The following document was provided by:
THE AMERICAN CIVIL LIBERTIES UNION

Pepper Spray
The New York Civil Liberties Union received fifteen reports of the police using pepper spray — in apparent violation of NYPD policy[37] — to disperse the dense crowds that had formed largely as a result of decision of police officials to cut off access to most of the streets leading to the rally.[38]   On Second Avenue and 57th Street and Third Avenue and 53rd Street, witnesses reported that officers shot pepper spray into the eyes of protestors pressed up against the barricades. A 63-year old woman reported that, “I…was Maced in the left eye and face on Saturday at the peace march by a police officer at 53rd Street and Third Avenue. We were forced by the police to march into a cul-de-sac, and the weight of the people behind us pressed the crowd against the ‘pen,’ whereupon a police officer sprayed me and several other people.”[39]   As they were crushed up against the barriers, the demonstrators begged the officers to let them climb over to receive medical attention, but their pleas were ignored. At the corner of Lexington Avenue and 51st Street, the entire crowd was affected when officers shot a stream of pepper spray into the air, allowing the mist to descend down on the mass of people.[40]   A man who was standing in the crowd described how the scene unfolded:

“Suddenly I saw a small liquid stream overhead that looked like water and I actually thought that the Police were beginning to spray water on the crowds. I didn’t know what the stream was. About a few seconds later I felt excruciating pain in my eyes and face and ran over to the side of a building to try to rub my eyes and soothe the pain. A bystander told me that it was probably pepper spray. I went to a small store to get water to wash my face and eyes. The pain was terrible and lasted for almost an hour.” [41]

Even at locations far from the main action, the police deployed pepper spray. In one account, an older demonstrator describes how an officer discharged pepper spray into the eyes of two students from Hastings-On- Hudson high school who were walking on the sidewalk at Second Avenue and 93rd Street between 1:30 and 2 PM.[42]   According to the gentleman, the attack was “brutal” and “unprovoked.”[43]

Excessive Force during Arrest
Witnesses filed twenty-three reports that document excessive force during arrests.[44]   Although the details are too numerous to record fully here, several examples are worth mentioning. In one instance on Second Avenue at 53rd Street, a female demonstrator saw the police throw a young man to the ground.[45]   The youth was faced down in horse manure as six officers piled on top of him.[46]   At the corner of Second Avenue and 59th Street at around 2 PM, demonstrators looked on as three police officers pummeled a youth to the ground.[47]   “The kid looked to be late teens, early 20’s. While on the ground they continued to beat him with fists and billy clubs in a ridiculous and horrifying show of force.”[48]

Witnesses at Third Avenue and 51st Street saw a similar occurrence after which the officers handcuffed the protestor and dragged him down the stairs of the subway.[49]   Others reported that police officers beat a man who was lying on the ground in the fetal position, and officers sat on a protestor who seemed unconscious with blood around his head.[50]   In a different email, a demonstrator reported that an officer slammed a young boy head first into a police van and then threw him to the pavement.[51]   Another demonstrator was arrested for not moving quickly enough to disperse on 47th Street heading west.[52]

Even on First Avenue, police used excessive force while making an arrest. A woman whose transgression consisted of trying to join her mother, who had just moved into the next pen with her union group, was shoved by a police officer and arrested. After the officer had pulled her right arm behind her back, the woman   “asked him to go easy on my left arm as it was broken and bandaged and showed him the cast on my leg due to an injury on 2/11, he ignored my screams as he tightly applied his handcuffs and pushed me forward as he pulled back both arms and I continued to scream. He ignored my limping and kept pushing me over to a parked car where he pinned me until a female officer joined him. I did not see her badge. When an unmarked black car drove up, they . . . took turns . . . pushing me into the very cramped back seat behind the driver. The female officer then insisted I slide over to the far end instead of having me enter on that side. I could not move my feet and just leaned my torso over because my right foot was in a cast and both feet were caught behind the back of the driver’s seat and the bottom of the back seat. When I groaned in pain, the female officer taunted me with ‘Stop the act, I’m not falling for it!’”[53]

Abuse of Authority

Threats and Provocations

Including complaints by members of the press, there are at least twenty accounts of February 15 that describe instances in which the police used their powers to threaten, intimidate or otherwise mistreat civilians. A demonstrator from the Solidarity with Palestine Contingent reported that when her group was gathering to walk to the rally at Second Avenue and 42nd Street, a policeman told them that they could not chant without a sound permit.54 As a result, the group was forced to negotiate with police for half an hour before finally receiving ‘permission.’55 In addition, eleven accounts contend that police officers ripped signs and banners out of the hands of protesters and destroyed them.56 A Professor Emeritus at CUNY had his squash racquet seized and thrown into the garbage by a police officer because it had a sign taped to it.57 Four others complained that they were either accosted or arrested only after they began taking pictures of police activity.[58]

In another report, a disabled demonstrator described how an officer on First Avenue broke her wheelchair:

“After about 4 hours [on First Avenue and 58th Street], I started to feel sick, and I had to pee as only an old diabetic woman who has had too much surgery can have to pee. I started to go home, and a nasty police woman…said I couldn’t go downtown. I couldn’t believe my ears. I’ve been demonstrating since I was a young woman in 1958, but I have never see anything more vulgar than what started to happen. I was sick, so I quietly started to wheel downtown, and…[the officer] grabbed my wheelchair, swung me around and broke my chair. The metal was bent, I couldn’t reach the controls, and I couldn’t move from the spot. I started to panic.” [59]

Unreasonable arrest threats and provocations were also present throughout the day. In one report, a witness watched a policeman stop a teenager riding a bicycle down Second Avenue at 57th Street.[60]   The officer told the youth that he had to go a different way and tried to push his bike in that direction. As the youth argued with the officer, a witness began to take photos. The officer told the teen to “smile” and they posed for a picture. He then asked the photographer “do you want to take a picture of me punching him in the face next?” The teenager became frightened, and he began to struggle to free himself. Three male officers rushed over and pushed him up against a building. They arrested him and confiscated the bicycle.[61]

