Former Editor Sues Philadelphia Police for Constitutional Violations in Her Arrest

 

 

 

by WALTER BRASCH 

 

A former managing editor for the online newspaper, OpEdNews, has sued the city of Philadelphia and eight of its police officers for violating her Constitutional rights.

Cheryl Biren-Wright, Pennsauken, N.J., charges the defendants with violating her 1st, 4th, and 14th amendment rights. The civil action, filed in the U.S. District Court, Philadelphia, is based upon her arrest during a peaceful protest Sept. 12, 2009, at the Army Experience Center (AEC) in the Franklin Mills Mall.

According to the complaint, Biren-Wright, who was not a part of the demonstration but at the mall as a reporter-photographer, was arrested and charged with failure to disperse and conspiracy, second degree misdemeanors. The charges were subsequently dropped by the Philadelphia district attorney.

The Philadelphia police also arrested and charged six protestors with conspiracy and failure to disperse—Elaine Brower, 55, New York, N.Y.; Richie Marini, 35, Staten Island, N.Y.; Joan Pleune, 70, Brooklyn, N.Y.(one of the original Freedom Riders in 1961); Beverly Rice, 72, New York, N.Y.; Debra Sweet, 57, Brooklyn, N.Y.; and Sarah Wellington, 26, Piermont, N.Y. Two months after Biren-Wright’s case was dropped, the six protestors were found not guilty in Philadelphia Municipal Court.

Paul J. Hetznecker, who represented the six defendants in the criminal trial, and Biren-Wright in her civil suit, believes that police over-reaction to protestors, as well as their lack of knowledge or appreciation for Constitutional protections, may be “a systemic problem throughout the country.” Hetznecker says under Constitutional and state law, “There can not be an arbitrary and capricious decision to end the civil rights of the protestors.”

The civil suit complaint charges that police violated Biren-Wright’s First Amendment rights to “gather information . . . to cover a matter of public interest including the law enforcement activity in public places.” Actions by the police deprived her of 4th and 14th amendment rights that, according to the complaint, protect against “unreasonable search and seizure,” “loss of physical liberty,” and “freedom from excessive use of unreasonable and justified force.”

The suit lists six separate counts:

          ● Abridgement of her rights under the First Amendment to observe and record news in a public place.

          ● False arrest and imprisonment

          ● Use of excessive force by the police.

          ● False arrest under state law

          ● Common Law Assault under state law

          ● Failure of the City of Philadelphia to adequately train and supervise its police. The complaint charges that because of accepted practices, the defendants may have believed “that their actions would not be properly investigated by supervisory officers and that the misconduct would not be investigated or sanctioned, but would be tolerated.” The policy, according to the complaint, “demonstrates a deliberate indifference on the part of the policymakers of the City of Philadelphia, to the constitutional rights of persons within the City, and were the cause of the violations of the Plaintiff’s rights. . . .”

Named in the suit in addition to the City of Philadelphia are Lt. Dennis Konczyk, officers Tyrone Wiggins, John Logan, Robert Anderson, Donald West, William Stuski, and two unnamed John Does.

The Philadelphia Police Department refused to comment about the suit as a matter of policy regarding “issues in court,” according to Jillian Russell, Department spokesperson.

 

In August 2008, the Army opened the AEC, a 14,500 square foot “virtual educational facility” with dozens of video games. The Center, deliberately located near an indoor skateboard park, replaced five more traditional recruiting offices, and was designated as a two-year pilot program. The initial cost was $12 million.

Army recruiters could not actively recruit children under 17, but could talk with the teens and answer any of their questions about the Army. Among the virtual games was one in which children as young as 13 could ride a stationary Humvee and shoot a simulated M-16 rifle at life-like video images of Muslims and terrorists.

Because of the emphasis upon war, and a requirement that all persons had to sign in at the center, thus allowing the recruiters to follow-up as much as four or five years later, peace activists began speaking out against the AEC.

To counter what was quickly becoming a public relations problem, the Army sent out news releases, picked up by the mainstream media, and established a full social media campaign to explain the “benefits” of the AEC. The protests continued.

Elaine Brower, whose son was in Iraq on his third tour of duty, told OpEdNews a day after her arrest: “The AEC is giving guns to 13-year-olds, drawing them in with violent video games. As more and more Afghan civilians and U.S. military are being killed in the U.S. occupation of Afghanistan, we’re saying ‘no’ to these wars. We’ve got to stop the flow of youth into the military, where they're being used to commit war crimes in our name.”

