NYC wins appeal against Wall Street lawyer arrested at protest

Published : July 24, 2017 Updated : July 24, 2017

By Jonathan Stempel


NEW YORK (Reuters) - A Wall Street lawyer arrested in 2013 after he stopped on the sidewalk to talk with Occupy Wall Street protesters cannot seek damages from New York City and its police for false arrest and imprisonment, a federal appeals court ruled on Monday.


By a 3-0 vote, the 2nd U.S. Circuit Court of Appeals in Manhattan said police acted reasonably in arresting Stephen Kass, an environmental lawyer at Carter Ledyard & Milburn who was 73 at the time, in downtown Manhattan, and did not violate his First Amendment free speech rights.


Andrew Celli, a lawyer for Kass, said his client intends to appeal to the U.S. Supreme Court.


Kass was cited for disorderly conduct after spurning several requests to stop talking with protesters from a sidewalk, outside barricades that had surrounded them in Zuccotti Park, shortly before 5 p.m. on Sept. 17, 2013.

The police had been concerned about crowd control, and handcuffed Kass after he refused to move inside the park or "keep walking" up Broadway. Kass had been on his way to a music lesson when he stopped at the protest.

In June 2015, a federal judge rejected the city's argument that the officers involved were immune from Kass' claims.

But the appeals court overturned that ruling. It said that while sidewalks are "generally open to the public," the city's interest in maintaining public safety and order outweighed Kass' right to listen to the protesters.

Under the circumstances, "it was objectively reasonable for the officers to infer that Kass's continued defiance of their orders recklessly created a risk that he would cause public inconvenience, annoyance or alarm, including a public disturbance," Circuit Judge John Walker wrote.

Nick Paolucci, a spokesman for the city's law department, said that agency was pleased the court found that police acted reasonably and did not violate Kass' free speech rights.

The appeals court said it lacked jurisdiction over Kass' remaining state law claims, for malicious prosecution and assault and battery.

Kass said in a statement: "At a time when many citizens are exercising their right to speak out against governmental action and others are interested, as I was, in hearing what they have to say, this decision, if upheld, will empower police everywhere to suppress the most fundamental right of Americans to speak and listen to each other in public places."

The disorderly conduct charge was eventually dismissed because prosecutors did not pursue it.

The case is Kass v. City of New York et al, 2nd U.S. Circuit Court of Appeals, No. 15-2053.

(Reporting by Jonathan Stempel in New York; Editing by Phil Berlowitz)

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