On Wednesday, a U.S. District Court for the Southern District of New York judge threw out a lawsuit brought against three NYPD cops by a TV cameraman who was arrested after climbing on a phone booth to get a better shot of an arrest at Occupy Wall Street in 2011.

Douglas Higginbotham, who was then working with TV New Zealand, brought the suit against police officer Curtis Sylvester, Sergeant Christoper Tomlinson, and Captain Taffe, whose first name is unknown.

According to the judge’s ruling:

Higginbotham, a self-employed cameraman at the time, arrived at Zuccotti Park on November 15, 2011 at approximately 10:00 a.m. to cover the Occupy Wall Street protest. He had his camera and sound equipment with him, which weighed approximately 30 pounds. The camera, which Higginbotham would balance on his shoulder, was also strapped to his hand.

To gain a better vantage point for purposes of filming the protesting crowd, Higginbotham twice climbed atop a phone booth at the edge of Zuccotti Park. The phone booth in question was a structure approximately 7’ 4 ” tall. It had a curved roof that measured 6’8 ” in length, 3’4” in width, and between 3 3/8” and 5 3/8” in thickness. Standing at 5’9” and weighing approximately 140 pounds, Higginbotham was only able to get on top of the phone booth with his camera by first climbing on top of police barricades. The first time that Higginbotham climbed to the top of the phone booth in question, he did so without police interference. There was already a crowd of people, “tightly packed,” surrounding the phone booth. He remained atop the phone booth for approximately five minutes, at which point he climbed down with the help of Tim Wilson, the reporter with whom he was working.

Shortly thereafter, Higginbotham climbed to the top of the phone booth again. The “crowd was still densely packed around the phone booth.” It was at that point that Higginbotham was first ordered to get down by both Officer Sylvester and an unidentified Community Affairs officer. However, Higginbotham did not respond and instead, “turned his camera back towards the crowd.” Approximately 30 seconds later, Captain Taffe ordered Higginbotham to get down from the phone booth “at least five times.” Higginbotham began to descend from the phone booth approximately five seconds after being ordered to do so by Captain Taffe. While defendants contend that officers helped Higginbotham down from the phone booth, Higginbotham argues that he was forcibly removed.

Once at ground level, Captain Taffe instructed Officer Sylvester to arrest Higginbotham. Neither Captain Taffe nor Sergeant Tomlinson, both “superior officers,” “recall instructing [Officer] Sylvester on how to charge [Higginbotham].” Higginbotham was then transported to a police precinct for processing, where he was issued a criminal summons for disorderly conduct and released from custody.

Higginbotham’s disorderly conduct charge was later dismissed. However, the judge ruled that the arrest was not a false one because police still had probable cause to arrest him for reckless endangerment.

The judge found that if Higginbotham fell off the phone booth or dropped his equipment, he could have seriously injured someone in the crowd.

The judge also rejected an argument that Higginbotham was solely targeted for recording the police. The judge ruled that precedent holds that is irrelevant as long as probable cause exists. The judge also noted that other videographers were present, but none of them was arrested.

Douglas Higginbotham's November 15, 2011 arrest (Courtesy: Douglas Higginbotham)

Douglas Higginbotham’s November 15, 2011 arrest (Courtesy: Douglas Higginbotham)

But Jay Goldberg, Higginbotham’s lawyer, said the ruling failed to address the argument that the cameraman was singled out because he was recording the police from a better angle than the videographers on the ground.

Goldberg continued: “They didn’t care about Doug being on top of the telephone booth in the first instance because there was nothing going on. … They didn’t bother to arrest him until [the second time, when] the violence against the protesters started.”

Higginbotham added: “I am very disappointed in the court’s decision. When the police arrested me they eventually came up with the charge of disorderly conduct, and when that charge was dismissed as unfounded, the city used a legal loophole to avoid civil liability on a suit for false arrest.”

Goldberg said Higginbotham is considering appealing the judge’s ruling to the Second Circuit but hasn’t decided yet.

In a previous ruling related to this suit, the same judge declined to dismiss Higginbotham’s false arrest claim because the complaint didn’t contain sufficient facts to show there was probable cause to arrest Higginbotham for reckless endangerment.

Goldberg says that the precedent established in that ruling — that police do not have qualified immunity when they arrest journalists solely for recording police activity in a public space — still stands despite the recent dismissal of the case.