Letter to Mayor Bloomberg and Commissioner Kelly
NYS Senator Eric Adams
|Attorney at Law||
572 Flatbush Avenue
|260 Madison Avenue, 18th Floor||
Brooklyn, NY 11225
|New York, NY 10016||
November 20, 2011
|Mayor Michael R. Bloomberg|
|The City of New York|
|Office of the Mayor|
|New York, NY 10007|
|Police Commissioner Raymond Kelly|
|New York Police Department|
|One Police Plaza|
|New York, NY 10038-1403|
Dear Mayor Bloomberg and Police Commissioner Kelly,
On September 17, 2011 members of Occupy Wall Street (“OWS”) occupied Zuccotti Park. For the next 58 days and nights the individuals and their supporters raised fundamental questions about economic and social justice—issues endemic in America in the early part of the 21st century. Their movement resonated with many New Yorkers, Americans, and indeed with people throughout the world. The gross economic inequality that has developed over the past 30 years—which government policies have certainly contributed to—has struck a chord of recognition and anger in a remarkably large and diverse number of people everywhere. In short, OWS caused many people to question whether the principles of liberty, justice, equality and fairness are being followed. Any society that claims to be based on these principles ought to welcome this focus, and attempt to constructively engage with its critics. But this is not what has happened.
On November 15, 2011, in the dead of night (approximately 1 a.m,), while most of us slept and the media could be presumed absent, your Administration moved, as if you were dealing with a life-threatening emergency, to eliminate the OWS protestors from Zuccotti Park. Acting mainly through the deployment of the personnel of the New York Police Department
(“NYPD”), you gave notice to the members of OWS who were in Zuccotti Park that they had approximately 45 minutes to vacate the Park with their possessions or face arrest and the confiscation of their property. Though many of the protesters left, more than 100 stayed. During the remainder of the night, morning, and afternoon the police arrested approximately 220 people. Property that reportedly filled up 26 sanitation trucks was carted away.
We have serious questions and concerns about the appropriateness and even legality of some of the actions taken that night by the Bloomberg Administration, and in particular the
NYPD. This letter attempts to focus on some of these concerns, and respectfully requests a response from both of you. We believe that a well-informed citizenry is an essential ingredient in a healthy democracy, and we appeal to similar beliefs we expect you to have, and to honor.
I. The Role of the Press
All agree that freedom of the press as provided for in the First Amendment to the Constitution of the United States and Article 1, Section 8, of the New York State Constitution is a fundamental right that needs to be respected and protected. Yet on November 15th, numerous journalists were prevented from effectively covering the retaking of Zuccoti Park and several were even arrested and taken into custody.
Whenever a government interferes with the role of the press in reporting the news, questions pertaining to the appropriateness and legality of those actions arise and evoke extreme concern. In this particular instance, such actions indicate a purpose beyond clearing the park that is fundamentally inconsistent with American values and law.
In addition to controlling constitutional considerations, the New York City Press Regulations and NYPD Patrol Guide Procedures are relevant to the actions taken that night. The New York City Press Regulations explicitly state:
The bearer of a Press Card is entitled to (i) subject to safety and evidence preservation concerns, cross police, fire lines or other restrictions, limitations or barriers established by the City of New York at emergency, spot, or breaking news events and public events of a non-emergency nature where police, fire lines or other restrictions, limitations or barriers established by the City of New York have been set up for security or crowd control purposes, within the City of New York; and (ii) subject to space limitations, attend events sponsored by the City of New York which are open to members of the press. When the bearer’s ability to cross police, fire lines or other restrictions, limitations or barriers established by the City of New York or attend events sponsored by the City of New York is denied, such denial must come from a supervising officer or member of the Office of the Deputy Commissioner, Public Information of the New York City Police Department.
The NYPD’s Patrol Guide Procedure 212-49, entitled “Incidents Involving Media Representatives” states, in part, its purpose is: “[t]o cooperate with media representatives by not interfering … with media personnel acting in their news gathering capacity.” The Procedure makes reference to “Working Press Cards” and recognizes that the right of reporters to cross police, fire lines [or other restrictions, limitations, or barriers] “will not be denied.” Although it states that “this does not include access to interior crime scenes or areas frozen for security reasons,” it then also states:
In order to cooperate more fully with members of the news media and provide them with access to cover newsworthy events, the following guidelines will be adhered to unless safety interests or proper performances of police duties require otherwise:
- To the extent it is feasible to do so, the media’s access to demonstrations on private property will not be impeded by the Department
- The media will be given access as close to the activity as possible, with a clear line of sight and within hearing range of the incident.
- When incidents spill over or occur on private property, members of the media will not be arrested for criminal trespass, unless an owner or representative expressly indicates that the press is not to be permitted to enter or remain on the property.
- If the ranking officer at the incidents determines that press access must be restricted in certain circumstances (i.e., in order for the Department to carry out its law enforcement functions), he retains the discretion to do so.
In view of the New York City Press Regulations and NYPD Patrol Guide Procedures, we raise the following questions:
- Did a ranking officer, supervising officer, or member of the Office of the Deputy Commissioner, office of Public Information of NYPD determine that press access was restricted? If so, who made that call, what was the rationale for it, and how was the decision communicated to police officers?
- Why wasn’t the media given access “as close to the activity [in Zuccotti Park] as possible, with a clear line of sight and within hearing range”?
- Why were two journalists arrested for trespass? Did a representative of Trinity Church expressly indicate that the press “is not to be permitted to enter or remain on their property”? If so, who was that person?
