Retired lawyer Stephen Downs did not have his free speech rights violated when a security officer at Crossgates Mall asked him to remove a peace-themed T-shirt or leave the privately owned property, a state appellate court ruled Thursday.
In the unanimous decision, the Appellate Division of state Supreme Court said Downs’ actions were “at least part of the cause of the disturbances” that prompted the mall’s security and subsequently a police officer to become involved in the March 2003 incident. The court also found there was sufficient probable cause for Guilderland police to arrest the Selkirk man.
“[Officer Adam] Myers also observed a potential disturbance involving [Downs] and learned directly from [Downs] that, despite being asked by mall personnel to leave, he absolutely refused to leave the premises,” the decision states. “This proof provided probable cause for the trespass arrest.”
Contacted Thursday, Downs said he wasn’t surprised by the outcome and believed the case will eventually be heard by the state Court of Appeals. Though he wasn’t fully apprised of the decision, he said he believed the appellate court erred by comparing his case to one heard by New York’s highest court in 1985.
The SHAD Alliance versus Smith Haven Mall decision allows shopping center owners to prohibit campaigning, petitioning or distributing of fliers. Downs doesn’t believe his wearing of the T-shirt amounted to the type of activity covered by that decision.
“We think there’s a difference,” he said.
The case developed out of an incident that occurred at Crossgates just weeks before the war in Iraq began. Downs and his son Roger had T-shirts made at a mall shop, then wore them over their clothes.
Downs’ $22 T-shirt was emblazoned with the words “Peace on Earth” on the front and “Give Peace a Chance” on the back. His son’s T-shirt had the slogans “Let Inspectors Work” and “No War in Iraq” printed on it.
About 10 minutes later, Downs claimed he was approached by security staff in the food court and asked to remove the shirt or leave the mall. When he refused, Downs was handcuffed, taken to the police substation at the mall and later charged with trespassing in Guilderland Town Court.
Downs claimed he and his son did not speak to other patrons after donning the shirts and intended to offer a quiet protest to the war. Mall security guard Robert Williams disputed this account in a sworn affidavit, claiming he saw Downs walking toward the food court asking customers what they thought about the T-shirts and the war with Iraq.
Faced with an outpouring of criticism, mall executives asked to have the charge against Downs dropped four days after the incident occurred. Downs’ T-shirt was later donated and put on display at the New York State Museum.
About a year after his arrest, Downs and the New York Civil Liberties Union filed a lawsuit against the mall and the town of Guilderland, contending his arrest was unlawful and violated his free speech rights. An Albany County Court judge ruled in favor of the town and mall’s motion for summary judgment in April 2009.
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