|
On the afternoon of Nov. 21, South
Miami native Laurel Ripple participated in what by all accounts was a
peaceful vigil by 300 people outside the Miami-Dade pretrial detention
center on Northwest 13th Street.
The vigil was in support of more than
100 people arrested the previous day while protesting against the Free
Trade Area of the Americas conference. After about three hours, the
police ordered the crowd to disperse.
“We were walking away, not disrupting
traffic, when a string of riot cops stepped out with a bullhorn and
told us we had three minutes to disperse,” said Ripple, 21, a Hampshire College student in Massachusetts doing volunteer work with the Sierra Club. Then police
surrounded her and about 60 other people, and ordered them to the
ground.
Ripple, a veteran of other
anti-globalization demonstrations, said she sat down and covered her
face with her arms. But, she said, an officer pulled her arms away and
pepper-sprayed her in the eyes, picked her up, slammed her back down,
dragged her, pulled her by the hair and placed her under arrest. She
screamed in pain. During the incident, her previously sprained ankle was
reinjured.
“He told me I was resisting arrest
because I couldn’t walk,” she said. An officer twisted her hand above
her head before cuffing the slightly built, 125-pound woman with her
hands behind her back.
Ripple suffered a panic attack. When
it passed, she said, she found herself being half-carried and
half-dragged, fully dressed, into a makeshift shower for
“decontamination.” After the shower, she was surrounded by four male
officers in full-body hazardous material suits and gas masks. In a daze,
she realized they were cutting off her clothes with scissors. She was
left naked. Her clothes and possessions were thrown into the garbage.
“I screamed and asked for a female
officer but they ignored me,” she said. She was handed a paper hospital
gown, and later given prison garb to wear. She made bail at 3 the next morning. “I was completely shocked,” Ripple said. “I felt violated.”
She was charged with unlawful
assembly, a criminal misdemeanor. She said she knows of two other female
protesters who had similar arrest experiences. Her case is pending.
A spokesman for the Miami-Dade Fire
Department, whose paramedics cut off Ripple’s clothes, defended the male
officers’ actions. The spokesman said it’s standard procedure to use
the emergency personnel who are immediately available, regardless of
gender, because “life and safety and recontamination are our first
priority.”
Ripple is one of dozens, and perhaps
hundreds, of people who have complained about their treatment by police
during the FTAA protests and are considering filing lawsuits; a few are
seeking criminal charges against officers.
Many of those who participated in or
were in the vicinity of anti-FTAA events say officers unjustly arrested
them, used excessive force — including clubbing them and shooting them
with rubber bullets and pellets — unlawfully prevented them from
participating in licensed protest events, illegally searched and seized
their possessions, or otherwise violated their rights.
Those with complaints include
hundreds of retirees and labor union members who say they were blocked
by police from attending licensed events. Civil liberties attorneys
say the police massively violated protesters’ rights of free speech and
assembly. A total of 231 people were arrested during the week of FTAA
events.
But legal experts say the would-be
plaintiffs will face formidable challenges, such as the necessity of
proving that police actions went beyond their duty to maintain order. At
least one prominent South Florida plaintiff attorney says he’s thinking
hard about whether to accept any cases because of the difficulty of
winning.
Miami Police Chief John Timoney, who
led the FTAA force of 2,500 officers from 40 different police agencies,
has insisted that his officers only acted in response to protester
violence and has denied all allegations of excessive force. Miami Mayor
Manny Diaz and Gov. Jeb Bush applauded Timoney’s performance and that of
his officers.
But protester accounts of police
misconduct have received some corroboration from independent observers.
Last month, Miami-Dade Circuit Judge Richard Margolius said in open
court that he saw ‘‘no less than 20 felonies committed by police
officers,” the Miami Herald reported. ‘‘Pretty disgraceful, what I saw
with my own eyes,” he said. ‘‘I probably would have been arrested myself
if it had not been for a police officer who recognized me.”
The American Civil Liberties Union
and the National Lawyers Guild have taken the lead in preparing
lawsuits, interviewing potential plaintiffs and gathering evidence. The
two groups say key legal decisions have not yet been made, including
deciding which plaintiffs have the strongest cases, whom to sue, whether
to file in federal or state court, and what legal theories to use.
