It is the “Birthplace of American Government” according to the National Park Service website. In fact it was on this very day (April 30) in 1793 that the Father of our Nation, George Washington, stood here and took his solemn oath of office “to preserve, protect and defend the Constitution of the United States.” A few months later inside its Halls James Madison, the Father of the Constitution, successfully maneuvered what became the Bill of Rights through the House of Representatives. Its First and Fourth amendments aiming to guarantee the citizens of the newborn nation respectively the rights to freedom of speech and assembly and the right to property and to be free of unlawful searches, seizures, and arrests.
Yet today the statue of Washington, perched upon the steps of Federal Hall – now a National Monument maintained by the National Park Service, gazed down upon a scene certain to move his spirit as the foundation he and the Founders laid was thoroughly shaken.
In the shadow of the memorial to that first inauguration Sergeant Morris (Badge #890) of the Federal Park Police waited for his prey to turn her back for the briefest of moments. The unsuspecting female tourist, donning a black leather Harley Davidson jacket, had her rolling luggage pilfered by this Federal officer in the bright light of day – and on video for all to see. A new bread of “citizen journalists,” also known as “streamers,” was on the scene to capture the event.
THE LEAD UP
THE THEFT
THE TICKET
THE SPEECH
This was not to be the last of the offenses committed under the color of law. Having become aware of the theft the dumfounded tourist ran toward the culprit and attempted to seize back her property.
Sergeant Morris, unfazed by her pleas, pulled out his citation pad and began to write her a ticket. The insults to the citizen, and the Bill of Rights, were not over though. The middle-aged woman asked for the officer’s name before signing anything stating that she was not even sure he was an officer of the law. Sergeant Morris callously ignored her.
As she continued to inquire he instead stated to her that she was about to be arrested for obstruction of governmental administration – a charge the NYPD has routinely applied to the protesters on Wall Street. Although not required by law to sign a citation the officer gave her the impression she had committed another offense. “I did not refuse,” she continued to plead, while Sergeant Morris stood stone-faced and silent. “You refused,” he stated, and wrote that on the ticket.
This tourist was lucky, however. For the past week the Federal Park Police have been harassing those who have gathered at the steps of Federal Hall to exercise their First Amendment rights with an Orwellian twist on their interpretation of rules that were only enacted for this area last Friday afternoon.
The rules, signed by Shirley McKinney, Superintendent of the National Park Service for the Greater New York City Area, included restrictions on signs, sounds, the use of video and still-photography, and even prohibited snowmobiles and aircraft from being parked on the property. As absurd as the latter sounds it pales in comparison to the interpretive license that has been taken by Park Police, who initially were the champions of the First Amendment when the protesters took refuge on the Federal Property to avoid arrest by the NYPD.
An observer is eerily reminded of George Orwell’s doublethink and newspeak when viewing and reviewing the handful of arrests and tactics of harassment that have been implemented by these Federal officers at the birthplace of the First and Fourth Amendments.
This tourist was lucky. Her property was given back rather than taken and destroyed and she did not wind up at a federal jail on Staten Island. Several other citizens, however, have met that fate in the past week.
The outright tyrannical actions began late Friday night as the police chased nearly all the protesters from the steps using the newly issued rules. They would not be allowed to have blankets or sleeping bags, they said, although this was just an interpretation of the prohibition against camping. They could not have bags or boxes that were larger than airline carry-on size. They no longer could smoke in the open air. Their banner and signs, legally displayed for the prior week, were now unlawful and had to meet strict size limits themselves. Noise above the level of ordinary conversation was prohibited from 8 pm till 9 am even though the City’s laws for the same area were far more reasonable: anything to make their life there, and their exercise of the First Amendment, uncomfortable, unmanageable, and difficult. These were measures applied without question to “abridge” those fundamental rights enacted by Congress on that site before being ratified by the People of the nascent democracy.
In fact to interpret the noise rule as applicable at all required a stretch of reason and logic by the Park’s officials – who were applying the regulations for activities that required a permit such as for construction using equipment that would disturb the surrounding residents or the exclusive use of the property for amplified sound. The exercise of free speech and assembly did not require such a permit – and none was sought nor issued.
But it is perhaps the rule on “unattended property” that would have Orwell, along with the Nation’s Founders, rolling in his grave.
The first application of this law came only hours after the Superintendent issued her ultimatum. Standing on the steps with his sign leaning on his feet the first victim of the Feds suspected nothing as three officers, including a ranking officer, approached him. The sign read “Angry Pacifist.” Without word or warning one Federal officer grabbed the sign from his feet and turned with is loot to flee down the stairs. The protester spoke up in shock at the theft – he had carried that sign, he said, for seven months. The ranking officer threatened to have him arrested – for raising his voice. A few moments later he was escorted to a Federal Park Police van where he sat for about an hour until he was booked in the Federal jail, with a Federal offense, on Staten Island.
