Judge Richard J. Sullivan of the United States District Court for the Southern District of New York recently declared the NYPD’s mass arrest of disorderly protesters during the 2004 Republican National Convention unconstitutional. Sullivan wrote that “an arresting officer must believe that every individual arrested [in a law-breaking group] personally violated the law.” This is a ridiculous burden to impose on cops dealing with a mob containing criminal elements. Furthermore, the people in the mob, even if they weren’t engaging in criminal activity before the arrival of the police, broke the law by not dispersing, and thus failing to comply with police orders. However, the judge did grant the police some leeway by upholding the legality of their no-summons policy. That doesn’t outweigh the damage done by the rest of Sullivan’s decision, though.

Mass Arrest to Maintain Order

In People v. Galpern, Judge Irving Lehman of the New York Court of Appeals found attorney Galpern guilty of disorderly conduct after he refused to move along after a police officer ordered him to stop “schmoosing” on a sidewalk. Galpern did not exhibit “insulting or threatening” behavior or appear to intend “to provoke a breach of the peace.” However, Lehman found that Galpern’s obstruction of the sidewalk and his refusal “to move on” after being ordered to by an officer were sufficient cause for his arrest. This means that any protesters who fail to comply with police orders, even if they are not themselves perpetrating other criminal acts, are liable to be arrested for disorderly conduct.

In the 2004 protest, many protesters were intentionally breaking the law, obstructing the sidewalk and “demonstrate[ing] in the middle of the street.” As the protesters turned onto East 16th Street, NYPD officials ordered them to stop. After giving them ample time to comply, the police boxed the protesters in on both ends of East 16th Street. Those who had not “immediately and peacefully dispersed” after the first few orders were arrested, as they should have been. Many of them were given ACLU-written handouts by activist groups like EndtheWar, which was quite influential in the 2004 protest, warning them that not complying with an officer’s order to leave an area may lead to their arrest. They knew what they were doing was illegal and the cops gave them a chance to correct their actions. They refused and were subsequently arrested.

Judge Sullivan’s recent decision is unreasonable, as it is too difficult to isolate the criminal protesters from the others, meaning that the police would have to let some of the more dangerous protesters continue on their way. Luckily, it should be overturned on the grounds that every person arrested had broken the law by failing to comply with official orders and thus becoming disorderly.

Letting the Criminals Slip through the Cracks

The only NYPD policy that managed to survive judicial scrutiny was the no-summons policy, which stated that officers could arrest people for “minor crimes and noncriminal violations that normally would result in only a summons or ticket.” The immediate threat posed by the protesters allowed the policy to remain constitutional for the duration of the demonstration. Sullivan recognized the need to arrest demonstrators trying to “shut down the City of New York [through] unlawful behavior” and understood that summonses and tickets wouldn’t deter the protesters.

This small victory was erased as soon as Sullivan proceeded to declare unconstitutional the NYPD’s fingerprinting policy. Many of the individuals arrested under the no-summons policy were fingerprinted so that the police could confirm their identities, since, as Sullivan noted, many of them were there to “shut down the city.” This fingerprinting was necessary because many protesters planning to act unlawfully had been instructed by the groups they were with, or just knew from experience, to leave their ID at home and use a fake ID if necessary. This was not reason enough for Sullivan, though, as he found the practice unconstitutional because some of the fingerprinted protesters actually possessed valid ID. Forcing the police to act on an individual basis during a large protest is unreasonable, but as this decision shows, reason doesn’t always prevail.

Conclusion

Now that all of the legal arguments are out of the way, it may be a good idea to step back and look at the situation from a purely practical point of view. The RNC convention in 2004 could easily have been a terrorist target, or scene of a major riot, meaning that residents, attendees, and peaceful protesters could have been injured. The police arrested a large mob of criminals and accidentally detained some innocent people. In the end, the innocent people were released and no calamity occurred. The mass arrest worked.

This one decision hopefully won’t deter authorities, who should use mass arrests in similar situations in the future and pay the potential fines after the fact. Using unconstitutional means to get criminal protesters off of city streets during a specific event is practical and, as this case demonstrates, probably won’t be addressed for years. Even now that a verdict is in on the 2004 policy, no penalty has been determined for the city and no injunction against other mass arrests has been issued. There is also the possibility that the city wins on appeal. Hopefully the next judge can see the necessity in being able to stop criminals from taking over our streets.

Adam Ondo | University of Rochester | @JoplinMaverick