Suppressing Protest: Human Rights Violations in the U.S. Response to Occupy Wall Street The Global Justice Clinic (NYU School of Law) and the Walter Leitner International Human Rights Clinic at the Leitner Center for International Law and Justice (Fordham Law School) as part of the Protest and Assembly Rights Project About the Protest and Assembly Rights Project In January 2012, international human rights and U.S. civil liberties experts at seven law school clinics across the United States formed the Protest and Assembly Rights Project. This joint project investigated the United States response to Occupy Wall Street in light of the government’s international legal obligations. The participating law clinics are: Project Directors and Coordinators: The Global Justice Clinic (GJC) at NYU School of Law provides high quality, professional human rights lawyering services to individual clients and non-governmental and inter-governmental organizations, partnering with groups based in the United States and abroad, or undertaking its own projects. Serving as legal advisers, counsel, co-counsel, or advocacy partners, Clinic students work side-by-side with human rights activists from around the world. The Walter Leitner International Human Rights Clinic at the Leitner Center for International Law and Justice at Fordham Law School aims to train a new generation of human rights lawyers and to inspire results-oriented, practical human rights work throughout the world. The Clinic works in partnership with non-governmental organizations and foreign law schools on international human rights projects ranging from legal and policy analysis, fact-finding and report writing, human rights training and capacity-building, and public interest litigation. The views expressed herein are not reflective of the official position of Fordham Law School or Fordham University. The International Human Rights Clinic at Harvard Law School is a center for active engagement in human rights within a context of critical reflection. The Clinic works on a range of international human rights and humanitarian law projects on a variety of topics and in countries throughout the world, including the United States. Under the close supervision of clinical faculty, and in collaboration with other organizations and advocates working towards social justice, Clinic students advance the interests of clients and affected communities through a range of approaches and strategies, including documentation, litigation, research, and community education. The International Human Rights and Conflict Resolution Clinic at Stanford Law School provides direct representation to victims and works with communities that have suffered or face potential rights abuse. The Clinic seeks both to train advocates and advance the cause of human rights and global justice and to promote sustainable conflict resolution. In its first year, the Clinic has addressed labor rights, transitional justice, gang violence and violations of the laws of war in countries as diverse and distant as Brazil, Cambodia, El Salvador, Turkey and the United States. Participating Clinics: The Civil Rights Clinic at the Charlotte School of Law gives students an opportunity to engage in real-world advocacy while at the same time advancing local civil rights causes. The Clinic educates students in various ways to perform many of the different traditional litigation skills (fact investigation, pleading, motions practice, depositions, trial work, etc.), and also teaches how to be creative within ethical bounds in order to embrace different models of advocacy to advance the particular cause or client’s interest for which they are working. i The Community Justice section of Loyola Law Clinic-New Orleans teaches law students substantive, procedural and practical advocacy skills in order to assist community members with post-disaster housing and government accountability issues. Particular emphasis is placed on social justice issues and community lawyering. Under faculty supervision, clinic students work as the lead lawyers and partner with co-counsel on individual and impact litigation civil and human rights cases. The Constitutional Litigation Clinic at Rutgers School of Law-Newark has worked on cutting-edge constitutional reform since its founding in 1970. Through the clinic, students not only learn the law, they make the law. Students are actively involved in all aspects of the clinic’s work, including deciding which cases to take, interviewing clients, developing the facts, crafting legal theories, drafting legal briefs and preparing for oral arguments. Report Acknowledgements This report is the first in a series of reports by the Protest and Assembly Rights Project to address the United States response to Occupy Wall