MANHATTAN (CN) – New York City police had probable cause to arrest two Christian missionaries who refused to budge from the “no-demonstration area” during the 2004 Republican National Convention, an appellate court ruled.
The Chief Judge of the 2nd Circuit, Dennis Jacobs, summarized the fact record of the dismissed case on behalf of the unanimous three-judge panel.
On Sept. 1, 2004, Michael Marcavage and Steven Lefemine carried large anti-abortion signs within two blocks of Madison Square Garden, on a sidewalk where the New York City Police Department did not allow protesters to gather.
Police warned the duo 17 times to move to the demonstration area before arresting them for disorderly conduct and resisting arrest, charges that were ultimately dismissed.
In 2005, the missionaries claimed in federal court that the NYPD violated their First and Fourth Amendment constitutional rights.
U.S. District Judge Richard Sullivan tossed the case roughly five years later on the grounds that the controversial “no-demonstration area” set up by police constituted a reasonable “time, place and manner” restriction.
The 2nd Circuit affirmed that reasoning in a 28-page opinion on Thursday.
“The stretch of Seventh Avenue in front of the Garden is a crowded thoroughfare even without major sports or political events at the Garden, with commuters, shoppers, tourists, residents, and other people passing through. The freezing of the western sidewalk channeled all those pedestrians to the one side designated a no-demonstration zone. The city had the requisite significant interest in keeping that channel clear for pedestrians,” the opinion states.
Security risks also presented “altogether extraordinary” challenges, the judges wrote.
“The convention was in the middle of New York City, adjacent to Penn Station. Fifty thousand attendees were expected for the convention itself. Protesters of different persuasions would descend. Vehicle and pedestrian traffic would be re-routed along two main arteries. The national conventions that year were the first following the 2001 terror attacks. The President was coming, as well as the Vice President and a host of other government officials. These facts, taken together, bespeak a significant-indeed, compelling-government interest in security,” the opinion states.
The missionaries, who taped their exchanges with police, swore that they acted with civility.
But the audio evidence showed that they “were hostile and non-compliant; in effect, they courted arrest,” according to the opinion.
Judges Pierre Leval and Debra Ann Livingston joined the ruling.
Drake A. Colley, a senior counsel at the New York City Law Department, claimed that the appellate court’s decision vindicates the NYPD’s behavior at the convention.
“The ruling recognizes the extraordinary challenges the NYPD faced in effectively policing a massive event in a venue like New York City, with its millions of residents, visitors, and workers,” Colley said. “Two federal courts have now agreed that the police appropriately balanced the safety and the Constitutional rights of both demonstrators and non-demonstrators alike during the Convention.”
The NYPD and the city are still on the hook, however, for a class action lawsuit regarding their treatment of roughly 1,800 arrested demonstrators, who claim to have been swept up in indiscriminate mass arrests before being locked up in cold, loud, chemical-strewn, makeshift cells in Pier 57, along the Hudson River.
Christopher Dunn, an associate legal director for the NYCLU, says that the 2nd Circuit’s decision should not impact that case.
“This decision involving two anti-abortion protesters has no bearing on the major Convention litigation now pending in federal district court,” Dunn said. “In that litigation, we are challenging mass arrests, detentions at Pier 57, and the blanket fingerprinting of protesters. The appeals case decided yesterday had nothing to do with any of these issues.”
The anti-abortion activists were represented by the D.C.-based Alliance Defense Fund, a Christian legal group. They have no affiliation with the NYCLU or its pending class action.