Two months ago, as peaceful Black Lives Matter protests blocked bridges across the city, a group of federal judges decided that their colleagues should weigh in on a lawsuit accusing the NYPD of wrongfully arresting around 700 Occupy Wall Street protesters on the Brooklyn Bridge in 2011. But yesterday, the same group of federal judges reversed their initial decision, and abruptly dismissed the protesters' complaint against the police.

"The decision sends and extremely chilling message and a green light to the NYPD that I don't think democracy or free speech can tolerate," says Mara Verheyden-Hilliard, an attorney for the protesters and the executive director for the Partnership for Civil Justice Fund.

The protesters argued that the NYPD led them onto the bridge, allowed them to believe they were engaging in a lawful demonstration, then arrested them without reasonable warning.

Federal Judge Jed Rakoff ruled that their claim was legitimate: “A reasonable officer in the noisy environment defendants occupied would have known that a single bull horn could not reasonably communicate a message to 700 demonstrators," Judge Rakoff wrote in his opinion allowing the lawsuit to proceed against the officers who made the arrests.

Another federal appellate court judge agreed, but the de Blasio administration requested an en banc hearing before all the 22 judges who sit on the 2nd Circuit. In December, the group of appellate judges agreed to the City's request, but still believed the protesters' claims had merit. Yesterday the judges changed their minds.

"While reasonable officers might perhaps have recognized that much or most of the crowd would be unable to hear the warning due to the noise created by the chanting protesters, it was also apparent that the front rank of demonstrators who presumably were able to hear exhibited no signs of dispersing," Judge Gerard Lynch wrote in yesterday's reversal [PDF].

As for evidence showing that officers turned their backs on the protesters and led them onto the roadway, Judge Lynch wrote that "it cannot be said that the police’s behavior was anything more than—at best for plaintiffs—ambiguous, or that a reasonable officer would necessarily have understood that the demonstrators would reasonably interpret the retreat as permission to use the roadway." 

Verheyden-Hilliard called the judges' ruling "disturbing," and "procedurally extraordinary," and said that her organization was "looking at all avenues that we can take to try and vindicate the rights of the people who were arrested on the bridge."

In a statement, Law Department spokesman Nick Paolucci praised the decision. "As we have consistently maintained, the alleged facts and multiple videotapes of the events do not show that the plaintiffs were ever granted permission to march onto and block all vehicular traffic on the roadway of the Brooklyn Bridge."

As tens of thousands of people flooded the streets and snarled traffic to protest the grand jury decisions in the Eric Garner and Michael Brown cases, NYPD Commissioner Bill Bratton explained why his department wasn't engaging in mass arrests: “We are still paying out from the 2004 Republican National Convention and the Wall Street— Occupy Wall Street—to date, about $18 million."

But Verheyden-Hilliard said that after the ruling, the police may be more inclined to arrest peaceful protesters who believe they're complying with the law.

"Mayor de Blasio ran for office supporting the rights of Occupy demonstrators to speak out; he criticized the Bloomberg administration for violating the protesters' First Amendment rights," Verheyden-Hilliard says. "Now he's turned his back on the positions he took as a candidate. He appears to be completely yielding to the NYPD's consistent request to operate above the Constitution."

The mayor's office declined to comment on the decision.