City Settles Lawsuits in RNC Arrests for $18 Million

, New York Law Journal

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Christopher Dunn, associate legal director of the New York Civil Liberties Union, speaks at a press conference Wednesday on the steps of City Hall to announce a settlement with New York City for the arrests that occurred at the Republican National Convention in 2004. Behind him are Jonathan Moore and Rose Weber, two of the other principal plaintiffs lawyers in the case.
Christopher Dunn, associate legal director of the New York Civil Liberties Union, speaks at a press conference Wednesday on the steps of City Hall to announce a settlement with New York City for the arrests that occurred at the Republican National Convention in 2004. Behind him are Jonathan Moore and Rose Weber, two of the other principal plaintiffs lawyers in the case.

Editors' Note: This article has been updated to reflect a Correction.

New York City has agreed to pay $18 million to settle claims from mass arrests during the 2004 Republican National Convention, a move that activists and civil rights attorneys hailed Wednesday as a victory for constitutional rights.

At a combined press conference and rally on the steps of City Hall, speakers said the settlement was a vindication of their claim that police had no right to arrest people without individualized probable cause.

Christopher Dunn, associate legal director of the New York Civil Liberties Union, said the arrest of some 1,800 protestors, bystanders, legal observers and journalists was "one of the darkest moments in New York City protest history," but plaintiffs in the nearly 10-year-old litigation showed that the police should not be allowed to "trample on the First Amendment rights of protestors."

Celeste Koeleveld, executive assistant corporation counsel for public safety, said the courts turned back an attempt to restrict policies and practices the city uses to police mass events.

"It was vitally important to defend the city in this litigation, and we are proud of the major victories we achieved," she said in a statement.

Under the $18 million settlement, which is pending approval by Southern District Judge Richard Sullivan (See Profile), each plaintiff will receive about $6,400, according to the city law department. Plaintiffs lawyers' fees will comprise $7.6 million of the total settlement.

According to the Law Department's calculations, it spent an estimated $16 milion internally to vigorously defend the 430 cases in addition to the settlement—roughly $7 millon for court cases and the remainder reflecting the salaries and hours of its own attorneys. 

The city also turned to private law firms that provided their services pro bono: Simpson Thacher & Bartlett, Proskauer Rose, Fulbright & Jaworski and Linklaters. 

Throughout the litigation, Law Department attorneys defended the police department's prerogative to minimize disruption as much as possible during the convention and head off what Koeleveld once described as the "tripartite threat" of "domestic and international terrorism, anarchistic violence and unlawful civil disobedience."

The city's attorneys cited examples of how law enforcement had been overwhelmed in other contexts by mass civil disobedience and protests, including the 1999 "Battle for Seattle" that shut down a World Trade Organization conference, and noted the number of terror attacks aimed at New York City, including a plot to bomb the subway in Herald Square uncovered just a month before the convention.

But plaintiffs lawyers said the police were being alarmist and blamed the city for belatedly revealing in 2006 that police had based their preparations on information collected from a "previously unknown" surveillance operation.

That revelation set off a long discovery battle as plaintiffs lawyers sought documents and other evidence about police surveillance.

The Law Department aggressively defended the concept of "mass probable cause" to clear the streets and the actions of police throughout the convention, which was held one year after mass demonstrations in New York City protesting the Iraq war and President Bush, putting police on high alert heading into the event.

Before and during the convention, police made a series of mass arrests for violations such as disorderly conduct and parading without a permit—violations that would normally earn only a summons. But the police had adopted a no-summons policy for the convention and elected to fingerprint those charged with violations.

Many of the arrestees were taken to makeshift holding facility at a former bus terminal on Pier 57 on the Hudson River and held for hours, or days in some cases.

After the convention, a class action and more than 500 individual lawsuits were filed challenging the arrests, the fingerprinting policy, the no-summons policy and the detentions on Pier 57 where people were held 24 to 48 hours without processing in allegedly terrible conditions.

The next 10 years were spent in depositions, fights over documents, challenges to NYPD surveillance policies, and an appeal to the Second Circuit.

The stage was finally set for settlement with a series of rulings Sullivan made on summary judgment motions in 2012.