Still, the attorneys involved say they expect to file their first claims
in a matter of weeks.
Police misconduct suits have become
the routine aftermath of U.S. political protests since a federal class
action lawsuit alleging civil rights violations was filed in October
2000 by people who demonstrated against the World Trade Organization
meeting in Seattle in 1999. The case is pending. Similar claims were
filed by demonstrators against the city of Philadelphia for alleged
violations by police under Timoney’s command during the 2000 Republican
National Convention. Some of those suits resulted in confidential
settlements in 2002.
The expected FTAA suits arising from
the Miami demonstrations will again put the spotlight on the behavior of
Miami-area police. For years, both the Miami and Miami-Dade police have
been accused of wrongful and racially discriminatory shootings of
civilians. In April, a federal jury convicted four Miami police officers
of conspiring to plant guns on police shooting victims and lying to
cover it up. A month earlier, the Justice Department found that the
Miami Police Department lacked clear guidelines on use of force and stop
and search procedures. That federal investigation is ongoing.
In an interview, Miami City Attorney
Alejandro Vilarello said he’s “confident that the general allegations in
the media of police misconduct will be successfully defended.” But, he
said, it would be “premature” for his office to take any action until
the Miami Police Department completes its promised internal review.
Miami-Dade County First Assistant Attorney Murray Greenberg said his
office would “defend suits as appropriate.” Neither Vilarello nor
Greenberg would discuss possible defense strategies.
Also on trial in any civil suits by
FTAA demonstrators will be what Mayor Diaz and other officials have
proudly dubbed the “Miami model” of overwhelming police response to
political protest. Critics liken the model to U.S. military tactics in
Iraq.
“The Miami model is an orchestrated
adoption of military tactics domestically,” said Marc Steier, a New York
City lawyer who represents the National Lawyers Guild in Miami.
“They’ve turned those weapons on civil rights and liberties.”
Miami ACLU chapter president Lida Rodriguez-Taseff agreed. “The war on terror is being unleashed at home,” she said.
‘Not professional protesters’
Rodriguez-Taseff said her group has
at least a dozen potential FTAA plaintiffs. One is disabled military
veteran Bryan Brown, who claims he was only a bystander yet was arrested
and had his bicycle seized and never returned; Brown was charged with
failure to obey a police order. Another ACLU client, documentary
filmmaker Carl Kesser, was filming police handling of protesters on Nov.
20 when he was shot in the head with a beanbag allegedly fired by
police. He underwent surgery and said he suffered nerve damage around
his right eye.
Private attorneys also are involved.
Last month, the Florida Alliance for Retired Americans retained Coral
Gables lawyer Michael Feiler to represent the group and several
individual members. The retirees claim that on Nov. 20, Miami police
officials breached an agreement to allow 25 busloads of its mostly
elderly members, who came from around the state, to attend FTAA protest
events.
The retirees’ group says some of its
members were denied access by police, while others — some of whom use
canes and walkers — had to disembark from their buses and walk as far as
a mile. One member, Bentley Killmon, 71, was arrested after allegedly
being pushed to the ground by police. He says he was held in detention
for nearly 12 hours with his hands painfully handcuffed behind his back.
“These were not professional
protesters,” Feiler said. “Yet these folks got hit with rubber bullets
and tear gas as police tried to disperse them when they approached the
agreed-on protest area.” Feiler said police treatment of his clients
clearly was part of a pattern and practice established by Chief Timoney.
National Lawyers Guild executive
director Heidi Boghosian in New York said her group expects to file the
first of its lawsuits in a few weeks. “We’re looking at police brutality
issues, First and Fifth Amendment violations, Sixth Amendment due
process as well as Eighth Amendment excessive bail,” she said.
Other groups whose members claim
their rights were violated are the Washington, D.C.-based advocacy group
Public Citizen and the AFL-CIO. Federation staff attorney Kathy Krieger
in Washington, D.C., said police “truncated” the labor unions’
permitted events. “We’re looking at a broad spectrum of claims,
including false arrest and excessive force,” she said. Both Public
Citizen and the labor federation are working with the ACLU on potential
cases.
