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NYC asks federal court to approve mass arrests of protesters

With our nation in crisis regarding the epidemic of police killings of innocent unarmed citizens, most of whom are young black males, including Michael Brown, John Crawford, Tamir Rice and Eric Garner, to mention a few, the NYPD police union president Patrick Lynch pushed back hard on Saturday against people who protest against the killings. In classic right wing nonsequitur fashion, he blamed the predominantly peaceful protesters, Mayor De Blasio and President Obama for the ambush murders of two NYPD officers sitting in a parked patrol vehicle in Brooklyn on Saturday afternoon. Never mind that the killer was not involved in any of the protests and apparently decided to bag two cops after shooting his ex-girlfriend in the abdomen. Terrell Jermaine Starr of Alternet reports,

It was just hours after officers Wenjian Liu and Rafael Ramos were shot and killed by a lone gunman, when  further inflamed tensions between the police and the minority community during a shockingly divisive and incendiary speech to the media. “There’s blood on many hands tonight,” Lynch said. “Those that incited violence on the street under the guise of protests that tried to tear down what New York City police officers did everyday. We tried to warn, ‘It must not go on. It cannot be tolerated.’ That blood on the hands starts on the steps of City Hall in the office of the mayor [Bill de Blasio]. When these funerals are over, those responsible will be called on the carpet and held accountable.”

Fortunately, some cooler heads are attempting today to pull back from the abyss. However, the NYPD continues to rattle the saber as the NYC Law Department will be attempting to persuade the Second Circuit Court of Appeals sitting en banc to reverse an earlier decision by a three judge panel that held the NYPD had violated Occupy Wall Street protester’s First Amendment rights to freedom of speech and freedom of assembly and their Fourth Amendment rights to privacy by making mass arrests without individualized probable cause.

The City is arguing in its legal brief that the three judge panel’s “decision will frustrate, not further, the work of police attempting to facilitate peaceful demonstrations while ensuring both the safety of demonstrators and those among whom demonstrations are staged.” This argument is ridiculous because the Fourth Amendment specifically states that police cannot arrest a person without probable cause to believe he or she committed a crime. Police are also prohibited from entrapping law abiding citizens into committing crimes they did not intend to commit. In this case, officers from the NYPD entrapped Occupy Wall Street protesters by leading and escorting them onto the Brooklyn Bridge only to arrest them en masse for violating an order not to go on the bridge that no one heard.

Steven Rosenfeld of Alternet reports,

“This is the most significant and most defining legal case on protesters’ rights in the last 40 years, since the mass arrests of May Day 1970,” said Carl Messineo, Partnership for Civil Justice Fund legal director, which represented the protesters. “Mayor de Blasio seeks the authority to arrest today’s protesters in the same manner Mayor Bloomberg falsely arrested Occupy Wall Street protesters by the hundreds.”

Seeking to legitimize a practice of widespread false arrests by entrapping protesters is an egregious Fourth Amendment violation that deserves condemnation. This is no way to calm troubled waters. Instead it’s yet another reason, as if we needed one, to increase the protests.

Obviously, the NYPD doesn’t get it.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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