By Julia Preston, The New York Times
A federal judge has barred general searches of protesters’ bags at the Republican National Convention and ruled out the use of closed four-sided pens to contain the protesters.
But in a ruling issued Friday and released yesterday, the judge, Robert W. Sweet, did not entirely ban the controversial holding pens, requiring only that demonstrators be able to move freely in and out of them.
He also ruled that police officials could initiate general searches of bags of convention demonstrators if they receive information of a specific security threat.
In the ruling, which both sides claimed as a victory, Judge Sweet wrote that he intended to strike a “delicate balance” that would “encourage free expression in a secure society.”
The judge found that the New York City police had used excessive tactics to control political demonstrations in the past. His ruling came in a suit filed in Federal District Court in Manhattan by the New York Civil Liberties Union, which had hoped to prevent the police at the convention from using tactics that led to scuffles and some injuries to demonstrators at a protest against the war in Iraq near the United Nations in February 2003.
Lawyers for the police battled to stave off any court orders that would tie their hands as they prepare for the convention, which F.B.I. officials have named as a possible target for a new attack they say Al Qaeda is planning in the United States.
Christopher Dunn, the civil liberties union’s lead lawyer in the case, called the ruling a “historic victory for the right to protest” and said the judge had knocked down police tactics that “severely restricted demonstrations.”
But Paul J. Browne, the senior spokesman for the Police Department, said the decision only upheld policies the police had already adopted, and did not cause any change in the department’s planning for the convention, which will be at Madison Square Garden from Aug. 30 to Sept. 2.
The civil liberties group had tried to force the police to abandon the use of the pens, which are set up with metal barriers that are hard to climb over and impossible to crawl under. At the February 2003 demonstration, police used the barriers to create block-long four-sided enclosures and, once they were full, barred demonstrators from leaving.
Ann Stauber, 61, a plaintiff in the suit, went to that protest in a mechanized wheelchair she has used since 1991 because of a debilitating genetic disease. A police officer, Marvina C. Lawrence, broke the wheelchair’s controls while blocking Ms. Stauber from leaving a pen to find a bathroom, a civilian review board investigation confirmed.
Judge Sweet found that the pens as they were configured that day had caused “irreparable harm” to the demonstrators’ First Amendment rights. He ordered no action, only suggesting “creating a larger number of openings which may be monitored by police.”
Leslie Cagan, national coordinator for United for Peace and Justice, which organized the rally, called the ruling a step in the right direction, but questioned the need to use pens at all.
Three-sided barricades can be ""reconfigured at a moment’s notice” to trap demonstrators inside, she said, adding that the police have from time to time picked up the barricades and used them to push people back.
The issue of the searches arose because of a construction workers’ demonstration on April 10, 2003, in favor of the Iraq war, where police were ordered to search the bags of all demonstrators and bar anyone who refused to allow a search.
At the convention, the police will not be able to search bags without showing “both a specific threat to public safety and an indication of how blanket searches could reduce that threat,” Judge Sweet wrote. He imposed no restrictions on the use of metal detectors.
“We’re not planning to search everybody,” Mr. Browne said. “But if we get information that somebody is carrying a bomb and we have a description, we’re going to go look for it.”
The judge also ordered the police to provide extensive public information in advance about any streets it plans to close for the demonstrations. He rejected as legally inappropriate the civil liberties union’s challenge to the deployment of mounted police to disperse demonstrators.
Gail Donoghue, a lawyer for the city, said officials were relieved that the judge did not require them to write a raft of new rules before the convention, or to negotiate with protesters over security plans.
“We’re just not going there,” she said. “The Police Department is not willing to abdicate its responsibility for public safety and make it a matter of negotiation.’
The use of the pens has been but one sticking point in the tense negotiations between the city and United for Peace and Justice over where protest organizers can hold a rally, which could attract 250,000 people, the day before the convention.
Organizers say that they are now considering acquiescing to a Bloomberg administration proposal to rally along the West Side Highway from Chambers Street as far north as 34th Street. But they are looking to the city to help provide water, shuttle buses to subways and the more expensive sound system they say is necessary to reach protesters who may be miles from the stage.
“We are prepared to figure out how to make the West Side Highway work but we can’t say yes until we have more conversations with them to make sure it will work,” Ms. Cagan said.
Mr. Browne of the Police Department responded: “They came in with a list of demands for us to pay for the amenities associated with the convention protest, and we don’t work that way.” He added: “Whether it’s a picnic in Central Park or a demonstration, they’re expected to carry their own water - literally.”
Diane Cardwell contributed reporting for this article.