Occupy Wall Street arrest case is shot down

Occupy Wall Street protests erupted in 2011 to challenge the capitalist beast. Since these were a series of public protests, the police would typically get involved, which means the protesters brought lawsuits over how the police regulated these events. Those cases are still being decided in the federal courts. In this case, the protester loses.

The case is Higginbotham v. Police Officer Sylvester, a summary order decided on July 25. I remember the Occupy protests well. I stopped off at Zuccotti Park in lower Manhattan one morning after arguing a case in the Second Circuit. Maybe I was the only one there wearing a suit. The energy was electric. People were playing drums rhythmically, creating an echo against the skyscrapers. It was like being at a rock concert. What a sound that was, the drummers-a-blazing. But you knew the protests could not last. Too many people, too much noise.

This case provides a slice of what I saw at the protests. The plaintiff was a cameraman covering the protests. He climbed on top of a phone booth to get a better vantage point. The police repeatedly told him to get down from there. When plaintiff finally got off the phone booth, the police arrested him for disorderly conduct, although he was never prosecuted. Plaintiff then brought this lawsuit, supported with amicus briefs from a ton of media organizations.

All that amicus support is not enough to get plaintiff a trial. The Court of Appeals (Pooler, Wesley and Hall) says there was probable cause to arrest plaintiff for reckless endangerment, which prohibits you from doing something that creates a substantial risk of physical injury to someone else. Note that while plaintiff was arrested for disorderly conduct, to win the case, the police only have to show they had probable cause to arrest plaintiff for any crime, not just the crime they charged him with. The district court held, and the Second Circuit agrees, that a reasonable police officer would believe that plaintiff created that substantial risk of serious harm when he climbed atop that phone booth.