MANHATTAN (CN) — In a mixed victory for press freedom, a freelance reporter can take New York City to trial for her arrest at an Occupy Wall Street protest nearly four years ago, but she lost a First Amendment claim over her right to film the police.
When she was arrested, Débora Poo Soto had been pointing her camera at an NYPD officer at a protest on Sept. 15, 2012, two days shy of the movement’s first anniversary. The officer had told the crowd to disperse, but it is undisputed that Soto may not have heard the order.
Like many others, Soto complained that the flexicuffs — or plastic handcuffs — that the police used injured her wrists.
“Soto later sought medical treatment for wrist injuries, and was diagnosed with post-traumatic muscular neuralgia and tendonitis,” U.S. District Judge Laura summarized in a memorandum opinion and order Monday.
Months before Soto’s arrest, scholars at New York University and Fordham law schools released a study titled “Suppressing Protests,” slamming police for arresting at least 85 reporters in 12 cities across the country in Occupy protests.
In her 2013 lawsuit, Soto alleged a pattern and practice of violating the First Amendment rights of reporters covering protests.
On Monday, Judge Swain let Soto take her false arrest and excessive force claims to a jury.
“Plaintiff has provided documentary evidence of substantial injuries to her wrists, including swelling and discoloration lasting several weeks, which she alleges resulted from her handcuffing,” Swain wrote. “Further, plaintiff repeatedly complained to officers that her handcuffs were too tight at the time of her arrest and transport to the precinct, and the officers did not alleviate the condition. A reasonable jury could therefore conclude that the injuries Soto suffered resulted from an unnecessary use of force.”
But Swain found that police had immunity for her First Amendment claim.
“The scope of the First Amendment right to record police activity is the subject of considerable debate,” Swain’s order states. “To find that officers are entitled to qualified immunity, however, the court need not resolve that debate: its existence is enough to demonstrate that there was not clearly established law establishing a right to photograph police activity at the time of plaintiff’s arrest.”
Soto’s attorney and the New York City Law Department did not immediately respond to requests for comment.
The final pretrial conference is scheduled for March 24.
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