With a police permit, and escorted by officers from Philadelphia’s Civil Affairs Unit, about 200–250 protestors—most of them middle-aged or senior citizens, many of them veterans—had come to the AEC, believing their First Amendment rights were being protected. The protest, although noisy at times, was peaceful; the counter-demonstration wasn’t.

According to the complaint, “The counter-demonstrators [members of an organization known as The Gathering of Eagles] yelled, jeered and taunted the AEC protestors. At no time did [the police] direct, or attempt to limit the First Amendment activities of the counter-demonstrators,” nor were they ever told to disperse.

Throughout the demonstration, the protestors had not given any indication that they posed any physical threat to others. However, about 45 minutes after the demonstration began, the police, under direction of Lt. Konczyk, ordered the protestors to disperse.

At that point, Biren-Wright, according to the complaint, “placed herself outside the immediate area . . . so as not to interfere with the police activity.” She continued to photograph and report on the demonstration. The complaint charges that Lt. Konczyk, “without just cause or legal justification,” directed several officers to arrest her, walking past several protestors and counter-demonstrators. She says she told the officers she was a member of the press. At no time, she says, did she participate as a demonstrator nor verbally or physically threaten anyone. The officers, says Biren-Wright, arrested her without any warning. The arresting officer’s “degree of anger—he was clearly red-faced—was inappropriate,” she recalls. The police, says Biren-Wright, “were clearly targeting me, trying to keep me from recording the demonstration and their reactions.”

One officer, says Biren-Wright, “unnecessarily twisted my arm.” Another officer seized her camera and personal items. One of the officers put plastic cuffs on her wrists “so tight that it caused significant pain, swelling and bruising, and an injury that lasted for several weeks,” according to the complaint.

Biren-Wright’s 15-year-old daughter was shopping in the mall during the protest, but had reunited with her mother shortly before the arrests. Her daughter, says Biren-Wright, “came closer upon the arrest and I told the officer she was my daughter and a minor and would be alone.” The officer, says Biren-Wright, snapped, “You should have thought of that before.” At the processing center that police had previously set up at the mall, Biren-Wright told several officers that he r daughter was alone in the mall and was from out of state. “None of them did anything to ensure her safety,” she says. The daughter, unsupervised, eventually found Rob Kall, OpEdNews editor, who drove her to the jail to take her mother’s keys and then drove her home, where she spent the night alone.

Outside the mall, counter-protestors shouted obscenities as those arrested boarded the police bus. “They were standing at the door to the bus,” says Biren-Wright, “and posed a safety issue to us since we were in handcuffs.”

The six who were arrested and Biren-Wright were initially taken to the 15th District jail. Richie Marini, the lone male arrested, was kept at the district jail. The six women were transferred to the jail at the jail of the Philadelphia Police headquarters, known by locals as the “Roundhouse,” where a nurse took each woman’s vital signs and asked if there were any injuries. “I showed him my wrist and thumb that were already red and swollen” from the restrictive handcuffs, says Biren-Wright. His response, she says, was “That doesn’t count.”

Biren-Wright, along with the other five women, was held for 14 hours. At 5 a.m., she says, they were released from the “Roundhouse” onto a dark and barren street—there were no taxis anywhere near—and locked out of the police station. Although the women had cell phones, they had not been allowed to call for rides while in the jail area. Outside, they called friends, but waited until help arrived. Marini was released from the district jail later that morning.

The only reason Biren-Wright’s pictures of the demonstration survived is because she had secretly removed the memory chip during the arrest. When the camera was finally returned, “all of the settings were messed up and the lens was not replaced properly.”

The Army closed the AEC at the end of the pilot program. It had claimed that because of increased enlistments nationwide, the Center was no longer needed. It never acknowledged that the protestors and the public reaction may have been a reason for the closing.

In an unrelated case, the U.S. Court of Appeals for the Third Circuit ruled in October 2010 [Kelly v. Borough of Carlisle] that recording police activity in public places is protected by Constitutional guarantees. This month, the ACLU settled a case, for $48,500, in Pittsburgh when a University of Pittsburgh police officer arrested Elijah Matheny and charged him with felony violation of the state’s Wiretap Act for using a cell phone to record police activity. Matheny spent a night in jail following his arrest. [See: Matheny v. County of Allegheny, et al.] The ACLU charged that the district attorney’s office “had engaged in a pattern of erroneously advising law enforcement that audio taping police officers in public violates Pennsylvania’s Wiretap Act.” Following the Third Circuit’s decision in the Kelly case, a conviction against Matheny is expected to be overturned.

