Brooklyn Bridge Protest Case Survives 2nd Circ.

     MANHATTAN (CN) – More than 700 Occupy Wall Street activists who were arrested on the Brooklyn Bridge can pursue a civil rights class action, the 2nd Circuit ruled Thursday.
     On Oct. 1, 2011, thousands of demonstrators took to the streets in support of the Occupy Wall Street movement in lower Manhattan, and the court’s 56-page opinion recounts much of what was said and heard on that day.
     A group of these protesters chanted “Take the bridge!” and “Whose streets? Our streets!” as they approached the vehicular entrance of the Brooklyn Bridge.
     Video footage of the demonstration shows an officer warning through his bullhorn that police will arrest those who enter, but the protesters have since said that the announcement was inaudible, and that the police understood this.
     Several protesters reported that they believed authorities had “led the march across the bridge.”
     After 10 arrestees claimed in a class action that they never received “fair warning” that crossing the bridge would cause their arrest, a divided three-judge panel of the 2nd Circuit affirmed Thursday that the lawsuit can advance.
     “Any driver knows that he may not ordinarily cross an intersection against a red light, but that an officer directing traffic can lawfully order him to ignore the red light and proceed,” Judge Gerard Lynch wrote for the majority.
     The facts of the case that may be uncovered during discovery could be “far more complicated” than this example, he added.
     “Although we have recounted the facts by referring to ‘the police’ and ‘the demonstrators,’ we have done so only because the record is so undeveloped that we cannot specify the conduct or knowledge of particular named defendants,” the 28-page opinion, joined by Judge Guido Calabresi, states.
     In a bitter dissent, Judge Debra Ann Livingston denied that the arrested protesters experienced “any indignity, that is, apart from the fact of arrest while obstructing all traffic on the Brooklyn Bridge.”
     Advancing a class action against the arresting officers “threatens the ability of police departments in this circuit lawfully and reasonably to police large-scale demonstrations and to make the necessary on-the-spot judgments about whether arrests are required in the face of unlawful conduct threatening public safety,” Livingston added.
     While Livingston mocked the notion of faulting police for failing to use “sound-amplifying equipment adequate to the majority’s taste,” the majority chided Livingston’s focus on “various inflammatory facts gleaned from a viewing of the videotapes.”
     In particular, the dissent repeatedly draws attention to “a shirtless protester with a large red star on his back” standing with a raised fist. Livingston also referred to the demonstrators as an “assembled throng” that can be seen “loudly and vigorously screaming.”
     For the majority, the competing interpretations of the footage highlight the “Rashomon-like quality of this case.”
     But Livingston ridiculed her colleagues’ “attempts to weave ‘Rashomon-like’ complexity into the question whether police officers had probable cause to arrest unpermitted demonstrators who were wholly obstructing traffic on the Brooklyn Bridge.”
     As the majority found that questions remain, the protesters will be able to gather evidence to support their allegations.
     “It may well be that no police officer, including those who made the critical tactical decisions in this case, was aware of the relevant facts,” Lynch wrote. “It is impossible, however, to know that at this stage.”

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