Protesters may try to get last word, in court

In the wake of the Republican National Convention, Mayor Michael Bloomberg gives the police department an "A+" for keeping calm in the Big Apple even as hundreds of thousands of demonstrators descended to voice their opposition to the Bush administration. But activists and civil libertarians say the most the most the police deserve is a "B."

While order was kept, they contend, the use of orange plastic nets to corral large numbers of people for arrests, some innocent bystanders, and the extended detentions of protesters violated the most basic constitutional freedoms.

They also say some of the most spirited protests were thwarted under the guise of the threat of terrorism. Several groups are considering bringing civil rights litigation against the city. Legal scholars believe some boundaries were crossed and feel it's important for the courts to assess the tactics and set clear parameters for the future. Local authorities say they were simply doing their best under extraordinary circumstances.

"The problem is not what happened in New York. That's over and it was not bad," says Alan Dershowitz, a legal scholar at Harvard University in Cambridge, Mass. "The problem is how this precedent could be used in the future by other police forces to control the content of speech."

In all, more than 1,800 people were arrested - a record number for a convention - as the GOP partied at Madison Square Garden behind an unprecedented wall of security. In the largest demonstration, on the Sunday before the RNC's formal opening, some 400,000 protesters jammed the city's avenues chanting, singing hymns, and carrying flag-draped coffins to honor those who died in Iraq.

There were just over 200 arrests that day, and most were for disorderly conduct. Both the police and protesters were lauded for their restraint.

Most of the arrests occurred on two other occasions, and it's the police tactics used in those cases, as well as the length of the detentions at an old bus garage called Pier 57, that have alarmed activists and First Amendment advocates.

On the Friday night before the RNC, a monthly bicycle protest called "critical mass" swelled to more than 300 people. The riders said they'd conferred with police, who initially allowed them to pedal through the streets. Then suddenly, when they reached the East Village, authorities rolled out nets and began arresting people. "They gave us no warning whatsoever," says one rider who was detained.

Police say they did give plenty of warning when it became clear the ride was getting out of hand. And people arrested that night said the police were polite as they handcuffed and led them away. But many of those arrested are upset about the length of their detention in what they called a "grimy garage," as well as the number of innocent bystanders caught up in the police dragnet. "There were Chinese food delivery men, German tourists, people who just happened to be in the wrong place at the wrong time," says Mike Epstein, an amateur photographer who was held for almost 30 hours before being charged with disorderly conduct.

Critics point out that police need probable cause to make an arrest. Some also think authorities should have obtained a warrant before using a net to subdue crowds. "If you're a peaceful protester holding up a sign that says the Republicans or the Democrats are leading us down the wrong path, you have a right to do that without being swept up," says Mr. Dershowitz. "There's something unseemly about using a net."

But others say the courts have given police wide latitude in how they control demonstrations, as long as they don't interfere with the content of what's being said. "There are common-sense limitations that courts will give government some rope on," says Martin Redish, a First Amendment expert at Northwestern Law School in Chicago.

In the 1960s, for instance, Congress passed a law banning the burning of draft cards. It was challenged as a violation of the First Amendment on the grounds that the act was a symbol of opposition to the Vietnam War. But the courts upheld the law, accepting the government's argument that it had a legitimate reason to want people to keep their draft cards. Mr. Redish, who believes the courts went too far in this case, says it illustrates how difficult it can be to distinguish between free speech and the government's genuine needs.

Many of the protesters charge that the police use of extended detentions - some were held as long as 66 hours - crossed that line. It was "a blatant attempt to keep people off the streets and from protesting against Bush," says Mr. Epstein. On Thursday night, a judge was so incensed about the city's inability to process the demonstrators quickly, he ordered the city to release them or pay $1,000 for each person kept beyond a certain time. It's estimated the city is facing $560,000 in fines.

But Police Commissioner Ray Kelly calls the charge that the NYPD purposely slowed the processing "patently false." Mr. Bloomberg says the NYPD arrests on average 300 people a day and it takes 24 hours to process them. "We had to process 1,200 people in one day rather than our normal 300 people," he says. "The judge says it's unreasonable to take more than 24 hours. I don't know what we could have done."

On the issue of conditions, some protesters have saved the clothing they wore at the Pier 57 holding center, which they say was stained with oil and grease from the filthy conditions. Many plan to have it chemically analyzed for any lawsuit. The city's response: "We didn't try to make this Club Med, but it was safe and clean," says Mr. Bloomberg. "We even served soy sandwiches for vegetarians."