Tough to pierce immunity
But lawyers for the ACLU and National
Lawyers Guild, as well as other legal experts, say the plaintiffs face
tough challenges. For one thing, plaintiffs who sue government bodies on
the basis of federal civil rights law, the most common foundation for
police misconduct claims, must show that the police officers’ acts were
part of a pattern and practice of their police agency. That involves
showing that the officers’ acts resulted from the direction of
policy-makers.
Another problem is that federal
claims brought against individual police officers must penetrate the
officers’ qualified immunity, never an easy feat. Plaintiffs must
establish that offending officers acted despite fair warning that their
acts infringed on constitutional rights.
Because many of the officers deployed
in Miami during the FTAA conference did not wear identifying badges
with their names or even information about what police force they
belonged to, plaintiffs alleging excessive force will have difficulty
naming their alleged assailants.
Finally, the plaintiffs could face a
problem overcoming juror antipathy, given what some consider the
demonization of protesters by public officials and the media prior to
and during the FTAA conference.
Fort Lauderdale solo attorney Hugh
Koerner, who has extensive experience in representing plaintiffs in
police misconduct cases, said FTAA plaintiffs may have to overcome
particular juror skepticism about excessive force claims. “Police
officers acting lawfully can use whatever force is necessary to overcome
resistance,” he said. “Some jurors may think, ‘They asked for it.’ ”
A more immediate problem is that the
Miami-Dade state attorney’s office is attempting to deny representation
by public defenders to FTAA protesters facing criminal misdemeanor
charges, such as failure to obey a police order. The office says they
aren’t entitled to such representation if they aren’t at risk of jail
sentences.
Without free representation, many
arrested protesters could be forced to accept plea deals. A plea of
guilty or no contest would essentially kill their chances of filing
civil lawsuits, said Marc Steier, the New York lawyer for the National
Lawyers Guild.
Another potential snag is that
ideological differences have emerged between the ACLU and the leftist
National Lawyers Guild. While the groups say they are collaborating to
some extent in developing civil suits, they already have had some public
rifts.
“[The lawyers guild] has a different
philosophy on the suits,” said the ACLU’s Rodriguez-Taseff. “They want
to use them to advance their position on trade and other issues. Our
focus is purely constitutional.”
Looking at federal claims
There are a number of possible legal avenues for those who sue the city and the police over the handling of the FTAA protests.
The most venerable approach is
bringing suit under 42 USC Section 1983, originally known as the Civil
Rights Act of 1871. It provides that anyone who, under cover of state or
local law, causes a person to be deprived of rights guaranteed by the
U.S. Constitution or federal law is liable to that person. It confers no
rights in itself, but rather creates a means to enforce those rights
guaranteed by federal law.
Since the 1960s, Section 1983 has
served as the basis for claims brought by civil rights workers and
political protesters. To encourage such claims, the law was amended in
1976 to provide for successful plaintiffs to recover attorney fees from
defendants. A number of successful lawsuits have been brought against
the Miami Police Department under Section 1983 for wrongful shootings.
Claims under Section 1983 can be
filed in either federal or state court, and have the advantage of
sidestepping state sovereign immunity damage caps that apply in lawsuits
against government bodies in Florida. Section 1983 allows for damages
and declaratory relief against municipalities and local governments and
against individual employees of all levels of government.
But in state claims against either
individual officers or government entities, the law makes no provision
for recovery of attorney fees from losing defendants. Because of the
sovereign immunity and attorney fee issues, plaintiff attorneys lean
toward filing federal claims.
The difficulty of filing 1983 suits
against government entities, however, is that plaintiffs must show an
unconstitutional custom, policy or practice. In contrast, under other
theories, a plaintiff may only have to show a single offense. “None of
these complaints is worth anything [under Section 1983] unless you’ve
established a pattern,” Rodriguez-Taseff said.
“That standard is very high,” said
Summer Barranco, an associate at Purdy Jolly & Giuffreda in Fort
Lauderdale, who has extensive experience in defending police against
misconduct claims. “One must show deliberate indifference by the
government.”