During oral arguments, Dunn, Jonathan Moore of Beldock Levine & Hoffman and Michael Spiegel, three of the 15 plaintiffs lawyers who signed off on Wednesday's settlement asked Sullivan to hold police accountable for unconstitutional mass arrests and detention.

The first mass arrest of 225 demonstrators, part of a march organized by the War Resisters League, occurred on Fulton Street between Church and Broadway and headed toward Madison Square Garden on Aug. 31, just after 4 p.m. The arrests became the case of Schiller v. City of New York, 04 Civ. 7922 (NYLJ, June 1, 2012).

Then, some three hours later, hundreds of protestors who had moved into the roadway on East 16th Street between Irving Place and Union Square were swept up by police in what became the case Dinler v. City of New York, 04 Civ. 7921.

Between 8 and 10 p.m. that same night, police arrested a number of people on West 17th Street and Union Square, including people who said they were bystanders, in what became the case of MacNamara v. City of New York, 04 Civ. 9216.

The name plaintiff in that case, Deirdre MacNamara, said at City Hall Wednesday she was arrested on 17th Street while going to "get a milkshake" at a local fast food restaurant and then held for 50 hours on the pier.

Police said people were marching in the street without a permit, but demonstrators said they were not given a chance to disperse.

Before Sullivan, Special Assistant Corporation Counsel Peter Farrell argued people indeed had the opportunity to disperse, and police were forced to take action to clear the streets. Farrell told Sullivan that "the indisputable message of the Republican National Convention was that 800,000 people demonstrated without incident and just 1,800 people, or 'less than .2 percent'" were arrested.

Sullivan said the percentage of those arrested was hardly relevant to the question of whether the probable cause requirement of the Fourth Amendment was met. But Sullivan said he thought the police did a good job during the convention, "nothing blew up" and people were able to protest.

Sullivan issued his rulings in October 2012 (NYLJ, Oct. 2, 2012).

He granted summary judgment to the Fulton Street marchers, finding they had been given contradictory instructions by police and essentially forced into the street. The judge denied summary judgment to both sides on the East 16th Street arrests, finding it an open question of fact as to whether protesters had an opportunity to disperse.

"Dispersal orders play an important, though not essential, role in making such individualized determinations of probable cause," Sullivan wrote. "Although the Court declines to find that a dispersal order is an absolute prerequisite under the Fourth Amendment to finding that all arrestees in a mass arrest are violating the law, it nevertheless recognizes that police efforts to sort lawbreakers from bystanders, and to advise the latter that they should leave, are highly probative of whether it would be reasonable to conclude that every person arrested violated the law."

At City Hall on Wednesday, Jonathan Moore said the settlement "reaffirms the principle that there is no such thing as group probable cause."

However, Koeleveld pointed to Sullivan's other rulings as victories for the city—namely the judge's conclusion that the city's decision to arrest people for disorderly conduct and parading without a permit, and its decision to fingerprint arrestees, comported with the Constitution.

Among other wins, Koeleveld cited the Law Department's successful effort to keep "sensitive and confidential intelligence documents from being disclosed" under the law enforcement privilege, a decision upheld by the U.S. Court of Appeals.

More than 100 cases were settled in 2006 for a total of about $1.8 million after the Law Department made an offer. Many of the settlements were for $2,500, $5,000 or $7,500 plus attorney fees.

But plaintiffs lawyers argued that the city stretched out the litigation because it was invested politically in defending police actions,and they criticized the Law Department for using outside firms to abet slow motion practice.

Speakers at the press conference blamed the Bloomberg administration and police for a heavy-handed approach to the convention.

"What happened was an orchestrated plan led by the intelligence division of the NYPD to suppress peaceful protest," attorney Alan Levine said.

Rose Weber, who represented more than 175 plaintiffs, said the NYPD set out to "clear the street of protestors before George Bush arrived at the convention," and then make sure they stayed off the street by detaining them in "miserable" conditions at the Pier.

Plaintiffs in the class action will receive $4 million and individual plaintiffs will receive $6,345,869.

The Law Department puts the figure as "up to $10.3 million."

Of the $7.6 million that will be paid to plaintiffs lawyers, $5 million of that amount will be paid to counsel for attorneys for individual plaintiffs.

Attorney Martin Stolar said Wednesday that $500,000 of that amount would be donated to a fund that would be dedicated to the "defense of the right to protest."

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