By Jared Chausow
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There is the possibility of another lawsuit by activists, however, which would accuse police of making questionable arrests to deal with demonstrators on yet another occasion.
On the morning of April 7, about 20 people purposely risked arrest by blocking the entrance to the midtown office of the Carlyle Group, a defense-industry investment firm with ties to the Bush administration, to dramatize their opposition to the war in Iraq. Across the street stood some 100 protesters who sought to support those engaging in civil disobedience through lawful means. According to a number of participants, those supporters kept to the sidewalk and left a path clear for pedestrians, as instructed by the First Amendment lawyers there to advise them.
Two of those lawyers told the Voice that a swarm of helmeted policeso many as to seem to outnumber the protestersabruptly surrounded the group of supporters. Spurning the participants and lawyers, who said the crowd was willing to disperse, police reportedly would not let anyone leave and arrested approximately 80 people, ranging from teens to seniors.
Mark Milano, a longtime organizer with ACT UP/NY, the direct-action AIDS activist group, says, "One of the cops said it was really a preemptive strike, that they thought the people across the street might break the law."
Several arrested that day say they were questioned while in custody about their political views and associations, but they were not read their rights or permitted to speak with lawyers. They complain of being held as long as 12 hours without counsel. On the outside, one attorney, Joel Kupferman, went so far as to draft a writ of habeas corpus, get it signed by a State Supreme Court judge, and submit it to police officials to get detainees access to lawyers, who had been trying to see them all day.
The NYPD's Collins said he lacked enough specific knowledge of the April 7 arrests to comment on them. But asked about the traditional practice of giving demonstrators notice and opportunity to disperse, he said, "We generally try to warn protesters that they are violating the law before arresting them. However, that can't always be done, if they're taking actions that pose an immediate risk." Activists in this case deny they were taking any such actions.
Many charged on April 7 are too angry to take the administrative dismissals that are often offered to resolve minor disorderly conduct charges and vow to fight their cases in court. At least two have gone to trial so far and been acquitted. Center for Constitutional Rights staff attorney Nancy Chang says the organization is seriously considering a class action suit against the city, pending the resolution of all the cases.
Still another battle to protect activists' rights targets the NYPD's use of its newly won power to investigate lawful political activity.
After September 11, the department claimed it needed that power to root out potential terrorists, who might masquerade as law-abiding New Yorkers. In March 2003 a federal judge agreed to radically weaken a long-standing ban, known as the Handschu agreement, on police investigations of lawful, constitutionally protected activitya remedy to the politically motivated FBI and police probes of the 1960s and 1970s.
Since then, hundreds of arrestees from various protests have reported being quizzed, some under duress, on their political views and group memberships. In April, it was revealed that a police intelligence officer had created a "demonstration debriefing form" and computer database to compile such information. Public outcry led the NYPD to destroy the forms and database.
But the scandal has prompted a team of civil rights lawyers to challenge the lifting of the old ban on political probes. "That change was based on concerns about investigating terrorism," says Martin Stolar, one of the attorneys. "Now we find out they used [the new powers] on low-level First Amendment protest." The lawyers, who won the original ban on political surveillance in 1985 in an activists' class action suit against the city, want internal police investigation guidelines to be made enforceable through the courts.
Political questioning "takes us back to the days of the old Red Squad, where police are keeping dossiers on noncriminal citizens," says Stolar. "If people know they'll end up in a police file, they won't participate in demonstrations." A judge is expected to rule soon.
Also pending are at least 70 individual grievances that protesters made this year to the Civilian Complaint Review Board, the independent agency that investigates NYPD misconduct. CCRB spokesperson Ray Patterson says the number of protest-related complaints is unusually high. With most, "excessive force was alleged, like use of horses."
A handful of individuals have filed their own civil suits against the city on protest-related claims.
The spate of complaints by activists may signal not necessarily that police tactics have become harsher, but that more people are being exposed to them.
Unjustified arrests and rough treatment were always to be found at anti-police-brutality rallies and events like Harlem's Million Youth March, claims activist Wol-san Liem. She and some 80 members of a racially diverse group were arrested this May during three days of planned civil disobedience, dubbed Operation Homeland Resistance. In shifts, they blocked the entrance to 26 Federal Plaza, which houses immigration authorities, in an effort to highlight "the war at home" against the undocumented.