On First Avenue, three demonstrators reported that the police used barking dogs in order to keep people from climbing out of overflowing pens.[62]   Other instances of abuse occurred far away from the rally site. Two witnesses reported that police officers deliberately gave false answers when they asked them for directions to the rally.[63]   In addition, at a feeder march that began in Union Square, police cornered demonstrators from two sides on the sidewalk for ten minutes. Although demonstrators have the right to march on the sidewalk without a permit so long as they do not interfere with pedestrian traffic, the police arbitrarily decided to break the Union Square feeder march into groups of fifty and move them forward one group at a time. When the first group stopped to wait for the others, the police threatened to arrest them for blocking the sidewalk.[64]

“Naturally, we waited for the next group pf people to meet us at the end of the block. Reacting to this, the police said we could not stop walking, we had to keep moving along the street. The justification given was that we were blocking the sidewalk; which we clearly weren’t. Despite this, we tried to not block the sidewalk even more by lining up against a chain link fence, thereby taking up as little room of the sidewalk as possible. We told the police we were not blocking the sidewalk at which point one officer got behind me (I was the last in line) and shoved me five feet forward, into the next person, by using his nightstick on my shoulder blades.” [65]

Mistreatment of the Press

Members of the press did not escape the heavy-handed tactics of the police on February 15. The New York Civil Liberties Union received six accounts of problems that were unique to the press. In several instances, officers arbitrarily accused legitimate press members with valid press credentials of possessing false documentation, and as a result, many were unable to leave the pens on First Avenue to get to the stage.[66]   In some cases, the police seemed to become more aggressive when they found themselves dealing with the press. One woman reported that her son, a newspaper photographer who was wearing a press pass, “got knocked down three times by officers when he tried to take photos of officers wrestling with some protestors and arresting them. At one point, while my son was kneeling on the ground taking a photo of a protestor pinned face down being handcuffed, an officer grabbed my son by the back of his jacket and threw him back into the crowd.”[67]

On First Avenue, a reporter from Boston wrote that, trying to get to the stage, “i showed my press badge from indymedia boston . . . officer o’brien, pushed me and i fell, hitting my elbow on a street curb. he laughed at me because i almost fell in horse shit….” The same reporter was later prevented from leaving the rally: “the police wouldn’t let us leave the rally . . . a police officer in uniform, but no badge put his nightstick against my chest and screamed “shut the fuck up!” at me repeatedly. he pressed the nightstick in and i started feeling a burn, so i gave up and waited an hour with the rest of the group to be released from 1st Ave.”[68]

Misdirection and Misinformation
Between noon and 2 PM protestors attempting to walk east to the rally site were met with metal barricades, antagonism and misdirection from the police. After asking for instructions on how to access First Avenue, witnesses reported that officers either told them that they did not know or that they should “go home.”[69]   Of the reports received, twenty-four document incidents where the police gave either misleading directions or no information at all. In addition, the lack of coordination between police officers at the cross streets on Second and Third Avenues confused and frustrated the demonstrators. One protester reported that on Second Avenue, “The cops refused to let anybody over to First Avenue from about 50th St. to 61st St. They herded us in circles, forced us to walk aimlessly, and refused to give information.” [70]   On Third Avenue, demonstrators complained that police directed them to walk north to 59th Street in order to cross over to First Avenue. At 59th Street, however, the officers manning the barricade told them that access had been moved to 72nd Street. At 72nd Street, protesters were again told to move north, and so on and so forth.[71]

As they were directed further and further uptown, some people abandoned the idea of attending the rally and went home. Most, however, turned around and began to walk south, determined to find a way to reach the site.

Discourtesy

Twenty-one accounts complain of profane or abusive language, which added to the tension. In some reports, the language was mild, but the context reveals that the officers allowed their personal feelings to interfere with their work. In one case, police were heard responding to the chant “what do we want” by yelling back, “war.”[72]   In another instance, at Third Avenue and 50th Street, protestors responded to police pressure to move to the sidewalk by screaming that there was no place to go. Instead of easing up on the batons and horses, they responded, “go to Iraq!”[73]   Other officers were heard referring to the crowd as “hippies,” [74] and one even told an injured demonstrator demanding an explanation, “that is what you get for protesting.”[75]

When situations arose that required calm decision-making, some officers revealed their confusion in the harsh language that they employed. At Third Avenue and 62nd Street, two police were by themselves erecting a barricade. A demonstrator overheard one officer scream to the other, “don’t leave me here alone! If anybody touches me, I swear to god I’ll f**king shoot them!”[76]   Invectives were most prevalent when officers were making arrests. As an officer pulled a protester’s hands behind his back he yelled “FUCKING SCUMBAG!! YOU FUCKING SCUMBAG!” in his ear.[77]   One officer called a woman a “fucking cunt” as he was putting her in handcuffs. Another yelled “get the fuck up, get on your fucking feet” to a man he had just thrown to the ground.[78]   On Second Avenue at 55th Street, a policeman was unsatisfied with the speed an elderly woman was exiting the area. He screamed at her, “move you old b*ch.”[79]

Even at the rally site, half empty pens did not prevent tensions from arising. On one occasion, a police officer took identification from a group of people who were inside a pen. He proceeded to write their names and social security numbers on a piece of paper with the title ‘Counter Terrorist Intelligence.’[80]   One of the protesters told him in a respectful manner that this was a form of harassment. The officer reportedly replied, “You want to see harassment? I’ll pull you over this barrier and kick the living sh** out of you…that’s haras! sment (sic).”[81]

Problems with Barricades and Pens
Twenty reports complained about the restrictive use of pens at the rally. The First Avenue pens were constructed by connecting interlocking metal barricades into block-long squares. The barricades ran from the east curb of First Avenue to 15 feet shy of the west curb, allowing for an emergency exit lane. On the north-south axis, the barricades ran corner to corner so that the cross streets remained free of protestors.[82]   As people came east to the rally site, officers herded them into the pens.

