FACTUAL ALLEGATIONS

62. In advance of the October 1, 2011 march that is the subject of this Complaint, the defendants had knowledge of the Occupy movement, the physical encampment and base of operations at Zuccotti Park, and the fact that persons associated with the Occupy movement had engaged in First Amendment protected activities, including political marches, as a form of political expression and action.

63. In advance of the October 1, 2011 march, on information and belief, defendants KELLY and BLOOMBERG had communicated and conferred regarding how the NYPD would respond to the Occupy related activities, including protest marches.

64. In advance of the October 1, 2011 march, the NYPD had knowledge that a march would occur on October 1, 2011 from Zuccotti Park to the Brooklyn Bridge Park where there was an announced event with speakers including Amiri Baraka, author, poet and playwright.

65. On October 1, 2011 demonstrators began marching from Zuccotti Park near Wall Street, which the demonstrators dubbed Liberty Square. The demonstrators were engaged in mass assembly and collective action including calling for a shifting of resources in society from the 1% who hold the greatest concentration of wealth and corporate power, to the other 99%. The protesters’ political chants included “We are the 99 percent” and “Banks got bailed out, we got sold out!”

66. The march moved initially from Zuccotti Park towards the Brooklyn Bridge.

67. The NYPD presence at Zuccotti Park and along the march was substantial, consisting of the deployment of officers on foot, officers on bicycles, officers on motorscooters and/or motorcycles, officers in cruisers and officers in other types of vehicles.

68. Police had staged and arrayed their resources, personnel and assets including officers, weapons, amplified sound equipment and other crowd control devices sufficient for the march.

69. On information and belief, NYPD command staff monitored the movement of the march, including in the police headquarters and in command centers, including mobile command centers. One Police Plaza is located at the base of the Brooklyn Bridge.

70. On information and belief, defendant and Police Commissioner RAYMOND KELLY monitored the march as it proceeded.

71. On information and belief, defendant KELLY was in communication with subordinate command staff in the field and in physical proximity to the march.

72. Thousands of people comprised the October 1, 2011 march.

73. The defendants were aware of the start of the march.

74. The NYPD permitted, and did not impede, the start of the march from Zuccotti Park.

75. The NYPD permitted the march to proceed upon the public ways from Zuccotti Park and through downtown Manhattan.

76. The NYPD permitted the march to proceed to the Brooklyn Bridge and, ultimately, permitted the march to proceed upon the vehicular roadway of the Brooklyn Bridge.

77. The NYPD used officers, including flanking the march with officers on motorscooters or motorcycles, to escort the march from Zuccotti Park to the Brooklyn Bridge.

78. The NYPD officers escorting the march “guided” and exercised control over the conduct of the march through their physical presence, show of police force and authority, and specifically through the issuance of orders and directives to individuals within the march. See Defendants’ Motion to Dismiss at 12.

79. The march as a whole, and the individuals within the march, understood that the NYPD was escorting and permitting the march to proceed.

80. As the march proceeded towards the Brooklyn Bridge, the NYPD knew and observed that the march of several thousand individuals was compliant with police directives and, indeed, “followed [the police directives].” Id.

81. At points and times, the police directed and permitted marchers to proceed in ways ordinarily
prohibited under traffic regulations absent police directive or permission.

82. At some intersections along the march, police blocked vehicular traffic, directing and permitting marchers to cross the street against the traffic signal.

83. Marchers relied on the orders and signals by the police that this, ordinarily prohibited, conduct was at that particular time and place being allowed by the police who were guiding and escorting the march.

84. In general, the marchers relied on the police for directives and indications as to what actions were being permitted at what times, so that they could conform their conduct and comply with the orders and indications being given by police.

85. Later in the march, when police led and escorted and permitted marchers en masse onto the roadway of the Brooklyn Bridge, marchers understood that they were being led and escorted and permitted onto the roadway of the Brooklyn Bridge.

86. The police deprived the plaintiff class of any fair notice that following the lead and escort of police across the bridge roadway was somehow prohibited.

87. As the front of the march reached City Hall Park, those in the front of the march crossed Centre Street and moved to the pedestrian walkway or promenade of the Brooklyn Bridge.

88. When the front section of the march encountered the narrow pedestrian walkway of the bridge, there was a natural congestion as the large group began to file onto the smaller walkway. It took some period of time for the first portion of the march to enter upon the walkway, which occurred without disturbance. See e.g., Exh. B (photo image of large number of marchers entering and on the pedestrian walkway); Exh. C (photo image of pedestrian walkway packed with marchers while roadway remains clear).¹

89. At the entrance point to the walkway flowing back across Centre Street, along Park Row and in the broad sidewalks abutting City Hall Park, thousands more were in procession. This mass procession had been occurring for a substantial time without any noncompliance. See Exhs. D and E (photo images of marchers flowing far back from base of the bridge).