- Did members of the NYPD interfere with any of the journalists’ ability to gather news by prohibiting them from being in or close to Zuccotti Park and/or by detaining them blocks away, behind barriers established by the NYPD?
- The Role of Elected Officials
It is our understanding that two elected officials were present on November 15th and
denied access to the activities taking place in Zuccotti Park. In fact, one of the elected officials, Ydanis Rodriguez, was arrested. Similar to the rights of journalists, elected officials have a duty to oversee the workings of government agencies. Nevertheless, the two elected officials were prevented from effectively fulfilling their responsibilities since they were detained blocks away, behind barriers established by the NYPD.
We urge you to consider establishing a protocol that allows elected officials in situations similar to those of November 15th to be given access in close proximity to the activity, with a
clear line of sight and within hearing range. We believe that this is an essential part of the checks and balances that are needed for a vibrant democracy.
III.Vouching of Property
People in Zuccotti Park were given approximately 45 minutes to leave with their possessions, and all property that remained in Zuccotti Park was carted away. Television footage showed what appeared to be NYPD personnel, some wearing riot helmets, pulling down tents and structures in Zuccotti Park. The NYPD’s Patrol Guide, Procedure No. 218-01, sets forth a voucher system “to record and process property coming into police custody.” For example, it states that “property must be properly tagged, packaged or sealed and clearly identified by Invoice number.”
Given the Patrol Guide’s procedures, the following concerns and questions arise:
- Did members of the NYPD pull down the tents and other structures in Zuccotti Park?
- Did the NYPD delegate to the Department of Sanitation the task of carting away the property remaining in Zuccotti Park? What are the vouching procedures for the Department of Sanitation? Was the property remaining in Zuccotti Park, including laptops and other electronic devices, considered “garbage”?
- Was any vouching done? If not, why not?
- Will the City compensate people whose property was lost or damaged? If so, what is the procedure to request such compensation?
IV. Desk Appearance Tickets (“DATs”)
Approximately 220 people were arrested on November 15th. The NYPD Patrol Guide, Procedure No. 208-27, entitled “Desk Appearance Ticket-General Practices” states what a Desk Appearance Ticket is and describes when a DAT may and will not be issued. Accordingly, we have the following questions
- How many of the approximately 220 arrestees received a DAT?
- Were the NYPD Patrol Guide procedures for DATS complied with?
- Inconsistency by the NYPD
During the November 15th action, NYPD officers gave inconsistent orders to members
and supporters of OWS regarding what they were permitted to do, causing uncertainty and great concern. For example, at approximately 4:30 a.m., when members and supporters of OWS were gathered at Foley Square, one of us spoke with an NYPD Captain who said it was permissible for people to remain in the Square. The crowd increased substantially after individuals communicated to others (through twitter and text messages) that they should come to Foley Square. Soon afterwards, at approximately 5:20 a.m., a newly arrived NYPD Inspector informed one of us that people had to leave Foley Square, and that those who did not leave would be arrested for violating a Parks Department curfew. When the Inspector was informed that the Captain said it was permissible for members of OWS to be in the Square, the Inspector
responded the he was in charge now. Fortunately, the Inspector acted on the suggestion that he call Commissioner Kelly or Chief Esposito to discuss his plan to arrest everyone in Foley Square. Approximately 5 or 10 minutes later, the Inspector came back and said that he had talked with his superiors, and it was indeed permissible for people to stay in Foley Square as long as they were peaceful– which they had been and continued to be. We narrowly averted an unnecessary mass arrest.
This incident exemplifies the NYPD’s lack of consistency in enforcing the rules, which makes it difficult for demonstrators to understand what is legal, and what could lead to an arrest.
VI. Disregard of the TRO
On November 15th at 6:30 a.m., New York State Supreme Court Justice Lucy Billings signed an Order to Show Cause and entered a Temporary Restraining Order prohibiting the City of New York and other named Respondents, including both of you, from a) evicting protestors from Zuccotti Park, and b) “enforcing the rules published after the occupation began or otherwise preventing protestors from re-entering the park with tents and other property previously utilized.” Yet, throughout the morning and afternoon of November 15th, it is our understanding that the respondents continued to refuse to allow people back into Zuccotti Park. It is our further understanding that Respondents allowed people back into Zuccotti Park only after Justice Michael Stallman lifted the TRO and denied Petitioners’ application for an injunction.
Therefore we ask:
- Is the above description accurate?
- If the description is indeed accurate, then why did Respondents disregard Justice Billings order?
- Were the Respondents by disobeying Justice Billings’ Order in contempt of court? Has any disciplinary action been taken against those who appear to have willfully violated a court order?
It is ironic that the City and the other Respondents were arguing that the members of OWS were not following the rules; yet, it appears that the City and the other Respondents were not following the rules by violating a Supreme Court Justice’s order.
This letter is written in the spirit of openness and with a desire to begin a public discussion about the important concerns and questions that have been raised regarding the morning of November 15th. If any of our understandings, impressions or representations are inaccurate, please inform us of how they are incorrect. Beyond that, it seems time to us, for all those who treasure American values and laws respecting dissent, to discuss ways to accommodate and engage with OWS so that the critical issues their protests have raised are addressed. We all know from experience that the issues they have raised cannot be successfully suppressed. Some of us, as veterans of the civil rights and other movements, know too well the fruitless history of attempted suppression. We trust you also know that history and have no desire to repeat it. We are anxious to meet with you to discuss the issues raised in this letter, in the hope of finding constructive solutions consistent with American values and law.
Thank you for your consideration, and we look forward to your response.
Norman Siegel Eric Adams
Ira Glasser Herbert Teitelbaum