Once a pen was deemed to be ‘full’, the officers closed it and refused to let anyone else enter. However, the officers often also refused to allow people to reenter pens once they had left. This, despite the fact that the police had prohibited public restrooms at the rally site and it was 15 º F outside. Protesters who exited were directed to move away from the rally site.[83]  

Nonetheless, witness accounts indicated that there were empty areas on First Avenue when the crowds of protesters on Second Third and Lexington Avenues began to swell as police refused to open up the cross streets to relieve congestion. One witness described the rally site as “surprisingly calm…and spacious. At one [point] there was not a single person around me for a ten foot radius.”[84]

When the crowds in some pens grew too large, the police refused to let people out. A protester who was on the block just south of the 59th Street Bridge reported that the pen was dangerously overcrowded and people were desperate to leave.[85]   Despite the threat of injury, the police ordered the demonstrators to stay inside the metal barricades and even used barking dogs as a deterrent.[86]   In another account, a demonstrator described how police mishandled a large group of people who had been allowed to enter the pen between 54th Street and 55th Street from Second Avenue:

“As we turned onto 1st avenue to cheers of those penned in from 55th to 56th,,(sic) we were quite shocked to see there was a completely empty street stretching from 54th to 55th streets…. We couldn’t really hear the speakers, but we could finally see where the stage was, and that people were speaking….When we were about to leave, probably an hour later, we noticed that the block had completely filled in…. The crowd was pressed up so tight against the metal barricades that a woman was getting hysterical. She shouted ‘you have to let me out! I want to go home! I want to go home!’ ‘Stop pushing,’ said the officer. ‘I’m not pushing,’ she answered, ‘I’m getting pushed!’ The next thing I saw, the metal barricades at the side of the crowd fell over and people flooded out onto the street and down the side street back up to 2nd avenue. But a few minutes later, the crowd had filled in again and the barricades were back up. The swelling and tone of anxiety returned to the crowd…. I watched as a mother handed her two small children over the barricade to a stranger who carried them to the sidewalk. One of the children, maybe six years old, was screaming for her mother. An officer saw this and asked what was wrong. The little girl kept screaming ‘Mommy!’ and pointing at the crowd. ‘We’ll get her back,’ the officer assured her. And he helped the woman climb over the barricade and brought her to her children.” [87]

As the crowds thinned out later in the day, however, the police refused to permit new protesters to enter the pens from Second Avenue. In addition, protesters were not allowed to move forward to other pens in order to consolidate.

Despite the use of pens to control the crowds, protesters reported several instances in which the police used unnecessary force on First Avenue. In one account, a demonstrator claimed that an officer assaulted him when he tried to walk through a gap between metal barricades. “An officer first grabbed my left upper arm in a manner forceful enough to be able to throw me back into the crowd with this move. He then ask (sic) what did I think I was doing; I replied that I was leaving the march in order to get a meal at the corner diner, a few feet from where we were standing.”[88]

Police Misconduct in Times Square After the Rally
Twenty reports documented events that occurred in and around Times Square after the rally had ended. Of these, nine gave first person accounts of arrests.

When the rally came to an end, a large group of protesters decided to walk together towards Times Square. “After the rally came to a close, many of us were still dissatisfied. We felt that our rights had been stolen from us and that we hand not been allowed to voice our opinions on the impending war. So we chose to walk together to Times Square, to be seen by the general public.”[89]

When the group reached 42nd Street between Broadway and Seventh Avenue, they found a line of police in riot gear blocking their path. “The police proceeded to use their clubs to push us onto the sidewalk, on the north side of the street just before 7th Avenue the (sic) police were obviously very tense and frightened—they seemed overwhelmed and unsure of what to do.”[90]

At this point, witnesses stated that the police appeared to arbitrarily pick people out of the crowd in order to make examples of them.[91]  In one instance, an observer reported that “a young man who was rushed by at least three police officers initially, [was] thrown to the ground by the officer with helmet #14478, then choked with a baton by helmet #10752. He was held down by at least four officers at one point as his face was pushed into the pavement. He seemed to give no resistance and shouted for the police to stop. He had a visible cut on his forehead with a good amount of blood.”[92]

A young woman who was standing at the front of the crowd was also tackled by a group of four or five officers. As the officers lunged at her, the crowd surged forward and the confrontation escalated. Batons were flying and someone in the crowd yelled “everyone sit down.”[93]   This calmed the situation for a time, but the police soon brought metal barricades in and used them to press the sitting protesters closer and closer to the buildings behind them. A male police officer suddenly charged through the barricades and attacked a protester sitting in the middle of the crowd. Another policeman had to enter the fracas, just to pull his coworker off of the young man.[94]  At this point, officers announced that everyone would be arrested, and the police stormed the crowd. While pinning one woman’s arms behind her back, an officer screamed that she was a “fucking cunt!” Others protesters received multiple cuts and bruises as the police cleared the sidewalk.[95]

Mistreatment of Arrested Protesters

Approximately 350 people were arrested for actions related to the peace rally on February 15. The New York Civil Liberties Union received thirty complaints regarding the conditions faced by those under detention. Some of the complaints are familiar. In seven accounts, arrestees contended that they were never told the reason for their arrest, never read their rights, and not told what the charges were until they were released.[96]   Others were questioned about their religious and political beliefs and associations. Nearly all were held much longer than necessary. In addition, disorganization and aggressiveness on the part of officers in the field created several unique and disturbing scenarios.

Problems began to arise immediately after the police began picking people up. Arrestees, especially those taken early in the day, found themselves in the back of dark police vans for hours at a time.[97] Twelve of the arrestees complained of spending as many as five hours riding around with no heat, food or drink.[98] One arrestee described his experience:

“It was ultimate claustrophobia; you couldn’t see anything, but could hear other people in there with you…. They drove us around (I don’t know where) and every so often, they would open this little window up front and ask us info. If someone didn’t cooperate, they would curse them out and shut it. Then they’d open it again a while later; the process would repeat, and it never ended.” [99]

Fifteen detainees reported problems arising from being handcuffed for the extended period prior to processing. Many complained that their plastic handcuffs were on so tightly that they cut off circulation and eventually broke through the skin.[100] One officer admitted that the cuffs were not meant to be used for such a long duration, but refused to remove them nonetheless.[101]   When the detainees asked to use the bathroom, officers either ignored them or laughed at the request. [102]   Four reports described people being forced to soil themselves as a result of the delay.[103]   One policeman took ‘pity’ on an arrestee who had been handcuffed in a paddy wagon for four hours: “When I told the officer I was in danger of losing control of my bladder, he let me use the cup. He uncuffed me, and I was only allowed to relieve myself in a compartment that was visible to the rest of the [people] arrested.”[104]

At first, the police told many of the protesters that they would be taken to the Javitz Center and given Desk Appearance Tickets (DATs).[105]   After several hours of driving around the city, however, arrestees were taken to One Police Plaza. Once there, the backlog of arrests was so large that protesters were forced to sit in the cold, dark vehicles, waiting to get inside. [106]

