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December 28, 2011

2011.12.28: NYLJ: “Years Later, City Is Still Dealing With Fallout From 2004 RNC Arrests”

From: Morris, Susan
Sent: Wednesday, December 28, 2011 11:11 AM
To: ALAA MEMBERS; 1199 Members
Subject: NYLJ: “Years Later, City Is Still Dealing With Fallout From 2004 RNC Arrests”

Also in today’s NYLJ


Years Later, City Is Still Dealing With Fallout From 2004 RNC Arrests

Mark Hamblett ContactAll Articles

New York Law Journal

December 28, 2011

If recent history is any guide, the one sure thing to follow from recent mass arrests on the Brooklyn Bridge during the height of the Occupy Wall Street protests is prolonged litigation in federal court.

More than seven years after the Republican Party renominated George W. Bush in New York City and almost three years after Mr. Bush retired to Texas, the city’s Law Department is still working hard to defeat class and individual actions alleging the police were guilty of widespread violations of the U.S. Constitution in the mass arrest and detention of almost 1,800 demonstrators at the GOP’s 2004 convention.

The city estimates that the value of Law Department attorney hours to fight the suits from November 2004 to December 2011 has amounted to almost $8 million.

From July 2004 to December of this year, the office has incurred $6.9 million  in external expenses, including $3.9 million for temporary contract lawyers. It also has received volunteer assistance from four private firms: Simpson Thacher & Bartlett; Proskauer Rose; Fulbright & Jaworski; and Linklaters.

 

Only now, after years of fighting over discovery, including disputes over classified police procedures and the taking of hundreds of depositions, are the New York Civil Liberties Union and a host of other plaintiffs’ lawyers fully engaging with the Law Department in dispositive motion practice, with summary judgment motions filed and a date for oral arguments to be set by Southern District Judge Richard J. Sullivan (See Profile).

More recently, on Oct. 1, some 700 protesters were arrested on the Brooklyn Bridge after police claimed they were blocking the roadway. Most were arraigned just before Christmas.

As their cases wend their way through state court, a civil rights group has challenged the constitutionality of police actions. The city insists that the police acted with restraint and filed a motion, Garcia v. Bloomberg, 11 Civ. 6967, on Nov. 9, indicating that it plans to confront the latest mass-gathering litigation as vigorously as it has the litigation stemming from the Brooklyn Bridge incident.

In 2004, more than 1,800 people were arrested during the four-day convention that began on Aug. 30, mostly for disorderly conduct or parading without a permit—the same charges as involved in the Brooklyn Bridge fracas.

The convention arrests led to more than 500 individual court actions where the plaintiffs are challenging the decision of the police to forgo the usual practice of issuing summonses and instead to arrest protesters without individualized probable cause, and fingerprint and detain them. A class action also challenges the extended detention of protestors (and bystanders) at a temporary detention facility on Pier 57.

All told, the Law Department says that roughly 150 plaintiffs have settled their cases for a total of $1.8 million, a number that includes attorney’s fees, but the vast majority of cases remain.

“The City believes the Police Department’s policies and practices were appropriately balanced to permit demonstrators to exercise their First Amendment rights while ensuring public safety,” Corporation Counsel Michael A. Cardozo said in a statement. “Indeed, although 1,800 people were arrested during the RNC for unlawful conduct, more than 800,000 people participated in various demonstrations throughout the city without incident.”

But Christopher Dunn, associate director of the New York Civil Liberties Union, disagreed.

“It’s a stain on New York City’s good reputation that it has spent seven years and millions of dollars defending the arrest, detention and fingerprinting of nearly 2,000 peaceful protestors, journalists, legal observers and bystanders swept up in mass arrests during the convention,” he said. “The city long ago should have recognized that the police mishandled some of the convention protests, and its refusal to do so just makes one worry about how it will handle large protests in the future.”

Multiple Arrest Locations

Arrests took place over seven days at 35 to 40 locations across the city during the GOP convention. Even before the first gavel banged on Friday, Aug. 27, 2004, police intercepted participants in a monthly bicycle-riding event called Critical Mass on Seventh Avenue between 34th and 35th streets that they say was intended to cause mass disruption.

