Have you ever been at a demonstration and heard a police officer get on a bullhorn and repeatedly announce “Warning: if you fail to disperse, you will be arrested”?
The NYPD is required by law to do this before moving to arrest people at a protest that it has previously allowed to take place. Failure to give proper warning under these circumstances can leave the city vulnerable to lawsuits that may cost millions of dollars to settle, as happened with hundreds of protesters who were illegally arrested during the 2004 Republican National Convention.
This brake on the arbitrary denial of people’s First Amendment rights isn’t always effective — cops will be cops! — as it is taxpayers, not the police, who get hit with the final bill. But, it’s still important, which is why civil liberties advocates in New York took a deep breath on December 18 when the U.S. Court of Appeals for the Second Circuit announced, at the request of the city, it would rehear a long-running case about the city’s liability for the arrest of more than 700 Occupy Wall Street protesters on the Brooklyn Bridge in October 2011.
The march on the Brooklyn Bridge — like many of the recent Black Lives Matter marches — was unpermitted. However, evidence from that day indicates the police commanders who were on hand guided the protesters into marching across the bridge. The NYPD subsequently cordoned off the protesters from both in front and behind and then carried out a mass arrest that made national headlines.
The Washington, D.C.-based Partnership for Civil Justice brought suit on behalf of nine of those arrested and sought class-action status on behalf of the 700 other people “similarly situated.” U.S. District Court Judge Jed Rakoff dismissed claims that Mayor Michael Bloomberg and Police Commissioner Ray Kelly had a premeditated plan to squelch street protest but permitted the suit to proceed against the 40 officers who kettled the protesters on the bridge and made the arrests without the required individualized suspicion of engaging in criminal conduct. As the police had been escorting the Occupy protesters all day and onto the bridge, Judge Rakoff found it plausible that they had “issued the protesters an implicit invitation to follow” and thus the civil suit should be allowed to go to trial.
Last August Judge Rakoff’s decision was upheld in a split decision by a three-judge panel of the Second Circuit Court of Appeals. Judges Guido Calabresi and Gerald Lynch resisted the entreaties of the New York City Law Department to cut off discovery and dismiss the entire case before hearing testimony. However, Judge Debra Ann Livingston disagreed vigorously with her colleagues. She contended that the officers should have been granted qualified immunity, a standard of legal proof that shields public officials from civil lawsuits unless, as the Supreme Court has ruled, they violate “clearly established statutory or constitutional rights of which a reasonable person would have known.”
The city seized on Livingston’s dissent to successfully request that the full 22-member Second Circuit Court hear the case en banc. It takes a majority of judges to vote to grant en banc; something a circuit court only does once or twice a year in cases that are felt to have great social or legal significance.
No date has been set yet for the en banc hearing in this case.
Judges Rakoff, Calabresi and Lynch followed non-controversial, well-established law and procedure to reach their decisions in this matter. However, that may not count for much with the Second Circuit Court, which has shown extreme deference to police and governmental authorities in the post-9/11 era. In recent years, the court has upheld suspicionless searches of commuters entering New York City subway stations, insisted on a longer prison sentence for dying radical attorney Lynne Stewart and overturned a lower court ruling that found the NYPD’s widespread use of stop-and-frisk to be unconstitutional.
New York has become more hospitable to protest under Mayor Bill de Blasio than his predecessor. To ensure this continues to be the case, de Blasio should scuttle this attempt by city lawyers to give the NYPD more leeway to arbitrarily carry out mass arrests in the streets.
Ann Schneider is a member of the NYC Chapter of the National Lawyers Guild (nlgnyc.org). The opinions expressed in this article are those of the writer and do not necessarily reflect the position of the organization as a whole.