90. Police, including command officials and other city officials, stood in an eastbound roadway at the entrance of the bridge.

91. The police observed the congestion of persons in the roadway near the entrance to the Brooklyn Bridge promenade.

92. The command officials gave no audible warnings or orders to the mass of people assembled.

93. One officer, consulting with a non-uniformed person, spoke inaudibly into a bullhorn that could not be heard mere feet away from the officer, given ambient noise. See e.g., Exh. F. (video footage from base of bridge showing bottleneck at base of pedestrian walkway, crowd waiting to enter onto pedestrian walkway, officer with bullhorn is inaudible from mere feet away, officers and command staff turning and leading demonstrators onto roadway).

Exhibit F from Partnership for Civil Justice on Vimeo.

94. Within a period of five minutes, the officer made statements into the bullhorn including at the end a rapid and quick succession of statements. These generally inaudible statements appear from TARU video to request that anyone who might have been within earshot leave the roadway and at the end that failure to comply would result in arrest.

95. The NYPD knew no audible communication was given to the hundreds and thousands potentially subject to arrest.

¹ Exh. A is an appendix listing all media exhibits and public or NYPD source location for each exhibit herein.

96. The NYPD also knew that the Constitution requires that any ostensible command must be heard by those who are expected to be bound by it.

97. There was no attempt by the NYPD to communicate a command, order or other message to the whole of the mass of people at the base of the bridge.

98. The set of directives at the entrance to the bridge could have been heard, if at all, by only a handful of people.

99. These directives were not audible, and thus not given, to the vast majority of people congested at the entrance to the bridge.

100. They were not audible to the hundreds of persons upon the pedestrian walkway.

101. They were not audible to the thousands of people upon and across Centre Street, and filling blocks of sidewalk space abutting and wrapping around City Hall Park.

102. They were not audible to the plaintiff class.

103. The police possess amplified sound equipment sufficient to project and be heard for blocks.

104. Having initially stood in the eastbound roadway of the Brooklyn Bridge, the command staff and police at the roadway entrance then turned around, and led the midsection² of the march across the bridge.

105. The demeanor of the police officials and command staff leading the march across the bridge was casual and even somewhat jocular, as they casually chatted with each other, some carrying coffee or beverages. See e.g., Exh. F, Exh. G (video footage of NYPD casually leading demonstration onto roadway), Exh. G-1 (video still image of apparently unconcerned officers chatting), Exh. G-2 (video still image of officer leading march onto roadway while carrying beverage), Exh. H (additional video footage showing NYPD leading demonstrators onto vehicular roadway further along on the bridge).

² The original front of the march had entered onto the pedestrian walkway with several hundred others.

106. From that moment on, no orders were issued from the police at the roadway entrance for the ongoing flow of marchers to not proceed on the roadway.

107. The single officer with the hand held battery operated bullhorn joined the command staff and others leading the march on the roadway across the bridge.

108. Police continued to escort the march along its side, with no police on the flanks ordering or directing the march they had been escorting that afternoon against entering or being present upon the bridge. On the contrary, these officers - - who had not hesitated at any time during the march towards the Bridge to direct people on the sidewalks when they so desired -- did not warn against entering or continuing upon the Bridge roadway. See e.g., Exhs. I, J, and K (photo images of officers flanking and escorting march along the bridge roadway).

109. As marchers, including members of the plaintiff class, followed the police officials onto the Brooklyn Bridge roadway, there was no effort by the police to stop the marchers from entering or continuing upon the roadway. On the contrary, NYPD command staff or “white shirts” led the march.

110. Police permitted the march to proceed upon the roadway of the bridge.

111. The police led the march across the bridge - - a decision which would hardly be viewed by march participants or observers as unlikely, given that traversing the roadway or a portion of the roadway would have affected an orderly and faster movement of the march across.

112. When the police turned and led the march onto the roadway, those who could see this actual and apparent grant of permission to follow let out a cheer believing police were permitting them to cross the bridge on the roadway.

113. Throughout the crowd that was near the entrance to the bridge was heard spontaneous exclamations excitedly shouted out, “They’re letting us [cross the bridge on the road]!” See e.g., Exh. L (NYPD TARU video as march proceeds upon roadway, captures marcher on roadway exclaiming to pedestrian marchers “They’re allowing us to! They’re allowing us to!”)

