Protesters Losing For Winning

The point to protesting is to protest. To the extent there’s any efficacy to protesting, it depends on timing, and if the protest was directed to the Republican National Convention in New York City, the time would be when the convention was happening.  This seems to have gotten lost in the sauce of SDNY District Court Judge Richard Sullivan’s decision, which would otherwise have been a victory for protesters.

From the New York Times :



The judge, Richard J. Sullivan of Federal District Court, said that the city had lacked the required probable cause because the police were unaware of whether each individual protester had broken the law.

“An individual’s participation in a lawbreaking group may, in appropriate circumstances, be strong circumstantial evidence of that individual’s own illegal conduct,” the judge wrote in a 32-page opinion. “But, no matter the circumstances,” he added, “an arresting officer must believe that every individual arrested personally violated the law. Nothing short of such a finding can justify arrest. The Fourth Amendment does not recognize guilt by association.”


The decision in  Dinler v. City of New York consolidates 1983 actions filed after the 2004 convention at Madison Square Garden where police made mass roundups of people protesters, bystanders and journalists, to clear the areas, already far away from MSG so no person attending the convention would ever have to actually be annoyed by a protester, 

The City argued for “group probable cause,” conceding that there was no individualized probable cause for arrest, rejected based upon videos showing that there was no discrete group of people violating the law, but rather a sweep of everyone without regard to what  role, if any, they played, Judge Sullivan concluded that the police efforts to distinguish those individuals for whom probable cause existed from “innocent bystanders” was inadequate, and denied qualified immunity.

But the mass arrests for purported trivial offenses didn’t lead to the protesters being given summons, but full-blown arrests and fingerprinting.  In advance of the protests, the NYPD had decided to initiate a policy of clearing the streets at the first opportunity.


In response to the perceived threats of mass disorder, the City adopted the “No-Summons Policy,” which suspended the City’s ordinary policy of issuing summonses for violations,10 and the “Fingerprinting Policy,” which required fingerprinting of all persons arrested for RNC-related criminal activity (collectively, the “Policies”). Both represented a departure from ordinary practices, under which an officer who had probable cause to believe that an individual had committed a violation would merely issue a summons if the individual presented valid identification and had no outstanding warrants.

This, Judge Sullivan held, was fine.



The judge found that the no-summons policy passed constitutional muster because it was a response “to a threat derived from intelligence sources — namely, that demonstrators aimed to ‘shut down the City of New York and the R.N.C.’ through ‘continuous unlawful behavior,’ ” and that they “would be undeterred by the issuance of summonses.” He added that the policy “was in place only for the brief duration the threat existed.”


The ruling “validates two city policies the plaintiffs have spent almost five years exclusively litigating — to fingerprint arrestees and not to issue summonses,” Mr. Farrell said. “The court upheld these policies under the most exacting judicial scrutiny possible, finding them constitutional and warranted in light of the threats the city faced during the R.N.C.


The City argued that its policy didn’t freeze First Amendment rights because it was only targets at unlawful conduct. Judge Sullivan rejected this, noting that it was the combination of unlawful conduct plus RNC directed protest that gave rise to the special policy, and held that the policy, to pass constitutional muster, was subject to strict scrutiny.

And, he held, it did.  Because 9/11 changed everything.



Perhaps it is a feature of the post-9/11 age that people forget the dire consequences that can flow even from unlawful demonstrations, but it takes watching only a few moments of the video of the East 16th Street protest to see that no ambulance or fire truck could have gotten through that crowd of dancers, marchers, and instrument-wielding musicians. Writ large, the chaos on East 16th Street could have paralyzed the City and denied its residents access to the emergency services on which lives depend. The protestors simply had no right to hold ambulances, cabs, and commuters hostage by staging an impromptu parade in the middle of Manhattan.


Accordingly, the Court finds that the No-Summons Policy was narrowly tailored to address the unique challenges associated with hosting a four-day national political convention.


After all, how else could the police have assured that terrorism wouldn’t take over the city?  There was no alternative, according to Judge Sullivan, but to take them protesters and bystanders alike, en masse, off the streets. In his estimation, what stronger need to undermine constitutional rights could be needed than to prevent generalized threats of potential terrorism. As for fingerprinting, Judge Sullivan just didn’t see it as a big deal under the circumstances.

While no doubt the people arrested for “group probable cause” are happier than they would be otherwise, the decision effectively rewards the police for making the protests disappear, which of course was ultimately the point of the police action.  There is no large protest that doesn’t include someone jaywalking, or not complying with police orders to walk two by two. Mass action never seems to be as orderly as the police would like.

So the protesters, after having been removed from the streets, thrown into holding cells, fingerprinted and brought to arraignment can beat the disorderly conduct rap?  Well, that’s nice, but in the meantime, they could have accomplished the same thing by never protesting in the first place, and sitting at home in front of the telly shouting epithets at RNC delegates, since physically showing up for the protest isn’t going to do them any good after this decision.

The problem isn’t the conviction, though it’s better not to be convicted when there is no individualized basis to suggest anyone committed a crime, but that this decision authorizes the clearing of the streets first and a dismissal later.  If only huge numbers of feral protesters could conduct themselves in a way that pleased the police and didn’t embarrass the city. But since pleasing the police isn’t a core value of protesting, this decision would effectively allow the police to shut down protests at will, even if they can’t convict the protesters. 

Four years after the RNC protests, the rights of the protesters are vindicated. And the right to protest is dead.










One comment on “Protesters Losing For Winning

  1. Jordan Rushie

    “Perhaps it is a feature of the post-9/11 age that people forget the dire consequences that can flow even from unlawful demonstrations”

    The 9/11 exception to the Constitution.

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