case law update

Constitutionality of Protestor Arrests Without Prior Warning Before Supreme Court

The Supreme Court is considering whether to hear a case asking whether, when officers permit individuals to exercise First Amendment rights to speech and peaceful assembly, officers must provide fair warning prior to arresting demonstrators for participation in the demonstration.

While the First Amendment provides a right to engage in peaceful social protest, government entities may impose reasonable restrictions on the time, place, and manner of such demonstrations. When law enforcement allows demonstrators to conduct an unpermitted march, three federal courts of appeal have held that law enforcement may only arrest demonstrators for violations of time, place, and manner restrictions only after first providing fair warning. The U.S. Court of Appeals for the Second Circuit disagrees.

On October 1, 2011, police accompanied an Occupy Wall Street march that departed lower Manhattan for an organized rally in the Brooklyn Bridge Park. Although there was no parade permit, police escorted thousands of marchers to the Brooklyn Bridge. Officers directed marchers to cross streets against the lights, and they blocked traffic to facilitate the march. At the Bridge, police closed the Bridge to traffic and a line of officers blocked the roadway. At that point, one officer announced to those at the front that they were not permitted to walk onto the Bridge roadway.

The line of officers blocking the roadway then turned and began walking on to the Bridge, and the marchers followed. Once on the Bridge, without any warning or instruction for the marchers to disperse, police encircled more than 700 marchers, used orange netting to prevent them from leaving the Bridge, and arrested them for disorderly conduct.

Nine of the arrested marchers who claim they did not hear any warning or instruction to disperse from the Bridge on October 1, 2011, filed a 42 U.S.C. § 1983 action against the City of New York and key city officials, including the arresting officers, alleging violations of their First, Fourth, and Fourteenth Amendment rights arising from their arrest without prior warning. The district court denied the individual officials’ motion to dismiss based on qualified immunity, and multiple hearings and remands from the U.S. Court of Appeal for the Second Circuit followed. Ultimately, the Second Circuit held the individual officers had, “from their personal observations, sufficient evidence to establish probably cause on each of the elements of a disorderly conduct violation,” and that only “a direct communication from police to marchers that the marchers were permitted to occupy the road” would render arrests in these circumstances unlawful.

The nine arrestees subsequently petitioned the U.S. Supreme Court for a writ of certiorari. The petitioners argue the Supreme Court should hear their case because the Second Circuit’s holding is in conflict with precedent from the Seventh, Tenth, and D.C. Circuits, which held that when officers permit citizens to engage in a peaceful demonstration, officers must provide fair warning prior to arresting demonstrators for violating time, place, and manner restrictions. The respondents disagree, arguing the lack of express permission for the marchers to have entered onto the Bridge negates their claim, the Second Circuit’s decision created a circuit split, and asserting the Supreme Court’s intervention is not needed to preserve opportunities for spontaneous protest activity, in light of the specific facts of the case.

The Supreme Court distributed the petition for conference on June 15, 2017, to decide whether to hear the case. FedAgent will report on the Supreme Court’s decision whether to grant certiorari when the decision issues.

Read the petition for certiorari and associated briefs in Garcia v. Bloomberg


This case law update was written by James G. Heelan, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.



Posted in Case Law Update

Tags: Supreme Court, first amendment, protesting


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