MANHATTAN (CN) - A federal jury may soon feel the flames of a papier-mache dragon torched during the 2004 Republican National Convention.
The push to trial comes in Yusuke Joshua Banno's challenge of his arrest over the enormous dragon float that was ignited near Madison Square Garden on Aug. 9, 2004. At 10 feet high and 10 feet wide, the dragon also featured a 20-to-30-foot-long tail as it flew down Seventh Avenue, court records show.
Identified by an undercover officer as one of the protesters who lit the dragon on fire, Banno, then a college student in Arizona, was held on $250,000 bail for arson and riot charges. Manhattan prosecutors were forced to drop all charges, however, when photographic evidence placed Banno away from where the fire first ignited.
The city ultimately faced a class action by the roughly 1,800 protesters arrested during the convention. In Banno's case, he claimed that the undercover officer who fingered him as the arsonist helped light the dragon himself, in a bid to burnish his credibility with the anarchist collective that he infiltrated.
The other demonstrators alleged that the NYPD indiscriminately roped in protesters, reporters, legal observers and bystanders, using mesh netting and barricades, and tossed them in chemical-strewn, makeshift cells on Pier 57, along the Hudson River.
The now-shuttered pier came to be nicknamed "Guantanamo-on-the-Hudson."
U.S. District Judge Richard Sullivan gave some of Banno's claims the green light last week, finding that "a jury could reasonably find that defendants had no probable cause to arrest him."
Banno's refusal to unseal his grand jury indictment proved "fatal," however, to his malicious prosecution claim, Sullivan found.
Without those grand jury minutes, there is "nothing in the record indicating what evidence was presented to the grand jury, let alone that any of it was fraudulent, fabricated or otherwise the product of bad faith conduct," the 11-page opinion states, quoting precedent.
The court quoted a claim by Banno's attorney Jeffrey Fogel that he could show the jury "undisputed evidence that ranking officials in the New York City Police Department knew who was going to torch the dragon and when and where it would happen."
Though Sullivan declined to credit this "bald, unsupported assertion," attorney Fogel said in a phone interview that a bystander at the protest gave unrebutted testimony that proves the city's knowledge.
A Long Island businessman testified in a deposition that he overheard a police captain say, "That's the guy who's going to start the fire," Fogel said.
Fogel revealed that he would urge the judge to reconsider the dismissal in light of recent 2nd Circuit and Supreme Court precedent on the use of grand jury testimony in malicious prosecution cases.
On Jan. 13 this year, the 2nd Circuit issued a ruling in the case of Coggins v. Buonora that contradicts Sullivan's finding on the use of such testimony, Fogel said.
Both the state court and magistrate judge refused to unseal the grand jury testimony, and the city opposed it, Fogel added.
Fogel said he is "very happy," however, that the false-arrest claim will proceed. "We have enough evidence to get this before a jury to show that these two officers were not telling the truth," the attorney said.
Sullivan set a final pretrial conference on April 24.
The New York City Law Department said it is reviewing the decision.