114. After the police led and escorted the march onto the roadway, scores of the marchers who had originally entered upon the pedestrian walkway joined the others on the roadway when it became clear that police were leading and escorting and permitting marchers to use the roadway to cross the bridge. See e.g., Exh. M (video of people climbing down to roadway from walkway entering behind police who are permitting and leading the march).

115. When police conducted the arrest, they were aware that the group detained included such persons from the pedestrian walkway.

116. Plaintiff BECKER marched on the sidewalk to get to the Brooklyn Bridge. Upon reaching the bridge, the crowd including BECKER came to a stop in the street between City Hall Park and the entrance to the bridge due to congestion. BECKER did not see or hear any police at that time. When the crowd began moving again, BECKER followed the people in front of him forward, entering the roadway of the bridge because he happened to be on the right side of the crowd. While marching on the bridge, BECKER observed police officers in front of the group leading it to Brooklyn. From all of his observations, BECKER understood that the march was permitted to proceed upon the bridge, led by the police.

117. Plaintiff CARTIER marched on the sidewalk to get to the Brooklyn Bridge. Upon reaching the bridge, the crowd congested in the area of the City Hall Park and the bridge entrance. When the crowd began moving again, CARTIER followed the march. He did not hear any warnings, orders, directives or indications from police that following the march was not permitted.

118. Dr. MICHAEL CRICKMORE, marched with the group from Zuccotti Park. Not favorably disposed towards large and tightly congested crowds, he positioned himself on the outside or street side of the procession as much as possible. During the portion of the march from the Zuccotti Park to Brooklyn Bridge CRICKMORE observed that the police frequently issued directives to stay on the sidewalk, with which he complied. Following and within the body of the march, CRICKMORE entered upon the roadway of the Brooklyn Bridge. He did not even know he was upon the roadway of the bridge at first. He was given and heard no orders or warnings not to be upon that roadway. When he realized he was upon the bridge roadway, he looked to police for guidance. He noted that, in sharp contrast to before, the police who were escorting him were simply walking alongside him, giving no orders whatsoever and making no suggestion whatsoever that proceeding thereupon was problematic in any way. He understood his presence on the bridge was permitted, based on the police’s evident allowance of the conduct.

119. Plaintiff FEINSTEIN was visiting New York City from Iowa on vacation with her husband. They joined the crowd and followed people, marching in the middle of the group. When crossing the street from City Hall Park to the Brooklyn Bridge, FEINSTEIN observed police blocking traffic to facilitate the group crossing to the bridge. These were the only officers she saw at this time. FEINSTEIN continued to follow the crowd and entered the roadway as she followed the people ahead of her. FEINSTEIN did not even realize she was on the roadway until she had already proceeded upon it. At that time, FEINSTEIN observed police officers walking along with the march, which informed her understanding that she was on the correct, planned route of march. At one point, a police officer was walking immediately to the side of FEINSTEIN. This officer did not say anything to her. FEINSTEIN did not hear or see any warnings or directives from police indicating she was not permitted to be on the roadway.

120. Plaintiff GARCIA marched on the sidewalk to get to the Brooklyn Bridge. Upon reaching the bridge, the crowd congested in the area of the City Hall Park and the bridge entrance. When the crowd began moving again, GARCIA followed the march. She did not hear any warnings, orders, directives or indications from police that following the march was not permitted. She understood that the group was being permitted to proceed as they were to the intended end point in Brooklyn.

121. When Plaintiff OSORIO reached the bridge, the crowd congested in the area of City Hall Park and the bridge entrance. When the crowd began moving again, OSORIO followed the march forward. He did not see or hear any police at this time. OSORIO did not realize he was on the roadway of the bridge until he realized that to his left was a separate group of persons marching on the pedestrian walkway. OSORIO subsequently saw police officers walking on the side of the crowd in the roadway. This gave him the understanding that the march was being guided and escorted by the police across the bridge, including on the roadway.

122. Plaintiff PEREZ observed police officers escorting alongside the march. Upon reaching the Brooklyn Bridge, she marched in the same direction that she observed the escorting police officers to be walking and followed the police and the flow of the march. She heard no
orders or warnings or notice not to be on the roadway of the bridge. When on the roadway, the police officers walking alongside the marchers were walking and occasionally talking among themselves. They did not tell her to get off the bridge. As PEREZ continued to follow the march and the police escort, she observed police walking in front of the march, leading it across the bridge toward Brooklyn. She was shocked and confused when police formed a line, blocking movement, and began to implement the arrest. She could not understand what she had done wrong, given that police had permitted, led and escorted the march without objection.

