On November 19, 2003, three individuals and a public interest organization filed three lawsuits in the United States District Court for the Southern District of New York against the City of New York. These cases were captioned Stauber v. City of New York (Docket No. 1:03-cv-09162), Conrad v. City of New York (Docket No. 1:03-cv-09163), and Gutman v. City of New York (Docket No. 1:03-cv-09164), and all raised similar claims. The plaintiffs' lawsuits stemmed from incidents that occurred during a February 15, 2003, demonstration against U.S. military action in Iraq. They alleged that certain practices used by the New York Police Department to manage crowds at large demonstrations violated rights guaranteed by the First and Fourth Amendments of the United States Constitution. The plaintiffs, represented by public interest counsel, sought damages, as well as injunctive and declaratory relief under 42 U.S.C. § 1983. For purposes of the claims for injunctive relief only, the three lawsuits were consolidated.
On June 2, 2004, the plaintiffs moved for a preliminary injunction. The specific practices plaintiffs sought to enjoin were: (1) the practice of unreasonably impeding access to demonstration sites without making reasonable efforts to provide information to the public about how otherwise to attain access to the site (the "access policy"); (2) the practice of unreasonably restricting access to and participation in demonstrations through the use of metal, interlocking barricades to create "pens" in which demonstrators are required to assemble (the "pens policy"); (3) the unreasonable, generalized searching of the possessions of persons as a condition of attaining access to certain demonstrations (the "bag search policy"); and (4) the unreasonable use of horses to forcibly disperse peacefully assembled demonstrators (the "Mounted Unit policy"). In response, the defendants argued that the plaintiffs lacked standing to bring these claims, and sought to justify the practices on grounds of national security and public safety.
On July 16, 2004, the District Court (Judge Robert W. Sweet) granted in part and denied in part the motion for preliminary injunctive relief. The court granted injunctive relief as to the access and pens policies on First Amendment grounds, and granted injunctive relief as to the bag search policy on Fourth Amendment grounds. However, the court noted that less intrusive searches, such as those involving magnetometers, did not fall within the scope of the injunction. Stauber v. City of New York
, 03-cv-9162, 2004 WL 1593870, at *33 (S.D.N.Y. July 16, 2004). The court denied relief as to the Mounted Unit policy for lack of standing. Specifically, the court found that although the Mounted Unit was deployed at the February 2003 demonstration, the plaintiffs had not shown that the Mounted Unit was "likely to be deployed at a future demonstration, or that injury is likely to occur as a result." Thus, the court found the plaintiffs had not satisfied the Article III "case or controversy" requirement. Id.
In its July 16 Opinion, the court also directed the parties to submit a proposed preliminary injunction. Id.
at *34. The parties agreed as to most terms, but could not come to an agreement on the language enjoining the bag search policy. Stauber v. City of New York
, 03-cv-9162, 2004 WL 1663600, at *1 (S.D.N.Y. July 27, 2004). This disagreement revolved around the conditions necessary for the bag search policy not to be enjoined. The City of New York, citing national security and the use of knapsacks in then-recent bombings in Madrid, argued that the word "credible" should be used to modify the threat to public safety referred to in the July 16 Opinion as one of the conditions under which the bag search policy would not be enjoined. The plaintiffs countered that the threat to public safety should be "specific" in order for it to render the injunction inoperative. The court resolved this impasse by adopting "the more traditional probable cause standard for searches . . . rather than either 'specific' or 'credible.'" Id.
The City filed a notice of appeal on August 6, 2004, which it ultimately withdrew. On March 31, 2008, the parties announced a settlement that replaced the preliminary injunction and disposed of the cases with prejudice. As part of this settlement, the City of New York agreed: (1) to pay plaintiff Conrad $15,000 to settle his claim for damages; (2) to pay plaintiff Gutman $10,000 to settle his claim for damages; and, (3) to pay $100,000 to the New York Civil Liberties Union Foundation to settle all claims for attorneys' fees. The City further agreed to adopt the following formal policies:
In cases in which the special event is a demonstration, information on expected street and sidewalk closings and information on how the public may access a demonstration site will be disseminated to the media and to event organizers and should, if possible, be posted on the Department's website. Officers assigned to such events should be given detailed instructions on such closings and points of access prior to assignment. Detail supervisors should also be advised of street closures and points of access and any changes of points of access which occur during the event and which were not previously anticipated and publicized. Officers assigned to such events shall provide information to the public at the event about available points of access.Stipulation of Settlement and Order
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Barrier configuration for demonstrations should not unreasonably restrict access to and participation in the event. For example, attendees should be permitted to leave a barriered
area at any time. In addition, if crowd conditions and other circumstances permit, participants should be permitted to leave and return to the same area. Sufficient openings in the barricades should be maintained for purpose of permitting attendees to leave expeditiously and return to the event as described in this paragraph.
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Where the use of the Mounted Unit becomes necessary for crowd control purposes, incident commanders are reminded that if Mounted officers are deployed for such purpose it is important to ensure that a crowd or group to be dispersed has sufficient avenues of escape and/or retreat available to them and has had a reasonable chance to disperse.
at 3-4.Greg in den Berken - 08/22/2014