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2nd Cir. Panel Reverses Itself on Occupy Wall Street Arrests

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By Mark Wilson, Esq. on February 25, 2015 12:21 PM

A peculiar bit of appellate procedure attended the issuance of an amended opinion in Garcia v. Does, the "Occupy Wall Street" case in which Occupy protesters claimed they were escorted onto the Brooklyn Bridge by police, then arrested when they were halfway across.

Though the protesters won in federal district court, and again before a three-judge panel of the Second Circuit, that same panel reversed itself Monday. The panel remanded the case to Judge Jed Rakoff with instructions to dismiss the complaint, dissolving the en banc rehearing before it started.

Let's Back Up

In August, a three-judge panel upheld 2-1 the trial court's denial of summary judgment to the defendants, the City of New York and others. That panel said there was a factual dispute about what the officers said and did, and whether those actions (if any) induced protesters onto the Brooklyn Bridge, where they were later arrested for impeding traffic.

The panel folded the denial of the defendants' qualified immunity defense into the summary judgment denial, explaining that because qualified immunity rests on what a reasonable officer would have done, and what the officers did or didn't do is in dispute, qualified immunity wouldn't be appropriate quite yet.

That's standard issue when a state entity asserts a qualified immunity defense at summary judgment. If the facts aren't in dispute, then the question of whether the state acted reasonably is just a matter of law.

Double Secret Reversal

That was August. In December, the Second Circuit granted en banc (or is it in banc?) review, which effectively vacated the August panel opinion. On Monday, the panel granted the defendants' petition for rehearing and reversed itself, finding the City was entitled to qualified immunity at the pleading stage, after all.

The difference between the August opinion and the current one is Part IV of the Discussion section, which, in the amended version, focuses on whether the allegation that police officers let the protesters on the bridge was "so clearly apparent to the officers on the scene as a matter of fact, that any reasonable officer would have appreciated that there was no legal basis for arresting plaintiffs."

Relying on videotape of the event (presumably the same videotape that the same three people saw last year), the panel concluded that there was no evidence "that any police officer made any gesture or spoke any word that unambiguously authorized the protesters to continue to block traffic, and indeed the Complaint does not allege that any of the plaintiffs observed any such gesture."

While the plaintiffs seemed to infer that the officers backing down as they entered the bridge constituted a kind of endorsement of their crossing the bridge, the panel didn't think that was clear evidence of anything or than "the police, having already permitted some minor traffic violations along the marchers' route, and after first attempting to block the protesters from obstructing the vehicular roadway, retreated before the demonstrators in a way that some of the demonstrators may have interpreted as affirmatively permitting their advance."

This reasoning is essentially the inverse of the August opinion -- both of which were written by Judge Gerard E. Lynch, by the way -- which found there was no evidence that police didn't do what plaintiffs claimed; i.e., "that the police directed the demonstrators' activity along the route of their march, at times specifically condoning, or even directing, behavior that on its face would violate traffic laws."

So, yes, the very same three-judge panel that affirmed the district court's ruling has now reversed it before the en banc panel had a chance to hear the case -- evidence of "how much the Second Circuit loathes rehearing en (or in) banc," according to Howard Bashman. (Yes, there is an intra-circuit conflict over whether it's en banc or in banc.)

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