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.]

 

 

Gay Tea Partiers

Frankly, it would take too long to debunk why a regressive flat structure is not in society's best interest but that is one of the points these two gay Tea Partiers are missing. It's rather disconcerting that so many Americans continue to buy into the creed of libertarian style individualism over the collective good as these two young men do. They do, on the other hand, argue quite eloquently why the government should not be in the business of regulating marriage. Still the suggestion that we should abolish the income tax is hard to phantom. That would lead to a most inegalitarian society that would threaten the very existence of American democracy. 

It is also amazing to me that conservatives think the world around them comes cheap. They love to complain about taxes but they don't seem to realize to that taxes also pay for things like electric lighting and roads.

From the Wall Street Journal:

Paved roads, historical emblems of American achievement, are being torn up across rural America and replaced with gravel or other rough surfaces as counties struggle with tight budgets and dwindling state and federal revenue. State money for local roads was cut in many places amid budget shortfalls.

In Michigan, at least 38 of the 83 counties have converted some asphalt roads to gravel in recent years. Last year, South Dakota turned at least 100 miles of asphalt road surfaces to gravel. Counties in Alabama and Pennsylvania have begun downgrading asphalt roads to cheaper chip-and-seal road, also known as "poor man's pavement." Some counties in Ohio are simply letting roads erode to gravel.

The moves have angered some residents because of the choking dust and windshield-cracking stones that gravel roads can kick up, not to mention the jarring "washboard" effect of driving on rutted gravel.

But higher taxes for road maintenance are equally unpopular. In June, Stutsman County residents rejected a measure that would have generated more money for roads by increasing property and sales taxes.

"I'd rather my kids drive on a gravel road than stick them with a big tax bill," said Bob Baumann, as he sipped a bottle of Coors Light at the Sportsman's Bar Café and Gas in Spiritwood.

Rebuilding an asphalt road today is particularly expensive because the price of asphalt cement, a petroleum-based material mixed with rocks to make asphalt, has more than doubled over the past 10 years. Gravel becomes a cheaper option once an asphalt road has been neglected for so long that major rehabilitation is necessary.

"A lot of these roads have just deteriorated to the point that they have no other choice than to turn them back to gravel," says Larry Galehouse, director of the National Center for Pavement Preservation at Michigan State University. Still, "we're leaving an awful legacy for future generations."

It was a progressive income tax - the highest tax bracket during the Eisenhower Administration was 91 percent - that built the Interstate Highway System, the largest and most extensive infrastructure ever built, but it is a Reaganite ideology that is undoing the progress we have built so much so that we are forced to turn our asphalt roads back to gravel.

Quick Hits

Some of the other stories and other interesting reads making the rounds today.

Lt. General (ret). James Clapper won Senate approval to become the Director of National Intelligence after Senator John McCain removed his hold on the nomination. Senator McCain placed a hold on the Clapper nomination in order to force the Obama Administration to release a report assessing a controversial spy satellite program. McCain released his hold Tuesday once he got the information he was seeking. The retired three-star Air Force general, whose intelligence career spans two score and six years, will be the fourth Director of National Intelligence in five years. More from the Wall Street Journal.

The Senate sent the nomination of Peter Diamond, one of President Barack Obama's three nominees for the Federal Reserve Board, back to the White House because of objections from at least one lawmaker. Alabama Senator Richard Shelby, the senior Republican on the Banking Committee, said last week that Diamond, while a “skilled economist,” may not be qualified to make decisions on monetary policy.

The Senate took no action yesterday on the other two nominees, including San Francisco Fed President Janet Yellen for Vice Chairman and Sarah Bloom Raskin for a Governor slot, leaving them to await confirmation after senators return September 13. That means that if Governor Donald Kohn, whose separate term as Vice Chairman ended in June, departs as planned on September 1, the Fed will work with only four of seven Governors for the indefinite future. More from Bloomberg News.

Jonathan Chait of the New Republic looks at the tightening margins for confirming Supreme Court Justices and wonders if Elena Kagan might be President Obama's last nominee to the Court.

The New York Times profiles US District Court Judge of Vaughan Walker who wrote the landmark decision that overturned Proposition 8 in California. The title Conservative Jurist, With Independent Streak pretty much says it all.

In a related story, Governor Arnold Schwarzenegger and Attorney General Jerry Brown filed briefs asking Chief U.S District Judge Vaughn Walker to lift his stay and allow gays and lesbians to marry while the Perry v Schwarzenegger winds its way through the appeal process. More from CNN.

Michael Cooper in the New York Times writes on the extremes to which state and local governments are going in order to balance budgets. Clayton County, Georgia, a suburb of Atlanta shut down its entire public bus system. Its last buses ran on March 31, stranding 8,400 daily riders. Colorado Springs switched off a third of its 24,512 streetlights to save money on electricity, while trimming its police force and auctioning off its police helicopters while Hawaii closed its schools on 17 Fridays during the past school year to save money, giving students the shortest academic year in the nation.

