Capitol of capitalism that it is, New York will continue as a likely target of terrorism so long as it remains rich and powerful. But it is also the international center of media and communications, enterprises that depend on liberty of person and freedom of movement. It is the place to which those with a message come to get their views known and covered. Freedom is at the very core of New York and its success. Its police department historically has understood this, despite the pressures this often puts on police work.
So it may be that New York's officials were simply caught unaware in late January when an aggressive antiwar coalition (United for Peace & Justice) wanting to march up the East Side to the United Nations, asked for a permit, which the city denied. The city cited insufficient time and resources to prepare for a march that would pose "an unacceptable risk to public safety."
In early February U.S. District Court Judge Barbara Jones agreed, noting the federal government's orange (Level 2) terror alert and general post-9/11 security concerns. A protest rally would be permitted, but not a protest march.
But judicially upholding the denial of a permit for a protest march was unprecedented, according to Donna Lieberman, executive director of the New York City Civil Liberties Union. In their appeal of Judge Jones's decision before the U.S. Court of Appeals, 2nd Circuit, the New York Civil Liberties Union argued that "For decades people in New York City have paraded and marched through the public streets as a means of expressing and demonstrating their views on a wide variety of topics. Marching in the streets is a time-honored tradition in our country that lies at the core of the First Amendment."
The Court of Appeals upheld the city's denial of the permit, but sternly noted that its ruling applied to this one event only: "We do not imply that a prohibition against marching would be constitutional in circumstances other than those presented here. We caution that, while short notice, lack of detail, administrative convenience and costs are always relevant considerations, these factors are not talismanic justifications for the denial of parade permits. Likewise, simply offering an alternative of stationary demonstration may not completely serve the constitutional interest at issue."
The court is warning the city that in the future, as in the past, it will again be expected to handle demonstrations, even those that are belated, inconvenient, and costly.
A BAD TIME WAS HAD BY ALL
The demonstration was held on Saturday, February 15, and few have had anything good to say about the experience. The New York Police Department had approached the demonstration as if it were a military operation, thinking containment and control. Police first herded people towards the stage near Dag Hammarskjold Plaza at the northern part of the United Nations, then blocked them from exiting. They shut off access from the side streets, driving demonstrators north on Second and Third Avenues. Large numbers of people were forced to take streets whose exits turned out to be barricaded. The New York Times noted that part of the confusion stemmed from the NYPD moving the entrance to the rally northward as each block of First Avenue filled, progressing from 51st Street up to 74th Street. Many protestors felt hemmed in, ineffective, and scared -- some apprehensive of the surging crowds, others of the police, many unable to free themselves even to leave. The police strategy kept many protestors from protesting.
On the following Monday the protest's organizers ran a 7-minute videotape produced by the Independent Media Center showing questionable police behavior -- backing horses into demonstrators, shoving people into the metal barricades, spraying something toxic at penned-in demonstrators, using abusive language, and raising nightsticks against some who couldn't move. NYPD spokesman Michael O'Looney said the tape was "filled with special effects," and that it did not show whether cops had been provoked.
The NYPD said very few protesters were injured and few arrested -- roughly 275, which is regarded as low for an event of at least 100,000 people, and perhaps as many as 400,000, according to the organizers. The organizers also disagreed with NYPD estimates of arrests and put the number at 348.
Commentary has been almost universally negative. New York Times columnist Joyce Purnick noted, for example, that the "last time we looked, the right to assemble did not mean the right to be splintered into small clusters of people kept far from the action." Newsday's Jimmy Breslin attacked the NYPD's "disgraceful performance," of penning in "throngs of smiling people as if they were cattle. It wasn't the cops' idea to do it. All they did was carry out orders as poorly as possible."
WHAT LIES AHEAD
Do protest marches have inherent dangers to worry both marchers and officials? Absolutely yes, as anyone who has ever marched knows. Things can always go wrong in a crowd, even one made up of well-intentioned people. Something scary happens, the crowd surges, some get trapped against a barrier such as a plate glass window, people get hurt, sometimes very badly.
