PRIOR EXECUTIONS OF UNCONSTITUTIONAL MASS PROTEST ARRESTS USING TACTICS CHALLENGED HEREIN

180. The policies, practices and customs challenged herein are an outgrowth of the “Disorder
Control Guidelines” that were issued by Police Commissioner KELLY in the political
aftermath of the Crown Heights riots in 1991.

181. In November, 1993, Police Commissioner Raymond W. Kelly released the NYPD’s
Disorder Control Guidelines, which to this day constitute the “playbook” the NYPD has used
with little distinction between response to violent riots or peaceful free speech assembly.

182. The use of orange mesh netting to trap and arrest protesters and engage in indiscriminate
mass arrests in the absence of individualized probable cause, was initiated as part of
Commissioner KELLY’s NYPD Disorder Control Guidelines and practice.

183. The City, under Commissioner KELLY and Mayor BLOOMBERG, has repeatedly
deployed police ostensibly engaged in “disorder control” to execute mass arrests of peaceful
protesters, indiscriminately, in the absence of individualized probable cause, and without fair
notice, warnings or orders to disperse to those subject to arrest.

184. On April 7, 2003, the NYPD conducted a mass arrest of demonstrators who were
standing on a midtown sidewalk during a protest against the invasion of Iraq across the street
from the offices of the Carlyle Group. Without warning or notice or cause, police surrounded
the protesters and passers-by who happened to be walking on the same sidewalk, and without
giving a directive or providing opportunity to disperse or comply with any directive the
police indiscriminately arrested everyone trapped within the police line cordon. Kunstler v.
City of New York, Civil Action No. 03-CV-02819-RWS, Southern District of New York (filed
February 11, 2004, terminated August 22, 2008).

185. Multiple executions of the trap-and-arrest and indiscriminate tactics were perpetrated under
the auspices of defendants KELLY and BLOOMBERG in connection with the 2004 Republican
National Convention in New York City. According to the New York Times, 1,806 persons were
arrested in connection with RNC protests, and “[c]harges were ultimately dropped against 90
percent of them.” Jim Dwyer, City Fights Efforts to Release 2004 Convention Arrest Records,
N.Y. Times, Dec. 13, 2006, at B2; Jim Dwyer, Videos Challenge Hundreds of Convention
Arrests, N.Y. Times, Apr. 12, 2005, at A1. These trap-and-arrests occurred at multiple times and
locations. MacNamara v. City of N.Y., 275 F.R.D. 125 (S.D.N.Y. 2011).

186. In one RNC-related mass arrest, the Manhattan district attorney’s office admitted it could not
prosecute cases against 227 protesters. In a statement to the Court, Assistant District Attorney
William Beesch admitted “The police likely created the impression among the participants that
the march [which lacked an advance written permit] had official sanction.” Sabrina Tavernise,
Prosecutors Won’t Pursue Case of 227 in Disputed Protest, N.Y. Times, Oct. 7, 2004, at B2.

187. KELLY continued to ratify the arrest tactics notwithstanding.

188. Front page news stories in national newspapers reported harsh criticism of the NYPD’s
indiscriminate mass arrests of protest groups made without fair notice or warnings and in the
absence of individualized probable cause.

189. BLOOMBERG has approved or ratified, or in the alternate has knowingly tolerated, the
indiscriminate mass false arrest of groups of protesters in the absence of individualized
probable cause.

190. On his weekly WABC news show, BLOOMBERG justified indiscriminate arrests and
stated, “If you go to where people are protesting and don’t want to be part of the protest,
you’re always going to run the risk that maybe you’ll get tied up with it.” Michael Powell
and Michelle Garcia, Arrests at GOP Convention Are Criticized: Many in N.Y. Released
Without Facing Charges, The Wash. Post, Sept. 20, 2004, at A1.

191. Commissioner KELLY has explicitly ratified and defended the mass false arrests of the
NYPD, even in response to a Civilian Complaint Review Board letter which sharply
criticized police conduct in connection with two specific RNC mass arrests and which
specifically recommended additional training for officers. KELLY ratified the arrests stating,
“[T]he implication that the N.Y.P.D. failed during the R.N.C. turns truth on its head.”
KELLY stated “The policing of the R.N.C. was one of the Police Department’s finest hours.”
According to the New York Times, referring to the RNC protest arrests, KELLY stated that
the police are not obligated to give warnings before arrests. See Al Baker, 2 Top Officers Are
Criticized for ’04 Arrests, N.Y. Times, May 10, 2006, at B5.

192. One week prior to the October 1, 2011 mass arrest, on September 24, 2011, the NYPD
implemented the indiscriminate trap-and-arrest tactic in connection with an Occupy-related
march to Union Square.

193. At the intersection of 12th & University Place, there was an incident involving police
throwing protesters to the ground, striking and arresting multiple individuals. The NYPD
used orange netting to trap indiscriminately persons who were in the vicinity, specifically
including those who were lawfully and peaceably on the sidewalk. Without warning or
notice, the police surrounded those on the south sidewalk and arrested the entire group of 30
– 40 persons in the absence of probable cause.

