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We have a Shanty Town on Lincoln’s Centennial Mall with an increasing number of tents. “Residents” of this new community have every intention of staying indefinitely.

Just how is that possible?

Picture taken in the afternoon of Saturday, October 15

Whatever disagreements I have with the Occupy Lincoln group, I do agree, of course; they have a fundamental right to speak their minds. Because I know they have that right and, also, the right to peaceably assemble, I was, if anything, ambivalent about their Saturday, October 15, event on the Mall and at the State Capitol. It didn’t even occur to me that the group landed on downtown Lincoln that day with plans for a contingent to literally occupy the Centennial Mall¹.

I am aware and appreciative of opinions that go something like this…

“So what? It’s just a bunch of dumb kids. Once it freezes, they’ll go home.”

So, why should any taxpayer / citizen be concerned about “a bunch of dumb kids”?

For the purposes of this article, I am focusing solely on the issue of the rule of law and how the presence of a tent Shanty Town on the Centennial Mall is very clearly a violation of it. I would be pointing out this problem if there was a tea party or other group self-identifying as conservative squatting indefinitely on public property with City of Lincoln sanction, support, and political cover. (Although I cannot imagine in my wildest dreams that any such group would do this. After the last three years, that’s really saying something.)

Picture of part of the Occupy Lincoln "encampment", posted on Facebook on Tuesday, October 25

It is the City of Lincoln government and the politicians and bureaucrats who run it with which I and others at GiN are concerned.

Last week, we published an article Linda wrote about moral relativism and situational ethics, giving a specific example of the resulting disparate legal treatment. She concluded:

“Our legal system depends upon a clear delineation between right and wrong. Conservative political ideology acknowledges that civilized society is not possible without recognition of those absolutes. Modern liberalism is based on philosophies that either completely deny the existence of right and wrong or obfuscate the issue. Instead of justice for all before the law, moral relativism and situational ethics lead to a “pass” for certain favored groups. Selective enforcement of this nature converts our legal system to one based on the whims of man, as opposed to the stability of law.“

The presence of a Shanty Town on the Centennial Mall is another example of precisely the sort of selective enforcement Linda described.

A number of Lincoln’s ordinances have been entirely reversed and upended, resulting in:

Immediate concerns…

• Unequal application of law as applied to different groups of Lincoln citizens
• Growing threats to public safety (and potentially, sanitation)
• Considerable and growing exposure of the City and, therefore, all taxpayers to liability
• City law enforcement officers presented a conundrum
• Potential difficulties for the Capitol Commission

Likely problems in future…

• Setting dangerous precedents against ordinance enforcement
• Problems regulating the use of City parks, facilities, and public spaces
• Undermining the credibility of coherent government within the City of Lincoln (self-injury)
• Serious questions regarding the motivations of our elected officials

City of Lincoln officials have reversed years-long policy and unequally applied law to citizens. Here’s how…

• Stating that the Centennial Mall is not a park but a public right-of-way or access area
• Requiring some groups to conform to permitting, bonding, and insurance requirements, while waiving all or parts of those for other groups
• Adopting an utterly bizarre ad-hoc system of law enforcement – it seems to be based on a mix of park, public right-of-way, and sign ordinances, and others from God-only-knows-where, to craft a set of special policies for the Occupy Lincoln group

Citizens should note, generally, the following about governance in Lincoln: (Linda and I are now much more intimately familiar with City of Lincoln Municipal Codes than we’d ever wished to be.)

• An absurd level of regulation
• Too many ordinances
• A City government that is hostile to commerce, but favorable to special interest groups
• Too much discretion and too much power handed to elected officials and bureaucrats
• Unacceptable requirements on people and groups wishing to avail themselves of their fundamental rights to speech and assembly

It is impossible to know precisely why the City has determined to take this course. We have many questions in this regard. For now, from all we do know, here are the best potential explanations regarding the “why” question:

• Someone in City government was sympathetic to this group and granted it permission for use of the Mall
• Disparities in enforcing ordinances in the City are common practice, but there were a number of miscalculations in this instance
• An entity, likely the ACLU, pointed out some of the evident problems with Lincoln’s ordinances, threatening to file suit

Again, from all that we do know at this time, whatever the original reasoning, the decision was made to allow the Occupy group to use the Centennial Mall, as they are. Once that decision was made, City officials, primarily the City Attorney, had to figure out how to rationalize the decision.

The trouble is, the rationale presented defies common sense, reasoning, history, and the law.