After the convention had started, between 4 and 7 p.m. on Aug. 31, police halted a march organized by the War Resisters League on Fulton Street between Church and Broadway near the World Trade Center. Some 227 people arrested at the scene claimed they were given no opportunity to disperse. Their claims are part of the lawsuit Schiller v. City of New York, 04 Civ. 7922.

Between 7 and 10 p.m. that day, protesters near Union Square turning onto 16th Street and were hemmed in by police, who ultimately arrested 400 people. Again claiming they were given no opportunity to disperse, some of the demonstrators filed the lawsuit Dinler v. City of New York, 04 Civ. 7921.

The Schiller and Dinler plaintiffs are represented by Mr. Dunn and Arthur Eisenberg of the New York Civil Liberties Union.

Also on Aug. 31, between 8 and 10 p.m., police arrested a group of protesters on 17th Street between Fifth Avenue and Broadway on their way to Madison Square Garden to establish a “Free Speech Zone.” But police also arrested bystanders, including Dierdre MacNamara, who said she had been browsing at the Barnes & Noble on Union Square but was and handcuffed and taken to Pier 57, where she was held for more than 45 hours—21 hours past the court-imposed deadline for arraignments.

Ms. McNamara would become the name plaintiff in a putative class action covering all of the roughly 1,800 arrests. McNamara v. City of New York, 04 Civ. 9216, alleges a lack of individualized probable cause, unreasonably prolonged detention and cruel and inhumane confinement conditions at Pier 57.

On May 19, 2011, Judge Sullivan granted in part and denied in part the motion for class certification in McNamara. He recognized several subclasses for the different arrests, including Critical Mass arrests and an umbrella class on the excessive detention and substandard conditions of confinement, and he appointed as class counsel Jonathan C. Moore and Clare Norins of Beldock Levine & Hoffman.

“In 2004, if you asked anyone about Pier 57, their response would have been ‘What the heck were they thinking,'” Mr. Moore said. “The city creates this jail, with no access for lawyers, no phone, people being held incommunicado—and they justified it by saying they had a need to know who was there—but they had no fingerprint machines there.”

Mr. Moore said the majority of arrestees were held at Pier 57 between 24 and 48 hours.

“They designed a system to maximize the time people spent in jail,” he said.

Over all, at any one time, there have been between 30 and 50 plaintiffs’ lawyers involved in the cases, which were consolidated for discovery purposes before Southern District Magistrate Judge James C. Francis (See Profile). Magistrate Judge Francis has held monthly meetings where anywhere from five to 10 attorneys from the Law Department run through the cases and update their status.

The city’s side has been led by Celeste L. Koeleveld, executive assistant corporation counsel for public safety and Peter G. Farrell, special assistant corporation counsel, of the office’s special federal litigation division.

Defending the Police

The city made Rule 68 offers of settlement in 2006, and several cases settled for a small amount, $2,500, $5,000 or $7,500, plus attorney’s fees. The Law Department later made some higher offers that plaintiffs’ lawyers say were accepted by two groups of 10 or 11 people.

Plaintiffs’ attorneys say the initial settlement offers were not out-of-line for false arrest cases in which there had been personal injuries. Many were accepted by plaintiffs who needed the money or were not able to travel for depositions.

Solo practitioner Jeffrey Rothman has about three dozen cases still pending. Four years ago, he settled for one client for $5,000 and earned $12,000 in fees. Now, however, Mr. Rothman said the city is doing everything it can to contest the remaining cases.

“I think in large part it’s political. Mayor [Michael R.] Bloomberg and [Police Commissioner] Ray Kelly put a lot of political capital into defending how they policed the Republican convention—even though it’s outrageous what they did,” Mr. Rothman said. “They are invested in this politically so they are fighting these cases to the hilt and throwing everything they have into it and, as a result, there has been enormous delay and enormous expense by the city.”

Solo practitioner Michael L. Spiegel is co-counsel for some 130 people who were detained in the mass arrests. He predicts that the litigation is only half-way to completion.

“I think it’s because the Police Department in this city staked its reputation on policing this particular high-profile event and they think the best way to respond to this is to litigate as far as possible into the future,” he said. “So when it’s finally resolved, the city’s hope is that it will be a historical footnote.”

