It was a late August afternoon in 2004, and as Michael Schiller backpedaled on Fulton Street filming the mostly older crowd with his Super-8mm camera, it struck him that this might be the most boring political protest of all time. There was nothing going on, he thought; it was dead quiet.
It turned out the War Resisters League was staging a “silent march” to culminate with a “die-in” as close to the Republican National Convention floor at Madison Square Garden as a pack of old pacifists could get. Schiller laughed when he learned that later. But at the time, all he knew was this quiet march wasn’t making it onto the HBO documentary he’d been assigned to work on about the efforts of OutKast’s André 3000 to get out the youth vote. HBO was looking for action: raucous crowds, arrests, dramatic conflict. The War Resisters were all negotiation, calm, and compliance. A waste of time, or so it seemed.
It started benignly enough with a police inspector laying the ground rules through a bullhorn. “This is a march without a permit. You must comply with all the rules or else you will be subject to arrest. You have to walk in either a single file or a double file so that you do not obstruct pedestrian traffic. If you obstruct pedestrian or vehicular traffic, you will be subject to arrest. I ask your cooperation so that everybody has a safe march.”
With that, a chunk of the crowd ambled across Church Street and began slowly shuf
fling up Fulton Street. Schiller, already across the street, figured he’d get a quick shot and then head up to the Union Square or Public Library protests,
which were rumored to be more happening.
Just over a minute later, the march suddenly stopped. When Schiller looked up from his viewfinder, he noticed a police officer behind him blocking the way.
“What’s going on here? Are we being placed under arrest?” Schiller asked the New York City cop.
“Nooooooo, no, don’t worry about it,” the officer replied. “Don’t worry about it.”
But Schiller couldn’t help but worry a few minutes later when a phalanx of bicycle cops pedaled in and formed a line along the sidewalk against the wall of St. Paul’s cemetery. Minutes later, cops unrolled an orange net around the crowd.
Schiller tried to explain that he was a journalist and showed the officers his business card and the HBO release forms his interviewees had to sign. He was told only those with NYPD-issued press cards could go free. So he pleaded with the cops to at least release his assistant, an 18-year-old NYU freshman who had started her internship that very day. No dice, they said.
What Schiller didn’t realize then was that this wasn’t like the other days of protests leading up to and during the RNC. This was “A31,” August 31, 2004—the day police expected the shit to go down.
Searched, handcuffed, and with property seized, the bewildered—Schiller among them—were transported to a makeshift detention center so filthy that 40 cops assigned there would later file medical complaints. It was the start of what would be, for the average protester, a 33-hour incarceration misadventure. No phone calls. No lawyers. Not knowing the charges until the very end.
The arrests were so wobbly that five weeks later Manhattan District Attorney Robert Morgenthau, with the aid of the footage taken by Schiller and crew, flat out dismissed all 227 cases.
An NYCLU report later called the Fulton Street roundup “the most egregious example of unlawful mass arrests” at the RNC.
Perhaps, but on A31, Fulton Street was just the beginning.
While the last War Resisters demonstrators were being hauled off, police sent a throng of singing and dancing protesters into a trap on East 16th Street, where they, and anyone who happened to be on the block, were ultimately squeezed into submission by converging lines of cops. Simultaneously, another 100 to 150 were corralled near the Public Library.
All told, close to 800 people were arrested in about four hours on August 31, 2004. The total that day ran to 1,187. To give that astounding number perspective, it’s about the combined number of arrests at the overwhelmingly more violent protests at the 1968 Democratic National Convention in Chicago and the World Trade Organization summit in Seattle in 1999.
Two and a half years later, the city is now defending itself against a flood of lawsuits stemming from the chaos that unfolded on A31. At the end of January, over the objections of the city’s lawyers, a judge ordered the city to release about 900 pages of RNC-related police documents and 29 videotapes and DVDs to the NYCLU, which is challenging the legality of the NYPD’s mass-arrest tactics.
Added to the piles of documents already compiled by civil rights and defense lawyers, the new information, including depositions of the NYPD’s key RNC officials, arrest footage, training manuals, and some previously confidential reports, provides the most thorough account—and drives this narrative—of the events that unfolded on what demonstrators called the “Day of Direct Action” and police pegged as “The Day of Rage.”
Jonathan Moore, an attorney representing 24 RNC arrestees, offered a more cynical explanation. “I think they simply made the decision they’ll pay on the back end for order on the front end,” he contended.