Still, the police refused to remove handcuffs, and denied access to food, water and restroom facilities. After one group began demanding to use the bathroom, the police chained them together and forced them to stand in the courtyard outside in the cold. In the words of one arrestee: “We were hauled off the bus (chained together) and brought to the middle of a courtyard. We were forced to stand there for over 3 hours and freeze (I couldn’t feel my hands and feet-and toes).”[107]

The New York Civil Liberties Union received four other reports in which arrestees claim that they were forced to stand outside in the cold for extended periods of time. In one account, an arrestee described the scene as follows:

“At around 9:15, they unloaded us in groups of six. Each of us had one handcuff, attached to the group by a long chain. We were taken outside, and made to stand in a straight line by a wall. There were six other people already standing in the area, who were individually handcuffed, their hands behind their backs, some without gloves. Those without gloves were clearly in pain, there (sic) hands noticeably swelling up and purple. At around 10:30, a different officer wrote down our names. It was extremely cold and we were not given gloves or anything. We had not been given a bathroom break…and none of us had been given food. My feet became very cold, as did my hands. There were many policemen around who acted professionally, but none really knew what was going on, none knew how long we’d be made to stand outside. Finally at around 11:30, my chain group, a group of six, was taken into a different police wagon.” [108]

Between midnight and 2am, the police decided to release some of the protesters with DATs.[109]   The majority, however, were kept overnight in holding cells. In one case, an elderly man was held until Monday, and he was denied access to his medication.[110]   While in the holding cell, the detainees were fed once, and given water and restroom breaks. They were also fingerprinted, photographed, and four accounts contend that arrestees were interrogated multiple times despite requests for counsel.[111]   When one arrestee requested a lawyer, the interrogators told him that it was unnecessary because they only had to answer a few simple questions.[112]   However, eight accounts tell of detainees being questioned about their organizational affiliations. In one case, an arrestee claims to have been asked: “What is your religion?” “Are you Muslim?” and “What organization do you belong to?”[113]   Meanwhile lawyers seeking access to those who had been arrested were banned from Police Plaza until late in the evening when only one or two lawyers were allowed in to meet with a handful of arrestees.

The Protest Marches and Police Actions Around the World on February 15

Permission to March

On February 15 cities all over the world were able to accommodate large marches without any major incidents. Media reports of between 500,000 and 2 million in Berlin, London, Rome, Paris, Madrid, and Barcelona and over 100,000 in Damascus, Melbourne, Sydney, San Francisco, Amsterdam, Montreal, Valencia, Seville, Dublin, Los Angeles, Athens, and Brussels show that cities with their own serious security concerns were able to handle very large marches and rallies with at most minor isolated incidents.

London was also on a high state of alert, Spanish cities have been recent targets of bombings by Basque separatist groups, and San Francisco, like New York was on Orange Alert. The police departments in each of these cities are dramatically smaller than New York’s. San Francisco has only about 2,500 officers and London with a population of 7 million has just over 25,000. Similarly, Washington DC has had several major anti-war marches in the last 6 months with over 100,000 participants without incident. The Washington DC Metropolitan police have only 3,600 officers and are responsible, along with a few thousand federal police, for security at high-risk locations throughout the capital. In addition, large marches and rallies were held without incident in Tel Aviv, Belfast, and Ramallah.

New York’s is the largest police department in the world with close to 40,000 officers, and yet the NYPD claimed it could not adequately address the security needs of the marchers and the rest of the city. If this is so, there needs to be a major overhaul of the way the department conceptualizes security for large events. Other cities utilize dramatically smaller numbers of police to handle large events. San Francisco has deployed fewer than 500 officers for its recent anti-war marches of over 200,000 people.[114]   There are few or no barricades lining routes and police officers are primarily held in reserve in case of breakaway marches or stationed in front of sensitive locations. A review of photographs from marches at all of the cities listed above showed no large deployment of barricades or officers along march routes. Statements from march participants echo these conclusions:

• San Francisco: “The cops basically gradually disappeared from sight because there were so many people. I occasionally spotted them in twos in a store entranceway, laughing and talking”

• Sydney: “The police present were there for traffic control purposes — standing at intersections in ones and twos.”

• Madrid: “There were only small groups of cops here and there, no more than 100 were to be seen in 9 or 10 small groups.”

• Rome: “There was no march ‘route.’ Too many people. All the streets were peacefully invaded by an endless flow of demonstrators. From morning to evening I never saw cops...They simply weren’t there.”

• Montreal: “There was a very light police presence along the sidelines of the march; there were no mounted police, only cruisers with a few cops here and there; riot gear was definitely out of the question.  The police blocked off all adjacent cross-streets to vehicle traffic, but did not hinder the march in any way.”

• Melbourne: “Police on foot, cars and motor bikes and mounted police were deployed at intersections and at starting and end points.”

• London: “The British police behaved with exemplary efficiency, decency, and good humor that day. There were some barricades here and there, the offices of key companies were off limits...But the policing was very light touch.” “There were isolated police (usually in pairs) along the route at the sides of the road. The police presence wasn’t heavy although I saw some vans full of police in a few side streets ready for any trouble starting. There were a few [barricades] to stop people going into particular side streets.”

In addition to allowing marches, many cities showed great flexibility in responding to the unexpectedly large crowds that gathered. In London, huge sections of the center city were closed to automobiles for the day. In Sydney, police worked with protest leaders to change the march route and rally location as the crowd gathered because they could not fit into the previously agreed to rally location. In Rome, the police allowed the march to begin four hours ahead of schedule and take multiple routes because of the unexpectedly massive crowds gathering. Los Angeles is the only city that interfered with demonstrators because of unexpectedly large numbers. The march there was so large that it could not be completed in the time initially allotted in the permit and so the police forced a small number of remaining marchers at the end onto sidewalks.

While many cities have laws that allow the police to ban some marches, this is rarely done in democratic countries. In Great Britain, the 1986 Public Order Act gives the police the power to impose restrictions on marches and if necessary to ban them. This tool, however, is almost never used — even in situations where illegal activity is anticipated. According to police scholar P.A.J. Waddington,[115] in 1991 opponents of the British Poll Tax declared their intention to march in commemoration of the 1990 poll tax riot. Police decided that “banning the march might have created a cause celebre, which might have inspired more supporters to attend, simply in order to oppose the ban.” They were also concerned that organizers were making plans to occupy Trafalgar Square to defy the ban and that this “would not have been subject to the discipline of an organized march — assembling at a known place and following a predictable route. Police feared that any such assembly would have been disorganized and potentially disorderly.” Police were also concerned that, “protestors would engage in ‘guerilla tactics’ throughout the West End and so reenact the mayhem of the original riot.”

