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New York City Criminalizes Protests in the Context of Occupy Wall Street

JURIST Guest Columnist Emi MacLean, human rights attorney, argues that New York City has effectively criminalized protests by the actions taken against Occupy Wall Street since September 2011...

On July 25, 2012, the Protest and Assembly Rights Project — a coalition of law school clinics — published the first in a series of reports on the state response to the Occupy Wall Street protests. Suppressing Protest: Human Rights Violations in the Police Response to Occupy Wall Street [PDF] focuses on New York City's response to the Occupy protests from their emergence in September 2011 until July 2012. The study compiles reports of repeated excessive or unnecessary use of force by the police, massive and continuous over-policing, poor communication during the policing of public demonstrations, obstruction of press freedoms, interference of independent legal monitoring, constant police surveillance, unjustified restrictions on the ability of individuals to peacefully assemble in public spaces, arbitrary rule enforcement and accountability and transparency failures.

Suppressing Protest demonstrates how police and city authorities in New York regularly apply laws, rules, and aggressive police use of force to arrest and disperse peaceful protests. Together, the facts indicate a pattern of the excessive use of state power to chill free speech and suppress peaceful protest. The use of force has been a ubiquitous and deeply disturbing feature of the New York City Police Department's (NYPD) strategy for the policing of public demonstrations. A table listing 130 incidents of alleged excessive use of force by police is included as an appendix to Suppressing Protest.

However, equally troubling, and less often discussed, is the sustained use of state power to deter peaceful protesters through over-policing, a zero tolerance approach to minor violations of city ordinances and the imposition of a shifting battery of unspecified "rules." This is done in a way that is at once regular and unpredictable. Occupy Wall Street protest events have been consistently marked by the presence of a disproportionately large number of police, sometimes in numbers larger than the number of protesters attending the event. Police have monitored virtually all Occupy-related events, including small "teach-ins" held by professors in parks.

Police from the NYPD's surveillance and counter-terrorism units have frequently been present, even at entirely peaceful protest marches and the video surveillance of protesters is omnipresent. There are also various reported instances of police interrogations of protesters arrested or detained outside of the context of protests — with the interrogations in some cases delving into the protesters' engagement in protected speech and assembly. One protester described these interrogations as unsettling: "Even if you're not doing anything wrong, we're watching."

Further, the protest events have been marked by seemingly arbitrary — and relentless — decisions to forcibly clear protesters from public space, often with the threat of arrest or actual arrest. During protest events, police repeatedly have declared public spaces, including parks and sidewalks, to be closed, frozen, or otherwise inaccessible, for no apparent reason other than to end the protest.

In one of the many examples of the NYPD's arbitrary and shifting orders for the closure of public space cited in the report, the NYPD forcibly dispersed approximately twenty singing and chanting protesters earlier this month from a public sidewalk. Officers mobilized and ordered the sidewalk fully "closed," citing protester safety and pedestrian traffic as justification, although there were no evident public order concerns and the protesters were the only pedestrians present. During a protest to mark the six-month anniversary of the Occupy Wall Street protests, police again cleared protesters from the park from which the City had famously evicted them in a midnight raid three months prior making 70 arrests. Following the forced closure, the police and security again placed a ring of barricades around the park and proceeded to evacuate people from surrounding streets by force, arrest, and the threat of arrest. "The sidewalk is closed," began the familiar command: "Move."

Anyone remaining in the spaces declared "closed," or "frozen," is subject to arrest. Protesters at peaceful marches are also continually arrested for such violations as stepping off the sidewalk into the street. They are then charged with "obstructing vehicular traffic," even where there is no visible indication that vehicular traffic of any kind has been affected.

The most common charge following the more than 2000 New York City arrests in connection with Occupy Wall Street is "disorderly conduct." The disorderly conduct: blocking vehicular or pedestrian traffic or violating a police order to follow a rule.

Relatedly, police have invented "rules" on the spot, and then threatened to arrest anyone violating the newly-created prohibition. At various times, the NYPD and private security have denied entry to Zuccotti Park to "[t]hose carrying backpacks and large amounts of food," people with musical instruments, books, or chairs, or those who refused to permit a bag search.

On the first night that barricades were removed from the park, nearly two months after the eviction, the police arrested at least two protesters for lying down inside the park and "guards and a police commander ripped pieces of cardboard from the grasp of protesters," asserting that it was prohibited "padding." And just last month, at least 40 officers were deployed to force a 56-year-old woman from the park because she was sitting in a folding chair, apparently against the rules. A protester attempting to assist her in removing her things was then violently arrested, and an individual videotaping the incident was also arrested. In light of such incidents, a chant of "I get confused / when the law / changes every day" sometimes replaces the mainstay, "we are / the 99 percent."

It is impossible to overstate the chilling effect on speech produced by the NYPD's tactics. In interviews with dozens of Occupy participants, journalists, legal observers, lawyers, and others, interviewees expressed fear of the police and a hesitation to participate in future protest activity because of the unpredictable and aggressive nature of the police response. Many of the people we interviewed said that they felt the police could do whatever they wanted to protesters, with complete impunity.

This repeated exercise of police power to disperse peaceful protests in the context of Occupy Wall Street exists against a backdrop of egregious NYPD surveillance of non-violent activists and Muslim communities, and the overwhelming use of stop-and-frisk disproportionately targeting minority youth, among other policing concerns. Suppressing Protest urges an independent review of New York City's response to the protests, accountability, a public rights-based protest policing policy, and the creation of an independent Inspector-General with oversight of the City's policing practices.

Protests are clearly protected forms of expression and assembly under international and US law. Peaceful protests are foundational to a healthy democracy, enabling people to express dissent, hold governments to account, and press for reform. States have a legal obligation not to interfere with assembly and expression rights, and also a positive duty to protect these rights. Creating an environment in which people are too afraid of arbitrary or violent state action to exercise their rights equates to depriving them of those rights.

Emi MacLean is a human rights lawyer and Co-Author of Suppressing Protest: Human Rights Violations in the Police Response to Occupy Wall Street.

Suggested citation: Emi MacLean, New York City Criminalizes Protests in the Context of Occupy Wall Street, JURIST - Sidebar, Aug. 30, 2012 http://jurist.org/sidebar/2012/08/emi-maclean-nypd-occupy.php .

This article was prepared for publication by Jordan Barry, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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