EDITORIAL: Peaceful protesters shouldn’t face undue detainment

Protesters who are detained while exercising their First Amendment right to assemble don’t give up other legal protections. Yet a New York judge found the opposite earlier this month.

A 1991 appeals court decision in the Empire State established that arrestees generally must be released if they aren’t arraigned within 24 hours of being taken into custody. But when New York City police arrested thousands of demonstrators during the uprising over the death of George Floyd, there was a crush of potential defendants, many of whom were kept behind bars longer than the limit.

In response, attorneys for the city’s Legal Aid Society filed a petition demanding the release of about 100 men and women who had been detained beyond the 24-hour window.

Keep in mind that these were not looters, rioters or other miscreants apprehended for theft or serious property crimes. Instead, they were demonstrators who were arrested for relatively minor offenses such as failure to disperse or curfew violations. “Many detainees allege that they were prevented from calling family or lawyers and denied water and medical assistance,” reason.com reported.

In a June 4 ruling, however, Judge James Burke sided against those in custody, holding that a “crisis within a crisis” existed — the coronavirus and civil unrest — and justified the delays. Courts were already holding teleconference hearings in response to the pandemic, he said, and the large influx of protesters made the situation only worse. “It is simply a fact that virtual parts (remote hearings) slow down the pace of arraignments,” Judge Burke ruled, “including but not limited to technical issues.”

Some progressives, including Rep. Alexandria Ocasio-Cortez, argued that the judge has suspended “habeas corpus” by allowing indefinite detainments — not just for protesters, but for all New Yorkers. But the reality is more nuanced. The Constitution has no 24-hour provision, and the New York court decision that imposed the time limit does allow exceptions when “an acceptable explanation for the delay is given.”

That said, the potential for abuse here is obvious. Where is the check on vindictive arrest and prosecution if police and DAs have the discretion to deliberately delay release for nonviolent suspects who normally would be booked and sent home? Such concerns are particularly relevant when the offenses involve anti-police demonstrations.

Legal Aid attorneys said last week that progress had been made in the controversy and fewer people faced detention beyond 24 hours. That’s good. Those who used the Floyd demonstrations to riot and loot deserve to suffer the consequences. But those peacefully expressing their displeasure with the criminal justice system must be free do so in a democracy without fear of facing incarceration for contempt of cop.