New York City ignored these lessons. The decision to deny a march permit ended up costing New York City substantially more in overtime and other expenses than a unified march would have. Commissioner Kelly reported that $5 million was spent on February 15 to pay for the use of thousands of officers. This is in sharp contrast to reports in the New York Times[116] that expenses for policing the 1996 Yankees celebration parade of between 2 and 4 million people cost approximately $1 million. The New York Post[117]  reported that expenses for the 1998 Yankees parade with crowds over 1 million cost the city about $600,000, for the deployment of 3,600 officers. The experience of the 1998 Yankee event suggests that the City could easily have handled an organized march and rally at much less expense and with far fewer officers than were used on February 15. Because of the fixed nature of the February 15 event, dozens of feeder marches were organized without permits and an unauthorized demonstration in Times Square was called. This forced the police to deploy thousands of additional officers to prevent people from gathering in public streets, and led to dozens of arrests and several injuries west of Third Avenue.

The decision of the NYPD with respect to the February 15 event also contrasted with earlier New York City parades. In 1982 the NYPD facilitated a major anti-nuclear march past the United Nations without incident. Approximately 1 million people participated in that event. The police closed off large sections of midtown and kept the lines of communication open between themselves and demonstrators throughout the preparations and the day of the event. There were only a couple of arrests made that day even though many groups involved had publicly advocated the use of illegal tactics for the next day’s demonstrations. Other large marches past the United Nations in 1988 (anti-nuclear) and 1994 (gay and lesbian rights) without incident. In addition, the City continues to allow a number of very large cultural parades in midtown that draw crowds of hundreds of thousands including the St. Patrick’s Day parade, the Israel Day Parade and the Puerto Rican Day parade. These parades disrupt traffic in Midtown, require large numbers of police officers, and often involve significant numbers of arrests for a variety of usually minor offenses.

Crowd Control Policies

Police crowd control practices have undergone dramatic changes in the last 30 years. Prior to the 1970’s police were trained in and relied on a doctrine of “Escalated Force,” which was propagated by the FBI and U.S. military police training programs[118]. Following a series of reports[119] criticizing the violence that this approach often generated, departments undertook a policy of “Negotiated Management.” This new approach adopted by most departments in the United States and Europe called on police to 1) protect free speech rights, 2) tolerate a reasonably high level of community disruption, 3) initiate on-going communication with demonstrators, 4) go to great lengths to avoid the use of arrests, and 5) use force only to overcome resistance to arrests and prevent death and serious injuries.[120]

The NYPD violated all of these principles. In addressing the events of February 15 the NYPD refused to make any counter offers of a march location, developed a control model based on preventing almost any disruption of community activities, cut off negotiations with organizers and failed to establish adequate communications with organizers during the demonstration, used arrests indiscriminately, and finally used batons, pepper spray, and horse charges merely to clear streets, when there was no threat of injury or property destruction. The tactics employed by the NYPD contrasted sharply with the practices generally employed by other cities.

Washington D.C.: Large demonstrations are usually handled by the Metropolitan Police Department and the U.S. Park Police. For both these agencies the goal for large permitted gatherings according to U.S. Park Police Sergeant Joseph Cox is to “minimize police/demonstrator interaction.”[121]  This reduces the chances of confrontations and conserves police resources. In situations where illegal activity is expected—such as blocking streets—former Metropolitan Police Deputy Chief Robert Klotz says, “you expect that protesters are going to want police to overreact...That makes for good television. It is important that the police not be antagonistic toward demonstrators unless the protesters damage property or injure officers or members of the public... It’s not an us-versus-them scenario.”[122]

San Francisco: It is common practice for the SFPD to avoid unnecessary confrontations with peaceful demonstrators. Following the doctrine of negotiated management they prefer to tolerate some disruptions of street traffic rather than undertake the use of force. According to former SFPD Capt. Charles Breene:

When I speak of police tolerance, I do not mean police weakness. A professional law enforcement officer is someone who makes decisions that affect people’s lives. A caring police officer gets things done in the most effective and efficient way. A police officer who always solves problems with force or claims he ‘goes strictly by the book’ concerning crowd control has the police department in constant turmoil, with officers defending themselves in court and internal affairs.[123]

One of the ways that the police in San Francisco attempt to reduce the necessity for force is through communication with the demonstration about alternative actions they can take. The SFPD’s crowd control policy specifically requires that demonstrators who are breaking the law must be notified of the need to disperse and be given clear instructions about where they are to disperse to:

Use a loud speaker system to assure that all have an opportunity to hear the order. If circumstances permit (absence of serious violence) the order shall be made repeatedly over a period of time and, if necessary, from a variety of location. Provide the crowd with an adequate period of time and a clear and safe route to disperse. If possible, the announcement should designate where demonstrators can relocate.[124]

London: The Metropolitan police rarely make arrests even when demonstrators are in the street illegally. According to Waddington,[125]  “contingency planning typically excludes the use of arrest in response to mildly disruptive behavior that is nevertheless plainly illegal. Thus, officers are instructed that if protestors stage a sit-down on the highway, officers accompanying the march should encourage marchers to continue their march, and ‘sit-downers’ should be allowed to remain sitting down until they weary of the tactic and rejoin the march. The fact that any such sit-down inevitably involves an obstruction of the highway is carefully ignored. Even when marches are held in clear violation of the law, police prefer to accompany them rather than attempt to prevent the continuation of the march by force.”