Whether the NYPD’s beliefs were a good enough reason to suspend its own arrest policies and possibly violate state fingerprinting law is a question likely to be left to jurors, whose answer will shape how future protests are policed here and possibly cost the city millions.
As Ashley Waters approached Union Square Park, her gym clothes in a bag after a workout, she thought she was stumbling upon one of those only-in–New York scenes. A band, some members of which were dressed up like animals, was playing a very “strange style” of music, the likes of which she’d never heard before.
Waters, then 26, had spent the first half of that summer as an associate at Akin & Gump and the second half interning for then attorney general Eliot Spitzer. Soon she would be returning to finish her last year at Harvard Law School.
As she followed the group out of the park, she had no idea it was a protest.
When police forced the march onto East 16th Street, Waters slipped down the south side of the sidewalk, across the street from the group. A man who lives in a second-floor apartment on East 16th filmed the ensuing confrontation. That tape is now part of the case.
“Looks like a parade—there’s actually a marching band,” the man, who asked not to be identified, narrated into his camcorder.
The man’s shot pans right onto a line of helmeted police officers, approaching shoulder-to-shoulder, holding batons in front of them. The police stretch across the street over both sidewalks.
As the police near, the protesters chant, “Whose streets? Our streets.” But that clearly isn’t the case. En masse the group members start a slow retreat. As they do, they run into a line of cops coming the other way. The converging police lines push the demonstrators into a ball in the middle of the sidewalk, then split the crowd in two, leaving two semicircles of protesters trapped against the building and surrounded. The same thing is done on the south sidewalk, ensnaring Waters.
The first arrests are made the hard way: white-shirted supervisors pointing into the crowd; two or three cops yanking the targeted out, then slamming them to the ground and wrenching on the plastic double flex cuffs.
Four minutes in, half a dozen cops plow into one of the semicircles and pull out the musicians who had been playing the whole time.
Within five minutes the orange nets appear and soon envelop the demonstrators, who lock arms and chant, “Let us go!”
Forty minutes and several hundred arrests later, the nearly empty street now lit by portable NYPD spotlights, two drag queen demonstrators in lingerie start singing “New York, New York” and doing a chorus line kick. Soon they are taken off too.
Like the 400 or so others arrested in the 16th Street roundup, Waters’s complaint stated her arresting officer was “informed by Deputy Inspector James Essig that informant and other police officials warned said group that they were blocking vehicular traffic, had to disperse, and would be arrested if they did not disperse.” In some of the arrests, like Waters’s, Essig signed an affidavit attesting to this.
It’s not what Essig, since promoted, said when deposed under oath.
“I went up to attempt to tell them to stop the march and that’s when they interlocked arms,” Essig said in his March 2006deposition. “A few put up their masks, music was loud, there was dancing in the streets.” He said it was “apparent to me they were not going to comply with anything I had to say,” so he ordered them arrested. The NYCLU asked the district attorney to open an investigation contending “many, if not all, of the 16th Street arrests” were based on false police statements and urging those responsible to be charged. Last week, Assistant District Attorney James Kindler sent the NYCLU a letter stating that after a review, “the evidence does not support or warrant a prosecution for perjury or any other offense.”
Through the 1980s and ’90s, demonstrations in the United States were predominantly policed through negotiation and accommodation, according to John McCarthy, sociology professor at Penn State, who has published a study on demonstrations in America. Basically, don’t sweat the small stuff, he says.
But over the past decade and especially since the WTO riots in Seattle, which resulted in $2.5 million in property damage, many police departments have adopted a zero-tolerance.
This heavy-handed approach has become known among protest experts as the “Miami model,” based on the response to the Free Trade Area of the Americas demonstrations in November 2003.
Alex Vitale, a sociology professor at Brooklyn College who has studied the policing of protests, summed up the “Miami Model” as “surveillance and infiltration prior to the event, lots of negative publicity targeting the demonstrators prior to the event, mass arrests that are usually preventative in the sense that they take place before any illegal act actually occurs, and then extended detentions.” During that demonstration, Miami police responded to protesters, some of whom were throwing rocks and bottles, by firing rubber bullets, using mace, and arresting about 230.
But the NYPD’s own hard-line tactics predate Seattle, Vitale said, going back to September 1998 and Khalid Muhammad’s Million Youth March in Harlem. Beforehand, Mayor Giuliani had spoken out vehemently about Muhammad’s racist rhetoric and tried to rescind their permit. The demonstration ended with police storming the stage minutes after the event ran over its allotted time.
