(Credit: Reuters/Jessica Rinaldi) – via Salon.com
For the second time in as many days, the Constitution tallied a remarkable victory in the Southern District of New York yesterday as Judge JED S. RAKOFF denied a motion to dismiss the class action filed by Occupy Wall Street protesters against the NYPD after 700 were arrested on the Brooklyn Bridge on Oct. 1 of last year in one of the biggest mass protests in the history of this country.
Although Judge Rakoff dismissed claims against Bloomberg and Kelley, claims against all NYPD officers acting that day have been given the seal of approval to continue. Generally speaking, these “preliminary” victories are extremely decisive in class action lawsuits, as they force defendants, particularly municipalities, to settle claims without going to trial. This is the case with the Brooklyn Bridge class action as Judge Rakoff found that the NYPD had violated the protesters 1st and 4th (by way of the 14th) Amendment Rights under the Constitution by condoning their permit-less march and arresting protesters without giving them “fair warning” that their activities were no longer legal and would be subject to arrest.
The NYPD had maintained that it’s feeble, at best, attempt to order the dispersal of the over 4,000 person march (which your writer was a part of) before they turned around and led the march onto the bridge, constituted an order that was unlawfully disobeyed. Judge Rakoff, based on video evidence, flatly rejected these generic excuses:
A reasonable officer in the noisy environment defendants occupied would have known that a single bull
horn could not reasonably communicate a message to 700 demonstrators. Furthermore, a reasonable officer would have known that those who did not hear any warning might infer permission to enter the vehicular roadway from the fact tha t officers, without offering further warnings, proceeded ahead of and alongside plaintiffs onto that roadway.
Furthermore, the Judge found that whether or not the police orchestrated a charade, or bait and trap scenario is of little consequence:
what motivated the officers to retreat from their position at the entrance to the vehicular roadway does not matter . The officers putatively violated the First and Fourth Amendments when, having maintained their control over a peaceful demonstration, they imposed the serious sanction of arrest on many who, while attempting to exercise their First Amendment rights, never received fair notice that the officers had prohibited their conduct.
Judge Rakoff’s finding that protesters had proved, preliminarily, that the NYPD acted unreasonably is categorically a huge victory against the NYPD and recent activity in the S.D.N.Y. should be commended by all rights activists.
Full Opinion here (very good read for Activists & Con Law Scholars alike)