By Pam Martens: March 5, 2015

The Partnership for Civil Justice Fund (PCJF) has a slogan: “The constitution won’t defend itself.” Today, the dedicated attorneys that battle for the little guy at PCJF must be thinking – “the constitution won’t be defended by flip-flopping judges either.”

PCJF finds itself in a uniquely bizarre situation. Two prominent judges with brain-trust status on the Second Circuit Court of Appeals, which is based in Manhattan, have overturned their own decision that they handed down just six months ago. That’s strange enough but what really has tongues wagging in legal circles is that they reversed themselves with no party asking them for a rehearing. The case had been accepted for an en banc (full court) hearing at the Second Circuit when the two suddenly reversed themselves.

The case involves Occupy Wall Street – the largest protest movement against Wall Street bankers’ pillaging of the 99 percent with impunity from Washington since Wall Street first began trading under the Buttonwood tree in lower Manhattan. PCJF had filed a class-action lawsuit on behalf of approximately 700 Occupy Wall Street peaceful protesters who had been herded and corralled on the Brooklyn Bridge by the NYPD on October 1, 2011, then arrested en masse. Three days after the mass arrest, PCJF filed the class action lawsuit.

The case was first heard at the U.S. District Court level by Judge Jed Rakoff, the same Judge who attempted to stop the cozy deals between Washington and Citigroup and was himself slapped down by the Second Circuit Court of Appeals.

PCJF submitted video footage to the District Court showing that the NYPD led and escorted the marchers onto the Bridge, thus suggesting to the marchers that the police were allowing the procession to cross the Bridge. Police then blocked the means of dispersal from both the front and back end of the procession, removing any possibility of marchers being able to disperse even if they had heard an order to disperse.

Judge Rakoff handed down a 29-page decision on June 7, 2012, dismissing the claims against the City of New York, Mayor Michael Bloomberg and Police Commissioner Ray Kelly but allowing the claims against the individual arresting police officers to move forward.

Judge Jed Rakoff wrote in the opening sentences of his decision:

“What a huge debt this nation owes to its ‘troublemakers.’ From Thomas Paine to Martin Luther King, Jr., they have forced us to focus on problems we would prefer to downplay or ignore. Yet it is often only with hindsight that we can distinguish those troublemakers who brought us to our senses from those who were simply…troublemakers. Prudence, and respect for the constitutional rights to free speech and free association, therefore dictate that the legal system cut all non-violent protesters a fair amount of slack.”

Concerns of an unseen hand operating between Washington and Wall Street to quash protesters demands for a realignment of their democracy finds substance in the fact that the Department of Homeland Security had funded a high-tech, joint spy center in the heart of Wall Street where the New York Federal Reserve, Goldman Sachs, JPMorgan Chase and other Wall Street mega banks had their own personnel working alongside NYPD officers to spy on the activities of Occupy Wall Street protesters as well as law abiding citizens on the streets.

Additionally, PCJF filed Freedom of Information Act requests and learned that the Department of Homeland Security was closely monitoring the social media prowess of the protesters and how much media saturation they were receiving. In one October 2011 memo, an agent wrote:

“Social media and the organic emergence of online communities have driven the rapid expansion of the OWS movement. In New York, OWS leaders have also formed ad hoc committees to organize protesters and manage communications, logistics, and security. The OWS encampment in Zuccotti Park features a medical station, distribution point for food and water, and a media center complete with generators and wireless Internet. Organizers hold general assembly meetings twice a day and have established committees and working groups including an Internet Working Group and a Direct Action Committee, which plans protest activities and works to maintain peaceful and controlled demonstrations. This high level of organization has allowed OWS to sustain its operations, disseminate its message, and garner increasing levels of support.”

Manhattan, of course, is home to more Wall Street-minted billionaires than any other part of the world. And at the time of the police arrests and later acts of police brutality against both protesters and observers, the Mayor of New York City, Michael Bloomberg, was himself a Wall Street-minted billionaire. This video submission in another lawsuit shows how the NYPD interpreted its orders under the 1 percent reign of Wall Street, Washington, and the Manhattan billionaires’ club.

The Brooklyn Bridge arrest case was appealed to the Second Circuit. On August 21, 2014, the Court handed down a 2-1 decision affirming the lower court’s decision and allowing the case to proceed to trial.

The decision was written by Judge Gerald E. Lynch, an Obama appointee to the Court in 2009 who ranked first in his class at Regis High School, Columbia College, and the Columbia University School of Law. Concurring in the decision was Judge Guido Calabresi, former Dean of the Yale Law School who has served on the Second Circuit since 1994. At the time of the first decision, the two Judges agreed on the following in affirming the lower court’s decision and allowing the case to move forward:

“…defendants’ assertions of what the officers understood are unsupported by the Complaint or the record, which do not provide any details as to what any individual defendant knew or saw of the events leading up to the arrests. Further, to the extent that defendants’ arguments rest on a markedly different characterization of the events of the protest than those alleged by plaintiffs, we are unable to consider the resulting factual dispute at this stage. We must take the Complaint’s allegations as true when considering defendants’ motion to dismiss, as they are not ‘blatantly contradicted’ or ‘utterly discredited’ by the submitted videos and still images, Scott v. Harris, 550 U.S. 372, 380 (2007).”

The De Blasio administration, which progressives had high hopes for, sought to overturn the decision, apparently seeking to continue the unrestricted ability to quash peaceful protests through mass arrests. It asked for and received an order for an en banc (full court) review of the decision. But before the Court could issue its schedule for the en banc proceedings, Judges Lynch and Calabresi abruptly reversed their own decision on February 23, 2015.

After previously writing that they were “unable to consider the resulting factual dispute at this stage” and “must take the Complaint’s allegations as true,” the Judges now assert that “the facts alleged in the Complaint, and those depicted in the videos, do not bear out plaintiffs’ legal conclusion that the officers’ actions constituted ‘an actual and apparent grant of permission’ to the demonstrators to utilize the roadway.” Judge Lynch wrote both the first and the reversed decision.

What happened to the standard that the Judges must accept the “allegations as true” and leave it to a jury of one’s peers to decide the dispute? We just don’t know.

The Judge who vigorously dissented in the first opinion, Debra Ann Livingston, who has served on the Court since 2007 and was appointed by George W. Bush, concurred in the reversed decision.

The Federal Judicial Center has this to say about the safeguards that exist to make certain that Federal Judges who are appointed for life remain fair and impartial. “[Judges] must be careful not to do anything that might cause people to think they would favor one side in a case over another.”

When two extremely bright and experienced Judges flip on a dime in a period of six months, prior to an approved and pending en banc review being scheduled, it leaves the perception in the public mind that Wall Street’s invisible hand behind the dark curtain has once again pulled a lever to assert its power over the 99 percent.

The case is Garcia v. Jane and John Does 1-40, 12-2634-cv.