Italy: According to sociologist Donatella della Prota, “the most prevalent perception among the [Italian] police is that their presence is oriented primarily toward the defusing of a situation... Recourse to a repressive intervention is, in general, considered to be a failure in policing terms.”[126]  During peaceful demonstrations the Italian police

work hard “to avoid ‘upsetting the balance of the situation’ and hence producing disturbances to the peace.” According to a senior police executive, when confronting groups illegally blocking streets, “We try to plan alternate routes for the traffic...we thus try to avoid exactly what the protestors are aiming to do—that is paralyze the traffic”[127] According to another police official, “generally, we find a way of mediating; that is, by telling them, ‘OK, we won’t intervene, if you’re here for a quarter of an hour, we can tolerate the roadblock, but more than that, I ask you no!”[128]

Demonstration Pens

No other major city used barricades to divide up demonstrators during either marches or rallies on the weekend of February 15. The NYPD’s policy of using these pens at permitted demonstrations emerged out of two separate events. The first was a celebration at City Hall to commemorate the winning of the World Series by theYankees in 1996. During that event part of the crowd surged towards the stage creating a potentially dangerous situation in which anyone wishing to leave might have had difficulty doing so, raising the risk of injury, and making it difficult to remove someone if they needed assistance. Similar fears arose in relation to the annual New Year’s Eve celebrations in Times Square. Chief Alan Hoehl, who was the commanding officer of Manhattan South, and one of the most experienced officers in handling large crowds, suggested the use of a complex system of barricades to create frozen zones and emergency lanes within large gatherings to insure ease of exit for participants and access by emergency personnel.

Since 1996 police have used this system to deal with both large and small demonstrations. For small demonstrations, barricades are used to create a single demonstration area that is segregated from both sidewalk and vehicular traffic, leaving one or two small openings for people to enter and exit the demonstration. Police argue that this allows them to monitor the event and reduce disruption to pedestrian and vehicular traffic. For large demonstrations, it allows them to minimize interference with cross town traffic, create emergency vehicle lanes, control the density of crowds, and give police easy access to all parts of the demonstration. The emphasis is on minimizing community disruption and maximizing police control.

This policy makes it difficult to move freely in and out of the demonstration and it reduces the ability to circulate within the demonstration area. The effect of this is to diminish several of the expressive aspects of the right to assemble and express one’s views. The police assume that there are only two expressive relationships at a large gathering that they need to protect. The first is the right of the crowd as a whole to express its message to the public and government officials through its size, official speakers, and media coverage. The second is the ability of the march organizers to express their views to the crowd and the media through official speakers on the stage. These two kinds of expression are important but hardly exhaustive of what ordinarily occurs at a large demonstration. In addition, individuals and organizations 1) use tables to distribute literature, collect names for mailing lists, and have impromptu discussions of political importance, 2) wear buttons, hold signs, and distribute leaflets expressing political views, 3) perform theater, wear costumes, and display puppets that send a political message to passers by, 4) congregate with friends, family, co-workers, or fellow members of political organizations, and 5) engage in one on one and small group dialogue about political issues. The use of demonstration pens directly interferes with the ability to conduct each of these activities by limiting the free flow of individuals within the demonstration area. In addition, by refusing to allow people to reenter a particular demonstration area, people who need to eat, go to the bathroom, or conduct other activities outside the demonstration pen are forced to abandon their friends, families, and associates for the duration of the event.

In contrast to the use of barricades and demonstrations, many other large public gatherings are handled in a very different manner. Every summer there are dozens of public street fairs in Manhattan that occupy large sections of major avenues. These events involve the complete closure of these avenues for periods of many hours. There are no emergency lanes or frozen zones, and barricades are used only to keep cross town traffic from turning onto the closed avenue. These fairs bring together tens of thousands of people at a time but for some reason the police feel no need to restrict them to metal pens in the interest of public safety. Similarly, large sporting events such as the New York Marathon involve the closing of large avenues and major bridges for extended periods. Finally, large cultural parades such as the Puerto Rican, Israel, and St. Patrick’s Day parades involve the closing of avenues and cross streets for long periods of time with barricades being used only to separate the marchers from the observers and to divert traffic. In these cases even cross town pedestrian traffic is restricted.

One of the ways to reduce dramatically the cost and logistical complexity of large rallies and marches is to eliminate the widespread use of demonstration pens. These pens have to be staffed by large numbers of officers and are frequent flash points for confrontations between the police and demonstrators. No other major city on February 14-16 used a similar crowd control strategy and yet other cities were able to deal with crowds significantly larger than New York’s without incident. A review of press accounts and photos of large stationary rallies in each of the cities listed below reveals no use of pens to di-

vide crowds. The cities with asterisks held their rallies on streets or plazas. The others held their rallies in parks.

In these cities barricades were only used to divert automobile traffic and protect sensitive locations such as embassies and government offices. Demonstrators were free to leave and return to the demonstration, move about the demonstration area, and meet friends and coworkers at designated locations within the rally. None of these was allowed by the NYPD, which deployed thousands of officers to prevent these reasonable activities.

Use of Force

Great efforts should be made to avoid the use of force by the police. Police use of force is an awesome state power that should be exercised only as a last resort. On February 15 there was a widespread use of batons, pepper spray, and horses, against demonstrators whose only alleged crime was peacefully standing or walking in a street. The police use of force on that day was not the result of bad decisions by individual officers or commanders, but was the result of a series of police policies that rely too heavily on force as a tool of first resort.

The operational posture of the NYPD on February 15 was that demonstrators would not be allowed onto any street outside of the permitted demonstration area under any circumstances. This meant that all participants would have to arrive via sidewalks, and even then, only as long as they did not interfere with other pedestrians. A decision to restrict access to the demonstration to a small number of cross streets at a time resulted in a series of bottlenecks as large groups of demonstrators attempted to make their way to the rally area. On Second and Third Avenues, people attempting to go to the rally were met with closed cross town sidewalks. These barriers caused large groups to congregate to the extent that eventually thousands of people spilled into Second, Third, and Lexington Avenues and numerous cross town streets. The police department’s response to this was to use force to clear people out of the streets.

Streets were cleared through the use of helmeted officers and mounted officers who pushed into crowds knocking over and injuring many. In several instances pepper spray was used against people who moved too slowly. The use of pepper spray was so indiscriminate that many people on sidewalks, or otherwise complying with police orders were affected.

Police failed to communicate adequately with demonstrators in a variety of ways that intensified the crisis. First, police officers throughout Midtown gave out inaccurate, ill informed, or no information about how to get to the rally area. This caused confusion and irritation on the part of demonstrators and added to the congestion on sidewalks and streets. Second, once police decided to clear streets they made only limited, inadequate, or no effort to tell demonstrators what they wanted them to do. Many demonstrators were unaware that force was going to be used until they saw horses charging them, and then had little sense of what they were supposed to do, or where they were supposed to go. This problem was exacerbated by individual officers who told demonstrators to “go home,” when they were instead attempting to gain entry to the rally.

