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Monday, June 24, 2024
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Letter to the editor: 'UB Law Faculty Letter Concerning Charges Against May 1st Protesters'

Editor’s note: This letter remains in the condition in which it was sent. The list of signatures is as of May 25, 2024.

Dear President Tripathi,

We write as members of the Law School faculty concerning the Faculty Senate’s call, in its May 7 resolution, for “the University to request that all charges against the demonstrators be dropped" in connection with the May 1 police action on our campus. This request is urgent, since most of the arrested protesters have appearances on June 4 in Amherst Town Court. To our knowledge, the University administration has not yet acted upon the Faculty Senate’s call to have charges dropped.

The administration can and should request that all charges against protestors be dropped. The police present on May 1, representing several separate jurisdictions, arrested approximately 15 individuals, including seven students. With the one exception of an arrest for resisting arrest, all offenses charged were violations consisting of loitering (Penal Law Section 240.35), trespass (Penal Law Section 140.05), and disorderly conduct (Penal Law Section 240.20). These three offenses are classified under New York law as violations and, as such, they are not crimes. (What’s more, the loitering statute is vague, poorly worded, and loitering statutes in general have a questionable constitutional history.) Conviction on these charges does, however, carry the potential for a sentence of up to fifteen days in jail.

It is both feasible and appropriate for the University to have the charges dropped against the protestors currently scheduled to be arraigned on June 4. Under our court procedures, these non-criminal charges are prosecuted by the local town prosecutor in the Town of Amherst, where the arrests were made, not by the District Attorney of Erie County. It would be highly appropriate now for the Administration to contact the local prosecutor in Amherst with a request to withdraw these charges, given that the University presumably is a complainant, and that no violence has been alleged or proven in relation to the actions of those arrested.

To continue pursuing these minor charges against both students and non-students would be unwise in light of the path that other universities have chosen to pursue. To offer just a few examples, New York University has had criminal charges dropped against all protesters—student and non-student alike—arrested on their campus during a police action against a pro-Palestinian encampment. Indeed, the NYPD has declined to pursue charges for violations against protesters across a range of campuses in New York City. The Art Institute of Chicago has declined to pursue charges against 68 protestors—again, both student and non-student—arrested on its campus. In Texas, prosecutors have dropped all criminal trespassing charges against the 57 protestors arrested at a pro-Palestine demonstration at the University of Texas. 

It would be particularly inappropriate for the University at Buffalo to deviate from this prudent course given the particular circumstances of the May 1 police action. The facts concerning the arrests on May 1 are largely undisputed. Before any arrests were made, the protesters had dismantled their encampment. They confined themselves to an outdoor public area of the campus. Shortly before sunset, which occurred by the calendar that day at 8:22 pm, the Muslims in attendance began the last of five mandatory prayers of the day. Mere seconds after the prayer was concluded, the police moved in to make their arrests. Throughout this time, the protesters, students and non-students alike, were conducting themselves in a peaceful manner. The SUNY Rules for the Maintenance of Public Order stipulate that, “No student…or authorized visitor shall be subject to any limitation or penalty for expressing his or her views or for assembling with others for such purpose.” See Section I.E.1. The Rules then go on to specify that “peaceful picketing and other orderly demonstrations in public areas of campus grounds and buildings are not subject to interference provided there are no violations of the rules in section I.A. of this policy.” Id. Section I.E.1.a.

There are sixteen rules stated in terms of prohibited conduct under Section I.A. None of these rules had been violated at the time of the arrests. To read the applicable rules otherwise would be to nullify the command of Section I. E., noted above. The Rules For the Maintenance of Public Order also provide for the promulgation of additional campus rules. See Section I.B. These supplementary rules applicable to the SUNY Buffalo campus are found in the Picketing & Assembling Policy. The only supplementary rule that would even arguably relate to the events of May 1 is the following: “Assemblies cannot last more than one day, duration not to exceed 12 hours in one day. No overnight assemblies/assemblies [sic] are allowed.”  

The public protest on May 1, 2024, even to the extent that it may have extended beyond the official time of sunset, cannot reasonably be deemed a violation of the rule prohibiting “overnight assemblies.” As noted above, any encampment had already been dismantled. The word “overnight” does not by its ordinary meaning imply the presence of assembled persons on public property for a brief duration beyond the moment of sunset. No one has suggested that the protesters were preparing to spend the night on campus. Even New York Penal Law Section 140.00, which provides definitions for terms found in those statutes governing criminal trespass and burglary, states that “‘Night’ means the period between thirty minutes after sunset and thirty minutes before sunrise. See NYPL § 140.00(4).

It would reflect poorly on the University to continue pursuing these criminal charges which have little or no legal substance to them. Nor is doing so necessary to maintain good public order. We therefore ask that you immediately contact the local prosecutor in Amherst with a request to withdraw these charges.

 Cc.    Suzanne Laychock, Chair, Faculty Senate
Senate Committee on Academic Freedom and Responsibility 


Signatories

1. Anthony O'Rourke                     Joseph W. Belluck and Laura L. Aswad Professor of Civil Justice 

2. Orlando Dickson.                      Lecturer

3. Mateo Taussig-Rubbo              Professor of Law

4. Jorge Fabra-Zamora                Associate Professor of Law

5. Mark Bartholomew                  Professor of Law

6. James Milles                            Professor of Law

7. Matthew Dimick                       Professor of Law

8. Michael Boucai                         Professor of Law

9. Irus Braverman                         Professor of Law

10. Tara J. Melish                         Professor of Law

11. Luis Chiesa                             Dr. Teresa A. Miller Professor of Law, Vice Dean for Diversity, Equity, and Belonging, Director of the Buffalo Criminal Law Center

12. Nan Haynes                            Lecturer, Emerita

13. Paul Linden-Retek                 Associate Professor of Law

14. Joshua R. Coene                   Undergraduate Lecturer in Law

15. Rebecca Redwood French  Professor of Law

16. Heidi L. Forman.                   Teaching Faculty

17. Kim Diana Connolly              Professor of Law

18. Pamela Newell                      Lecturer in Law

19. Errol Meidinger                     SUNY Distinguished Professor Emeritus and Margaret W. Wong Professor of Law Emeritus

20. Emily Dinsmore                    Lecturer in Law

21. Kate Rowan                           Lecturer in Law

22. Alexandra Harrington          Associate Professor of Law

23. James A. Wooten                  Professor of Law, Vice Dean for Research and Faculty Development  

24. John Harland Giammatteo  Associate Professor of Law 

25. Mekonnen F Ayano               Associate Professor 

26. Christine P Bartholomew     Vice Dean for Academic Affairs; Professor of Law

27. Athena D. Mutua                    Professor of Law

28. Angelyn McDuff                     Lecturer in Law

29. Martha McCluskey                Professor Emerita

30. Meredith Kolsky Lewis         Professor of Law

31. Lucinda Finley                        Raichle Professor of Law

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