The use of these pens interferes with core aspects of the 1st Amendment right to assemble, is a form of intimidation, and is out of step with the police practices of major cities in the United States and around the world.

The 1st Amendment of the U.S. Constitution guarantees the right of citizens to assemble and express their views. The excessive use of demonstration pens by the NYPD interferes with several basic aspects of this right. The police assume that there are only two expressive relationships at a large demonstration 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 demonstration organizers to express their views to the crowd and the media through the official program 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 future contact, and have discussions of political importance, 2) circulate through the crowd wearing buttons, holding signs, and distributing leaflets with political messages, 3) perform street theater, wear costumes, and display puppets that communicate a political message, 4) congregate with friends, family, co-workers, or fellow members of political or social organizations, and 5) engage in one-on-one and small group conversations about political issues. The use of demonstration pens by the NYPD directly interferes with the ability to conduct each of these activities by severely restricting the free flow of individuals within the demonstration area. In addition, by refusing to allow people to enter or re-enter a particular pen, people who need to eat, go to the bathroom, or arrive late are forced to abandon their friends, family, and associates for the duration of the event.

The use of these barricades is also a form of intimidation by the police. Anyone who was enclosed within the pens on February 15th of last year, can tell you that it was a sometimes horrifying experience. Large numbers of people were herded into pens, sometimes against their will and at time were not allowed to leave. Some of these people felt trapped and feared for their safety. In addition, the use of heavily policed choke points at the entrances to the pens creates the clear impression that the police are in control of access to what is supposed to be a public event. Visual inspections and questioning by officers enhances the appearance of police intimidation. Bottlenecks at these choke points have also contributed in the past to people being turned away from demonstrations. On February 15th, this problem was so severe that crowds filled surrounding streets, prompting the police to attack crowds with mounted officers and pepper spray, resulting in injuries and arrests. All of which could easily have been avoided by a less restrictive access policy. This policy does not enhance public safety it threatens it.

One of the goals of the March 20th event is to mobilize broad and diverse participation in this event including members of communities who want to avoid any potential confrontations with the police. Allowing the police to use pens in these ways makes that effort much more difficult as people feel threatened and are put at risk of a repeat of the events of Feb 15th. Whether or not it is intentional, one of the effects of using pens in this way is to make the demonstration appear dangerous to those who feel vulnerable to police action.

The NYPD’s policy of using demonstration pens is out of step with most major police departments in the United States and around the world. During the anti-war demonstrations last year, no other police force used demonstration pens in the same way that the NYPD does. Even cities with demonstrations that were just as large or larger such as Washington, D.C., San Francisco, London, Rome, Barcelona, and Sydney did not feel the need to force participants into isolated steel holding pens in the name of security. Cities with a history of terrorism and political violence, including Tel Aviv, Belfast, and Madrid, also avoided using pens. None of these cities or dozens of other had any significant problems during their permitted anti-war demonstrations.

In contrast to the use of barricades at demonstrations, many other large public gatherings in New York are handled in a very different manner. Every summer there are dozens of 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 pens, no frozen zones, no emergency lanes, and wood barricades are used only to keep crosstown traffic open. These fairs bring together tens of thousands of people at a time but the police feel no need to restrict their movements to metal pens in the interest of public safety. An even more telling example is that tens of thousands of people gather every year to participate in major marches including those for Labor Day, St Patrick’s Day, and Israel Day. These participants are never asked to assemble inside metal barricades. They gather in largely unregulated areas near the front of the march and on side streets. Why is it that only some large events are burdened by this system of interference and intimidation?

There are legitimate uses for barricades. In some cases there is a need to separate demonstrators from moving traffic. Also, there may be reason to use them to protect sensitive locations such as government buildings. For some especially large and long events like the Times Square New Year’s Eve celebration emergency lanes may be prudent. In New York City there is little history of political violence, and even less at large permitted demonstrations. The NYPD has never made a case about why these events and not others should be subjected to penning. This issue is especially important as preparations are being made for this summer’s Republican National Convention. Will the NYPD repeat the mistakes they made last February, or will they find a new way to insure public safety that is more in keeping with international standards and does not interfere with or intimidate lawful demonstrators?

You can review the NYCLU’s report on the NYPD’s mishandling of Feb. 15th and the misuse of pens at www.nyclu.org/arresting_protest_042803.html.
See also:
www.NYC-Justice.org
www.nyclu.org/arresting_protest_042803.html