A Tougher Policy on Protest
by Gail Robinson
Oct 09, 2007
The courts, though, have been less enthusiastic. Few cases have ended in conviction, and the city has had to pay out hundreds of thousands of dollars in damages with hundreds of additional cases pending.
The arrests at the convention represent only the most obvious sign of the city's increasingly tough line on protest. In the past several years, the city has denied permits, arrested protestors and stepped up its surveillance on political dissidents. While the policy comes from on high, police officials have had to defend and explain it, while individual cops have had to enforce it.
Some find the administration's stance hard to fathom. "This is a level-headed police department lead by a level-headed headed police commissioner. What in the world are they doing?" one civil liberties lawyer, Jethro Eisenstein, has said.
What they are doing, Bloomberg and Kelly would argue, is fighting terrorism. "We live in a more dangerous, constantly changing world, " Kelly has said in calling for more police powers to monitor anti-war activists, like alternative transportation advocates and Billionaires for Bush.
Giuliani and Bloomberg
Like their counterparts elsewhere in the nation, for much of their history the New York City police have taken a dim view of protest. Following what many saw as police abuses during the 1960s and 1970s, the courts and city officials put restrictions on police surveillance of political activity and on police conduct at protests. Dissenting political activity seemed, if not welcome, certainly tolerated.
But the official tolerance of protest faded during the Giuliani administration. Mayor Rudolph Giuliani limited access to City Hall plaza for press conferences and protests and restricted the movements of marchers at the 1998 "Million Youth March" in Harlem, where police confined protestors in pens, then stormed the stage to end the rally and buzzed the crowd with helicopters.
Time and time again, the courts stepped in to stop the administration from playing it fast and loose with the Constitution. Norman Siegel, a lawyer, later said he brought about 27 challenges against the Giuliani administration on First Amendment issues and won virtually all of them.
Failure of Civilian Oversight
The hardline stand continued into the Bloomberg administration, exacerbated by security concerns after the terror attacks of September 11, 2001. "The Bloomberg administration is less forgiving of dissent than the Giuliani administration, and I never thought I'd say that," Dan Perez, a lawyer who has represented protestors, said in 2004.
As people throughout the world prepared to protest the war in Iraq on Feb. 15, 2003, the police department, citing security concerns, denied New York demonstrators a permit to march by the United Nations. Instead, police directed demonstrators to block-long pens created with barricades. More than 250 people were arrested, many for trying to get to the rally. Others tried to leave but were prevented from doing so.
"The NYPD crackdown on peaceful protest that happened at the anti-war protests [in 2003] cannot be repeated at the convention," Christopher Dunn, associate legal director of the New York Civil Liberties Union, said at the time.
The GOP Convention
The Republican convention in New York City - the first one ever held in the city - brought out memories of the Democratic convention in Chicago in 1968, when the whole world watched police clash with and beat protestors on that city's streets. Clearly it was not a scene Mayor Michael Bloomberg wanted repeated - either for what it would do to the city's image or to the re-election prospects of President George W. Bush, who the mayor then supported. Law enforcement officials and others also feared the convention, attended by a who's who of GOP leaders, would provide a target for terrorists.
"The threat of terrorism is just about paramount in all of our thinking for all of these events," Chief of Department Joseph Esposito told reporters before the convention. "We'd have to be out of our minds not to have that as the paramount concern."
In response, the city strictly regulated access to the area around Madison Square Garden. It refused to allow a mass rally in Central Park the day before the opening gavel, saying the thousands of protesters, unlike, say, thousands of concert goers, would ruin the lawn. It set aside a pier to hold anyone arrested and mobilized all its resources.
Police arrested about 2,000 people during the convention. In one day - Aug. 31, 2004 - they rounded up about 1,100 protesters. Rather than being issued summonses and promptly released, hundreds were fingerprinted and detained for more than a day.
In some sense, the operation could be seen as a success. The events in New York in 2004 did not produce film footage like that from Chicago in 1968, nor did terrorists strike.
Demonstrators, their lawyers, journalists and others, however, quickly challenged the idea of the police operation as an unmitigated success. Eyewitness accounts, many backed up by videotapes, disputed police accounts of what happened on Manhattan streets. In the eight months following the convention, as many as 400 demonstrators had their cases dismissed as videotapes showed either that they had not committed the crime of which they were accused or that there was insufficient evidence of their guilt. As of this August, the city faced 605 lawsuits sparked from the arrests. It already had to settle 35 cases for a total price tag of $694,000.
