Judge Sullivan: Some Arrests at 2004 RNC Lacked Probable Cause [RE: Waco discussion]

In a decision filed on Sunday, Judge Sullivan granted in part and denied in part the parties’ cross-motions for summary judgment in Dinler et al. v. City of New York – the consolidated actions brought by protesters arrested during the 2004 Republican National Convention in New York City. The parties’ fifty motions addressed four issues:

(1) whether the police had probable cause to arrest protesters and bystanders at a demonstration on Fulton Street on August 31, 2004; (2) whether the police had probable cause to arrest protesters and bystanders at a demonstration on East 16th Street on August 31, 2004; (3) whether the City’s suspension of its summons policy for minor offenses, when those offenses related to the RNC, was constitutionally permissible; and (4) whether the City’s blanket fingerprinting policy with respect to RNC-related arrests was lawful and constitutionally permissible.

Judge Sullivan dismissed plaintiffs’ claims challenging the constitutionality of the No-Summons and Fingerprinting policies, but granted in part plaintiffs’ motions for summary judgment, finding that probable cause did not exist to justify the Fulton Street arrests. He also found that questions of fact existed with respect to the East 16th Street arrests that require trial.

n discussing the arrests, he rejected the City’s “group probable cause” theory (for which they had primarily relied on Carr v. District of Columbia and Bernini v. City of St. Paul - two cases from outside the Second Circuit):

"Carr and Bernini provide insight into how the state can preserve public order and enforce the law in mass protest or riot situations, but they do not, and could not, alter the constitutional requirement of individualized probable cause as a prerequisite for lawful arrest. Rather, they stand for the unremarkable proposition that, where a group of individuals is acting in concert such that a reasonable police officer could conclude that every member of the group violated the law, that officer would be justified in arresting every member of the group. As such, Carr and Bernini do not endorse a theory of collective or group liability, nor do they reflect a departure from the rule of individualized probable cause. They merely offer a method of reaching individualized probable cause in a large, and potentially chaotic, group setting. Individualized probable cause remains the lodestar in these cases. An individual’s participation in a lawbreaking group may, in appropriate circumstances, be strong circumstantial evidence of that individual’s own illegal conduct, but, no matter the circumstances, an arresting officer must believe that every individual arrested personally violated the law. Nothing short of such a finding can justify arrest. The Fourth Amendment does not recognize guilt by association."

I thought I had replied this morning, but I do not see it so I must have somehow exited before posting. I do think this a very good approach.

Thank you for initiating it.

Being appalled at “guilt by association” doesn’t get us there. We have to know what is overreach in the application of the law, and what is allowed by the law itself, much as we do not like the tone of the law itself.

I do not like civil asset forfeiture, I do not like RICO or the acronym is is known as in the Texas Statutes. Yet, for now at least, those statutes were enacted by the “people’s representative government”. We need to know who is at fault.

We can’t blame the city and county for laws that were enacted, only their own overreach of the same.

Then if the application we decry is still overreach, we have to go back to the legislature to remove laws that are in themselves problematic.

Yes, this is a very valuable approach to pursue.

The caveat is, that organized criminal gangs allow few methods the Founders would have envisioned, to shut them down and stop them from harming innocent citizens; for the innocent citizens they harm are even more victims, than those who the law might reach by overreach — especially in the later case, when it is the legitimately enacted law itself that allows some reach into the criminal enterprise.

Thanks again for this approach. I for one would like to know the extent to which the county might have exceeded its authority under the law, and what the law allows that we might find in itself oppressive.

I do not like oppressive laws. I do not like criminals who harm and oppress innocent civilians. We cannot allow extremes in either direction.

Servus, of course and again, thank you for your willingness to delve into this avenue of inquiry.

Re: application of EIOCA

This is interesting. It seems one misapplication of EIOCA is the failure to demonstrate an on-going combination among the three or more . . .

That caveat would not apply to the Cossacks, since their affiliation is obviously a continuous one.

It does not matter that the Cossacks were not previously on a list of known criminal gangs. That is not a requirement. The requirement seems to be three or more, conspiracy to engage in organized criminal activity, ongoing combination . . .

Interesting that the overt act under the conspiracy section need not be a criminal act but one of aid or support, etc.

So, the statue seems to apply to the Cossacks as well as the Bandidos, as long as the criminal activity in the affidavits applies to the Cossacks as a group at Waco and in their on-going combination. I am not conjecturing about that.

Probable cause would be the extent that it applied to a given person?

From the link in your previous post.

EIOCA BY

“CONSPIRING TO COMMIT”

Texas Penal Code §71.01(b) states that “conspiring to commit” means that defendant agrees with at least one person that defendant or at least one other engage in conduct that would constitute the offense and defendant and one or more of them perform an overt act in pursuance of the agreement.

State must prove:

Existence of a combination;

AND

Defendant agreed with at least one of the other persons that

Defendant or at least one of the others would engage in conduct that would constitute the underlying offense,

AND

The defendant, and

at least one of the others performed an overt act in pursuance of the agreement.

The state must prove two overt acts. One of these acts must have been committed by the defendant.

Penal Code § 71.01(b) states that an agreement constituting conspiring to commit may be inferred from the acts of the parties.

DIFFERENCE BETWEEN

CONSPIRACY AND EIOCA

For conspiracy, defendant must simply Agree To Participate in conspiracy, as long as another conspirator commits some overt act in furtherance of conspiracy.

For EIOCA, [as opposed to conspiracy to engage in . . .] Defendant must

Agree to participate

and

Himself perform some overt act in pursuance of that agreement.

Thus, if the group is charged with conspiring to commit EIOCA and are jointly tried, the defendants who did not personally perform an overt act will be acquitted.

*****The overt act need not be criminal itself.****** The law of parties applies to EIOCA (i.e. acts that encourage, solicit, aid, or attempt to aid the commission of the underlying offense, are sufficient to satisfy the requisite overt act.

now just me:
As to the definition of “encourage, solicit, aid, or attempt to aid” . . . The original intent of the legislature that enacted this law comes into play; maybe more so, case law applying the statute to individual cases.

Interesting that the overt act in itself need not be a criminal act.

I thought about getting a law degree, but the prospect of continued life on “campi” in the early 70s disgusted me so I decided to join the RW (Real World). In my case, in the Army. Anything above notwithstanding has to be put to an actual attorney who has experience in the litigation of these types of cases — or dare I suggest, you or I read the case law ourselves. I do not doubt either of us would be up to the task, but surely there is someone who already knows??

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