2011-09-19 – NYPD Uses Law From 1845 To Arrest Masked Protestors In Financial District – Gothamist

NYPD Uses Law From 1845 To Arrest Masked Protestor In Financial District
September 19th, 2011
By Christopher Robbins


As the protests against corporate greed and the “occupation” of the Financial District continues for a third day, at least seven demonstrators have been arrested. According to Bloomberg News, two were arrested for trying to enter a Bank of America building, another for jumping a police barrier, and four more for “wearing masks in violation of a law that bars two or more participants from doing so.” This law dates back to 1845 in the Anti-Rent era—a time when a wealthy few owned feudal-esque leases to maintain control of tenants. Absolutely nothing like today!

According to a Time’s Up! volunteer, one of the four arrested on mask charges was actually nabbed for “writing with chalk on the sidewalk,” and we’re told a police captain actually “leaped forward” over the barricade to arrest that demonstrator. Here is video of that protester, who explains that he was arrested because he “placed his hand” on a barricade and didn’t have time to move away after a verbal warning. CityRoom confirms that their photographer did not witness the man attempting to jump the barricade. The NYPD maintains he did.

The anti-mask statute was passed as a response to the actions of rabble-rousing renters, seeking to prevent “distress sales” of their property by their landlords, dressing up as “Indians” to protect their rights and property. N.Y. Penal Law § 240.35(4) cropped back up in the news 11 years ago, when the KKK petitioned to wear masks protesting in the city. They were prohibited from doing so because of the statute, and sued. The USDC for the Southern District of New York sided with the KKK, and ruled the law unconstitutional, but not before protesters were arrested in 2002 for the same offense.

However, the 2nd Circuit Court of Appeals, which included current Supreme Court Justice Sonia Sotomayor, reversed that ruling in 2004, noting that because the KKK was already wearing a hood and robe, “the expressive force of the mask is, therefore, redundant.” The judges also noted that the “individual’s right to speech must always be balanced against the state’s interest in safety, and its right to regulate conduct that it legitimately considers potentially dangerous.”

Around 70 signs were reportedly stolen overnight by the NYPD as they maintained 24-hour surveillance of the area, which is being occupied by demonstrators in tents and sleeping bags.

One tangible sign of support for the protesters can be seen in the $2,800 worth of pizza bought for them at Liberato’s, virtually shutting the eatery down under a deluge of calls from all over the world. Time’s Up! volunteers continue to coordinate bike rides for food and supplies for the demonstrators, who have vowed to “occupy” the area for as long as possible.

The NYCLU tells us in a statement:

    We believe you do have a right to anonymous speech, and the Supreme Court has recognized that right. But the federal court of appeals upheld New York’s anti-mask law when we challenged it. Still, there may be grounds to challenge these arrests today. It’s also worth noting the law has a “masquerade” loophole—so it’s OK for people to wear masks during the Halloween parade but not for political speech

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