Mr. Moore said he had conversations with the Law Department back in 2004.

“I said, ‘Let’s sit down and try to settle this now,’ because what happens is, we get seven years into the litigation and then they say ‘We can’t settle because the attorneys’ fees are too high,'” he said.

Mr. Moore, who is also part of the long-running litigation over the NYPD’s stop-and-frisk policies, said the most recent settlement talks this summer, held before the onset of summary judgment motions, made little progress.

“I don’t know what it’s like to litigate other types of cases,” he said. “But when it involves the police department, the police department calls the shots and not the city.”

But Mr. Cardozo said that the city has good reasons for its approach to the litigation.

“Dozens of plaintiffs’ attorneys have been aggressively pursuing cases against the city,” Mr. Cardozo said in a statement. “Just as it does whenever it represents the city in suits that we feel lack merit, the Law Department is vigorously defending the Police Department’s actions during the Republican National Convention.”

‘Real, Substantial’ Threats

One reason for the length of the Republican National Convention litigation is a dispute over discovery that took years to resolve.

In June 2010, the U.S. Court of Appeals for the Second Circuit granted the city a writ of mandamus reversing Judge Sullivan’s 2009 affirmation of Magistrate Judge Francis’ 2007 order requiring the NYPD to turn over some 1,800 pages of field reports on undercover officers who infiltrated activist groups to learn of plans to disrupt the convention.

The plaintiffs claimed they needed the field reports to examine whether NYPD Intelligence Commissioner David Cohen made an accurate assessment of potential threats to public safety leading up to the convention.

Judge Sullivan agreed that the plaintiffs had an interest in knowing who was surveilled “in order to assess Defendant’s perception of the threat.”

But in In re City of New York, 10-0237, circuit judges Jose Cabranes, Richard Wesley and Debra Ann Livingston held that the reports were shielded by the law enforcement privilege (NYLJ, June 9, 2010).

The city’s petition to the circuit provides the most detailed explanation of its reasons for fighting the remaining convention suits.

An accompanying declaration signed by Ms. Koeleveld stated that the convention was a “flashpoint for frustration” with Bush administration policies—particularly the Iraq war—and groups were planning large-scale civil disorder, in some cases violent disorder. It cited the 1999 “Battle for Seattle” that shut down a ministerial conference of the World Trade Organization and violent protests at a Free Trade of the Americas meeting in Miami in 2003, as events that “overwhelmed law enforcement.”

Ms. Koeleveld also cited a series of terror attacks abroad and attacks planned for New York, including a plot to blow up Herald Square uncovered just a month before the convention, that led the Department of Homeland Security to designate the convention as a “special national security event” warranting proactive measures, such as the “gathering of intelligence about the potential for major civil disorder.”

The city attorneys defended the NYPD’s policy as a “response to real and substantial threats to public safety,” to wit the “tripartite threat” of “domestic and international terrorism, anarchistic violence and unlawful civil disobedience.”

The plaintiffs in Dinler, Schiller and McNamara countered by decrying “the alarmist tenor” of the city’s petition and pointed the finger at the Law Department, saying it was only in the days before discovery was set to close in December 2006 that the city came forward and revealed it would defend the lawsuits “by relying on information” the NYPD had collected in a “previously unknown” surveillance operation.

The disclosure of the undercover reports and the Second Circuit’s decision set of a fresh wave of discovery that was only completed recently. With the field reports out, the city is defending its case in part by citing NYPD “end user reports”—compilations of information from open sources such as online posts, news clippings and other sources gathered before the convention that the city says proves its fear of mass disruption was reasonable.

But Mr. Dunn says the some-600 end user reports, 57 of which the city plans to rely on, actually tell a different story.

“They have spent a lot of time creating the impression that a lot of people were coming here to engage in violence and mayhem and it turns out that was not true,” Mr. Dunn said.

On Oct. 3, 2011, the NYCLU filed motions for partial summary judgment on false arrest claims in Schiller and Dinler, arguing that the police had no knowledge of any unlawful action by their clients. The NYCLU states that there was no probable cause to arrest plaintiffs for disorderly conduct for obstructing traffic or disobeying a lawful order to disperse and no probable cause to arrest the demonstrators for parading without a permit at Fulton Street and near Union Square (See City’s Response).

