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Wednesday, May 22, 2024 | Back issues
Courthouse News Service Courthouse News Service

2nd Dumps Occupy Marchers’ Mass-Arrest Suit

MANHATTAN (CN) - The same 2nd Circuit panel that allowed Occupy Wall Street protestors to sue New York City police for a mass arrest on the Brooklyn Bridge four years ago suddenly had a change of heart.

Reversing a prior 2-to-1 holding, the judges dismissed the lawsuit without a hearing on Monday.

Mara Verheyden-Hilliard, representing the protesters for the Washington-based group Partnership for Civil Justice, said in a phone interview that the judges did not give her clients a chance to argue their case before making their "extraordinary" decision and that the protestors are "evaluating all avenues of response" for an appeal.

"I think it's a very telling ruling in the political context in America when the people of the country are crying out for police reform that the judiciary here is unwilling to hold the police accountable for the egregious violation of people's rights," the attorney said.

The case stems from the NYPD's mass arrest of more than 700 protesters who had gathered on the Brooklyn Bridge on Oct. 1, 2011.

Although police called it a clear-cut case of civil disobedience, protesters alleged in a federal class action that officers "led the march on the bridge" in order to arrest them for disorderly conduct.

U.S. District Judge Jed Rakoff let the protesters take their case to discovery in 2012. Two years later, a majority of the 2nd Circuit panel affirmed that decision.

In that opinion, U.S. Circuit Judge Gerard Lynch wrote that footage of the protest signaled a "Rashomon-like quality of the case."

Together with his colleague Guido Calabresi, Lynch found it "impossible" to know "at this stage" whether police had probable cause to execute the mass arrest.

In a scathing dissent, Judge Debra Ann Livingston warned that the ruling "threatens the ability of police departments in this circuit lawfully and reasonably to police large-scale demonstrations."

Months after that decision, the refusals of grand juries across the United States to indict police officers for the killings of unarmed black men sparked large-scale protests like the one involved in this case.

Shortly after those demonstrations snarled New York City traffic, Mayor Bill de Blasio's administration sought to rehear the case through in banc review, a rare maneuver that would have brought the appeal the entire 2nd Circuit.

But the case never made it to the 14-judge panel and Lynch and Calabresi reversed their original ruling, finding that the officers deserved qualified immunity from the lawsuit.

Where the majority previously spotted "Rashomon-like" complexity, the now-unanimous panel found stark simplicity.

Speaking of the protesters, Lynch wrote for the panel: "They were also certainly aware that no official had expressly authorized the protesters to cross the bridge via the roadway. To the contrary, the officers would have known that a police official had attempted to advise the protestors through a bullhorn that they were required to disperse."

Protesters contend that only demonstrators in the front of the crowd heard the warnings, an assertion the majority previously found credible.

Verheyden-Hilliard called the about-face "extraordinary" and "shocking."

"This is a message to the people of New York that if they participate in a police-led escorted march they can be suddenly kettled, corralled and mass-arrested," she said.

City law department spokesman Nick Paolucci said that the evidence supported the police from the start.

"The Second Circuit panel has properly recognized that the defendant officers are entitled to qualified immunity from damages in this case," he said. "As we have consistently maintained, the alleged facts and multiple videotapes of the events do not show that the plaintiffs were ever granted permission to march onto and block all vehicular traffic on the roadway of the Brooklyn Bridge."

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