Cert. petition filed in right to assembly protest case

The case is Garcia v. Bloomberg (16-1082): “The issue is whether, when officers permit individuals to exercise First Amendment rights to speech and peaceful assembly, officers must provide fair warning prior to arresting demonstrators for participation in the demonstration.”

Andrew Pincus

Relevant facts: “On October 1, 2011, police accompanied an Occupy Wall Street march that departed lower Manhattan for an organized rally in the Brooklyn Bridge Park. Although there was no parade permit, police escorted the march, flanking it from all sides. Officers directed marchers to cross streets against the lights, and they blocked traffic to facilitate the march. Police guided the marchers for an extended period, ultimately leading the parade to the Brooklyn Bridge.”

“Once at the Bridge, police closed the Bridge’s roadway to traffic. A line of officers blocked the entrance to the Bridge’s roadway, and the marchers began to enter the narrow pedestrian walkway. The narrowness of the walkway created a bottleneck that caused congestion, extending multiple blocks. At this point, one officer announced to those in the very front of the massive march that they were not per- mitted to walk onto the Bridge roadway. But the vast majority of marchers (including all petitioners) never heard any such warning.”

“The line of police officers blocking the Bridge’s roadway then turned and began walking onto the Bridge. The marchers jubilantly followed in an orderly fashion. The police officers, who had flanked the march all along, escorted and guided the marchers onto the Bridge, without issuing any warning or telling the marchers to disperse. But, once on the Bridge, police trapped more than 700 marchers and arrested them for disorderly conduct.”

“The Seventh, Tenth, and D.C. Circuits have held arrests in materially indistinguishable circumstances unlawful. The Second Circuit disagreed. . . .” [Source: Petitioners’ cert. petition]

Counsel for Petitioners: Andrew Pincus (lead counsel), Charles Rothfeld, Michael Kimberly, Mara Verheyden-Hillard, Carl Messineo, and Eugene Fidell.

Recall: Mr. Pincus was counsel for the Petitioner in Williams-Yulee v. The Florida Bar (2015).

→ In an amicus brief on behalf of the Reporters Committee for Freedom of the Press and the National Press Photographers Association, Robert Corn-Revere (joined by Eric Feder, Bruce Brown, Gregg Leslie & Mickey Osterreicher) argues that:

  1. The First Amendment Rights of Freedomof the Press and Freedom to Peaceably Assemble Are Intertwined, and
  2. The News Media Has a ParticularlyStrong Interest in Curbing Law Enforcement Abuses During PublicProtests

The brief opens with this observation:

“In recent years, amici have observed an alarming rise in journalists being arrested while covering political protests and demonstrations in public places. Frequently, reporters and photographers are swept up in mass arrests that the police initiate without warning or an opportunity for the journalist to identify him-or herself as a member of the press. In fact, at least two journalists were among those arrested with the Petitioners in the incident giving rise to this lawsuit. Amici have spoken out publicly on numerous occasions to condemn this trend, provided legal advice on the risks of being arrested (and what to do if arrested) to journalists covering public events, and have filed amici curiae briefs in cases involving arrested journalists.”

“The legal reasons why the Court should resolve the clear split among the Courts of Appeals on the requirement that police provide fair warning prior to arresting participants in a previously-permitted demonstration are amply set forth in the Petition. Amici write separately to underscore the particular impact that unclear standards in this area have on the press, which plays a vital role in informing the citizenry about the political messages expressed at mass public demonstrations and in monitoring the conduct of law enforcement. There can be no greater chill on the exercise of the freedom of the press than the threat of arrest for doing nothing more than reporting a story. . . .”

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