As someone who has organized an event or two of similar nature (albeit not on the Mall), and knows others who have done the same, my curiosity and ambivalence immediately turned to disbelief when I realized the Occupy Lincoln group was on the Mall and intended to stay indefinitely. Without looking up a single ordinance, my experience and instincts told me there was very likely something wrong with the whole picture.

This instinct was quickly confirmed through one of our sources².

It’s not clear what led to the report in the Tuesday, October 18, Lincoln Journal Star³ regarding Occupy Lincoln’s use of Centennial Mall. Whether it was simply the discussion of the subject at the prior evening’s City Council meeting, curiosity on the part of LJS staffers, or the result of questions from others, the first article dealing with the subject, “‘Occupy Lincoln’s tents on mall do not violate any law” reveals decision making and conduct by City of Lincoln officials that is, at best, incoherent, and at worst, in violation of the law.

Click to read full article

While not a major point, we believe the impetus for Journal Star’s publication of the article is relevant, considering all of the available facts and the lack of follow up. Reporter Nancy Hicks simply included quotes from City officials without any independent research to confirm their accuracy. Should reporters simply take politicians and bureaucrats at their word? Here at GiN, we think some independent confirmation is necessary.

But:

“The salvation of the state is watchfulness in the citizen.”

That quote on the State Capitol doesn’t mention news media.

Is Centennial Mall a park, a public right-of-way, or a public-access area, and what are the differences (if there are any)?

A quote from the Journal Star article:

“Centennial Mall is a public right-of-way, not a park, so merely being there is not illegal, said Jocelyn Golden, an assistant city attorney.”

Another quote:

“Parks have hours that would keep people from staying all night, but the mall is a public-access area, said Tom Casady, public safety director.”

(Note that the emphasis added is mine and it is quite purposeful. These bold words are important.)

Can we call a duck a duck?

This shape-shifting is quite stunning when we look at the facts. If an animal has webbed feet, waddles, has a bill, feathers, lays eggs, and makes a noise that sounds suspiciously like, “Quack!”, then I believe it would be difficult to avoid calling it a duck. In this analogy, the Centennial Mall is a duck, but City officials are telling citizens and reporters it’s a bunny rabbit. Don’t you see how it is all furry, it’s hopping, and it’s got whiskers?

C’mon! Give me a break…

PARK

In order to believe the Centennial Mall is anything other than a park, it would be necessary to discard decades of City practice and history. Just a spot check of the City of Lincoln website reveals budget, planning, and “master” and other plans (I LOVE plans, don’t you?) referring to the Centennial Mall under the umbrella of the Parks and Recreation Department.

Here are just four examples over time…

• 2003 Meeting Minutes from the Capitol Environs Commission (below, left) focused on the disrepair of the Mall and plans under a header, “Maintenance/safety modifications to Centennial Mall (Parks & Recreation Dept.)”; planned repairs were to be funded out of the Park Department’s Capital Improvement Plan and work was to be conducted by Parks and Recreation staff.
• The 2006 Budget refers to the Centennial Mall in a summary of changes made to the budget, included in a list of Parks and Recreation Department expenditures; the season on the fountains was to be reduced.
• A 2009 City of Lincoln Budget includes a Centennial Mall line item in the Parks and Recreation Department Budget on page F-1.
• A 2009 Capitol Environs Commission Annual Report details how the City of Lincoln Parks and Recreation Department is responsible for planning and designing renovations to the Centennial Mall.

Is it a duck? Well, it seems to fit the bill – yes, pun intended. (*groan*)

Capitol Environs Commission Meeting Referencing Centennial Mall

And to further clarify, we can look at a Budget document that includes a list of “Miscellaneous Budgets” which does not include the Centennial Mall. If the Centennial Mall was not considered a park, but, instead, a specially classified space in and of itself, it would be included as a “Miscellaneous Budget”.

If the City ever considered Centennial Mall to be anything other than a park, why is its care and maintenance entrusted to the City’s Parks and Recreation Department?

By the way, public rights-of-way, which typically include sidewalks, streets, etc., fall under the authority of Public Works and Utilities. None of my research, including a City of Lincoln site-wide search and examination of several years worth of City budgets shows any connection between the Centennial Mall and the Public Works and Utilities Department.

Is it a duck? Hmm, it has feathers.