Rodriguez-Taseff said the ACLU is
studying the 134 complaints it has received for evidence of police
patterns and practices. Her group has filed a public records request
seeking Chief Timoney’s training and procedural guidelines for the FTAA
police force, as well as documents that outline the command structure of
the coalition he led.
Several plaintiff attorneys
interviewed for this article argue that the simple fact that police
engaged in mass arrests and use of force in response to alleged violence
by very few demonstrators by itself shows an illegal pattern and
practice. According to the Miami-Dade public defender’s office, out of
231 total arrests, there were only 25 felony charges, and all but five
were dropped or reduced to misdemeanors. The balance of the arrests were
for alleged offenses such as unlawful assembly and failure to disperse.
But Barranco said that the low
percentage of felony charges compared with total arrests does not
necessarily show an unconstitutional pattern and practice in the context
of street demonstrations. “The police could argue they had probable
cause to believe violence was impending,” she said. “The burden is on
the plaintiff to show otherwise.”
Ben Waxman, a Miami lawyer who is one
of the ACLU volunteers preparing cases, argues that suits based on the
Fourth Amendment, alleging illegal search and seizure of property by
police, have a strong chance of success.
In 1998, Waxman was part of a team
that won a landmark settlement with the city of Miami in a class action
challenging the city’s policies toward homeless people. Under the
so-called Pottinger settlement, the city agreed to end homeless sweeps,
in which police cleared the streets of vagrants and seized and burned
their possessions.
Waxman contends that the strong
limitations accepted by the city on search and seizure involving the
homeless will prove highly relevant to the cases of a number of FTAA
arrestees, such as Miami New Times reporter Celeste Fraser Delgado, who
allege that police seized and dumped their possessions including
wallets, purses and identification. Waxman said he has spoken to as many
as a dozen people with such claims. Delgado is among those considering
lawsuits.
“The Pottinger settlement put Miami
police on notice of their obligation to inventory, preserve, and protect
seized property, even in the course of a valid arrest,” Waxman said.
Possible relief for such plaintiffs includes compensatory damages and
injunctive relief if the destruction is shown to be part of a pattern
and practice.
Video could be key
Michael Feiler, who is representing
the Florida Alliance for Retired Americans, says he will file suits on
behalf of his clients in federal court under Section 1983. He says he
initially will claim excessive force and due process violations under
the Fourth and Fifth Amendments. He will name the city of Miami as
defendant, adding other defendants and other counts as discovery
proceeds, and seek damages for his clients’ pain and suffering.
Feiler’s strategy suggests the likely
importance in the FTAA litigation of the massive quantities of video
and photographs shot during the protests. Such evidence brings with it
plenty of issues.
The Coral Gables lawyer plans to
introduce as evidence videotape footage shot by news crews and
protesters. He said such evidence is admissible as long as it is
“authenticated” — meaning that the plaintiff demonstrates to the court’s
satisfaction that the footage was shot at the time and place of the
alleged offense.
But Barranco said video footage will
be persuasive only if it shows unprovoked police action, since federal
claims of false arrest can be defended on the grounds of “arguable
probable cause,” which the plaintiffs must disprove. She and other
experts say defense attorneys will argue that video evidence is flawed
because demonstrators were engaging in illegal conduct just off camera,
prompting the police to act as they did.
Feiler acknowledged that the value of
any particular piece of video will depend on how much context it
provides of the police and protestor exchanges. “The cops will be free
to explain [the video] away however they want,” he said. “The jury will
decide who to believe.”
As Feiler acknowledges, another big
issue for plaintiffs is how to identify the alleged wrongdoers and who
to sue. Numerous eyewitnesses say police at the FTAA demonstrations did
not wear any identifying badges or information; their faces typically
were covered by riot helmets and masks. In an interview, former Miami
Police Chief Kenneth Harms criticized that omission, saying every
officer should have visible identification to ensure accountability.
