New York Times
July 14, 2001
Policy of Jailing Protesters on Minor Crimes Is Revoked Lawsuits Claim Breach of First Amendment
By WILLIAM K. RASHBAUM
Facing two civil rights lawsuits, the New York Police Department yesterday rescinded a two-year-old policy under which people arrested for minor offenses at protests were jailed overnight rather than given summonses to appear in court later.
A lawyer who filed one of the lawsuits said that as many as 1,000 people may have been jailed under the policy. Both suits, filed in Manhattan federal court, argued that holding people overnight after such arrests violated their civil and constitutional rights because it treated demonstrators more harshly than others arrested for the same offenses.
Lawyers in both cases argued that the policy was intended to discourage people from exercising their First Amendment rights — a charge city officials denied.
"The unmistakable message that is sent by this policy is that people who demonstrate risk spending the night in jail because of their part in a demonstration," said Christopher Dunn, a lawyer for the New York Civil Liberties Union, which brought one of the lawsuits. "And I think what follows from that is that it is a clear effort to discourage people — and indeed punish people — from participating in demonstrations."
Jonathan C. Moore brought the other lawsuit, which seeks to represent everyone arrested under the policy as a class of plaintiffs. Mr. Moore praised the decision to withdraw the policy but said that people who were wrongly jailed should be compensated.
The Police Department yesterday referred inquiries about the change to the office of Corporation Counsel Michael D. Hess, who is defending the department and the city in the lawsuits. Daniel S. Connolly, special counsel to Mr. Hess, said the policy was intended to discourage crime, not lawful protest, and he denied that the change was an admission that the practice was unconstitutional.
He said the decision, which came after a review prompted by the lawsuits and was made by the Police Department in consultation with his office, was an effort at "balancing people's First Amendment rights with issues involving public safety."
Yesterday, the Police Department notified commanders of the change with a single-sentence message.
The policy was informally started in the spring of 1999 under former Commissioner Howard Safir, who is named in one of the lawsuits. At the time, daily protests over the shooting of Amadou Diallo choked the wide red brick plaza in front of police headquarters, where the chanting demonstrators became a fixture on newscasts. For reasons that remain unclear, the policy was not formalized until May 1, 2001, in a brief message to police commanders.
It represented a significant change in handling arrests at peaceful protests and demonstrations. In the past, those arrested for offenses like disorderly conduct and obstructing governmental administration, both misdemeanors, would get a summons, known as a desk appearance ticket, to appear in court at a later date.
Under the policy, no summonses or desk appearance tickets were to be issued for offenses committed at demonstrations or similar events with more than 20 participants.
Mr. Connolly said yesterday that the policy was developed by the "upper echelon" of the Police Department in 1999, at a time when there was a significant increase in civil disobedience around the city. But he said no particular incident, like the Diallo protests, had been the driving force. He said he was unaware of whether his office was consulted at the time.
Mr. Dunn, who filed a lawsuit May 30 on behalf of two people who he argued were improperly jailed, said that he began asking the corporation counsel's office about the policy last summer, but they provided him no information on it and would not even disclose its existence.
But Mr. Dunn, who said he believed the office was aware of the policy, in late May got a copy of the May 1 message from someone at the Police Department. During the discovery process after the lawsuit was filed, Mr. Dunn said, police officials said that there were no other documents related to the policy, something he said was very unusual in an agency in which policy matters are usually carefully set out in writing.
"I think it raises troubling questions about whether they realized all along that this policy was inappropriate and thought they would get away with it because no one knew about it," Mr. Dunn said.
In the meantime, he said, city lawyers indicated last week that they were willing to settle the lawsuit. Discussions have begun on the matter, and will now center on monetary damages to be paid to those who were wrongly held.
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