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New York City police officers cannot search the bags and backpacks of demonstrators at the Republican National Convention later this summer without showing both a specific threat to public safety and an indication of how blanket searches could reduce the threat, according to a federal judge. But Southern District Judge Robert W. Sweet also ruled that “less intrusive searches,” such as metal-detecting wands, would not violate the Fourth Amendment and would not be banned under a preliminary injunction he issued on police practices Monday. The ruling was one of several by Sweet in three demonstration-related cases filed by the New York Civil Liberties Union (NYCLU) Foundation. The lead case is Stauber v. The City of New York, 03 Civ. 9162. Sweet also ruled on the use of “pens” by police to corral demonstrators during the Aug. 30 – Sept. 2 Republican National Convention, finding that pens may be used but they may not unreasonably restrict “access to and participation in demonstrations through the use of pens.” He also ruled on general access to any of several designated demonstration sites, blocking the New York Police Department “from closing streets and sidewalks at demonstrations without making reasonable efforts to notify persons how they can otherwise access the demonstration sites.” Finally, the judge rejected the NYCLU’s request for an injunction on the use of mounted police units to forcibly disperse demonstrators, dismissing the claim for lack of standing. Sweet said the case presented a direct confrontation between government regulation of demonstrations and the liberty interests of free speech and assembly. He said the “delicate balance between these powerful concepts” is complicated by “difficult issues of standing and constitutional law.” “That balance is of particular importance to citizens and their government in times of heightened political tension and threatened challenges to public safety,” he said. Gail Donoghue, special counsel at the Corporation Counsel’s office, released a statement saying the city is reviewing its options on whether to challenge any aspect of the judge’s ruling. The judge’s decision, she said later, essentially allows the Police Department to continue its practices on handling demonstrations with minor adjustments. The challenge to mounted units was based on complaints about police actions during a February 2003 demonstration against the war in Iraq. NYCLU attorney Christopher Dunn said yesterday that “the concerns about access, pens and searches has been building for years.” Dunn, who represented the NYCLU along with Arthur Eisenberg, said he was pleased with the decision. “We think it strikes a reasonable balance between First Amendment rights and legitimate concerns about public safety,” he said. “It leaves intact NYPD discretion to protect public safety at protests while blocking the police from using overly restrictive tactics.” Police officials said the searching of bags is warranted to prevent someone from infiltrating the designated demonstration areas while concealing a gun or a bomb. Officials said there are no specific plans to search bags at demonstrations, but Police Chief Joseph Esposito told the court the department wanted to keep its options open on searches. In granting the injunction, Judge Sweet found that the plaintiffs had established that they would suffer irreparable harm on the access policy if streets and sidewalks were closed without providing demonstrators with information on alternative points of access. “In consideration of the fact that no security, safety or organizational interests would be harmed by the NYPD making efforts to inform persons of the means by which they can access demonstration sites, the NYPD’s current policy or practice of closing streets and sidewalks at demonstrations without making reasonable efforts to provide information about access is an insufficiently narrowly tailored time, place or manner restriction because it unnecessarily burdens the ability of persons to attend demonstrations,” he said. Similarly, he said, the plaintiffs have shown they would be irreparably harmed by the use of pens without provisions for demonstrators to exit and re-enter the penned areas. In her statement, Donoghue took note of a portion of Sweet’s 78-page opinion in which he said no judicial “oversight of the NYPD is required, nor would it be helpful, as the leadership of the NYPD is best equipped to decide how to achieve reasonable access to, and use of, the pens.” Assistant corporation counsels Scott Shorr, Teri Feinstein Sasanow and Fran Obeid also represented New York City.

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