This is in contrast to the approach taken by police departments all over the world that day. Large sections of London, Rome, Madrid, and Barcelona were closed to automobile traffic. In fact the primary police function in most cities was the facilitation of traffic onto other streets. This made the demonstration safer for both demonstrators and motorists. In New York, police efforts to keep streets open in the face of massive numbers of demonstrators resulted in dozens of motorists becoming trapped inside impromptu marches. Some of these motorists were stuck for as much as an hour.

Around the world use of force was extremely limited. Tear gas was used in Athens in response to violent confrontations with demonstrators. In Colorado Springs tear gas was used against demonstrators in the street as they were leaving the demonstration. In San Francisco police on horseback rode into a break away march after windows had been broken by demonstrators. In Los Angeles force was used to push about 200 break away marches out of the street.

According to the “continuum of force” principle, the use of force by police must be proportionate to the threat to which the police are responding. Police are required to use only the minimum amount of force necessary in a given situation to affect arrests, and prevent injury and property loss. Force should not be used against passive individuals and illegal conduct by itself is not grounds for the use of force beyond that necessary to make an arrest. People who are peacefully assembled in roadways should not be subjected to force that could cause extensive, serious, and permanent injury.

The San Francisco Police Department has a number of additional “use of force” regulations for demonstrations that if followed by the NYPD on the February 15 would have assured a more peaceful event. San Francisco guidelines provide:

When the use of force is justified, the minimum degree of force necessary to accomplish an arrest or dispersal shall be employed. Officers are permitted to use reasonable and necessary force to protect themselves or others from bodily harm, but no more.

Horses shall not be used to move or disperse passive individuals who are sitting or lying down.[129]

The Seattle Police Department has a similar policy limiting the use of force:

It is critical to provide ample warning to an unlawful crowd. The field incident commander should ensure the warning is heard and allow reasonable time for the unlawful crowd to disperse before taking further action if circumstances allow...[officers should] identify the desired direction for the crowd to disperse and tell them verbally...Unless an emergency exists, allow reasonable time for the crowd to disperse...Consider placing officers at the rear of the crowd before issuing the order to disperse to ensure the warning [can] be heard by all.[130] 

The U.S. Ninth Circuit Court of Appeals ruled in May, 2000 that the use of pepper spray against nonviolent protesters who pose no threat to others may amount to an unconstitutional “unreasonable use of force.” (Headwaters Forest Defense v. County of Humboldt, 211 F.3d 1121 (9th Cir. 2000)).

In sum, the experiences of other municipalities on February 15 and the general practices of policing political events employed by other cities and by New York City in connection with other parades and marches support the conclusion that, on February 15, the NYPD erred significantly in the way that it addressed what should have been a purely peaceful event in support of peace.

NYCLU Recommendations

1. The City Must Recognize the Importance of Protest Marches
The City’s decision to prevent UPFJ from conducting any march anywhere in the City on February 15 was without precedent. The City’s position on this particular march, combined with the fact that this decision reflected an NYPD policy (in effect since the fall of 2002 until shortly after this event) to bar all protest marches, reveals that the City had completely lost sight of the constitutional and historical importance of marching as a form of protest. Though the City, under intense public criticism, has since abandoned its no-march policy, it must learn from the events of February 15 that it must make every possible effort to accommodate peaceful protest marches. The NYCLU fully recognizes the burdens posed by large groups marching in the street, but such marches have been an important, time-honored tradition in the City. Just as the City long has accommodated huge cultural parades (such as the St. Patrick’s Day Parade), it must make a similar commitment to protest marches.

Marches may, in fact, also be easier to police than large stationary rallies, particularly ones that involves limited access to the rally site. Not only were there huge problems on February 15 that appear to have arisen from limiting that event to a rally, but the huge antiwar march that took place on March 22 without meaningful incident certainly suggests that marches with large numbers of people may in fact be more manageable.

2. The City Must Assure Free Access to Protest Events
Beyond not permitting a march to take place on February 15, the largest problem of the day arose from the obstacles people encountered attempting to get to the rally on First Avenue. The combination of forcing the event to take place on the far side of Manhattan, the NYPD’s closing of Second Avenue, its closing of cross streets leading to First Avenue, and the lack of communication (both to protesters and to fellow police officers) was a recipe for disaster that was entirely predictable. In the future, the NYPD should do the following:

• Events Must Be Allowed to Take Place in Freely Accessible Locations — Large protest events should not be relegated to locations where access is limited. By forcing the February 15 event to take place on First Avenue north of 49th Street, the NYPD created a situation where the rally was only accessible from the north and the west (with the NYPD further restricting western access by closing cross streets as the day progressed). The City should make every reasonable effort to make central locations or large open spaces (such as Central Park) available for such events, should organizers request them.

• The NYPD Must Assure Adequate Points of Entry for People Coming to Large Events — The NYPD must make every reasonable effort to clear streets or other means of access for large events. Though the Department understandably wants to keep vehicular traffic flowing as much as possible, temporary street closures are fully warranted for events that entail tens of thousands of people arriving on foot.

• If Access Is to Be Limited, the NYPD Must Communicate that to the Public in a Timely and Accurate Manner — To the extent the NYPD intends to limit access to large demonstrations, the Department must make a much better effort to communicate that to the public. That effort should include public announcements to the media in advance of the event and clear and conspicuous announcements at the event. Officers need to be provided with amplified sound so they can be heard by a crowd, they must give clear and accurate information about how people can gain access to an event, and they must be provided with accurate and up-to-date information about any restrictions on access so that they are able to convey accurate and timely information. The Department might also want to consider preparing informational flyers that can be publicly distributed.

3. The NYPD Should Not Use Force to Clear Peaceably Assembled Demonstrators from Streets and Sidewalks
One of the most alarming aspects of the February 15 was the NYPD’s use of physical force — in the form of horses, pepper spray, batons, and arrests — to clear streets and sidewalks of demonstrators who were doing nothing more than standing there, oftentimes for no reason other than that they simply were trapped by the large crowds. In such circumstances — where peaceful demonstrators not committing acts of civil disobedience are doing nothing more than blocking vehicular or pedestrian traffic — the NYCLU believes that there is no justification for the police to use physical force.

