That’s what a New York City lawyer said Tuesday as the Second Circuit heard about the arrest three years ago of Stephen Kass, an attorney with the white-shoe firm Carter Ledyard & Milburn.
Kass happened to be walking past Zuccotti Park on Sept. 17, 2013, as Occupy Wall Street renewed its presence there to mark the movement’s second anniversary.
To say that Kass does not fit the profile of a typical Occupy protester is to put it mildly.
An adjunct professor at Brooklyn Law School and New York University’s Center for Global Affairs, Kass specializes in environmental law for a 162-year-old firm that has offices on Wall Street and Washington, D.C.
Kass chairs the New York City Bar Association’s Task Force on Legal Issues of Climate Adaptation, but he never participated in Occupy Wall Street.
He says he knew his rights, however, when NYPD officers ordered him to move along after he’d stopped next to a barricade to chat with an activist on the other side.
As summed up in the attorney’s lawsuit, police then “falsely arrested, handcuffed and detained [Kass] — all for doing nothing more than speaking briefly with a fellow citizen while standing on a public sidewalk.”
Kass insists that the police gave an unlawful order — no matter how many times they barked it. The federal appeals court met today to decide whether the officers Kass named in his complaint have immunity.
Coincidentally, the city’s Department of Investigation released a report hours after this morning’s hearing that rips the NYPD for violating the rights of activists.
Kass’ attorney Andrew Celli meanwhile told the appellate panel this morning that his client’s case stands alone in his decades of civil-rights advocacy.
“Your Honors, in almost 25 years of law practice in this area, I’ve never seen anything quite like this,” said Celli, a founding partner of the public-interest law firm Emery Celli Brinckerhoff & Abady.
“A 73-year-old man is handcuffed and arrested for pausing on an open sidewalk to talk to a protester from across a sidewalk.”
At least two of the judges on today’s panel appeared to find the situation absurd.
U.S. Circuit Judge John M. Walker, Jr., in particular, emphasized that the NYPD needs a reason to make someone move.
“Just police say-so is not enough, right?” he asked.
The city’s attorney Melanie West agreed but argued that Kass muddied the waters by standing on the side of the protest meant for passersby.
She said police had legitimate crowd-control reasons to keep the crowd on one side of the barrier, and Kass could have continued his conversation with the protester by moving a few feet to the other side of the barricade.
“That’s asking him to associate with the protesters,” Walker said. “Then, his partners from the law firm come by, and there he is! He’s in the Occupy Wall Street.”
“I don’t think the NYPD has a duty to ensure that Mr. Kass keeps his job, Your Honor,” West countered.
Describing this type of concern as “anticipatory law enforcement,” Walker wondered if police would anticipate problems if a passerby had been standing just down the block in front of the nearby Trinity Church to admire the architecture.
West replied that, no, a public protest is different.
U.S. Circuit Judge Raymond Lohier meanwhile offered a different thought experiment.
“What if you’re Barbara Walters, and you’re right there?” the judge asked, referring to the barricades. “Do police then have the ability under New York law … to arrest Barbara Walters because she wants to talk to protesters, or just listen, not even talk?”
“If the police approach Barbara Walters and ask her to relocate 10 feet multiple times and she refuses, then yes, I think that they do,” the city lawyer replied.
Cutting to the heart of the matter, Walker quipped: “Maybe the problem was [Kass] went to law school. He thought he was acting in a perfectly legitimate way which is protected in our society.”
West seemed to curry little favor with her defense of the officers despite emphasizing the number of times officers ordered Kass to move, but
“Police who are stationed at a public protest should have discretion to anticipate problems,” she said.
U.S. Circuit Judge Denny Chin questioned whether Kass had been asking the NYPD to “make an exception, let the one man stay because he’s a 73-year-old lawyer.”
Rejecting that framing, Celli said: “I don’t think it’s an exception; it’s a rule.”
Judge Lohier, for his part, felt uneasy when imagining the scene that landed Kass in handcuffs playing out with any hapless bystander.
“This is troubling to me because I could see anybody showing up at the barricade … and all of a sudden finding yourself being arrested,” Lohier said.
The panel did not rule on Kass’ case this morning, but hours later the city endured more public ridicule in a report that slams the NYPD as “often noncompliant with a number of the rules governing the conduct of [political activity] investigations.”
Such investigations have to conform with the terms of a so-called Handshu agreement, which settled a class-action lawsuit for massive civil-rights violations of activists.
The Handshu case, named after a former lawyer for the Black Panthers, put the NYPD under federal court oversight before using intrusive investigation methods like confidential informants on political or religious groups.
The NYPD’s watchdog found that the department cut corners with this process, in a 64-page report released today.
In more than 53 percent of cases, the NYPD continued investigations even after the court’s approval expired, and the department kept using informants and undercover officers after the 120-day time limitations more than 57 percent of the time, the report says.
More than 95 percent of the files that the watchdog reviewed for this report involved Muslims or Islamic groups, but the watchdog noted that the same rules that the NYPD flouted according to this study were also designed to protect the rights of political protesters.
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