Street. This report focuses on the response in New York City. Subsequent reports will address the responses in Boston, Charlotte, Oakland, and San Francisco. Lead Authors Sarah Knuckey, Adjunct Professor of Clinical Law and Research Director, Center for Human Rights and Global Justice (CHRGJ), New York University School of Law Katherine Glenn, Adjunct Professor of Law, Fordham Law School Emi MacLean, Human Rights Lawyer Contributing Researchers Global Justice Clinic (NYU) Annie Preis, J.D. (expected) ’13 Madalyn Wasilczuk, J.D. (expected) ’13 Carey Shenkman, J.D. (expected) ’13 Additional research and citation assistance provided to the Global Justice Clinic: Jeffrey Dahlberg, J.D. (expected) ’14 (New York School of Law) (CHRGJ intern) Laila Qasim, J.D. (expected) ’14 (Rutgers School of Law-Newark) (CHRGJ intern) Tayyaba Khokhar, J.D. (expected) ’13 (Seton Hall Law School) (CHRGJ intern) Elizabeth Hassan, LL.M. ’12 (CHRGJ intern) Lauren Paulk, J.D. (expected) ’13 (City University of New York School of Law) Daetan Huck, J.D. (expected) ’14 (City University of New York School of Law) Angela de Castro, J.D. (expected) ’14 (City University of New York School of Law) Spencer Wolff, J.D. (Colombia), PhD (expected) (Yale) Additional editorial and production assistance provided to the Global Justice Clinic: Veerle Opgenhaffen, Executive Director, Center for Human Rights and Global Justice Sarah Rutledge, Editor Audrey Watne, Assistant, Center for Human Rights and Global Justice The Walter Leitner International Human Rights Clinic at the Leitner Center for International Law and Justice (Fordham) Gwen Barnes, J.D. ’12 Anne Kelsey, J.D. ’12 Chandler Abernathy Michael, J.D. ’12 Tom Papain, J.D. ’12 ii The International Human Rights Clinic (Harvard) Deborah Alejandra Popowski, Clinical Instructor and Lecturer on Law Fernando Ribeiro Delgado, Clinical Instructor and Lecturer on Law Clara Long, J.D. ’12 Bradford Adams, J.D. ’12 Jean Jeong, J.D. (expected) ’14 Lynnette Miner, J.D. (expected) ’14 The International Human Rights and Conflict Resolution Clinic (Stanford) James L. Cavallaro, Professor of Law Stephan Sonnenberg, Clinical Lecturer The Civil Rights Clinic (Charlotte School of Law) Jason Huber, Assistant Professor of Law Evan Carney, J.D. ’12 Charlie Schmidt, J.D. ’12 Ashley Washington, J.D. (expected) ’13 Lindsey Vawter, J.D. (expected) ’13 Michael Antypas, J.D. (expected) ’13 John Sulau, J.D. ’12 The Community Justice section of Loyola Law Clinic (New Orleans) Davida Finger, Assistant Clinical Professor The Constitutional Litigation Clinic (Rutgers School of Law-Newark) Frank Askin, Distinguished Professor of Law Kevin Clark, J.D. ’12 Jordana Mondrow, J.D. ’12 Lee Lowenthal, J.D. (expected) ’13 Photos by: Rebecca Letz Funding No external funding was sought or obtained for this project. Funding was provided only by the participating law school clinics. iii TABLE OF CONTENTS Acknowledgements i Table of Contents iv Executive Summary vi Introduction 1 Methodology 3 PART I: BACKGROUND, CONTEXT, LAW 6 Chapter One: Occupy Wall Street in the Context of Contemporary 6 and Historic Social Protest 1. Occupy Wall Street: Evolution and Characteristics 6 2. Occupy in the Context of Recent International Protests 14 3. Public Protest in the United States 19 Chapter Two: Policing: Background, Context, Guidelines 24 1. Major U.S. Policing Issues: Policing of Racial and Religious Minorities 24 and the Homeless 2. Protest Policing Strategies: An Overview 26 3. U.S. Policing Guidelines and Use of Force Rules 31 Chapter Three: International Law and Protest Rights 45 1. Introduction: The Right to Engage in Peaceful Protest 45 and Political Assembly 2. Protest, Assembly, and Expression Rights are Foundational to Democracy 47 3. Scope and Content of Protest Rights 52 4. Policing Protests: Use of Force, Policies and Training, Surveillance 64 5. State Obligation to Investigate, Prosecute, and Remedy Violations 68 PART II: HUMAN RIGHTS CONCERNS IN THE RESPONSE TO 71 OCCUPY WALL STREET Chapter One: Aggressive and Excessive Police Use of Force 72 1. Bodily Force: Pushing, Shoving, Dragging, Hitting, Punching, Kicking 73 2. Weapon Use: Batons, Pepper Spray, Barricades, Scooters, Horses 75 3. Restraints: Flex Cuff Injuries 78 4. Delays and Denial of Medical Care 80 5. Unnecessary Police Force Violates and Suppresses Protest Rights 81 Chapter Two: Over-Policing and Poor Communication 82 Chapter Three: Obstruction of Press Freedoms and Documentation 84 at Protests iv 1. Abuse of Press Freedoms During the Zuccotti Park Eviction 85 2. Arrests of Journalists 87 3. Physical Abuse of Journalists 88 4. Other Obstructions of Press Freedoms 89 5. State Interference with Press Freedoms Violates International Law 90 Chapter Four: Obstruction of Independent Monitoring