The arrests in Philadelphia, Carlisle, and Pittsburgh underscores two major problems, both prevalent throughout the country. The first problem is a lack of understanding and respect for the Constitution by a large number, although not a majority, of police officers. For that reason, all police forces and district attorneys offices, from small isolated rural communities to the largest urban departments, need to have constant education about civil rights and Constitutional guarantees—and the penalties for violating those rights.

The second major problem is inherent within the mass media. Reporters need to know how and when to challenge authority to protect their own and the public’s rights. A camera crew from the PBS “Frontline” series was at the protest, but abruptly stopped recording the demonstration after Brower was arrested and either before or during Biren-Wright’s arrest. Rob Kall later said that a member of the “Frontline” crew told him the police informed them they would be arrested if they continued to film the demonstration.

Police threats, which violate Constitutional guarantees, place a “chilling effect” upon the media to observe and record actions by public officials. Even without a direct order by a public official, reporters may do what they perceive to be what others want them to do. The media, like police and public officials, also need constant education to know when police orders are lawful and when they are not. An order to move away from a scene may be lawful. An order to stop filming a scene upon threat of arrest is not.

In federal court, in the case of Biren v. City of Philadelphia, et al., these issues, and others, will be raised. But had there been an understanding of the Constitution by the police, the case would never have gotten to the point of a federal civil suit.

 [Walter Brasch is a former newspaper and magazine reporter and editor. He is author of 17 books, the most recent one Before the First Snow: Tales from the Revolution, journalistic fiction about the counter-culture as seen through the eyes of a “flower child” and the reporter who covered her story for three decades.]

 

 

Obama moves to curb wasteful spending

Ever notice how Republicans love to complain about "wasteful government spending" but never do anything about it when they're in power?

In contrast, on Wednesday President Barack Obama issued a memo

to the heads of all the executive departments agencies directing them to restrict no-bid contracts; to rein in outsourcing of "inherently governmental activities"; and to, if necessary, cancel wasteful contracts outright. The crucial paragraph, even if it's written in bureaucratese, particularly calls out the Defense Department [...]

Clearly, this has applications far beyond the Pentagon. But the list of big-ticket defense items that have experienced huge cost overruns is a long one. Future Combat Systems in the Army; the Littoral Combat Ship in the Navy; the Joint Strike Fighter in the Air Force -- all of these programs, near and dear to the services, have run massively over budget. If I was a lobbyist for Lockheed or Boeing, I'd be dialing my contacts in the Pentagon and the Hill to figure out what the prospective damage to my company was. And then I'd come up with a strategy to fight this forthcoming Office of Management and Budget review.

Obama went further in remarks at the White House, calling it a "false choice" to say that protecting the country requires acquiescence to Pentagon waste. "In this time of great challenges," he said, "I recognize the real choice between investments that are designed to keep the American people safe and those that are designed to make a defense contractor rich." He also lent support to Sens. Carl Levin (D-Mich.) and former presidential rival John McCain's (R-Ariz.) legislation to create new procurement oversight positions at the Pentagon. "The days of giving defense contractors a blank check are over," Obama said.

Music to my ears: no more blank checks for crooked defense contractors.

The White House estimates that changing the way the government does business will save about $40 billion a year.

By way of comparison, the total cost of approximately 11,610 earmarks in fiscal year 2008 was $17.2 billion according to Citizens Against Government Waste. In fiscal year 2007, earmarks cost American taxpayers an estimated $13.2 billion. Republicans howl about earmarks (when they're not busy getting them for their own constituents), but will they get behind Obama's new effort to reduce huge cost overruns and no-bid contracts?

Daily Kos user Pluto gave many examples of the mind-boggling amount of taxpayer money we spend on defense, but neither the problem nor Obama's response is limited to the Pentagon. Agriculture Secretary Tom Vilsack has already axed a $500,000 consulting contract:

"The career folks who watched this process unfold in the last waning days of the last administration were very concerned about the process--the connections and relationships between people receiving this half a million dollar contract and what they intended to do with the resource which the career folks felt was unnecessary and inappropriate," Vilsack said during a guest appearance at the daily White House press briefing. "They made a very strong and powerful case to me that the process was not followed as it should have been."

