Chief Judge David Sentelle of the U.S. Court of Appeals for the D.C. Circuit did not take kindly to the argument lodged this morning by Daniel Schember, a name partner at Gaffney & Schember, on behalf of a group of protesters who were arrested in 2005 during a march against the inauguration of then-President George W. Bush.
The January 2005 protest garnered headlines because, while it started off as a relatively peaceful demonstration following a "counter-inaugural ball," it quickly devolved into melee in which protesters smashed the windows of two Adams Morgan banks, threw a rock through a police car’s windshield, and spray-painted several buildings with the red “A” that anarchists use as their symbol.
About 300 protesters took part in the march in the area near 18th Street and Columbia Ave. After being herded by police into an alley, more than 70 of the demonstrators were arrested for rioting, conspiring to riot, and parading without a permit.
Four of the people who were arrested filed a class action against the District in 2006, saying that they were arrested and detained in violation of their First and Fourth Amendment rights.
In 2008, Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia granted the plaintiffs' request for summary judgment (.pdf), writing that the District acted improperly by arresting the protesters en masse because police officers failed to show individualized probable cause for those who were arrested. The District appealed that ruling.
Today's arguments in Sarah Carr, et al. v. District of Columbia were presented to Sentelle, Judge Thomas Griffith, and Senior Judge Laurence Silberman.
Stacy Anderson, an assistant attorney general in the Office of the D.C. Attorney General and the Office of the D.C. Solicitor General, argued on behalf of the District that the arresting officers were responding to a "quickly evolving" situation and had to make judgment calls to curtail further violence. "The officers were acting on the determination that this was a riot, and the proper response to that riot was to contain it," Anderson said.
Griffith said that simply being part of a group that is acting unlawfully doesn't automatically mean that there is probable cause to arrest any member of that group. Silberman said that the officers could have just as easily ordered the crowd to disperse.
But the sparks really began to fly when Schember took the lectern. Schember argued that it was impossible for the officers on the scene to determine which members of the riot were actually rioting. "None of these officers was in a position to see what each person in the group was doing," Schember said. Sentelle, a former assistant U.S. attorney, countered, "Do you really think that in a mob situation they have to?"
When Schember said that they would indeed have to in order to recognize individualized probable cause to arrest individual protesters, Sentelle quipped, "Well, it would be nice if a mob would tell you in advance what they were going to do." He added, "You're treating this as though this is something the police could have planned for."
Silberman posed a hypothetical in which 20 people were left for dead with gunshot wounds following a 300-strong protest march. "Would police have to have individualized probable cause then?" Silberman asked.
"Yes, you can't just arrest protesters for firing a gun if you don't have probable cause to think that they did fire a gun," Schember said.
Schember added that regardless of whether the police had to act quickly, they needed to show individualized probable cause before they could arrest any of the protesters. "Nowhere in the evidence do they competently show that they had individualized probable cause," Schember said.