That tactic can come with a price. In large part because of what transpired on A31, 96 lawsuits have been filed against the city, representing about 565 arrestees, according to the city’s law department officials. One estimate pegs the combined damage claims at somewhere near $860 million, an amount that will climb if a judge grants a request to allow a class action lawsuit that would include the rest of the approximately 1,800 arrested at the convention. (So far, only 11 RNC claims have been settled, totaling $319,293.24, according to officials at the comptroller’s office.)
A compliant news media is needed for the “Miami model” to work effectively. A civilian investigative panel reviewing the Miami protest concluded that an “overwhelming emphasis was placed on potential violent protesters” by the police and local media in the run-up to the event. This creates a “protest paradigm” in which “the media pits the protesters against the police,” taking focus off the issues that prompted the demonstrations, the report states.
In New York, stories touting potential violence by “anarchists” at the convention first appeared in early April 2004 and steadily increased with the passing months. Days before the RNC, one story proclaimed that “50 of the country’s leading anarchists” were expected. The story didn’t explain the anarchist rating system.
“They got people all hepped up,” Moore said. “Folks on the street were assuming everybody [protesting] was going to be a terrorist.”
The cops had reason to be “hepped up” themselves. Beforehand, NYPD officers had received “Legal Guidelines for the Republican National Convention,” a then confidential document painting a grim picture of what to expect.
First there were projectiles to watch out for: “rocks, paving stones, bottles, batteries, ball bearings, nuts and bolts, billiard and golf balls, hockey pucks, nail-filled potatoes . . . ” Frozen water balloons could be dropped from rooftops, and “protesters may utilize devices such as wrist rockets, slingshots, large rubber bands, paint ball guns, and lacrosse sticks to launch projectiles.”
In addition, cops were told they had to worry about “bodily fluids and toxic commercial liquid products” including “blood, urine, and feces, as well as ammonia, bleach, battery acid, glass etching solution/hydrofluoric acid, gasoline, paint, and magnesium,” any of which could be delivered “via spray and squirt bottles, super soakers, canteens, zip-locked bags, hollowed eggs, and balloons.”
Danger lurked even in the seemingly innocuous. Marching bands’ “amplified music may be used to interfere with police radio communications.” Large puppets could be used to conceal weapons and so on. But nothing described in the document ever actually occurred.
In the spring of 2004, NYPD brass discussed its available non-lethal weapons: “pepper-ball type grenades, pepper ball launchers, rubber bullets, sound machines” and “water cannons,” according to a deposition of Deputy Inspector Terence Monahan in December 2005. But Monahan said all agreed, “if we had to utilize any of those devices, we had failed.”
That summer, NYPD “Intel” cops trolled websites like Bikes Against Bush and Counter Convention and attended a conference called “Mayhem at the RNC” at a midtown hotel, where a character called “ShapeShifter” spoke about methods of disruption such as becoming an RNC volunteer and then not showing up, leaving the event understaffed.
As the RNC neared, NYPD Deputy Commissioner of Intelligence David Cohen gave a PowerPoint presentation naming potentially trouble-causing groups. Though problems could happen at any time, he said, there was one day they expected trouble.
“There was mention about a date, August 31, that the groups had been planning for a day of civil disobedience and potential violence,” Mon- ahan said. When asked if there were any other RNC dates of concern, Monahan said, “No.”
As if on cue, “A31” started with a scenario straight from “Legal Guidelines.” Before the sun came up, Monahan, who headed the 1,250-officer Mobile Field Force that dealt with spontaneous protests, was called to Wall Street, where about a dozen people were arrested after roping off an intersection.
Later, after escorting a small, unpermitted march downtown, Monahan got a call from then deputy inspector Thomas Galati advising that a large group had gathered at the World Trade Center site. In his deposition, Monahan said an NYCLU official had told him to expect “no more than 20 to 30 people” there and called it a “non-event.” (The official named denied having said that.)
Minutes later, Monahan arrived at ground zero, red-faced and screaming that “anyone with the media that blocks the street will be arrested.” By then, Galati had spoken extensively with Ed Hedemann, one of the War Resisters League organizers. As the march slowly stepped off, Monahan asked Galati to fill him in on the protesters’ plans. Galati said Hedemann indicated the group was going to make its way to Madison Square Garden and hoped to stage a “die-in” on the convention floor.
