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Fight for Zuccotti Park: Court set to have its say on Occupy ouster (VIDEO)

Whether Occupy Wall Street protesters can reestablish their encampment in Zuccotti Park is the topic of a court hearing Tuesday. New York police cleared the park overnight, amid health and safety concerns.

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An empty and closed Zuccotti Park is seen in New York on Tuesday. Police officers evicted Occupy Wall Street protesters from the park overnight.

Seth Wenig/AP

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Enough is enough! That was the message at 1 a.m. Tuesday when the New York Police Department decided the Occupy Wall Street encampment had to go because the city viewed the tent-and-tarp encampment as a health and safety hazard.

Police issued a bullhorn eviction notice, and city workers started moving about 200 protesters and their goods out of Zuccotti Park.

Whether the city's actions will stand up in court is another matter. Early Tuesday a state judge issued a restraining order that prevents the city stopping protesters from reentering the park with tents. A hearing is schedule for before noon.

If the judge's order is lifted, Mayor Michael Bloomberg says the city will permit protesters into Zuccotti Park for demonstrations against Wall Street, the Federal Reserve, their inability to find jobs, and anything else. But setting up shelters from the fierce nor’easters that routinely buffet the area – notta chance.

“Inaction was not an option,” said Mayor Michael Bloomberg at a press conference Tuesday morning. “The city could not wait for someone to get killed before acting.”

As the mayor saw the situation, First Amendment rights to public protest rubbed up against the need to protect the public health and safety. Specifically, Mr. Bloomberg noted an incident last week in which a first responder was injured as he tried to intervene to stop an individual within the encampment who was allegedly threatening other people.

“When those two goals clash, the health and safety of the public and our first responders must be the priority,” said Bloomberg.

"There is no ambiguity in the law here: The First Amendment protects speech; it does not protect the use of tents and sleeping bags to take over a public space,” he said in a statement. “Protesters have had two months to occupy the park with tents and sleeping bags. Now they will have to occupy the space with the power of their arguments."

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But the courts are likely to have the final say. On Tuesday morning, state court Justice Lucy Billings enjoined the city from enforcing its rules until after at hearing is held, set to begin at 11:30 a.m.

In the restraining order, Justice Billings prohibited the city from evicting protesters except for criminal offenses and from enforcing rules that prohibit protesters from reentering the park with tents and other property.

In the meantime, protesters have moved to a location in the vicinity, Foley Square, which is somewhat close to City Hall. They issued a press release, calling on supporters to meet for a morning protest march. According to a spokesman for the group, Karanja Gacuca, they planned to assemble and regroup.

“We are appalled, but not deterred,” the protesters said in a statement. “Liberty Square was dispersed, but its spirit was not defeated.”

For the past two months, Bloomberg's reactions to the Occupy Wall Street movement have been mixed. As a pro-business mayor, he has little sympathy for the protesters’ calls to enact higher taxes on top earners. He has also listened to local residents complain about the noise, sanitary conditions, and difficult access to the park.

However, he is acutely aware that New York is a longtime magnet for protesters. From the Revolutionary War through the Vietnam War, protesters have used the city’s streets to make their cases.

On Monday, when the owner of the park, Brookfield Properties, asked the city to step in because of concerns about the health and sanitation condition, the city cranked into action.

“But make no mistake the final decision to act was mine and mine alone,” said Bloomberg.

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