A visit to the City of Lincoln’s Park and Recreation Department website as of this publication date shows that the City has been and still is calling Centennial Mall a park. As depicted in the picture at left below, a visit to the Parks and Recreation Department website includes a tab named “parks & facilities”; and a visit there shows a list of various City parks and various “facilities”, each with a bit of text description under the linked title. The list starts with “Parks” and even includes a specific mention of Centennial Mall as one of two parks which have been slated for renovation.

Is it a duck? I dunno, but it seems to have webbed feet.

Click to visit City of Lincoln Parks and Recreation "Parks and Facilities" Page

So, is there simply some kind of techie-nerd error going on that caused the Centennial Mall to be used as an example of one of the City’s parks on its Parks and Recreation webpage?

Is this the ONLY place on the City’s Park and Rec. Dept. website where Centennial Mall is listed as a City park?

Uh, no.

Not by a long shot.

On the Parks and Recreation website listing of Centennial Mall, the sidebar features a downloadable brochure depicting Mary Arth of Lincoln Parks Foundation which includes the tagline “Working to renovate Centennial Mall”.

If the Centennial Mall is not a park, inquiring minds would like to know, why was the Lincoln Parks Foundation working to renovate it?

Is it a duck? Errrrr, well, it waddles.

In addition to the listings already noted, the City has a whole set of links on the “Parks and Facilities” page which provide a list of all the City parks in various ways; in a single document by region of the city formerly/http://www.lincoln.ne.gov/city/parks/ParksFacilities/parks/links/ParkListforWeb.pdf, in alphabetical order, by map, and by facility (the Mall appears “By Facility” as a “Flower Garden”).

I think, perhaps, the most ironic listing of the Centennial Mall on the Lincoln Parks and Recreation website is on the map:

If the endeavor to determine whether or not Centennial Mall is a park were a treasure hunt, the map image is like “X Marks the Spot” ——> Dig Here For Your Answer!

Speaking of digging, the labeling of the Centennial Mall by the City of Lincoln as a park does not exist only in virtual reality. It actually exists in real reality. There is an official City of Lincoln Parks and Recreation sign, like those seen at every other City park, erected on the Mall along Q Street near 14th Street.

City of Lincoln Parks and Rec. Sign for Centennial Mall circled in blue

Close up of Parks and Rec. sign on Centennial Mall

So WHAT is that I hear? Could that be the distant sound of…can it be…quacking?

It has been reported to me that groups or organizations wanting to have an event on the Centennial Mall, previous to the springing up of Shanty Town Lincoln, were subject to the ordinances, permit and other requirements, and, notably, the broad discretion of the Mayor of Lincoln and Director of the Parks and Recreation Department.

The available permit application forms don’t include one that specifies use of Centennial Mall, but an examination of the forms available leads one to the logical conclusion that the required form is “Parks for Large Events“.

When that link is clicked, one is taken to a “Prospective Exclusive Use Applicant”, a nine-page form citing City ordinances, information to be provided by the applicant, notification that Lincoln’s Mayor and/or Parks and Recreation Director can dictate everything from signage used to just how much a permit might cost, and if any sort of commerce whatsoever is to be conducted at an event, precisely how much of the earnings from said commerce will be confiscated. (A very warm and fuzzy environment for capitalism. Yes, indeedy.)

PUBLIC RIGHT-OF-WAY

But the City Attorney said the Centennial Mall is a “public right-of-way”.

OK, so just what is a “public right-of-way”? We’ve alluded to the meaning of this phrase, above, but, more detailed references appear in Lincoln’s Municipal Codes. “Public right-of-way” appears as a header on a particular ordinance (archived link) (14.92) which requires “a sidewalk, street, alley, or other public way” to be kept free of snow, ice, and a long list of other debris, and in an ordinance prohibiting an obstruction caused by gathering two or more people “so as to obstruct the public right-of-way along said street, skywalk, or sidewalk”.

Right-of-way is generally defined as a space that people or vehicles pass over or through. As such, it typically involves the transportation of people or goods along a set route or corridor, such as streets, railroads, and immediately adjacent areas such as sidewalks. State of Nebraska Revised Statutes use the phrase right-of-way to address who has the right to pass through an intersection, particularly, who has the right to pass first. (See Footnotes⁴)

So, rights-of-way, from the available information, are spaces purely for passing through.

PUBLIC SPACE, SIDEWALKS

City of Lincoln Municipal Code does refer to “public ways”, “public space”, sidewalks, and “sidewalk space”. A look-see at Title 14 of the codes provides definitions for several:

14.10.090 Public Space.

Public space as used in this title shall mean all that property owned by the public, including but not limited to alleys, the sidewalk space, and streets. (Ord. 13394 §9; June 1, 1982).

