Move along, Barbara Walters — or get arrested.
Cops have the right to arrest anyone — even the famed TV journalist — if she stops to talk with protesters and doesn’t move when ordered, city lawyers argued Tuesday.
The city Law Department made the point in relation to Stephen Kass, a Wall Street lawyer collared for talking to Occupy Wall Street protesters outside Zuccotti Park in September 2013.
Kass, who was 73 at the time of his arrest, was headed to a cello lesson and was not an Occupy Wall Street protester, maintains he had the right to stop on the sidewalk outside the barricades to engage with demonstrators.
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Kass, an environmental lawyer who practices on Wall Street, alleges cops illegally arrested him for disorderly conduct when he refused their orders to move along.
The charge against Kass was thrown out because prosecutors didn’t pursue the case, according to a court document obtained by the Daily News.
During a proceeding unrelated to the famed TV interviewer Tuesday, the city argued before the 2nd U.S. Circuit Court of Appeals that NYPD officers involved in Kass’ arrest had legally cuffed him for ignoring their orders.
A person stopped on the sidewalk engaging with a protester could get in the way of their crowd control work by encouraging protesters to spill out of barricades, city lawyer Melanie West told the three-judge panel.
West also said cops had asked Kass to move seven times — bolstering their concern about crowd control.
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“What if, I don’t know, you’re Barbara Walters and you’re right there, do the police then have the ability under New York law, New York City law…New York State law, to arrest Barbara Walters because she wants to talk to the protesters or just listen, not even talk,” a judge asked, citing the legendary ABC News interviewer.
“If the police approach Barbara Walters and ask her to relocate 10 feet — multiple times — and she refuses, yes, I think that they do,” West replied.
One judge also wondered whether the arrest “is sort of anticipatory law enforcement.”
“Your argument has to be that the police were anticipating a problem that could occur, presumably if more and more people stopped there?” he said.
“In the context of an ongoing protest, police should have some discretion in the way that they enforce their objectives, and so here where their objective was to keep the sidewalk clear,” West said.
Although Kass’ lawsuit against the city claims false arrest — not First Amendment violations — the judges’ questions also suggested they were deeply troubled by the city’s interpretation of NYPD authority in relation to free speech.
The city maintains the police gave Kass, who is represented by Andrew Celli and Ali Frick of Emery Celli Brinckerhoff & Abady, the chance to go inside the park to engage with protesters.
“But that’s asking him to associate with the protesters,” Judge John Walker said. “Then his partners from the law firm come by and there he is, he’s in the Occupy Wall Street (protest).”
“I don’t think the NYPD has a duty to ensure that Mr. Kass keeps his job, your honor,” West replied.
“What I’m saying is, I don’t think he wanted to associate with them. I think he was just curious to find out what they were saying,” Walker emphasized.
“But your First Amendment right doesn’t include a right to stand wherever you want while exchanging ideas,” West insisted.
Walters’ representatives declined to comment.
