Court rejects amended complaint challenging 2011 Occupy Wall Street arrests

The protesters tried to cross the Brooklyn Bridge as part of the 2011 Occupy Wall Street protest. This resulted in mass arrests for disorderly conduct. The case has already been the Court of Appeals, which held in 2015 that certain police officers were entitled to qualified immunity because they had probable cause to make the arrests. The case returns to the Second Circuit as plaintiffs try to name additional police defendants to the case. The Court of Appeals rejects that effort.

The case is Garcia v. City of New York, a summary order decided on October 13. In the first appeal, the Court of Appeals said the officers were immune from suit because a lawful order was given for the protesters not to cross the bridge. Not all the protesters heard this directive. The protesters further claimed the officers encouraged them to cross the bridge, and then arrested them anyway. The Court held that it was not for the officers to speculate about the state of mind of the protesters. It was enough for the officers to reasonably believe the protesters had committed disorderly conduct, even if there was a misunderstanding about what the police did and said.

This time around, the plaintiffs say that other officers, Purtell and Esposito, can be held liable because they "did not deploy appropriate police tactics to prevent marchers from following the line of officers down the roadway portion of the Bridge," and that Esposito directly participated in the false arrests, and that the Police Commissioner did not properly supervise him.

Plaintiffs’ main contentions are (1) that Chief Esposito was on the scene and knew that many of the marchers did not hear the instructions to disperse, yet made the decision to arrest anyway, (2) that actions of Esposito and other officers conveyed implicit permission to march on the roadway, (3) that Esposito, the City, and the NYPD had other methods to prevent Plaintiffs from proceeding on the bridge and chose not to use them, and (4) that the City and NYPD had policy of escorting unpermitted protests but then arresting the participants without notice. But none of these allegations defeats probable cause for the arrests.

These allegations are not enough to amend the Complaint to name these officers. The Court of Appeals (Lynch, Droney and Reiss [D.J.]) says that plaintiffs did not plausibly plead that Esposito deliberately ignored facts that justified the marchers' takeover of the roadway.  As the Court of Appeals has previously explained, "the scene was chaotic, the retreat of police officers on the Bridge was not an unambiguous invitation to follow, and many marchers continued to funnel onto the sidewalk path." While plaintiffs now say that Esposito was aware of the protesters' state of mind, i.e., that they did not intend to violate the law, the Second Circuit reaffirms the principle that the state of mind of the demonstrators is irrelevant to the question of probable cause, even if it might be a defense to the underlying criminal charge.