125 Broad Street New York, NY 10004 (212) 607 3300 NYCLU Fax(212) 607 3318 NEW YORK CIVIL LIBERTIES UNION www.nyclu.org
BY FACSIMILE AND FIRST CLASS MAIL Christopher Dunn Associate Legal Director October 20,2011 (212) 607-3300, ext. 326 Raymond Kelly [email protected] Commissioner New York City Police Department 1 Police Plaza New York, N.Y. 10038 Re,' Occupy Wall Street
Dear Commissioner Kelly:
On behalf of the New York Civil Liberties Union, we write concerning the policing of the Occupy Wall Street demonstration. As the most prominent protest event in the City since the 2004 Republican National Convention, Occupy Wall Street provides an important opportunity for the NYPD and the City to demonstrate their commitment to protecting and respecting the First Amendment.
At the outset, we recognize and appreciate the Department efforts to allow the protesters to remain in Zuccotti Park. Consistent with the views expressed by Mayor Bloomberg, we encourage you to continue to facilitate peaceful use of the park. Specifically, as the weather turns colder and the protest continues, the Department must allow the use of tents, which will be essential to protect protesters. Any effort by the Department to move against those using tents would seriously undermine the protest and endanger the protesters. We also call on the Department to reverse the recent decision to deny a request to place portable toilets near the site.
In addition, we have some serious concerns about certain aspects of the policing of the protest. As an initial matter, we are deeply concerned about the nearly blanket videotaping of Occupy Wall Street events. At Zuccotti Park, there are at least two special cameras trained on the park and apparently recording activity at all times. In addition, many members of TARU are at the park and other locations and are conspicuously and routinely videotaping protest activity.
We do not dispute the Department's authority to videotape unlawful activity, but what we have observed has gone far beyond that. For instance, at the October 5 march from Foley Square, an NYCLU observer noted that TARU members started filming everyone on the march behind the organized labor contingent, even though there was no discernable difference between the two segments of the march. More generally, it appears to us that the Department's approach is basically to videotape all Occupy Wall Street activity. This type of surveillance substantially chills protest activity and is unlawful. In light of the Mayor's recognition of the peaceful nature of these protests, we call on you to stop the videotaping of lawful protest.
We also believe that the arrest of 700 people on the Brooklyn Bridge was inappropriate. All the information available to us (including the personal observations of Mr. Dunn) indicates
The New York Affiliate of the American Civil Liberties Union I Thomas Frey, President I Donna Lieberman, Executive Director that no warnings were given to most people entering the bridge, nor were any efforts made by officers on the scene to prevent or discourage people from doing so. As a consequence, we believe that many people -- and perhaps the vast majority ofthose arrested -- had no reason to think that the police had not given permission for them to walk on the roadway. While we are aware that some on the bridge were allowed to leave from the back once the march was stopped, the fact that 700 were arrested makes clear to us that the Department did not do a sufficient job recognizing that the bulk of those on the bridge had not engaged in unlawful activity. We therefore urge the Department, working with the District Attorney's Office, to take whatever steps are necessary to dismiss most if not all of the summonses issued to those on the bridge.
Looking forward, we also think it important that the Department do a better job of providing warnings to Occupy Wall Street protesters it believes are unlawfully parading in City streets or blocking sidewalks. Having been present at many of the major Occupy Wall Street events, we have seen situations in which officers have done an excellent job conveying information to protesters and bystanders. In other situations, however (such as with the Brooklyn Bridge arrests), communications efforts were disjointed and ineffective. This leads to unnecessary tensions and, in the most extreme examples, arrests that could be entirely prevented. We therefore urge you to take steps to assure that officers are instructed to provide clear and audible warnings and that there are sufficient personnel and equipment to convey this information to large crowds.
On a related point, we also have been present at several locations (including two this past weekend) where police officers aggressively dispersed people standing lawfully on city sidewalks. While we recognize that such dispersal orders can be appropriate in limited circumstances, we urge the Department to be more careful with such orders.
Finally, we have been concerned about the Department's response to reported incidents of excessive force. In particular, the statements by Deputy Commissioner Paul Browne endorsing the use of pepper spray by Deputy Inspector Anthony Bologna, notwithstanding videotape evidence suggesting his actions were wholly improper, created the impression the Department was condoning excessive force. While we understand the Department has now moved to discipline Deputy Inspector Bologna and is investigating other incidents, we strongly encourage the Department to make clear that it will not tolerate excessive force and that it will appropriately discipline any member of the Department who use excessive force.
Sincerely,
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