In one of the motions, the NYCLU challenges as “extraordinary” the city’s invocation of “group probable cause.”

It also seeks summary judgment on state claims of unlawful fingerprinting—saying “New York courts have long recognized liability for unauthorized fingerprinting.” The NYCLU’s point is that there is customarily no fingerprinting for violations such as disorderly conduct and parading without a permit.

Also, on Oct. 3, the city filed a summary judgment motion seeking dismissal of the false arrest claims at Church and Fulton streets, saying that the supervisors on the scene on Aug. 31, 2004, had solid grounds to order arrests, in part because the so-called “A-31” Coalition advertised “a day of civil disobedience” intended to “overwhelm the police and disrupt convention proceedings and city life” (See Plaintiffs’ Response).

As part of the coalition, the Law Department argues that the New York Chapter of the War Resisters League planned an unpermitted march starting near the World Trade Center and heading toward the convention at Madison Square Garden, where a mass “die-in” would be conducted to protest the Iraq war.

It also asked on Oct. 3 for summary judgment on claims stemming from the no-summons policy and the fingerprinting policy, claiming “there is no constitutional right to a summons as a matter of law” and it is “not unconstitutional to fingerprint incident to arrest.”

The plaintiffs answered on Nov. 3, saying the facts show the police deployed the no-summons and fingerprinting policies as ammunition in an assault against the protected speech of the protesters under the First Amendment.

Mr. Dunn said the litigation has already had one positive effect. Within weeks after the convention, he said he wrote to the city about the fingerprinting and the city agreed to destroy all fingerprints of those who were charged with violations.

And it was during a “marathon deposition” of Chief of Department Joseph Esposito, Mr. Dunn said, that he learned the NYPD now has a policy of not fingerprinting people for violations.

So when the demonstrators were rounded up on the Brooklyn Bridge this past October, Mr. Dunn said, none was fingerprinted.

Mr. Moore agrees that the RNC litigation influenced the police response on the Brooklyn Bridge, where the arrestees were held between four and nine hours.

“The police can say, ‘We gave everybody notice, we released a video [showing police] saying, ladies and gentlemen, if you don’t leave we will arrest you, we are giving you an opportunity to disperse,'” Mr. Moore said.

The D.C. Experience

There are few analogies to the scope of the convention litigation, but one precedent is the flood of cases that followed the mass arrest of May Day demonstrators in Washington, D.C., over three days in 1971 of outrage over the war in Vietnam.

Some 14,500 protestors were arrested on May 3, 4 and 5, 1971, largely for disorderly conduct, violation of police lines, unlawful assembly and unlawful entry onto public property. Many of them were warehoused in a make-shift detention center at Robert F. Kennedy Stadium.

Separate class actions were filed for the arrests on each day, but the May 3 and 4 actions were not certified.

The one class action that was certified was for May 5, when 1,200 people on the Capitol steps were arrested during a rally that included speeches by Representatives Ron Dellums of California and Bella Abzug of New York.

In that class action, a jury awarded a total of $12 million to the 1,200 members for violation of their First Amendment rights, but a federal appeals court vacated the award as excessive and remanded. Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977).

The cases ultimately settled for payments ranging from $1,000 to $3,000 each, depending on the length of detention, said Arthur Spitzer, legal director of the ACLU of the Nation’s Capital.

Payments to plaintiffs began about 10 years after the arrests and Mr. Spitzer said the last of the “stragglers” received their checks 24 years later in what he said was the largest mass arrest in U.S. history where demonstrators were compensated for police action.

A separate, umbrella class action encompassing all the arrests resulted in injunctive relief in relatively short order after the arrests, and the arrest records of about 1,500 people were expunged. Sullivan v. Murphy, 478 F.2d 938 (1973).

“I think the main lesson for the government, which they have pretty well learned here in D.C., is be very careful who you arrest and be careful how you document who you arrest,” Mr. Spitzer said. “I suppose it could still happen that a police commander could make the decision to get people off the street—and he might say, ‘The city is going to pay the cost of these arrests,’ but we hope the city is making it clear” it is not worth the consequences.

@|Mark Hamblett can be contacted at mhamblett@alm.com.

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