194. On information and belief, additional incidents of prior uses of the challenged tactics in
the context of mass protest arrests may exist and will be determined within discovery.

195. Defendants KELLY and BLOOMBERG and the CITY OF NEW YORK have adopted
the trap-and-arrest tactic and other or related policies, practices and customs challenged
herein in order to disrupt targeted protest actions, to sweep the sidewalks and public ways of
targeted protest actions, to demoralize and chill targeted protests and free speech activities.

196. In the alternative, defendants KELLY and BLOOMBERG and the CITY OF NEW
YORK knew or should have know of the unconstitutional policies, practices and customs
challenged herein and have failed and refused to take corrective action, thereby perpetrating
their continued existence and mass violation of constitutional rights.

197. Defendants KELLY, BLOOMBERG and the CITY OF NEW YORK have known, or
should have known, of these unconstitutional policies, practices or customs as a consequence
of complaints (including but not limited to multiple civil lawsuits) asserting constitutional
violations in the context of protest activity; from the occurrence of over 1,800 incidents of
arrests in connection with the 2004 RNC alone, over 90% of which resulted in dismissals or
acquittals; from the millions of dollars in compensation that the City has paid in resolution of
such complaints that have been resolved by settlement; from the ordinary after-action review
and reporting of police conduct after mass demonstrations; from the major national news
media articles or stories that have reported on the indiscriminate mass arrest tactics of the
NYPD; and from other sources of information and communication.

198. Defendant KELLY is responsible for the NYPD’s “disorder control” practices, including
those challenged herein.

199. On information and belief, KELLY tacitly or explicitly participated in, approved and/or
ratified the conduct of the October 1, 2011 mass arrest.

200. In the alternate, KELLY was grossly negligent in monitoring the conduct of subordinates
in the mass arrest.

201. On information and belief, KELLY was in communication with subordinates regarding
the march as it progressed, including the police response.

202. KELLY possessed the authority to, but did not cease the mass arrests or cause the release
of arrestees.

203. On information and belief, Defendant BLOOMBERG considers the conduct of the
NYPD in response to First Amendment protected assemblies to be a fundamental
characteristic of his administration, and he approves of the use of the police to engage in the
mass arrests as described and challenged herein.

204. BLOOMBERG actively participates in the management of the NYPD to ensure it
functions in the manner in which he intends. “I have my own army in the NYPD, which is
the seventh largest army in the world,” stated BLOOMBERG on November 29, 2011.

205. With respect to the Saturday, October 1, 2011 mass arrest, on the immediately following
Sunday, Mayor BLOOMBERG ratified the mass arrest of the plaintiff class stating, “The
police did exactly what they were supposed to do.” Mosi Secret, Police, Too, Release Videos
of Brooklyn Bridge Arrests, N.Y. Times, Oct. 3, 2011, at A22.

206. On information and belief, BLOOMBERG issued his October 2, 2011 ratification of the
plaintiffs’ mass arrest only after he had satisfied himself that he had reviewed and possessed
sufficient information for him to issue such an after-the-fact ratification on an informed and
knowledgeable basis.

207. On December 6, 2011, Congressman Jerrold Nadler, the Ranking Member of the House
Judiciary Committee’s Subcommittee on the Constitution, as well as the representative of
Lower Manhattan, sent a letter to Attorney General Eric Holder specifically citing the
Brooklyn Bridge mass arrest among three incidents that “are worthy of investigation.” Rep.
Nadler requested the Department of Justice investigate whether the “unlawful targeting of
individuals based in their participation in constitutionally protected activities, occurred.”

208. Nadler wrote “many of the marchers allege that they were under the impression that the
march was a lawful one, that they observed officers directing them onto the bridge, and that
they never heard warnings that they would be subject to arrest.” Nadler requested:

“I urge you to determine whether these actions constituted a deprivation of rights
under color of law in violation of 18 U.S.C. §§241 and 242, whether the NYPD
engaged in a pattern or practice of conduct that deprived individuals of
rights protected by the Constitution or laws of the United States in violation of
42 U.S.C. § 14141, and what can be done to prevent similar actions that violate
people’s civil and constitutional rights under color of law in these and similar
situations.”

Dec. 6, 2011 Letter from Rep. Nadler to Attorney General Holder (emphasis added).

209. KELLY and BLOOMBERG rejected the call for such investigation, again approving and
ratifying the conduct at bar and rejecting corrective action or even outside review.

210. Mayor BLOOMBERG called the request for investigation “ridiculous.”

211. On December 7, 2011, NYPD spokesperson Paul Browne, presumably with the approval
of Commissioner KELLY, ratified and defended the Brooklyn Bridge arrests as warranted.

212. As a direct and proximate result of the acts or omissions of the defendants identified in
this complaint and the other unidentified persons acting jointly, each of the plaintiffs has
suffered monetary and non-monetary harm, including deprivation of constitutional rights
under the First and Fourth Amendments to the U.S. Constitution and the Due Process Clause,
loss of liberty and related suffering and harm, and violation of state and common law rights
to be free of unlawful arrest and false imprisonment.