are balancing the aesthetics of a beautiful lawn against the government’s power to abridge speech? The court asked him a few questions largely to support what appeared a foregone conclusion: the occupiers must go.
And so it happened. The court ruled from the bench that the city can evict people who have for the past six months sought to be a tangible reminder that the rhetoric of American dream and the reality of American life do not correspond to one another. Forgotten people, some with mental health and addiction issues, had the audacity to live in plain view; homeless people were bold enough to create a community; rootless folks reached across the fear that separated from one another and told the larger world they would not be forgotten. Occupy New Haven, the law says, must be disbanded.
It was a depressing and dispiriting exercise, this brief argument in New York. No one paused to consider whether the city of New Haven had valid regulations in place, whether a group of private owners of land used by the public has the right to impose its will on others. Yes, we had a hearing; it felt like a last meal for the Bill of Rights.
I got my ass-kicked so hard today that when I last checked I found it now has four quarters. Power won today. All for the sake of a pretty lawn and healthy trees. I wish the court had shown as great a regard for a healthy community and a robust Bill of Rights. I kept thinking of Jefferson today. We rebelled for this? When we protested the tax on tea the point of the protest was not that there were no crumpets to serve with the tea; the point was that government had over-reached. Jefferson wept today.