On the morning of the big march through midtown Manhattan on the opening day of the Republican National Convention in New York City in 2004, a few friends and I met for breakfast at a little coffee shop near 96th Street on the Upper West Side. We had a few homemade signs and were clearly headed for a politi•cal action. Across from us were three police officers, carrying riot helmets, eating break•fast. They were clearly on their way to the same place.
After we had finished our breakfasts, we all headed for the subway. We ended up seated across from the group of cops on a downtown train.
Each of the cops had a bag. I asked one of them what was in his. He reached in and pulled out a big fistful of white nylon hand•cuff straps — the kind favored by police for mass arrests, with slip-tight ridges that al•low the arresting officer to yank the hand•cuffs so tight they can only be removed by cutting.
“I see you’re prepared for a lot of arrests,” I said.
“Yeah,” he replied. “We’re ready for you!”
“Well, don’t arrest us when you see us!” I said.
The officer smiled.
As it turns out, none of us were arrested, but hundreds of marchers were. The bags of cuffs the officers were carrying made it clear that this was the city’s intention from the outset.
On Oct. 1, eight years after the march, a federal judge ruled that the mass arrests were illegal, violating the probable-cause requirement inherent in the Fourth Amend•ment.
As Judge Richard J. Sullivan wrote in a 32-page opinion, “An individual’s participa•tion in a lawbreaking group may, in appro•priate circumstances, be strong circumstan•tial evidence of that individual’s own illegal conduct,” but no matter the circumstances, “an arresting officer must believe that every individual arrested personally violated the law. Nothing short of such a finding can jus•tify arrest. The Fourth Amendment does not recognize guilt by association.”
However, the ruling was not a complete victory. Judge Sullivan rejected the plaintiffs’ claim that their First Amendment rights to freedom of expression, freedom of assembly and freedom to seek redress for grievances had been violated by the mass arrests. None•theless, lawyers for the plaintiffs said the rul•ing was a strong blow against the increasingly common police tactic of mass arrests during demonstrations. Christopher T. Dunn, a law•yer with the New York Civil Liberties Union who represented some of the victims of the arrests, said the judge’s ruling had “emphati•cally rejected the city’s claim that it could make mass arrests of protestors.”
Of course, since the 2004 RNC protests, there have been many more mass arrests in New York — especially since Mayor Mi•chael Bloomberg has taken a tough line against demonstrations. This has been par•ticularly true over the past year of Occupy Wall Street protests, where police have been aggressive in not only arresting but also brutalizing protesters by using pepper spray and physical force.
While Judge Sullivan’s ruling is an impor•tant legal blow for protesters’ rights, the fact that it was eight years in coming diminishes it significantly. The reality is that police in New York and in cities across the country — and the authorities who order them to block demonstrators’ constitutionally protected right to protest — don’t really care much about legalities. They realize that they can act with almost complete impunity, includ•ing locking up demonstrators for a day or longer to get them off the streets (as they did in 2004), and pay the penalty later.
The judge has yet to fine the city for its violation of the plaintiffs’ Fourth Amend•ment rights, as well as to decide whether to issue an injunction against such mass arrests in the future. While the city could appeal Sullivan’s decision — including any possible injunction — it may simply accept the judgment since if it were upheld on ap•peal, it would then be binding for the whole circuit, which encompasses New York, Con•necticut and Vermont. The case could also then be cited as a precedent in arguments by plaintiffs in mass-arrest cases anywhere in the country.
While one federal judge’s ruling against the practice is a step in the right direction, there are many steps being taken in the wrong direction all the time.
Unless more Americans start to pay attention to the way political authorities are trashing basic civil liberties in order to re•press dissent, the day may yet come when any two people with a sign could find them•selves being tackled and hauled off to jail.