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
Adam,
Have you ever heard of “Freedom of Speech”? It is a quaint, old-fashioned, conitutionally-protected right of all Americans, not just racists and conservatives.
Have you ever heard of “the Right To Peacably Assemble”? Same story.
Why should we not imprison all police who who assault citizens engaged in consititutionally-protected actions and throw away they, and void their pensions?
Actually, their right to peaceably assemble is trumped by the police order (I linked Galpern v. People for a reason). And there are numerous restrictions to free speech (hate speech, time-place-manner, fighting words, incitement to violence, etc…).
Adam, in principle, I mostly agree with you there. But it’s really, really dangerous to start giving the government power to limit our freedoms. How do we decide where they stop?
It’s fascinating to me how so many so-called “conservatives” are such passionate skeptics about government power until it comes to police, courts, and punishment. Government can’t be trusted to regulate healthcare, food safety, or financial practices, but let’s let them regulate everyone’s free speech!
Well, I’m not saying that fighting words and hate speech and all that stuff should be illegal, but as of right now it is, and just because people don’t like a cop’s orders doesn’t mean they can just ignore it. There is a difference between what I would like to see in my perfect world and what I think is and isn’t constitutional based on legal precedent. I don’t think most of the people that comment on my articles see the difference, though. At least you do @CDL, or so it appears.
Well, now you’re getting into civil resistance, which is a question each person needs to answer for himself.
I’m sorry Adam, but since when is it okay to ban peaceful protest?
Your treatise here reads like a propaganda piece from an Orwellian dictatorship.
Look tool brain it is bad enough to make these arrests for protesting there frustrations and if you think that because they interfere with traffic or because they did not obey the officers who are there to control law and order then where in hell do you get off saying they should make mass arrests for crap such as that when we got Wall Street committing fraud bankers stealing money ,Real Estate saleman and brokers commiting out right fraud and all finacial institutions ripping off pensions and so on and so fourth and I don’t see one cop or SEC making even one arrest let alone mass arrests so blow it out your ass dick head.
Just because the bankers deserve to go to jail, too, doesn’t mean unlawful protestors don’t deserve it. They should all be arrested and law and order should be restored.
hey adam, i was wondering if you had, in the process of reaching such an esteemed position at the college conservative, (which i can only assume involved rigorous study of said organization’s founding tenets as well as some kind of expression of fealty) ever taken the opportunity to read it’s mission statement. if not i quote it in part:
i ask because your opinions expressed in this article seem to conflict with those vaunted efforts, particularly the following statements–“[authorities] 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.”
i hope you understand my confusion over your endorsement of extrajudicial (unconstitutional even, as you yourself admit) latitude for public employees when they are arresting innocent people, despite having previously penned diatribes directed at legally striking teachers and utilities workers. (as many commenters readily noted your portrayal of the latter case was largely fabricated though it serves just as well as a testament to your beliefs)
eagerly awaiting your response which i’m sure will clear everything up
I don’t understand how my other articles contradict this one. Anyone trying to interfere with the daily lives of the public (shut down schools, electricity, etc…) and anyone breaking the law (blocking traffic, failing to comply with orders, etc…), or going against the state, must be stopped. All three articles have that same motif.
Furthermore, I’ve never claimed to be for limiting government power. I believe in a smaller, more fiscally responsible government, and one that stays out of people’s “private” lives (protesting in the street isn’t private), but the government must make and enforce laws to the fullest extent when it concerns public safety, foreign policy, and morality. I’m more of a social conservative than anything else, and I’m far from libertarian. I’m more of a statist conservative, which I’ve mentioned in other comments on other articles. Hopefully that clears up your confusion.
Sincerely,
Adam