123. When Plaintiff SOVA approached the Brooklyn Bridge, he observed marchers entering the pedestrian walkway and the resulting bottleneck. He also observed marchers begin to walk on the roadway of the bridge. After observing what he believed to be several hundred persons entering the roadway, he followed them, knowing that the destination was a park in Brooklyn. During the period SOVA was at the base of the bridge observing others’ movements, he did not hear any police orders. He did not hear any orders or directives not to proceed to follow the march on the roadway. When SOVA marched on the bridge roadway he observed officers alongside the march. These officers did not give SOVA or others any directives. The police simply walked forward, in contrast to earlier in the day when he had observed them giving orders for marchers to remain on the sidewalk. The police gave SOVA the impression and understanding that they were permitting and escorting the march across the bridge.

124. Plaintiff UMOH followed marchers to the Brooklyn Bridge. UMOH observed some marchers splitting towards the left and some towards the right. She was amidst the right side of the crowd and so she followed the marchers proceeding on the right, which happened to be on the roadway. As she entered the roadway UMOH, in the middle of a large crowd of people, did not see any police officers. She did not hear any police directives. Because of her position within the crowd, she observed only one officer on the bridge up until when she was about to be arrested. That officer did not give any directives or communicate in any way.

125. The police, having led and escorted hundreds of marchers upon the roadway of the Brooklyn Bridge, mid-way across the bridge arrested over seven hundred people for being present upon the bridge, precisely where the police had led them and permitted them to march.

126. Prior to terminating the march when it was mid-way across the bridge, the police did not convey that they were going to revoke the actual and apparent permission of the march to proceed.

127. Midway across the bridge, when the police stopped all forward movement of the march, an officer spoke inaudibly into a bullhorn that could not be heard mere feet away from the officer, given ambient noise.

128. Again, the NYPD knew no audible communication was given.

129. The plaintiff class was blocked from forward movement by the police.

130. The plaintiff class was ultimately prevented from moving backward as the NYPD prevented dispersal through the use of orange netting and police vehicles.

131. An officer at the front told named plaintiff REGAN, “leave or get arrested.” REGAN determined that there was no exit from the back because the police were blocking exit. She told the officer that they wanted to leave but that they were blocked on the back side too, and asked how they were to leave. The officer merely restated, “leave or get arrested.”

132. The NYPD’s actions were not only unconstitutional, they were dangerous. The NYPD’s actions put hundreds of persons in jeopardy of injury from forced compression of people with no avenue of escape, threat of injury from stampede, or being forced over the side of the bridge.

133. When the police action commenced and rippled back through the crowd, a completely peaceful demonstration was suddenly gripped with chaos and pandemonium. It is extremely fortunate that there was not mass injury from the NYPD’s dangerous actions.

134. The plaintiff class was then subject to a mass false arrest by the NYPD.

135. All of the officers or persons who participated in, or otherwise caused, the arrests of the plaintiffs or plaintiff class did so in disregard of their actual knowledge that the march had been permitted and led and escorted onto the roadway of the bridge.

136. The plaintiff class was handcuffed, taken into custody, processed and released through the night into the early morning hours.

137. At no time did the plaintiff class fail to obey a police order. At no time did the plaintiff class engage in disorderly conduct. At no time did the plaintiff class illegally block vehicular traffic on the Brooklyn Bridge, as the police had stopped vehicular traffic, opened up the roadway to pedestrian traffic, and themselves led and escorted the demonstration onto the roadway with police command officials at the lead. At no time did the plaintiff class engage in parading without a permit, as the march of several thousand was permitted to proceed and escorted by police throughout and there was never any notice to the class that such permission had been revoked.

138. The NYPD then engaged in a mass falsification of arrest documents in order to subject members of the plaintiff class to the injury of criminal process.

139. Each summons that was issued by a police officer to a class member includes the signature of a police officer who attests and signs beneath a line that states: “I personally observed the commission of the offense charged above. False statements made herein are punishable as a Class A misdemeanor pursuant to Section 210.45 of the Penal Law. Affirmed under penalty of perjury.”

140. For example, many of the summonses including Summons 433455474-0 issued to plaintiff BECKER, attest under penalty of perjury that the police officer observed the arrestee “Fail to Obey Lawful Order by PO” or similar. Yet the police officer observed no such issuance of a police order, let alone a failure to obey by the arrestee. Many of the “arresting” officers were, in fact, assigned to arrestees at a precinct or location other than the Brooklyn Bridge and did not see the class member engaged in any conduct at all, let alone conduct alleged to constitute an offense.