Throughout the week that followed similar harassment took place as those who braved the elements and endured the sleepless hours, guaranteed by Federal Park Police threatening arrest if they closed their eyes, were continually confronted by Feds quickly ascending the stairs to seize their property without warning and dispose of it in their trash. Today’s tourist was lucky – she kept her property and freedom and only received a citation. If she did not properly respond thereto, however, Sergeant Morris warned her that a Federal warrant would be issued for her arrest.
Between these two incidents of alleged “unattended property” violations a number of other arrests have been made: for having unattended property, for noise violations, for uttering profanity, and even this morning Sergeant Morris arrested one young man because his backpack was too large. Yes I said arrested; on a Federal offense; in the shadow of the Father of the Nation on the steps of the Birthplace thereof. Who could claim such official acts were reasonable let alone lawful?
As absurd as the several arrests have been one might hesitate to invoke the Orwellian double-speak metaphor. That claim, however, is clearly vindicated by a careful reading and analysis of the property rule that is being interpreted and applied in this extreme manner.
“Property determined to be left unattended for any period of time may be impounded. All property must remain under the direct control of its owner at all times.”
This is the first clause in a portion of a rule taken out of context from the Code of Federal Regulations (CFR) by Superintendent McKinney.
The first aspect that must be recognized is that the rule applies to “unattended” property. The common definition of “attend” is something the average American should have little difficulty with – it means to take care of or to look after. It does not mean to physically hold on to. One may “attend” to one’s property and still step away from it. Yet unmistakably this is the operative definition that is being applied by the Federal Park Police.
The second significant point in this first sentence is that such unattended property is not to be discarded or destroyed – and thus denied to the person who is its rightful owner – but is instead to be “impounded.” Yet the Park Police are taking and trashing the property of citizens without due process of law and in direct contravention of the plain language of the rule they claim to be applying; more importantly in contravention of the Fourth Amendment protections memorialized at that location.
No reasonable individual would translate the “direct control” language of the above second sentence to mean the constant physical grasping of an item. Yet the moment today’s tourist turned her back, as she stood inches from her rolling luggage, Sergeant Morris stealthily swooped in and snatched up the bag. Last Friday they took the small cardboard sign of one Occupier because it rested physically against his shins rather than in his hands.
It is the next clause that is selectively included in the newly published rules, however, that makes the Park Police actions thoroughly absurd and inappropriate. For the explicit purpose of the rule, as it was intended, was for public safety to protect against persons leaving bombs or other incendiary or dangerous devices that would cause real and significant harm to those around it or the property of the Park.
Certainly a millimeter wide piece of cardboard would raise no flags in any other location where this section of the Code of Federal Regulations (CFR) was applicable. One can also be certain that in no other location would the Federal Park Police, or any other officer or staff-member of the Park, seize a bag from a tourist who walked a few feet to take a photograph or buy a postcard. Any Federal officer who would exert that kind of authority would likely be out of a job if this were any other National Park.
The CFR regulations on unattended property make it clear that such items are “impounded for inspection” to ensure that it does not pose a threat to persons or property. While such “inspection may be destructive” – understanding that they may be looking for explosives or chemical compounds – nothing in the Federal Regulations authorizes the Park Police to discard, destroy, and deny the property to its rightful owner. At all times they retain their inherent property rights therein.
Under the laws of the United States, and of the State and City of New York, the acts of these officers – and of Sergeant Morris – constitutes theft; a felonious crime. Will they be held equally accountable under the law for their transgressions? Will some police authority come and affect their arrest for these documented transgressions? Probably not.
However it is ironic that today marks not only the anniversary of Washington’s Inaugural oath given at the very location of this crime committed under the color of law – but also the day that the Occupy Movement filed Federal Civil Rights complaints against the NYPD. Will the Federal Park Police and Superintendent McKinney be next receiving subpoenas at their door?
One thing is certain. The National Park Service and the Federal Park Police today created one new Occupier from among the Nation’s populace. Today’s victim stood atop the steps of Federal Hall and spoke out – using her First Amendment right – to the throngs of tourists and traders who scurried around Wall Street.
Two-hundred and twenty-three years ago George Washington took his oath here, she called out to the curious gathered outside the barricades. Yet on this spot, today, those since sworn to preserve, protect and defend those rights violated her rights with impunity. Ironically it is this aspect of unaccountability of officials to the law that underlies the Occupy Movement and its general support among the public.
For those who have not seen them the two lawsuits filed this morning against the NYPD and others for civil rights violations are linked below.
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