Feiler said that the identity of
individual officers would have to be disclosed on arrest sheets or could
be learned through discovery of police logs. But Waxman says it won’t
be that easy to identify all the culprits. People who were blocked from
participating in FTAA protest events or who were shot with tear gas,
pellets or beanbags — without being arrested — may have a hard time
identifying the offenders.
Miami police spokesman Lt. Bill
Schwartz said people who have complaints about police conduct should
provide the department with the precise time and location of the
incidents. Then, he said, police officials can determine at least what
agency was involved, although identifying individual officers could be
more difficult or impossible.
Another big question is which
government entities can be held liable. That, Koerner says, could depend
on the language of formal agreements between Miami and the different
police agencies involved, which FTAA plaintiffs will have to obtain.
Koerner says it’s possible that under
the agreements, each police agency was liable only for the conduct of
its own officers — rather than all police agencies bearing collective
responsibility for all officers. If that’s the case, he says, that’s bad
news for plaintiffs who are not able to identify the police agency,
individual officer or officers involved in their case.
Under state law, police misconduct
claims may be brought against individual officers or government entities
for any injury for which a private individual could be sued, such as
false imprisonment or battery. But to prevail against individual
officers, they must be shown to have acted in bad faith or with
malicious intent. No bad faith need be shown to prevail against
government entities.
Koerner says it may be possible to
hold Chief Timoney or other police officials individually liable, on the
theory that they failed to properly supervise their subordinates. But,
he notes, political demonstrations are “such a combustible mixture that
the defense can make a case that the chief’s actions were not the
proximate cause of individual rights violations.”
Skeptical of panels
In addition to the likely lawsuits,
police behavior during the week of FTAA events will be examined by
citizen review boards and by the police departments themselves.
Lt. Schwartz, whose department
contributed a significant number of officers for the FTAA force, said
his department’s internal review is in progress and is due sometime in
January. He said investigators were collecting after-action reports by
police lieutenants, dispatch tapes of police radio calls, and police
video.
“If anyone makes a complaint, we’ll
look into it,” Schwartz said. “If any video shows misconduct, we’ll look
into it.” But he added that many of those who filed complaints came to
Miami from other parts of the country and that the department has “no
way to follow up.”
Miami-Dade County police spokesman
Sgt. Pete Andreu, whose department also contributed a significant number
of officers to the FTAA force, said his department also has begun an
internal review.
Independent citizen review panels at
both the city and county levels are expected to investigate complaints
they have received about police misconduct during the FTAA protests. As
of last Monday, the two panels had received a combined total of 23
complaints. They will hold a joint public hearing to examine the
complaints on Jan. 15.
Both the ACLU and the National
Lawyers Guild have advised people with complaints not to pursue them
with the citizen review panels. They have expressed skepticism about the
willingness of the panels to take aggressive action. That skepticism
was heightened last month when Miami Civilian Investigative Panel member
Peter Roulhac praised Chief Timoney at a Greater Miami Chamber of
Commerce luncheon for his “amazingly professional work.”
The legal groups also fear that the review panel probes will prejudice their clients’ civil suits.
Since her arrest, Laurel Ripple has
worked as a volunteer at Miami Activist Defense, a support group for
FTAA arrestees. She plans to return to college in the fall.
Meanwhile, Ripple has her own
criminal case to worry about. Last week, she was arraigned on a
misdemeanor count of unlawful assembly and pleaded not guilty. Once her
misdemeanor case is resolved, Ripple plans to file a civil suit against
the city of Miami and Chief Timoney, alleging excessive force and
wrongful arrest.
“You go to these events expecting a certain level of police hostility,” she said. “But this was extreme and totally unprovoked.”
Daily Business Review law editor Harris Meyer provided additional reporting for this article.
FAIR USE NOTICE: This page contains copyrighted
material the use of which has not been specifically authorized by the
copyright owner. NoNonsense English offers this material
non-commercially for research and educational purposes. I believe this
constitutes a fair use of any such copyrighted material as provided for
in 17 U.S.C § 107. If you wish to use copyrighted material from this
site for purposes of your own that go beyond fair use, you must obtain
permission from the copyright owner, i.e. the media service or newspaper
which first published the article online and which is indicated at the
top of the article unless otherwise specified. | 