141. On information and belief, no officer has been disciplined for this practice or prosecuted for perjury, nor any supervisory officials who ordered or permitted the practice.

Continued Adverse Effects and Future Recurrence

142. The continued existence of the trap-and-arrest policy, practice and custom imposes an objective and substantial chilling effect on the exercise of free speech and assembly rights.

143. The continuation of the policies, practices and customs challenged herein places persons within the plaintiff class at risk for future false arrest should they continue to associate with protest and march activity in New York City. The risk presented by these practices is that a person - - no matter how law abiding his or her conduct - - is at risk for sudden and indiscriminate false arrest simply by virtue of being physically present near protest activity. The only way to be certain of avoiding false arrest is to avoid protest and march activities.

144. Members of the plaintiff class, who continue to engage in protest activities in connection with the ongoing Occupy movement or other demonstrations, are at genuine and immediate risk of being subject to false arrest in the future. The tactics complained of reflect a citywide practice, policy or custom of trapping and arresting groups of protesters. They are not the results of errant low level officers acting in violation of policy, but are the results of policy, practice or custom itself.

145. On information and belief, some number of the persons arrested in the October 1, 2011 mass false arrest had previously been arrested in prior trap-and-arrest executions, including those that occurred on September 24, 2011. With the persistent occurrence of ongoing Occupy-related marches and activities, there is a real and immediate threat of recurrence that will affect members within the class.

146. A person of reasonable firmness who wishes to engage in free speech and expressive activities is chilled in the exercise of those rights by this risk.

147. Members of the plaintiff class have been chilled, and suffer ongoing, continued, and objectively reasonable chilling of their free speech activities and will continue to suffer unless and until the indiscriminate trap-and-arrest tactics are ceased voluntarily by consent decree or through injunctive relief.

148. This chilling effect does not necessarily mean a complete termination of protest activities by those affected, but it does mean that ordinary people must curtail or limit their participation in First Amendment protected activities in order to avoid severe personal or professional or other repercussions/injuries from false arrest.

149. Persons exercising their First Amendment rights in New York City by engaging in demonstration activities cannot, by conforming their conduct to the law, avoid arrest where the NYPD is allowed to conduct mass trap and detain arrests.

150. Some members of the plaintiff class curtail their constitutionally protected free speech activities in order to avoid being subject again to false, sudden and indiscriminate arrest
without any fair notice or warning.

151. Plaintiffs allege such curtailment to constitute a continuing, adverse effect of the violations and tactics challenged herein.

152. Plaintiff CRICKMORE, who is married with a three year old son, has curtailed and limited his free speech activities. CRICKMORE, who previously participated in such activities jointly with his wife, now switches off with her as to who may exercise their First Amendment rights, for fear that if they attend a demonstration together and are subject to false arrest, their small child will be without care. CRICKMORE also now generally refrains from taking his son with him to such activities.

153. Plaintiff SOVA curtails his free speech activities. As a result of the ongoing, adverse effects of his arrest, and the threat of re-arrest, SOVA refrains from exercising his First Amendment rights through participation in protest activities during the work week for fear of being falsely arrested and missing work.

154. Plaintiff PEREZ curtails her free speech activities. She still engages in First Amendment protected activities, but is less active now in marches and protests. She cannot afford to get arrested and miss work. Having accepted an Adjournment in Contemplation of Dismissal from this arrest, she believes that if she is wrongly arrested again, she will suffer severe consequences including the reinstatement of the false charges against her in the October 1, 2011 arrest.

155. Plaintiff UMOH has, since the mass arrest, curtailed her participation in First Amendment protected protest activities due to fear of being arrested again while lawfully engaged in such activity, without notice or warning by police and without any misconduct on her part.

156. Other plaintiffs suffer adverse effects, or “organizing headwinds,” reflected in the increased effort needed to overcome others’ concerns that engaging in lawful peaceful protest activity places one at risk for arrest due to the indiscriminate arrest tactics described herein.

157. Plaintiff GARCIA is a New York City school teacher who must, herself, report her arrest to administrators. GARCIA is a faculty advisor and facilitator for a student group at her high school and has taken responsibility with the school and parents for facilitating student participation in civic engagements, including participating in peace rallies and other expressive activities, such as those opposing budget cuts in education. GARCIA must expend additional efforts to overcome parents’ and others’ concerns that such activities places students at risk due to the indiscriminate and sudden nature of the challenged mass arrest tactics.