The FDIC seized the assets of Ravenswood Bank, a bank in Illinois. Ravenswood Bank is the 109th FDIC-insured institution to fail in the nation this year, and the thirteenth in Illinois. The FDIC estimates that the cost to the Deposit Insurance Fund (DIF) will be $68.1 million. Twenty-five banks failed in 2008 while 140 banks failed in 2009.

David Weigel, now working for Slate, writes in the Washington Post on the five myths of the Tea Party.

Mark Hurd, the CEO of Hewlett-Packard, was forced to resign today in the wake of a disclosure that he had allegedly falsified documents to conceal a relationship with a former contractor. The HP Board of Directors said in a statement that its standards of business conduct were violated. Hurd's "systematic pattern" of submitting falsified financial reports to hide the relationship convinced the board that "it would be impossible for him to be an effective leader moving forward and that he had to step down," HP general counsel Michael Holston said on a conference call Friday with analysts. Hurd will receive a $12.2 million severance payment.

Editorial of the Day
The editorial board of the New York Times castigates the GOP for their xenophobia and fear-mongering for American votes.

Leading Republicans have gotten chilly toward the Constitution’s 14th Amendment, which guarantees citizenship to people born in the United States. Senators Mitch McConnell, John McCain, Lindsey Graham, Jeff Sessions and Jon Kyl have been suggesting that the country should take a look at it, re-examine it, think it over, hold hearings. They seem worried that maybe we got something wrong nearly 150 years ago, after fighting the Civil War, freeing enslaved Africans and declaring that they and their descendants were not property or partial persons, but free and full Americans.

As statements of core values go, the 14th Amendment is a keeper. It decreed, belatedly, that citizenship is not a question of race, color, beliefs, wealth, political status or bloodline. It cannot fall prey to political whims or debates over who is worthy to be an American. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof,” it says, “are citizens of the United States and of the State wherein they reside.”

 

Republicans: Judicial Activists in Immigration Reform Clothes

So the Party of No has suddenly become the party of simpering “Judicial Activists”. Those paragons of the rule of law – represented by their Sharia-like interpretation of the Constitution – Sen. Lindsey Graham (R-Nelly Bottom) and Jon Kyle (R-Independent  Duchy  of Arizona), are yapping about repealing the 14th Amendment (the one giving citizenship to babies born in this country).

There’s no legitimate argument that numerous administrations and Congresses from both parties haven’t ignored immigration reform. Performance on the issue has been on par with the handling of Katrina and is well past due. But rewriting the Constitution to do something you’re too weak-willed to do honestly is a tad disingenuous. You can’t just constantly carp about a strict interpretation of the Constitution 250-years removed from its writing and then just argue to rewrite it if something is giving you political heartburn.

Many people don’t think women are capable of anything, including voting. Why not just repeal the Franchise? Heck, “We’re at war dammit! Let’s repeal the First Amendment because the teabagger’s public statements are offensive.” And that whole habeas corpus thing is a real patriotism buzz kill. Let’s get rid of that too. This is not a case of racism, it’s a case of “Stupidism”.

It’s time for the immigratirati to take a dip in the Rio Grande and start dealing with the problem rationally instead of like Lou Dobbs on a Red Bull bender. It’s this type of squeaky wheelism that built the Fence to Nowhere – America’s very own Maginot Line. This thinking led to an Arizona law that essentially requires police to do what they were already able to do voluntarily and does nothing to solve the problem.

The people of this country want solutions to problems, not a bunch of bickering over who is an opportunistic crapweasel looking for votes or who is a racist. There are a number of actions that could be taken with simple discussions by honest negotiators. Others would take a little negotiation. And, there are still others that will only be done by inflicting pain. But have no question. We do have a place to start.

So Gov. Tea Brewer get on with something useful. Jon and Lindsey, stop trying to throw the (immigrant) baby out with the bathwater. And Messiah, get off your duff, corral those cats that pass for a political party, and fix the problem.

We the people thank you.

Cross posted at The Omnipotent Poobah Speaks!

 

 

 

Italy to fingerprint all Roma?

The neo fascist Roberto Maroni, Italy's interior minister from the neo fascist anti-immigrant Northern League party, coalition partner in neocon Prime Minister Silvio Berlusconi's conservative government, (member in chief of our not so willing anymore coalition of the willing) has a nifty proposal to fight street crime in Italy - -  a census, including the fingerprinting, of every Roma aka "gypsy" in Italy, man, woman and child.  According to Maroni, this will serve "to avoid phenomena such as begging".

Of course, Maroni has taken no action to defend the Roma community  from unwarranted attacks, including those in Naples that forced the evacuation of Roma "after attackers set huts on fire and angry residents in neighboring areas protested against the alleged attempt by a Gypsy woman to kidnap a baby".  Nor did he intervene in response when Roman authorities illegally "raided a camp to check for proper papers".

There's more...

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