And a crowd isn't necessarily composed of good guys. Crowds are easily infiltrated by malevolent intruders -- whether FBI agents during the 1960s or terrorists today -- as well as by morons, such as the person who set off firecrackers on Feb. 15, alarming the police horses.
Worse, the world has changed since 9/11, and all political groups are going to have to adjust. The symbols that make for a vital protest, such as the UN or the Statute of Liberty, have been made virtually off limits by their new status as terror targets. The UN had been one of the targets in the 1993 terrorist plot to blow up five New York landmarks simultaneously. That plot was thwarted and several men convicted and imprisoned, but city officials would be irresponsible to disregard the UN's status as an international symbol.
Even such mundane matters as portable toilets can become a serious issue in these new times. Although the police refusal to permit them produced huge problems for the protest's organizers, few would deny that a Porto-San is a perfect hiding place for a bomb. Yet now the issue becomes: which of its repressive procedures will the police apply to future marches and parades?
Will the St. Patrick's parade, for example, suddenly find itself without toilets? Unlikely.
Indeed, the often-mentioned upcoming St. Patrick's Day parade has produced its humorous moments. Trying to distinguish the city's insistence that it had to deny a permit for a protest march from its insistence on issuing a permit for the St. Patrick's Day Parade, NYPD Assistant Chief Michael D. Esposito said that St. Patrick's and Puerto Rican Day marchers "step out in a timed manner and proceed at a set pace." Few New Yorkers outside the police department would cite these two parades as models of decorum.
As Donna Lieberman points out , the police department has a new policy of denying permits for political demonstrations of more than 1000 people even as it routinely permits raucous "traditional" parades. Does this make sense?
The February 15 anti-war march was a world event, held in great cities and small, but not New York. Yes, New York is New York, and therefore likely to get more aggressive protestors. And, yes, New York is a target of terrorists. But it is also an international symbol of freedom, and a city that has always triumphed over its enemies. If it forbids demonstrations and protesters as if it were just a normal city unaccustomed to dealing with world events, it will erode not only its preeminence as the world's capital city but its own sense of itself as a place that takes on all comers.
POLICE ASK FOR MORE SURVEILLANCE AUTHORITY
Meanwhile, even as the police department has been telling two federal judges that it cannot safely handle a protest march, it has been urging another federal judge, Charles S. Haight of Federal District Court in Manhattan, to expand its surveillance authority of political groups. Judge Haight agreed on Feb. 11 to modify a 1985 court order restricting surveillance, which the police department said hampered its ability to investigate terrorism. In early March, Judge Haight will announce modified rules, most likely permitting the police to operate much like the FBI. The department is asking to investigate political groups even without having evidence of criminal activity, and to share all information with other law enforcement agencies. While Judge Haight retained the three-member oversight board that investigates specific complaints of abusive police investigations, he de-fanged it.
"The Constitution's protections are unchanging," he wrote, "but the nature of public peril can change with dramatic speed, as recent events show."
POLICE AND IMMIGRATION SERVICE ACCUSE ONE ANOTHER
Yet somehow nothing is simple. It was revealed last month that of the five suspects in a brutal December 19 gang rape of a woman in Flushing Meadows-Corona Park in Queens, four were illegal aliens with criminal records. So why were they still enjoying the welcome of the U.S.? It turned out that messy relations between the New York Police Department and the federal Immigration & Naturalization Service may have been to blame.
A 1989 Koch administration order prohibited cops from informing the immigration service of an illegal alien's arrest. The rationale was that otherwise illegal aliens would not call in the police to deal in immigrant neighborhoods. But that rule was superseded by a 1996 federal law that encouraged police departments to inform the immigration agency of crimes committed by illegal aliens. Only illegal aliens convicted of felonies are to be deported -- but one of the four was indeed convicted of a felony and an police detective informed the Immigration, according to the mayor's coordinator of criminal justice. A congressional committee is holding hearings to investigate, among other matters, whether the Koch executive order that protects aliens and provides them emergency health care also inappropriately discourages the police from reporting crimes.
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.
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