Circuit Court changes its mind in Occupy Wall Street protesters, dismissing case

Occupy Wall Street protesters who marched across the Brooklyn Bridge sued the police who arrested them for disorderly conduct. The protesters said the arrests were unwarranted because some officers actually invited them to cross the bridge. The Court of Appeals originally held that the plaintiffs could proceed with their case. The Court has now changed its mind and says the officers are entitled to qualified immunity.

The case is Doe v. Garcia, decided on February 24. The Occupy people had just about had it with the wealth disparity in America. So they launched a series of protests in NYC and elsewhere. In October 2011, thousands of them wanted to cross the bridge into Prospect Park in Brooklyn. As the marchers began to cross the bridge, an officer used a bullhorn to tell the protesters to get on the bridge's sidewalk. Plaintiffs alleged that the officers knew this directive was inaudible for most protesters. The plaintiffs also interpreted the officers' actions as inviting them to cross the bridge, especially since the officers at the roadway entrance did not tell them not to walk along the road and the officers instead turned away from the protesters and walked toward Brooklyn, seeming leading the protesters along. Halfway across the bridge, an officer again announced that the protesters were risking a disorderly conduct arrest. While plaintiffs say this was also inaudible, the police began arresting them, more than 700 of 'em.

This case applies qualified immunity, which allows public officials to escape litigation if the law at the time was not clearly-established or they acted reasonably under the circumstances, even if in hindsight they technically broke the law. The officers get immunity here because it was a confusing situation. The Court of Appeals (Lynch, Calabresi and Livingston) conclude:

It cannot be said that the officers here disregarded known facts clearly establishing a defense. In the confused and boisterous situation confronting the officers, the police were aware that the demonstrators were blocking the roadway in violation of [the disorderly conduct law]. They were also certainly aware that no official had expressly authorized the protesters to cross the Bridge via the roadway. To the contrary, the officers would have known that a police official had attempted to advise the protestors through a bullhorn that they were required to disperse. While reasonable officers might perhaps have recognized that much or most of the crowd would be unable to hear the warning due to the noise created by the chanting protesters, it was also apparent that the front rank of demonstrators who presumably were able to hear exhibited no signs of dispersing. The Complaint and videotapes are devoid of any evidence that any police officer made any gesture or spoke any word that unambiguously authorized the protesters to continue to block traffic, and indeed the Complaint does not allege that any of the plaintiffs observed any such gesture.

Plaintiffs argued that the officers knew the arrests were improper because they did not stop them from advancing onto the roadway and then turned and walked toward Brooklyn, implicitly allowing them to proceed. This argument carried the day back in August 2014, when plaintiffs won this appeal. Now that the Court of Appeals has changed its mind, this argument fails. 

The essential flaw in plaintiffs’ logic, and in that of the prior panel opinion, is the extent to which it requires police officers to engage in an essentially speculative inquiry into the potential state of mind of (at least some of) the demonstrators. Neither the law of probable cause nor the law of qualified immunity requires such speculation. Whether or not a suspect ultimately turns out to have a defense, or even whether a reasonable officer might have some idea that such a defense could exist, is not the question. ...The most that is plausibly alleged by the Complaint and the supporting materials is that the police, having already permitted some minor traffic violations along the marchers’ route, and after first attempting to block the protesters from obstructing the vehicular roadway, retreated before the demonstrators in a way that some of the demonstrators may have interpreted as affirmatively permitting their advance. Whether or not such an interpretation was reasonable on their part, it cannot be said that the police’s behavior was anything more than – at best for plaintiffs – ambiguous, or that a reasonable officer would necessarily have understood that the demonstrators would reasonably interpret the retreat as permission to use the roadway.