Judge Sullivan: Some Arrests at 2004 RNC Lacked Probable Cause

In a decision filed on Sunday, Judge Sullivan granted in part and denied in part the parties' cross-motions for summary judgment in Dinler et al. v. City of New York - the consolidated actions brought by protesters arrested during the 2004 Republican National Convention in New York City. The parties' fifty motions addressed four issues:

(1) whether the police had probable cause to arrest protesters and bystanders at a demonstration on Fulton Street on August 31, 2004; (2) whether the police had probable cause to arrest protesters and bystanders at a demonstration on East 16th Street on August 31, 2004; (3) whether the City’s suspension of its summons policy for minor offenses, when those offenses related to the RNC, was constitutionally permissible; and (4) whether the City’s blanket fingerprinting policy with respect to RNC-related arrests was lawful and constitutionally permissible.

Judge Sullivan dismissed plaintiffs' claims challenging the constitutionality of the No-Summons and Fingerprinting policies, but granted in part plaintiffs' motions for summary judgment, finding that probable cause did not exist to justify the Fulton Street arrests. He also found that questions of fact existed with respect to the East 16th Street arrests that require trial.

In discussing the arrests, he rejected the City's "group probable cause" theory (for which they had primarily relied on Carr v. District of Columbia and Bernini v. City of St. Paul - two cases from outside the Second Circuit):

Carr and Bernini provide insight into how the state can preserve public order and enforce the law in mass protest or riot situations, but they do not, and could not, alter the constitutional requirement of individualized probable cause as a prerequisite for lawful arrest. Rather, they stand for the unremarkable proposition that, where a group of individuals is acting in concert such that a reasonable police officer could conclude that every member of the group violated the law, that officer would be justified in arresting every member of the group.  As such, Carr and Bernini do not endorse a theory of collective or group liability, nor do they reflect a departure from the rule of individualized probable cause. They merely offer a method of reaching individualized probable cause in a large, and potentially chaotic, group setting. Individualized probable cause remains the lodestar in these cases. An individual’s participation in a lawbreaking group may, in appropriate circumstances, be strong circumstantial evidence of that individual’s own illegal conduct, but, no matter the circumstances, an arresting officer must believe that every individual arrested personally violated the law. Nothing short of such a finding can justify arrest. The Fourth Amendment does not recognize guilt by association.

In closing, he strongly urged the parties to carefully consider the path forward:

By October 31, 2012, the parties shall submit a joint letter regarding the proposed next steps in these actions. In doing so, the parties should take this opportunity to reflect on this litigation and the prospects for a fair resolution of the remaining claims. The events underlying these actions occurred more than eight years, and two Republican National Conventions, ago. In a different legal context, Justice Robert Jackson once warned of the tradeoff between the "inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other." Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950). This litigation threatens to achieve the worst of each alternative, to the detriment of all parties and the Court itself. With that in mind, the Court urges the parties and their counsel to confer and assess the proper course toward a speedy and just resolution of these actions.