NYPD officers who arrested a lawyer who was speaking with demonstrators gathered in Zuccotti Park in lower Manhattan to commemorate the Occupy Wall Street movement are entitled to immunity from a false-arrest suit, a federal appeals court ruled on Monday.
Writing for a panel of the U.S. Court of Appeals for the Second Circuit, Judge John Walker Jr. reversed the decision of Southern District Judge Andrew Carter Jr. that rejected New York City’s qualified immunity defense from the suit.
Attorney Stephen Kass, senior environmental counsel at Carter Ledyard & Milburn, was not blocking pedestrian traffic on Sept. 17, 2013, while having a brief conversation with people gathered at Zuccotti Park, Walker said, but refused to comply with an officer’s orders to either keep moving or to join the protesters.
Kass, who became agitated and hostile, Walker wrote, was given a disorderly conduct charge that was eventually dropped for failure to prosecute.
Walker was joined on the decision by Judges Denny Chin and Raymond Lohier.
Andrew Celli, of Emery Celli Brinckerhoff & Abady, forwarded a statement in which Kass called the decision “most unfortunate.”
“At a time when many citizens are exercising their right to speak out against governmental action and others are interested, as I was, in hearing what they have to say, this decision, if upheld, will empower police everywhere to suppress the most fundamental right of Americans to speak and listen to each other in public places,” Kass said.
Celli, who worked on the case with Emery Celli associate Ali Frick, said they intend to ask the U.S. Supreme Court to review the decision.
Assistant corporation counsel Melanie West and Deborah Brenner appeared for the city.
“We are pleased that the court unanimously agreed that the officers responded reasonably under the circumstances and did not violate Mr. Kass’s right to free speech,” said Law Department spokesman Nicholas Paolucci in an email.