Occupy Wall Street protest watcher loses false arrest case

This case tells us how hard it is to sue the police for false arrest. The plaintiff -- a 73 year old lawyer who talked on the street with some Occupy Wall Street protesters -- is quite sympathetic and appears to have been in the wrong place and the wrong time, or perhaps he was in the right place at the right time. No matter. He loses the case under the broad standards governing probable cause.

The case is Kass v. City of New York, decided on July 24. Here is what happened: on the anniversary of the Occupy movement in 2013, the police placed barricades around the perimeter of the park to cordon off the area where the protestors were gathered and to separate the protestors from pedestrians who were on the adjacent sidewalk. Kass was a spectator who decided to speak quietly with the protesters. Kass did not impede pedestrian or vehicular traffic. The police approached Kass and told him to "keep walking." Kass said he wanted to hear the protestors’ views, he was not blocking pedestrian traffic, and he had a right to remain on the sidewalk. The police repeated the directive but Kass refused to comply, but Kass repeated he had a right to speak with the protesters. An officer grabbed Kass by the elbow, but Kass pulled away.When the officer suggested that Kass go inside the park to continue his conversation with the protestors, Kass refused to comply, so the officer grabbed Kass’s right arm and pulled him toward the middle of the sidewalk, away from the barricade and protestors. Kass objected, saying “get your hands off of me, how dare you, get your hands off me.” Kass was then arrested. That charge was dismissed for failure to prosecute.

Did plaintiff do anything wrong? Even if he did not, the police could still have probable cause, or at least qualified immunity. That's how Kass loses the case. On the Obstructing Governmental Administration charge, the police were performing an official function because they were trying to regulate pedestrian traffic in the heart of downtown shortly before 5:00 pm. While Kass was on the sidewalk, a traditional public forum, that is not enough for him to win the case, as the government has an interest in keeping public spaces free of congestion and the officers told him he could continue speaking with the protesters inside the park. Since Kass refused the officers' repeated officers to move along, he interfered with an official function, and the officers could reasonably believe that Kass intended to interfere with their lawful efforts. So that takes care of the Obstructing claim.

Kass also loses on the false arrest claim arising from the disorderly conduct charge. The officers reasonably thought he was congregating with others in a public space, he refused a lawful order to disperse and officers could reasonably disagree about whether his behavior recklessly created a risk of causing public inconvenience, annoyance or alarm.

What does it all mean? What looks like relatively innocent behavior by Kass was enough to justify his arrest. We do not have free speech/association absolutism under the First Amendment. The police have many defenses in these cases, including qualified immunity, which gives them the benefit of the doubt. If Kass was just an establishment lawyer strolling along to see what the protesters were up to, it is likely this case has turned him into an antiestablishment guy as well. No one likes to be arrested without a good reason.