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
Photo: Paul Hokanson / UB Athletics
