S.D.N.Y., Index Nos. 03 Civ. 9162, 9163 and 9164 (RWS) (direct)
These cases challenged practices and policing tactics used by the NYPD at large public demonstrations.
During a February 15, 2003 demonstration against military action in Iraq, Jeremiah Gutman, Ann Stauber, and Jeremy Conrad were a few of the many demonstrators whose person and/or property were harmed as the result of controversial practices on the part of the NYPD.
On November 19, 2003 the NYCLU filed these three cases on their behalf, challenging a series of NYPD practices used to police large demonstrations that were expected to be used at the 2004 Republican National Convention. The specific practices that were targeted by the NYCLU suit were: (1) the use of pens made of interlocking metal barricades to confine demonstrators in fixed locations; (2) the failure to train adequately the NYPD’s mounted police, which, in the past, has used horses for crowd-control in such a way as to expose individuals to serious bodily injury; (3) the searching of the bags and possessions of people seeking to attend demonstrations and being forced to enter NYPD pens; and (4) the prolonged detention in vans without access to food, water or bathroom facilities of demonstrators charged with minor offenses.
On June 2, 2004, the NYCLU moved for a preliminary injunction. In addition to damage claims for injunctive relief, the suit also sought damages in two of the cases (Gutman and Stauber). Complaints regarding only the first three practices listed above were included in the motion. The city moved simultaneously to dismiss the plaintiffs’ claims for injunctive relief and damages.
On July 16, 2004, the District Court granted the NYCLU’s claim for injunctive relief with respect to the use of pens on First Amendment grounds, and with respect to the bag search policy on Fourth Amendment grounds. The court noted that less intrusive searches, such as those involving magnetometers, did not fall within the scope of the injunction. The NYCLU’s claim for relief with respect to the use of horses by the Mounted Unit was denied for lack of standing.
The city filed a notice of appeal on August 6, 2004. However, it did not seek any emergency relief from the Second Circuit, which means that the District Court’s order remained in place for the Convention and the November 2004 elections.
The NYPD and NYCLU announced a settlement in April 2008 that replaced the temporary court order with formal policies, which require the following:
• When the police close any sidewalks or roadways leading to a protest, the Department will issue access information to organizers, the public and the press; officers assigned to the protest will be given detailed instructions about street closings and points of access; and officers on the scene are required to provide access information to those seeking to attend the protest. Bullhorns and sound equipment will be made available for officers to communicate this information on the scene.
• When the police use “pens” at protests, protesters must be allowed to leave them “at any time” and the pens must have sufficient openings so protesters can leave expeditiously and also return to the event.
• When the police intend to use the Mounted Unit to disperse protesters, they must ensure that “a crowd or group to be dispersed has sufficient avenues of escape and/or retreat available to them and has had a reasonable chance to disperse.”
Attorneys involved in this case include Chris Dunn and the NYU Civil Rights Clinic.