“You got to be kiddin’ me!” Monahan responded.
Monahan walk-jogged up Fulton Street and stopped the march after half a block, causing it to bunch up. According to his deposition, he said he spoke with Hedemann and explained that heading up Broadway against traffic was dangerous to the marchers, pedestrians, and the police monitoring them. Monahan claims Hedemann’s response was “don’t come.”
Hedemann told the Voice he doesn’t recall speaking with Monahan. He remembers telling Galati they’d stay on the sidewalk and follow traffic rules, which meant they didn’t need a permit or police escort.
According to the film shot by Schiller’s partner Jon Fine, who was across Fulton Street, about 90 seconds after the demonstrators set off, Monahan yelled out, “You are now blocking the sidewalk. If you do not disperse, you will be placed under arrest.” He repeated the warning to the bunched-up crowd, then seconds later, began to give it a third time, but stopped halfway through and ordered his officers to move in. Less than 45 seconds after issuing his first warning, Monahan, who wasn’t using a bullhorn, ordered everyone arrested for blocking the sidewalk.
Bob and Neal Curley walked only 20 feet before the march was stopped and were half a block away, far out of earshot, when Monahan gave the warnings.
In the city for an annual father-son outing, the Curleys were as interested in catching the show De La Guarda that evening as in protesting the war in Iraq. They chose this demonstration after seeing a story on it in The New York Times.
Bob Curley, a labor lawyer from Philadelphia who was wearing a “Re-Defeat Bush” T-shirt, had no idea what was going on until the big Irish-looking cop walked down the block yelling, “Surround them.” Curley turned to his 17-year-old son and said, “Let’s get out of here.” Before they could move, the orange netting came out. They were searched, handcuffed, and put on a bus, where they considered it a victory that they convinced an officer to allow “two white-haired 80-year-old women,” who had been rear-cuffed, to be cuffed in front.
Schiller would soon join the Curleys at Pier 57—”like something out of the movie Children of Men . . . this huge, dark detention center, hundreds of cops, huge, dark chain-link cages with razor wire on top.” The floor was covered with soot and oil, and there were only a few benches. The Porta Potty was in another cell and required an officer’s escort. No heat. The bologna sandwiches were a color Schiller had never seen before.
Schiller spent 14 hours at the pier and another 12 or so at an overflowing Central Booking, shuffled in and out of at least eight different cells.
According to a police memo released last month, the average arrest-to-arraignment time for demonstrators incarcerated on August 31, 2004, was even longer than Schiller’s: a staggering 32.7 hours. The time it took for those arrested for non-RNC-related offenses that day was 14.9 hours. Ultimately, of the 1,802 RNC-related complaints drawn up, 88 percent ended in some type of dismissal: 1,092 resulted in adjournments in contemplation of dismissals (ACDs), in which the cases were dismissed if the arrestees stayed out of legal trouble for the next six months; another 463 cases were dismissed straight out by the district attorney; and 35 cases ended in acquittals at trial.
NYPD spokesman Paul Browne said they consider the ACDs to be “plea deals,” meaning that “the law is broken, the arrest is appropriate, and an ACD is a commonplace deal.” (Barry Kamins, president of the city’s bar association, said an ACD “from a legal standpoint is a dismissal”; there’s no admission of guilt and eventually the case is sealed.) Browne also said the fact that 26 percent of the arrests were dismissed “was not a reflection on the arrests,” but rather on the fact that the cases involved “relatively minor offenses for which the participants had already spent time in jail.” (The official reason given by the prosecutor who dismissed the cases was “the police likely created the impression among the participants that the march had official sanction.”)
Lastly, the spokesman added that while most of the RNC arrests were done in a timely manner, the delays on August 31 were due to an unexpectedly high number of arrests over a short period.
Moore, the defense attorney, said that given the amount of time and resources spent on preparation, it’s inconceivable the police were simply caught off guard.
“The police decided, ‘These are our streets, we don’t want any of these folks getting out and doing this again,’ ” Moore said. “For police departments, the best demonstration is no demonstration.”
There’s a perception among some arrested that day, like Schiller, that the police were taking their orders on A31 from the White House. Thus far, there’s nothing in the thousands of pages of discovery in the case that makes that link. But as Donna Lieberman, executive director of the NYCLU, pointed out, “You don’t need a conspiracy theory to know that the city did something terribly wrong in the policing of the demonstrations and processing of people who were arrested just for exercising their rights.”