Rather, in such circumstances, the police should attempt to manage the situation first by rerouting traffic away from the area. The Department then should identify ways in which people can safely and reasonably disperse and then provide clear instructions to people about how to disperse or move to the event site. Only after all reasonable efforts to clear sidewalks and streets in this manner have proven unsuccessful and it is clear that people intentionally are attempting to block reasonable access should the police even consider making arrests. The NYCLU believes that in no circumstances should the NYPD use physical force to clear nonviolent demonstrators when the only problem presented by the situation is the interruption of vehicular or pedestrian traffic.

4. The NYPD Should Revise Its Policy and Practices Concerning the Use of “Pens” at Demonstrations
The NYPD’s use of metal barricades to create pens on First Avenue at the February 15 rally created many problems. The NYPD should make the following revisions to its use of pens at demonstrations:

• While it may be appropriate to erect barricades to shield assembled demonstrators from vehicular traffic or other hazards or to shield sensitive sites from large crowds, the NYPD should abandon its policy of routinely using barricades to create closed pens into which demonstrators are confined.

• The NYPD should create pens only in those highly unusual circumstances in which it may congregate and press forward in such a way as to pose a physical threat to other protesters. While pens may sometimes be appropriate for the safety of demonstrators, they should never be used simply to confine protesters or to restrict their mobility.

• In those unusual situations in which pens are used, they should not be used to restrict the ability of individuals to move freely around the protest area. In many instances, people need or wish to leave a demonstration to get food or water, to use a bathroom, or simply to move to another area of the rally. While a person might be prevented from entering a pen that is completely full, people should not face the prospect of either spending the entire time in a pen or being force to leave the event entirely (as happened on February 15). To the extent the police are concerned that sidewalks remain clear, they can instruct protesters who assemble them to move to a pen or leave the area.

5. The NYPD Must Revamp Its Processing of Persons Arrested for Minor Offenses at Demonstrations
When the NYPD is planning for large-scale demonstrations, it must be in a better position to process people who are arrested for minor offenses. Regardless of the propriety of the arrests, there is no excuse for demonstrators being held in tight handcuffs in dark, unheated vans for many hours without access to food, water, bathroom facilities, and medical treatment. If arrests from large-scale events are to be processed at a single location (as happened on February 15 and several other recent events), the NYPD must have sufficient personnel available at that location to assure that people are processed and released in a reasonably timely fashion and must have adequate equipment in place (particularly, fingerprinting machines that are in working order) to process large numbers of arrests. Arrestees must be read their rights and given meaningful access to counsel. No arrestee should be interrogated without a lawyer and without a voluntary waiver, and demonstrators should not be questioned about political or religious affiliations or beliefs or about demonstration history. The Department also has needs to assess its use of plastic handcuffs (“flexcuffs”), as they are not designed to be used for extended periods of time and can cause serious discomfort and actual injury if used in this manner.

Conclusion

The events of February 15 in New York City vividly demonstrate that these are perilous time for civil liberties. Nonetheless, despite the City's unprecedented refusal to grant a permit for an antiwar march anywhere in the City that day, and despite the endless barricades and widespread police misconduct, hundreds of thousands of people proudly took to the streets of New York to exercise their fundamental right to protest.

The storm of public criticism prompted by the mishandling of the antiwar rally has prompted significant changes. Most importantly, the City abandoned its no-march policy, and on March 22 there was a huge, overwhelmingly peaceful antiwar march — sponsored by United for Peace and Justice and negotiated by the NYCLU.

Nonetheless, important work remains to be done to safeguard our basic liberties. The NYCLU will stand with all who stand for liberty. We will defend the right to protest, to leaflet, to march, as often as necessary.

ACKNOWLEDGMENTS

The New York Civil Liberties Union would like to thank the 335 people who took the time to write down and report to the NYCLU what happened on February 15 as they sought to exercise their right to protest. Their accounts, many of which are excerpted here, provide an eloquent and compelling indictment of NYPD policy and practice regarding the February 15 demonstration. Their collective voices embody the democratic ideals we all treasure and the determination and courage we all need to protect our fundamental rights in these perilous times.

We would also like to thank United for Peace and Justice, led by Leslie Cagan, for courageously defending the right to protest and working tirelessly to organize a peaceful protest that drew hundreds of thousands of people to New York City on February 15 and beyond. We are grateful to Indymedia and to the many photographers and filmmakers who generously shared their expertise and resources to document the events of that day and to aid in the preparation of this report.

The NYCLU acknowledges the leadership of Councilmember Bill Perkins, along with Councilmembers Gale Brewer, Bill Di Blasio, Alan Gerson, Margarita Lopez, Hiram Monseratte, and Christine Quinn, Borough President C. Virginia Fields and New York State Senate Minority Leader David Patterson, all of whom joined the NYCLU in calling for Council hearings on the city's protest policy when the parade permit for the February 15 demonstration was denied.

Thanks also to those whose financial and technical support made this report possible: SEIU Local 1199 and its President Dennis Rivera; Transport Workers Union Local 100 and its President, Roger Toussaint; Donna Field and Michael Kraznoff; Nancy Hollander and Ken Sunshine; Lynn Lane; Peter Gollon, Carmen Petts; Gary Rosenberg.

Finally, thanks to the NYCLU Board of Directors, staff and many volunteers who took on a multitude of tasks to protect civil liberties on February 15 and helped prepare this report. The NYCLU team, led by Christopher Dunn, Arthur Eisenberg, and Alan Silver, went to court on behalf of United for Peace and Justice and negotiated with the police department; our organizers and legislative staff led by David Addams, Robert Perry, Erica Gangsei, Julie Ebenstein, Loren Siegel and Elizabeth Bullock developed and distributed over 30,000 Know Your Rights Flyers and buttons, and testified before the City Council; and the entire NYC staff contributed to this report and contribute everyday to our ongoing defense of civil liberties: Laurel Benjamin, Claudette Cosbert, Rebekah Diller, Beth Haroules, Dhevi Khumar, Lloyd Martinez, Udi Ofer, Carmen Santiago, Jane Schatz, Anna Schissel, Don Shaffer, Tom Tyburski, Rebecca Weiss, Jon Wolf, Amber Zaino.

Special thanks to Li Wah Lai, our graphic artist, who donated her time to produce this report.