Occupy Wall Street protesters arrested for attempting to march across the Brooklyn Bridge on Oct. 1, 2011.
Occupy Wall Street protesters arrested for attempting to march across the Brooklyn Bridge on Oct. 1, 2011. (Edgar Mata/SIPA Press)

Over a spirited dissent, the U.S. Court of Appeals for the Second Circuit on Thursday refused to dismiss a class action by hundreds of Occupy Wall Street protestors who claim they were goaded by police into violating the law.

In a 2-1 decision, the panel affirmed Southern District Judge Jed Rakoff (See Profile) and held that, at this stage, the doctrine of qualified immunity does not protect the individual officers named in the lawsuit.

Garcia v. Doe, 12-2634-cv, is rooted in an incident on Oct. 1, 2011 when thousands of demonstrators marched through lower Manhattan as part of the Occupy Wall Street movement.

Police, who knew in advance of the planned procession, for which no permit had been issued, escorted the protestors from Zuccotti Park to the Brooklyn Bridge, at times blocking vehicular traffic so the marchers could pass through intersections and at times directing participants to continue on their journey, despite traffic signals. At the bridge, about 700 protestors were arrested when they walked onto the roadway instead of attempting to cross the span on the pedestrian walkway.

Many of the marchers claimed they were tricked by police, alleging that authorities led them onto the bridge and then entrapped them in orange netting when they followed the police lead. An action was brought under 42 U.S.C. §1983.

Rakoff dismissed claims against the city, then Mayor Michael Bloomberg and then police Commissioner Raymond Kelly, but permitted the case against individual officers to go forward (NYLJ, June 8, 2012) on the grounds that no reasonable law enforcement official could have concluded that the plaintiffs received the required fair warning that their conduct in walking on the bridge was illegal.

On review, a divided panel of the Second Circuit affirmed.

In the majority opinion, Circuit Judge Gerard Lynch (See Profile) said that the court is not prepared, at this early stage and with factual issues remaining, to bestow the defendants with immunity.

“Given the paucity of the record as to the actions of any specific defendant on the day of the march, we cannot say at this stage whether or not defendants had sufficient knowledge of plaintiffs’ perceptions of the officers’ actions such that they acted unreasonably in arresting plaintiffs,” Lynch wrote in an opinion shared by Circuit Judge Guido Calabresi (See Profile).

By way of analogy, Lynch said any driver knows that he or she cannot ordinarily cross against a red light, but presumably may do so if directed to by officer directing traffic.

“In that situation, an officer who directed a driver to proceed, or realized that her gesture could reasonably have been seen as giving such a directive, would clearly act unreasonably by ticketing the driver for ignoring the red light,” Lynch wrote. “On the other hand, a second officer who saw the driver run the red light but was unaware of her colleague’s instructions to do so would have probable cause to ticket the driver.”

Here, Lynch said, if the plaintiffs’ allegations are true, they have alleged actionable conduct sufficient to survive a motion to dismiss. To do otherwise, he said, “We would have to say that on the basis of plaintiffs’ account of events, no officer who participated in or directed the arrests could have thought that plaintiffs were invited onto the roadway and then arrested without fair warning of the revocation of this invitation. Since we cannot do so on this limited record, we affirm the judgment of the district court.”

In dissent, Judge Debra Ann Livingston (See Profile) accused her colleagues of twisting the concept of qualified immunity and misapplying Supreme Court precedent in a way that “threatens the ability of police departments in this circuit lawfully and reasonably to police large-scale demonstrations and to make the necessary on-the-spot judgments about whether arrests are required in the face of unlawful conduct threatening public safety.”

Livingston complained that the majority was wrongly subjecting the defendants to further litigation and discovery even though “the putative class action complaint is devoid of allegations that even one of these many protestors suffered any indignity at the hands of police—any indignity, that is, apart from the fact of arrest while obstructing all traffic on the Brooklyn Bridge.”

The dissenter said the ruling would potentially chill legitimate police conduct.

“To avoid costs of civil litigation in such a fantastical world, police managers would be wise to counsel officers to arrest at the first infraction, to disregard nothing, and thereby to suppress much First Amendment expression,” Livingston wrote. “Thus, in a case like this, arrests should have begun, perilously, when the obdurate protesters in front first stepped onto the bridge roadway—or perhaps when marchers first stepped foot on a city street.”

In response to the dissent, the majority said Livingston seemingly “ignore[s] the procedural context of this decision” and draws “unwarranted conclusions about the nature and consequences” of the ruling.

“We emphatically do not hold that … any police officer acted unlawfully, is liable for damages, or lacks qualified immunity for his or her actions on the day in question,” Lynch wrote. “As we have clearly stated, upon the development of an appropriate factual record, any or all of the police officer defendants may well properly be found entitled to qualified immunity at the summary judgment stage, or after trial.”

The appeal was argued April 22, 2013 by Assistant Corporation Counsel Ronald Sternberg for the defendants and Mara Verheyden-Hilliard of the Partnership for Civil Justice Fund in Washington for the plaintiffs.