Threat? Tiny Lauren Digioia gets selected. Photo by Jules Mattson.

UPDATE #1: New video shows another protester getting the exact same treatment, at same event.


By Fred Gates

For anyone following the Occupy Wall Street movement, it is important to understand the concept of selective enforcement and it’s application to what has happened so far.

We all break laws every day, often without knowing.

We cross against the light (jaywalking), take a cell phone call or text in our car (both illegal and stupid), let our child ride his bike without a helmet, sleep with someone else’s spouse (see below), throw our junk mail into a public waste bin, and forget to recycle that can or bottle — or scrap of paper.

In large metropolitan areas, police forces have selective enforcement as official policy, mostly because it would be beyond the scope of normal budgets and workforces to prosecute every violation of the law. New York City certainly qualifies as a city where the police department couldn’t function without it. There are even laws on the books that have been effectively retired altogether from enforcement; for example the fact that adultery is still classified as a Type B misdemeanor in New York (and is illegal in many other states as well).

Used reasonably, selective enforcement works. But the key word here is reasonably. Without good discretion and common sense, it can easily devolve into what the Wikipedia article linked above describes:

Historically, selective enforcement is recognized as a sign of tyranny, and an abuse of power, because it violates rule of law, allowing men to apply justice only when they choose. Aside from this being inherently unjust, it almost inevitably must lead to favoritism and extortion, with those empowered to choose being able to help their friends, take bribes, and threaten those they desire favors from.

Mayor Koch used to use the catchphrase “how am I doin’?” Mayor Bloomberg probably avoids following suit because he doesn’t really want an answer. Well, here it is.

In the early days of OWS, selective enforcement was the protestor’s best friend. Popular opinion was high, young women often protested topless, and the rules at Zuccotti Park were consistently ignored by the protestors. The were also ignored by the city and Zuccotti’s owners, Brookfield properties, by choice. Mayor Bloomberg’s political calculation was simple: cracking down on a popular phenomenon that had also become a tourist attraction wouldn’t make him look good, even though he had the power to do so.

So it continued for months.

Now consider a partial quote from Bloomberg’s statement about “evicting” the protest encampment from Zuccotti Park:

Protesters – and the general public – are welcome there to exercise their First Amendment rights, and otherwise enjoy the park, but will not be allowed to use tents, sleeping bags, or tarps and, going forward, must follow all park rules.

The law that created Zuccotti Park required that it be open for the public to enjoy for passive recreation 24 hours a day. Ever since the occupation began, that law has not been complied with, as the park has been taken over by protesters, making it unavailable to anyone else.

From the beginning, I have said that the City had two principal goals: guaranteeing public health and safety, and guaranteeing the protesters’ First Amendment rights.

But when those two goals clash, the health and safety of the public and our first responders must be the priority.

(my emphasis)

Who decided when to enforce the law? Mayor Bloomberg. Was it being violated before? Absolutely.

It would be difficult to argue otherwise — unless the conditions dramatically changed exactly on or about November 15th, 2011: the city, police, and the owners of Zuccotti Park had allowed these violations to continue. The mayor says he will, from this date on, guarantee public health and safety — but when it was politically advantageous for him to do otherwise, he had no problem with it.

Right now the city keeps the park barricaded, which is technically against the law, as well as other high visibility spots in lower Manhattan that have been seen as targets of protests. Many have complained about this creating a forbidding environment downtown, including the hardly-liberal New York Post:

That’s just bull!

Wall Street’s beloved bronze bovine was set free yesterday (inset) for his 22nd birthday — but recaged an hour later by the NYPD.

The “Charging Bull” sculpture has spent the last three months behind barricades erected to protect it from Occupy Wall Street protesters. The cage was briefly removed yesterday morning so locals could celebrate — which they did by groping the bovine’s rear end.

Eventually, the NYPD — reneging on a promise to community leaders to free the bull — put the barriers back up.

(my emphasis)

Another commentator urged the city to bring down the barricades because they bring back associations with 9/11. While I don’t entirely agree with his assesment, this part of the article is spot on:

The encampment at Zuccotti Park has been removed, but the police barricades remain throughout the neighborhood, blocking off streets and plazas. The free low(sp) of pedestrian movement in Lower Manhattan has been further restricted not by terrorism, but in a proactive response to the possibility of sudden “occupation” by a handful of our own citizens. This is a small civic example of what Sen. Daniel Patrick Moynihan called “defining deviancy down”—we are protecting ourselves from ourselves.

(my emphasis)

At least some of the barricading is illegal, as discussed before, but the Mayor and the city have used selective enforcement to allow it.

Now on to the title of this piece. As we have all seen, there have been instances where police abused power and even violated protestors’ and other’s (mass arrests of reporters comes to mind) First Amendment rights. But now, seemingly by design, a more subtle tactic is being used to create a “chilling effect” on those who might choose to protest: you guessed it— selective enforcement.

Consider this excellent article from Gothamist on a recent event that I personally witnessed. Or at least consider the video:

My own video of of the same event (much harder to follow):

Are the police within their rights here? Technically, yes. Is it a reasonable use of those rights? Of course it isn’t.

Without any discernible warning or even a request to stop, this women was essential tackled and dragged away. The Gothamist article puts it this way:

So Digioia was presumably arrested for causing said “annoyance”—and while we can all agree that the OWS “people’s mic” is annoying—it’s interesting that the others who were raising their voices to repeat her words were not also arrested. It’s unclear how Digioia’s “disorderly conduct” differed from the other yelling demonstrators, except for the obvious fact that she was leading them to yell about NDAA. It looks like she was essentially arrested for being a political rabble-rouser, which we don’t see listed in the MTA’s rules of conduct.

I’d also add, just on a common sense level, that a crowd of people yelling “shame!” at a pretty good size group of police while they drag people away in the middle of Grand Central might be seen as more disturbing to commuters and tourists than the novelty of a woman, who is CLEARLY protesting something, leading a group in a “people’s mic” statement. So there’s that.

The message couldn’t be clearer: if you protest in NYC, Bloomberg’s personal army might let you — and they might not. The golden days of a city that prided itself on being a haven for free speech might exist for you on the day you decide to go out on the streets — and it might not. It is really up to the Mayor and the NYPD’s discretion. So enjoy that.

I’ve commented on this blog about how a friend of mine has avoided even visiting OWS for fear of being arrested, and how I reassured them that that fear was silly. Now I am not so sure.

If the Mayor and the Police Commissioner continue to fail to urge the NYPD to make “reasonable” decisions regarding selective enforcement, they are basically saying no First Amendment on our watch, or at least creating a chilling effect that effectively preemptively criminalizes dissent. That isn’t NYC, and it really isn’t even America.

Do better.

PS. the other obvious irony of this particular example is that Digioia was protesting the Executive Power given by the NDAA to detain US citizens without due process. President Obama signed the bill into law “reluctantly” with a signing statement that he wouldn’t use that power. As Jon Stewart pointed out, we need not worry that this power is chosen because “Barack Obama will ALWAYS be president.” Sigh.