Transport Workers Union Denied Injunction Against City's Use of Bus Drivers to Transport Arrested Protesters; Suit Not Dismissed
TWU 100 President John Samuelsen visiting OWS
Today the Transport Workers Union, which last week voted unanimously in support of Occupy Wall Street, went to court to fight against the city's use of city bus drivers to transport arrested protesters. Following the Brooklyn Bridge arrests on Saturday, the Union said the NYPD had commandeered numerous MTA buses to transport many of the 700 demonstrators arrested, and that ordering bus drivers to drive arrested protesters was, per Union President John Samuelsen, "a blatant act of political retaliation." The TWU was in court today with their attorney Arthur Schwartz to request a temporary restraining order and a permanent injunction forbidding the involuntary use, by the NYPD, of New York City Bus Operators to transport prisoners. The request was denied by a federal district judge sitting on the U.S. Southern District Court.
TWU 100 posted on their Facebook page,
BREAKING: The federal court declines to issue injunction against commandeering of MTA bus drivers to ferry arrested Occupy Wall St. protesters. We maintain the demonstrators were using 1st Amendment freedom of assembly & speech, and that our drivers' 4th Amendment rights were violated. We intend to use our 1st Amendment freedoms to speak and assemble in a march to support of Occupy Wall St. tomorrow, 4:30pm.
TWU Spokesman Jim Gannon issued a statement he described as the union's perspective of what happened. Below is an excerpt:
After hearing oral argument for 90 minutes [Judge Paul A. Engelmayer] read his decision from the bench at 1:30, denying the Union's petition on three grounds. First, Judge Engelmayer found that the Union lacked standing to sue on behalf of members who may have had their constitutional rights abridged. He said that there was no injury to the Union itself. Second, the Judge said that it was "highly speculative that the conduct that [the union] foresees tomorrow [Wednesday, October 5] will occur." He noted that what occurred last Saturday was "the first time in memory" that New York City Transit buses were commandeered to process arrested demonstrators, and that "there is no reason to expect the NYPD to turn to the Transit Authority for assistance."
Turning to what the merits of the case, the Judge said that he did not believe that what NYPD requested from NYCT Bus Operators was unreasonable. He said than an employee "ordinarily consents to a significant restriction in freedom of movement," and that attorneys for the Transit Authority had produced a document indicating that "Bus Operators are on notice that their buses may be commandeered" by police, and that this is "within the scope of their job responsibilities." He said that both "police and transit employees have a common duty to assist and insure public safety." He also cited the New York State penal law, that says every citizen has a duty to assist the Police Department "when reasonably requested to do so. "The Court cannot find that the Bus Operators have a constitutionally protected liberty interest that is likely to be violated," he added.
For his third reason in denying the request, Judge Engelmayer said that the scope of the injunction sought by the union was "sweepingly broad," and would have stopped the NYPD from "ever requiring Bus Operators to transport demonstrators that have been arrested." He said that a large demonstration might become a riot and the Police Department "might reasonably require the Transit Authority's assistance."
But Judge Engelmayer did not dismiss the suit, scheduling a conference between the opposing sides for November 1 at 11 AM in his courtroom.
Local 100 President John Samuelsen said of the decision: "TWU Local 100 respectfully disagrees with the Judge's findings and conclusions, and asserts our right to continue our legal challenges to the practice of compelling Bus Operators represented by Local 100 to assist in transporting prisoners. We also bring attention to the numerous safety considerations that have been raised by Saturday's incident, including the requirement for drivers to back off the Brooklyn Bridge amid foot and cycle traffic. Local 100 Bus Operators are advised to be aware of any safety hazards and not to violate New York State laws that prohibit operating in unsafe conditions. In the meantime, we will prepare for the next legal conference on Nov. 1, 2011."
Wednesday's Community/Labor march to Wall Street has the potential to be pretty massive. Currently there are 2,231 listed as attending on the Facebook page, with participating organizations including the Coalition for the Homeless, Working Families Party, MoveOn.org, The Job Party, TWU Local 100, Communication Workers of America, United Auto Workers, United Federation of Teachers, Writers Guild East, Greater NYC for Change, and many more.
The march is scheduled to begin at Foley Square at 4:30 p.m., then head past City Hall and to Zuccotti Park to "unite in solidarity." This particular march speaks to the more defined demands -- "union workers and community members impacted by the economic crisis have been demanding that Wall Street and the wealthiest New Yorker's pay their fair share of taxes" -- as well as the momentum Occupy Wall Street has gathered among a more established set of protesters and organizations.
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