The New York Civil Liberties Union today called upon New York City to curb aggressive tactics the NYPD has announced it will employ against demonstrators at this week’s World Economic Forum. In a letter sent to NYPD Commissioner Raymond Kelly and Corporation Counsel Michael Cardozo (see below), the NYCLU warned the City about selective enforcement of the law against demonstrators; about using acts of violence by small numbers of persons as a justification for cracking down on the vast majority of people who will be engaging in peaceful and lawful demonstrations; about arresting persons engaged in peaceful protest simply because they lack permits; about excessive enforcement of the no-mask law; and about the use of excessive force. A copy of the letter is attached.

NYCLU Executive Director Donna Lieberman said, “We recognize that the Police Department will face a significant challenge in handling this event, but it cannot lose sight of its legal obligation to respect and protect the rights of people to engage in peaceful and lawful demonstrations. The threat of unlawful conduct by some people cannot become a justification for a wholesale crackdown on the vast majority of people who will be here to demonstrate peacefully.”

Letter To NYPD Commissioner Raymond Kelly And Corporation Counsel Michael Cardozo:

By Facsimile

Raymond Kelly

Commissioner

New York City Police Department

1 Police Plaza

New York, N.Y. 10038

Michael Cardozo
Corporation Counsel
New York City Department of Law
59 Maiden Lane
New York, N.Y. 10038

Dear Commissioner Kelly and Corporation Counsel Cardozo,

At a recent meeting with the NYCLU, Michael Cardozo emphasized that the Administration of Mayor Bloomberg wanted there to be open communication between the City and the NYCLU about important civil-liberties issues, particularly those that might become the subject of litigation. In light of this representation, we write about public reports concerning tactics the Police Department apparently intends to employ with demonstrators at this week’s World Economic Forum.

At the outset, we recognize that this event raises the possibility that some individuals will be coming to New York City with the purpose of engaging in unlawful conduct. We of course do not condone such activity and that is not the concern of this letter.

Rather, our concern is for the vast majority of demonstrators who will be here in New York City to engage in wholly peaceful protest activity around the World Economic Forum. With respect to these demonstrators, we are troubled about positions the Department reportedly has taken and write with the hope that we can resolve some of these matters. Our specific concerns are as follows:

 

  1. Selective Enforcement of Laws and Regulations -- It has been reported that the NYPD will take a “zero tolerance” approach to demonstrators violating even minor laws, such as those concerning littering and jaywalking. Any selective enforcement of such rules for demonstrators would violate the First Amendment, and we would challenge it.

    As you may know, the NYCLU brought suit last May challenging an NYPD policy by which the Department was denying desk appearance tickets (DAT’s) to people if they were arrested at demonstrations. Shortly after we filed the suit, the City withdrew the policy, which we believe reflected an understanding that any policy singling out persons for punishment simply because of their participation in a demonstration would be unconstitutional. Selective enforcement of the law against demonstrators presents the same issue and would be similarly unconstitutional.

    As for the issue of DAT’s, we were informed yesterday by the Office of Corporation Counsel that the Police Department does not intend to reinstate the previously withdrawn policy at issue in the NYCLU case nor will it be adopting new policy that would result in demonstrators arrested during the WEF being denied DAT’s simply because of their involvement in a demonstration. We fully expect that the Department’s practice this week will not deviate from this commitment.

     

  2. NYPD Crackdown on Peaceful Demonstrators in Response to Unrelated Unlawful Activity -- Though we all of course hope that activity around the WEF is entirely peaceful, it is reasonable to expect that some individuals deliberately may engage in violent actions. Our concern is that the Department not use isolated actions of this nature as a pretext or justification for cracking down on the vast majority of persons who will be engaged in entirely peaceful activity. While we do not underestimate the difficult situation presented to the Department by this event, we believe the Department must make a clear, public commitment to respecting and protecting the rights of peaceful demonstrators.

     

  3. Responding to those Engaging in Peaceful Activity Who Do Not Have Permits -- Because so many demonstrators may be coming to this event from out of town, it is completely predictable that many WEF demonstrators will be unfamiliar with New York City permit requirements and will be engaging in entirely peaceful activity -- such as using bullhorns or gathering on Parks Department property in groups of more than 20 -- for which they will not have permits either out of ignorance or out of a lack of opportunity to secure them. We believe that it would be a serious mistake for the Department to respond to such activity with arrests. Rather, the Department should be prepared to make every reasonable effort to accommodate these activities, either by allowing them to take place without permits or by creating a process by which permits can be issued on the spot. (The NYCLU would be prepared to play a role in such a process, if that would be helpful.)

     

  4. Enforcement of No-Mask Law -- There has been considerable press recently concerning the Department’s intention to arrest persons wearing masks at the WEF demonstrations. As you may be aware, the NYCLU and the City are currently engaged in litigation over the constitutionality of the mask law, which we believe cannot be applied to peaceful demonstrators consistent with the First Amendment protection of anonymous and symbolic speech. This position was confirmed by a January 2001 decision in a separate case in New York City Criminal Court in People v. Aboaf, 721 N.Y.S.2d 725 (2001). While we acknowledge that individuals can be arrested if they engage in unlawful conduct and wear masks to evade apprehension, it is our position that it would be unconstitutional to arrest a person in advance of an anticipated political demonstration without any basis to believe that that individual will engage in illegal conduct.

    Beyond the issue of the scope of the law, we urge the Police Department to exercise restraint and commonsense in its enforcement of the law. Given the fact that many demonstrators may be wholly unaware of the law and given that many demonstrators may be wearing for innocuous reasons items that the Department may consider to be masks (e.g. puppet heads), we ask that the Department commit first to notifying people about the law rather than simply arresting them on the spot.

     

  5. Avoiding the Use of Excessive Force -- We understand and appreciate the NYPD’s need to take all reasonable measures to avert and respond to violence. We urge, however, that the NYPD also take every reasonable effort to ensure that officers not resort to excessive force in responding to unlawful activity. And in this respect it is essential that the Department appreciate that some demonstrators may engage in time-honored, peaceful civil disobedience (such as sitting in public passageways) for which only modest measures are necessary and justified.

We would like to meet with appropriate members of the NYPD and the Law Department as soon as possible to discuss these matters. We look forward to hearing from you.

Sincerely,

Christopher Dunn
Senior Staff Attorney

Donna Lieberman
Executive Director

Arthur Eisenberg
Legal Director

c: Honorable Michael R. Bloomberg