Vilsack did not explain precisely what consulting the contract was to involve, but he said it seemed unnecessary.

"I didn't see any value to USDA from it. I will tell you it was rather startling to see that a substantial amount of money had already been spent on foreign travel under circumstances we did not think was appropriate," the secretary said.

I'd like to see us reduce wasteful spending even more by cutting obsolete Cold War-era weapons systems. I don't expect Obama to take on that battle anytime soon, but I welcome the big step in the right direction he took this week.

UPDATE: Senator Tom Harkin of Iowa, under fire for the infamous pig odor study earmark, had this to say yesterday:
What needs more attention, according to Harkin, are no-bid contracts done by federal agencies. “I had a hearing a year ago on the Department of Labor and there were -— I forget the exact figure — but several hundred million dollars that had gone out under Secretary of Labor Elaine Chao on no-bid contracts,” he said. When Harkin directed a federal oversight agency to look into the contracts, it was discovered that the contractors had not done what they were hired to do and, according to Harkin, “didn’t really do anything. … “At least we are transparent,” he said. “You can see where it is going. But on a lot of these non-bid contracts that go through the executive branch, no one knows what they are doing. We have no transparency there.”

There's more...

Military analysts and the public

I'm Sam Levenback. I'm a blogger and a student in Washington, DC. Jonathan has been kind enough to let me help out on the weekends.

This morning's New York Times features a disturbing article that untangles the role of military analysts appearing on network and cable television. These analysts are presented as neutral experts, but most are, in fact, taking their talking points directly from the Department of Defense. Additionally, plenty of these pundits also serve as lobbyists and consultants who crave access to the Pentagon for their business interests. The conflict of interest is pretty clear cut.

I'm not even going to voice any outrage towards the Administration. It's hardly shocking. Personally, I think the real thrust of this story is the utter incompetence of cable news and the networks. This isn't a case of shifty ideological bias or yielding to administration bullying. It's old-fashioned incompetence.

In memos, emails, and transcriptsposted by The New York Times, we see a coordinated effort to dupe television producers and talking heads. Chris Matthews, Wolf Blitzer, and Bill O'Reilly are all mentioned by name. It's absolutely humiliating. These are supposed to be journalists, and yet they've been consistently duped by their own military analysts, their own employees. They've been paying experts to come on their shows and give misleading commentary.

"CNN, for example, said it was unaware for nearly three years that one of its main military analysts, General Marks, was deeply involved in the business of seeking government contracts, including contracts related to Iraq. General Marks was hired by CNN in 2004, about the time he took a management position at McNeil Technologies, where his job was to pursue military and intelligence contracts. As required, General Marks disclosed that he received income from McNeil Technologies. But the disclosure form did not require him to describe what his job entailed, and CNN acknowledges it failed to do additional vetting. "We did not ask Mr. Marks the follow-up questions we should have," CNN said in a written statement. In an interview, General Marks said it was no secret at CNN that his job at McNeil Technologies was about winning contracts. "I mean, that's what McNeil does," he said."

It's just so embarrassing. And yet it's also another sad chapter in the media's complete failure to deal equitably and honestly with the Bush Administration.

Ex- convicts and addicts may get DoD clearance

TheHill.com today has an article on the repeal of restrictions for granting security clearance to convicts, drug users and the mentally incompetent.

http://thehill.com/leading-the-news/ex-- convicts-and-addicts-may-get-dod-clearan ce-2007-07-10.html

At the Pentagon's request, Senate defense authorizers tucked deep within a defense bill a repeal of the department's restriction on granting security clearances to ex-convicts, drug addicts and the mentally incompetent.

This isn't something that has passed.  In fact it is likely to become an issue this week.

Is this an opening to hire Scooter Libby at the Pentagon?

There's more...

Four Years Ago I arrived in Iraq. I left Three Years Later, Different

Today, March 19, 2007, marks the 4th anniversary of the U.S. Invasion of Iraq.

Two months from now four years ago I was driving across the Southern border of Iraq on my way to assume the position as the CPA Airport Director of Basrah International Airport. It was an electric time. From my perspective, America and several other countries had just liberated a people form a tyrannical dictator who had spent the past three decades repressing and killing them.

In Basrah, Iraq the people welcomed the presence of the Coalition soldiers and came into the streets waving and cheering the newly arrived liberation army. That willingness to embrace their liberators did not last long. Here's why.

There's more...

Diaries

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