The Partnership for Civil Justice Fund and co-counsel Paul Hughes of Mayer Brown LLP and the Yale Law School Supreme Court Clinic have filed a petition for certiorari to the Supreme Court of the United States on behalf of the plaintiffs in Garcia v. Bloomberg, the lawsuit over the mass arrest of 700 peaceful demonstrators on the Brooklyn Bridge in 2011 at the height of the Occupy Wall Street movement.
At stake is the central question: When police permit and even escort First Amendment activity, can they suddenly mass arrest all those peacefully participating without issuing fair warning or notice that permission has been revoked? The petitioners argue that the underlying decision by the U.S. Court of Appeals for the Second Circuit affirming arrest in the exercise of free expression without fair warning stands in conflict with every other circuit that has addressed the question.
“As people across the country are taking to the streets in peaceful mass assembly protest to register opposition to proposed government policies, the issue at stake here is defining for the breathing room democracy requires to survive,” stated Mara Verheyden-Hilliard, Executive Director of the Partnership for Civil Justice Fund. “If people feel that they cannot join in peaceful protest without risking sudden mass arrest in the absence of any warning, it cuts the ground out from that which has been a central feature of American democracy. People must be able to gather together, stand up and speak out without being subject to abrupt criminalization of their First Amendment expression by police.”
”This case presents a question vital to constitutional protections for peaceful social protest,” said Paul Hughes, a partner at Mayer Brown LLP. “In order to ensure robust protection for the First Amendment guarantee of free speech and peaceful assembly, police must first provide fair warning prior to arresting those exercising their core constitutional rights.”
On October 1, 2011, thousands of peaceful demonstrators marched from Zuccotti Park in lower Manhattan to a planned rally in Brooklyn Bridge Park. The police escorted and led the march, at points directing marchers to cross against traffic lights and stopping vehicular traffic to facilitate movement. Once at the Bridge, protestors entered onto the narrow pedestrian walkway of the Bridge and police stood across the entrance to the vehicular roadway of the Bridge. At a point one police officer spoke into a bullhorn, stating that marchers could not proceed onto the roadway. The bullhorn could not, and was not calculated to, be heard by anyone beyond the few people directly in front of it. The march included thousands and stretched back for blocks.
Command officials and police standing upon the roadway then turned and walked unhurriedly onto the Bridge, closing it to vehicular traffic and opening it to the pedestrian marchers who followed their lead in an orderly fashion. Once hundreds of peaceful marchers had been led and escorted onto the Bridge, the police suddenly trapped and mass arrested those present without warning, notice or opportunity to comply with any order. Those arrested included teachers, health care workers, students, parents of small children, tourists and many others. The march was led onto the roadway of the Bridge by then-Chief of Department Joseph Esposito, who testified under oath that he made the decision to mass arrest and ordered the arrests in consultation with then-Commissioner Raymond Kelly.
The U.S. District Court for the Southern District of New York, Judge Rakoff presiding, originally ruled in favor of the plaintiffs in 2012. On August 21, 2014, a panel of the U.S. Court of Appeals for the Second Circuit issued an opinion affirming the lower court’s ruling, but upon a request for rehearing by Mayor de Blasio, the panel abruptly reversed its own ruling and granted the New York police who arrested the protestors immunity from liability. During the pendency of the appeal, the plaintiffs obtained further evidence supporting their Monell claims against the municipality, including sworn deposition testimony from Chief Esposito. The Court subsequently ruled that the plaintiffs could not amend their complaint to include this information. The Second Circuit’s October 2016 opinion at issue determined that even if the police conveyed permission to demonstrators to march on the roadway they could still arrest them without fair warning.