MANHATTAN (CN) – With the 2nd Circuit having forestalled earlier plans for an en banc rehearing of Brooklyn Bridge mass-arrest claims, Occupy Wall Street protesters told the federal appeals court Tuesday to get their calendars ready.
It was on Dec. 17, 2014, that the court first voted to rehear the appeal en banc.
New York City Mayor Bill de Blasio’s administration had requested the rare hearing before 14 judges after a three-judge panel with the court advanced a class action on behalf of more than 700 Occupy Wall Street activists arrested on the Brooklyn Bridge three years earlier.
That original panel then threw a wrench in the en banc rehearing plan late last month by reversing its holding in an amended opinion.
The protesters in turn petitioned the court on Monday for a rehearing, either en banc or before the original three-judge panel.
Their attorney, Mara Verheyden-Hilliard with Partnership for Civil Justice Fund in Washington, notes in the petition that the panel’s about-face “eviscerates fifty years of constitutional jurisprudence.”
“This subverts the core of First Amendment, Fourth Amendment and Due Process protections, substantially chills the exercise of fundamental free speech rights and sends a message to ordinary people to stay home or risk being punished for free expression and peaceful assembly,” the 20-page petition states.
She asked for the panel either to reconsider their decision for a third time, or to convene the entire Second Circuit for a 14-judge en banc review.
The New York City Law Department said the rehearing is unnecessary, saying the Feb. 23 “decision correctly recognized that the defendant officers are entitled to qualified immunity from damages in this case.”
“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,” the city said in a statement.
The protesters meanwhile say that the footage vindicates their position. Since the footage shows one police officer warning protesters through a bullhorn not to enter the bridge, they say it stands to reason that only those at the head of the march heard his message over the shouting and chanting.
Punishing the hundreds of marchers for the refusal of the “front rank of demonstrators” to disperse endorses “guilt by association,” Tuesday’s petition states.
It has been the city’s longtime position that advancing the protesters’ civil claims will hamstring the ability of police to control large-scale protests.
That issue boiled up late last year, when thousands snaked through New York City’s streets, highways, bridges and tunnels to protest the refusal of grand juries across the country to indict officers for killing unarmed black citizens.
Last year’s vote to rehear the Brooklyn Bridge case en banc coincided with such protests.
Verheyden-Hilliard insists in Tuesday’s petition that nothing in the original decision would have prevented lawful crowd control.
“The opinion did not restrict authority to issue lawful orders to demonstrators, to physically deny access to prohibited areas, to remove persons from prohibited areas, to use police lines, verbal directives or even force as lawfully permitted, or to lawfully exercise arrest authority,” she wrote.
Attorneys for the protesters submitted several pictures into the court record of officers appearing to escort them calmly at their sides.
“This was not a march engaged in civil disobedience,” the petition states.
In its reversal, the Second Circuit “cast aside” bedrock constitutional principals, a thundering conclusion by the protesters’ lawyers states.
“Free speech and dissent are the lifeblood of a constitutional democracy,” Verheyden-Hilliard wrote.
“The fundamental right of free speech will be chilled of a citizen who approaches a police-escorted march given knowledge that the police are free to arrest everyone without warning for simply marching within the escorted march.”
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