(AGAIN – Public Space defined…what is this, the Dept. of Redundancy Department?)

14.32.030 (archived link) Public Space Defined; Parks and Skywalks Excepted.

Public space shall mean a street, sidewalk, or other outdoor public area, under the ownership or control of the City, held open for use by the general public, but not including parks, as defined by § 12.08.010 of this code, or skywalks as defined by § 14.100.010 of this code. (Ord. 16804 §3; June 12, 1995.)

14.10.110 Sidewalk.

Sidewalk as used in this title shall mean that portion of the sidewalk space improved for or used for and by pedestrians. (Ord. 13394 §11; June 1, 1982).

14.10.120 Sidewalk Space.

Sidewalk space as used in this title shall mean that portion of a street between the curb line and the adjacent property line. (Ord. 13394 §12; June 1, 1982).

PUBLIC WAY

Although the Municipal Code does use “public way” in multiple places, I cannot find a definition for it within the code. Here is Webster’s definition:

“: any passageway (as an alley, road, highway, boulevard, turnpike) or part thereof (as a bridge) open as of right to the public and designed for travel by vehicle, on foot, or in a manner limited by statute (as by excluding pedestrians or commercial vehicles)“

PUBLIC-ACCESS AREA

I cannot, by the way, find the phrase “public-access area” anywhere in the City of Lincoln’s Municipal Codes and there is not a dictionary definition available. A Google search on this phrase, amusingly enough, reveals that it is most frequently used in reference to hunting, fishing, and boating.

Seen any camo-clad guys with fishing poles on the Centennial Mall, lately? I seem to have missed the boat dock.

In passing, someone informed GiN they’d heard the phrase used regarding where people can walk, but, I still can’t find any reference online confirming this.

To further muddle the meaning of the phrase “public-access area” I can find an article in the Huntington Herald-Dispatch, formerly/http://www.herald-dispatch.com/news/briefs/x2018258834/Police-Protesters-must-move-out-of-public-access-areawhich reported that police ordered Occupy Huntington participants to vacate and remain off of public-access areas around the Chase Bank where they were protesting. So in Huntington, West Virginia, public-access areas are off limits, but in Lincoln, Nebraska, a public-access area is up for grabs for indefinite siege?

Finally, the only other reference of which I’m aware in the use of the phrase “public-access” has to do with cable television. Now, I’d be for this application. If Occupy Lincoln would like to replace the expanding number of bizarre government broadcasts on Time Warner Cable and move out of downtown, that’d work!

Conclusion:

Centennial Mall has public rights-of-way (i.e. sidewalks) passing through it, but the entire space, which includes grass, flowers, trees, bushes, fountains, and benches, cannot be a right-of-way.

By attempting to characterize the Centennial Mall as anything other than a park, City of Lincoln officials expose all of the City’s taxpayers to liability.  Liability for anything untoward that occurs during the duration of this “occupation”, liability for past unequal administration of the law, and liability for potential future injustices. Unequal administration of the law exposes all Lincoln citizens to injustice.

Members of Occupy Lincoln and City officials have stated the group has not had to obtain a permit for their use of the Centennial Mall, which means they have not had to pay a permit fee for eleven days of use and counting, while other groups have had to pay permit fees starting at $125 for one day. In addition, some have had to post a $5,000 bond and show proof of liability insurance indemnifying the City for up to $1,000,000 in damages. The information we’ve received indicates different groups have had to pay different formulations of these costs. Finally, it is possible, according to the ordinances for parks, that some groups have been charged for any increased expenses incurred by the City caused by their use of the Mall (i.e. additional police).

The issue of permit fees, bond postings, and insurance are only the beginning however; City of Lincoln code does not allow for camping in City parks, and people would be prohibited from staying after closing hours, as confirmed by Public Safety Director Tom Casady.

And we’ve not even spoken to a long list of other apparent ordinance violations occurring on the mall, nor listed questions about what kind of permits, bonds, and insurance the group has or has not been required to obtain for their marches each Saturday or how their treatment compares to that of other groups in Lincoln, including, our own. (Hint: It isn’t looking good.)

Ladies and gentlemen, there’s something smelly down at City Hall and it reeks like a giant rotten egg.

Is it a duck? It has bill, feathers, webbed feet, it waddles, it quacks, and we’ve just found an egg. Yes, it’s definitely a duck.

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