Mara Verheyden-Hilliard is Executive Director of the Partnership for Civil Justice Fund
When more than seven hundred New Yorkers left their apartments on the morning of Saturday October 1 to join in a march of thousands from the Occupy Wall Street encampment to downtown Brooklyn they had no idea that they were just hours away from being handcuffed and hauled off to jail in one of the largest mass false arrests in recent years.
The police are given the extraordinary authority to deprive you of your liberty, arrest you, put you in jail. But to lawfully exercise that authority there are some basic requirements that the Constitution mandates be met – requirements that the NYPD completely ignored when they arrested everyone on October 1. A review of protest cases of the past four decades shows that the law is on the side of those who were arrested.
The march participants were in state of shock and disbelief when they were suddenly arrested half way across the Brooklyn Bridge by the same NYPD officers and top commanders who had led them out onto the bridge walking east toward Brooklyn. The police had their backs turned toward the peaceful demonstrators as they all walked toward Brooklyn.
About halfway across the bridge the police did an about face, stopped the march, trapped people, refused to let them go, and arrested them, all without probable cause to arrest.
The unsuspecting demonstrators learned first hand that the NYPD had sprung an old trick called “Trap and Arrest.” The NYPD has a long history of using this tactic.
The nation’s capital banned the tactic as a result of successful class action litigation by the Partnership for Civil Justice on behalf of more than a 1,000 people who had been falsely arrested in Washington D.C. in 2000 and 2002 by police who used the “trap and arrest” tactic to shut down mass assembly protest.
The 700 people who were mass arrested on the Brooklyn Bridge spent a good part of Saturday night October 1 handcuffed on buses before they were taken into jail and processed. They were released into the pre-dawn hours of Sunday morning.
Now those arrested are being forced to return to court to face baseless charges. These are working people, students, people looking for jobs, who must face the hardship of being prosecuted, and who did nothing wrong.
The Manhattan District attorney Cyrus Vance, Jr. has received a huge number of letters asking that he drop the charges against those arrested. That would be the right thing to do. Please add your voice to those calling for the charges to be dismissed.
What is the “Trap and Arrest Tactic”?
The trap and arrest tactic is an unconstitutional tactic in which police lines are used to surround a demonstration group that includes people who have committed no violence or obstructive acts; and the police conduct a mass arrest in the absence of fair warning or notice.
Forty years ago, Vietnam war demonstrators were subjected to the same illegal tactics.
In 1971, a group of anti-war demonstrators were arrested on the Capitol steps after police initially stopped marchers, but then stood aside and permitted them to proceed to the steps, then trapped and arrested them. The Court acknowledged that the police had issued what amounted to an “unwritten permit” by allowing the march to proceed. The Chief of Police in Washington, D.C. was held liable for the false arrests.
In 1961, when students in Louisiana were demonstrating against Jim Crow apartheid, they too were subject to false arrest after being granted permission to demonstrate. The U.S. Supreme Court ruled that, “to sustain [a] conviction for demonstrating where they told [them they] could, 'would be to sanction an indefensible sort of entrapment by the State - convicting a citizen for exercising a privilege which the State had clearly told him was available to him.'"
In short, the government cannot permit people to march – and then arrest them because they do so, and certainly not without fair notice.
“Fair Notice” and Opportunity to Comply
“Fair notice,” as that term is interpreted constitutionally in the context of protests, requires the police to issue orders, followed by a meaningful opportunity to comply. Only those who refuse to comply after fair notice may be constitutionally subject to arrest.
If you don’t hear an order, you can’t comply with it -- or fail to comply with it for that matter.
As the Court wrote in one of the class action mass arrest cases my office litigated, charging hundreds of individuals with failure to obey a police order without first ordering them “is nothing short of ludicrous.”
The NYPD issued edited videos purporting to show notice being given to demonstrators at the base of the bridge that they shouldn’t cross the bridge. One little bullhorn is supposed to have carried to the ears of the thousands of chanting demonstrators, among whom over 700 would be arrested.
In the Vietnam-era case, the Court wrote that the Police Chief “should have been aware that the hand-held bull horn he testified he used to give his orders was not powerful enough to reach the crowd.”
The Court said that constitutionally required “fair notice” is “notice reasonably likely to have reached all of the crowd despite any noise the demonstrators may have been making.”
Earlier this year, Appellate Judge Richard Posner held it was impossible for handheld bullhorns to provide fair notice to hundreds of anti-war marchers who were mass arrested by Chicago police.
After the NYPD made a show of using one bullhorn to give an order inaudible to those only feet away - - and impossible to be heard by the thousands of people supposedly subject to the order -- the police turned around, led, and apparently permitted the march onto the roadway of the bridge.
Halfway across the bridge they formed police lines trapping the group. They arrested over 700 for being present on a bridge which the police had just led them upon and from which the police would not let them exit. This was a premeditated, planned, scripted and calculated effort to sweep the streets of protestors and disrupt a growing protest movement in New York.
In 2004, the Manhattan D.A. did not prosecute and instead dismissed charges against 227 arrested protestors, where he found that “[t]he police likely created the impression that the march had official sanction.”
Thousands are calling upon D.A. Vance to follow this precedent and dismiss all of the Brooklyn Bridge mass arrest charges. It’s not just the right thing to do. It’s what the Constitution and justice require.
The Partnership for Civil Justice Fund (PCJF) is a not-for-profit constitutional rights legal and educational organization which, among other things, seeks to ensure constitutional accountability within police practices and government transparency in operations. The PCJF has filed the class action lawsuit seeking to end the NYPD’s use of the trap and arrest tactic and to vindicate the rights of those mass arrested on the Brooklyn Bridge. It litigated class action cases in which more than 1,000 persons were falsely arrested during protests in Washington, D.C., resulting in settlements totaling $22 million and major changes in police practices. The PCJF previously brought the successful litigation in New York challenging the 2004 ban on protests in the Great Lawn of Central Park. It is counsel with the National Lawyers Guild in Oakland, CA challenging police mass arrest tactics. The PCJF previously uncovered and disclosed that the D.C. police employed an unlawful domestic spying and agent provocateur program in which officers were sent on long-term assignments posing as political activists and infiltrated lawful and peaceful groups. For more information go to: www.JusticeOnline.org.
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