The New York Civil Liberties Union filed suit, challenging three aspects of the city’s convention strategy: the mass arrests; the no summons policy, which resulted in the detention of many of those arrested; and the blanket fingerprinting. The city, according to Dunn, has already backed down on the fingerprinting, having said it destroyed the records. Now, the plaintiffs in the case await the release of thousands of pages of police department surveillance records. The federal courts have ordered their release, but the city has been slow to comply.
Protests on Wheels
While there haven't been demonstrations to rival the size of the RNC convention's in the past three years, the police have clashed repeatedly with Critical Mass, a monthly group bicycle ride. The city has sought to limit the ride, targeting cyclists and confiscating bikes. In the two years after the city first decided to crack down on Critical Mass - the impetus for the tough policy was apparently the GOP convention - it spent $1.3 million to suppress the activity, according to Times Up!, an environmental group associated with Critical Mass.
When judges expressed doubts over the city's strategy, the administration sought to change the rules on mass gatherings -- with Critical Mass in mind. After its first proposal was widely assailed for being so strict it might make it difficult for a group of friends to walk down the street, the city issued a new version, requiring any group of 50 or more people to get a permit before gathering. A judge ruled the city can use the rules to regulate Critical Mass - and they have. At the June ride, police arrested and handcuffed 15 cyclists. They were released quickly and received tickets, perhaps indicating that tensions between the city and the cyclists were abating.
Watching the Opposition
During the anti war and other protests of the 1960s and '70s, people organizing any kind of protest activity took it for granted that the police had an eye on them. At some demonstrations, protestors would even call out to those they believed to be undercover cops - the shoes were widely believed to be the giveaway.
That changed in the 1980s, though. In response to a class action suit, a judge set up a series of strict guidelines – known popularly as Handschu after the lead plaintiff – governing police oversight of political activity. In particular, police could not investigate political groups without “specific information” that they were planning a crime. These restrictions remained intact for decades, much to the irritation of some officers.
The terrorist attacks of September 11, 2001, provided the department with an opportunity to try to have the guidelines changed. In 2003, Federal Judge Charles Haight ruled that terrorism presented "dangers sufficient to outweigh any First Amendment cost." In response, Jim Dwyer of the Times reported in December 2005, police spied on people "protesting the Iraq war, bicycle riders taking part in mass rallies and even mourners at a street vigil for a cyclist killed in an accident." To mask their true identities, the police not only watched the events but participated in them, in some cases, protestors have charged, provoking trouble.
In February, Haight appeared to reverse himself, ruling that, once again, the police could not videotape people at a political event unless they seemed likely to break the law. Zeroing in on two events in 2005 — a march in Harlem and a demonstration by homeless people in front of Bloomberg's Upper East Side home — the judge said the city had little justification for taping the protests. There was, he said, “no reason to suspect or anticipate that unlawful or terrorist activity might occur,” he wrote, “or that pertinent information about or evidence of such activity might be obtained by filming the earnest faces of those concerned citizens.”
A few months, later, though, the judge changed direction again deciding that the people at the two protests may have been candidates for videotaping after all. New information, he said, indicated the demonstrations might have become “unruly.”
For its part, the Police Department considers surveillance a useful tactic and undoubtedly hopes the judge does not change his mind again. In memos involving a 2002 incident revealed under a court order and reported in the New York Times, police officials discussed how “proactive arrests” and surveillance helped avoid problems at a gathering of the World Economic Forum in the city in 2002. Paul Brown, deputy commissioner for public informatin, said that the event attracted “hard-core violent elements that were surveilled by the NYPD. Yes, we used surveillance techniques to track and hopefully disrupt violent elements. That’s proactive.”
Given that Handschu has been in the courts since 1971, it will no doubt remain there, subject to future twists and turns. The legal tug of war between the police and demonstrators and civil libertarians on an array of issues seems unlikely to end any time soon.
Dunn of the civil liberties union said his organization wants to ensure the city cannot repeat the tactics they used at the GOP convention. “The whole point of our case it to make sure the department doesn’t use these policies again,” he said.
The department under Bloomberg and Kelly shows little sign of backing down, though. Looking back on the events of 2004, Kelly recalled in a television interview that thousands of protesters came to New York City. In meeting up with the New York City Police Department, he said, “they met their match.”
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