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Free Speech in Manhattan

On August 31, 2004, two hundred twenty seven people were arrested in Manhattan during a protest march. The arrested were then brought to a temporary detention center on Manhattan’s west side where they were held for many hours. They were not allowed to use the bathroom, not provided food or drink, and some were subjected to abuse from police and guards. In a lawsuit brought against the City of New York and its police department, Judge Andrew Sullivan found the arrests to be illegal and without cause. Subsequently, a deal was worked out where the plaintiffs (those illegally arrested) split an $18 million dollar settlement. This settlement was reduced by at least $7 million which went to some of the lawyers on the case. Many liberal and civil liberties organizations hailed the settlement as a victory. Their thinking can be summed up in the statement: “A judge appointed by George Bush determined that these protesters were falsely arrested and deserve some kind of compensation for those false arrests.” Despite this supposed victory for the US system of law, four of the plaintiffs (Steven Ekberg, Howard Gale,Andrew St. Laurent, and Robert Siegel) decided not to go along with the settlement and opened another civil action against the previous defendants—the two NYPD chiefs who ordered the arrests (Terrence Monahan, and Thomas Galati) and the city of New York.

Their reasons for their failure to accept the settlement include their contention that they should also be paid compensatory and punitive damages. As Attorney Chaudry, who represents the plaintiff Andrew St. Laurent (a legal observer), stated in her opening arguments:

“How much money, how much money is Andrew St. Laurent owed? Not whether Andrew St. Laurent is owed money, that has already been decided, but how much. What should these two NYPD chiefs pay Andrew St. Laurent to compensate him for falsely arresting him? That’s compensatory. Basically how bad was it for Andrew St. Laurent to wrongfully spend 22 hours in custody in cuffs in cages in filth in wrongful captivity of those two chiefs?… The second question for the jury will be punitive damages. The question for you is what is the appropriate punishment for two very high-ranking NYPD chiefs to wrongfully arrest these people, including one person who was there to legally observe them.”

So far, so good, right? The opening statements from two attorneys representing at least two of the plaintiffs proceeded with minimal or no interruption from either the court or the defendants’ (the police) attorneys. The tenor of the court changed almost as soon as the first few sentences from the attorney representing one of the policemen began his statement. This attorney, Mr. Gertzer, opened by drawing a connection between the 1999 protests in Seattle against the World Trade Organization meetings. Mike Spiegel, an attorney for one of the plaintiffs, immediately objected to this attempt. Judge Sullivan overruled this objection and several subsequent objections to Gertzer’s monologue wherein he attempted to equate the intentions of the marchers on August 31, 2004 in Manhattan with the actions in Seattle in 1999. In other words, the police ordered the arrests in the name of public safety. Of course, a police chief’s understanding of public safety is bound to differ from most citizens’ understanding, especially those who are protesting. More importantly, the judge had already ruled that the police officers had no cause to order the arrests. This fact alone seemed to undermine both Mr. Gertzer’s inclusion of the public safety argument and the judge’s overruling of Attorney Spiegel’s objection to its inclusion. As the trial continued over hundreds of pages of transcript, it seemed to this writer that the court’s hostility towards the plaintiffs intensified.

One such example can be found in this excerpt. The transcript reports the following interchange as taking place between Counsel for the Defense Mr. Farrel and plaintiff/protester Robert Siegel.
Farrel: Now, before 2004 you had engaged in a lot of protest activity in your life?

Siegel: I have been to other protests, yes.

Farrel: And you had participated in numerous protest marches?

(Attorney for Siegel), Mr. Levine: Your Honor, I object to this line of questioning.

The Court: I’m going to allow a little bit of leeway.

The questioning continued in this manner, with Farrell asking questions to suggest Siegel did not suffer distress or any similar damages because of the illegal and false arrests. Farrell’s point here seemed to be to paint Siegel and the other plaintiffs as some sort of “professional” protesters. Despite objection after objection from Levine to these questions, the judge continued to overrule his objections, thereby allowing the police chief’s attorney to continue asking questions with little or no apparent connection to the specific case. Conversely, defense objections to questions asked by the plaintiffs’ attorney with no apparent connection to the case at hand were repeatedly upheld by the court. In other words, it appears that the court’s rules for relevance and admissibility were much broader for the two police chiefs (whose arrests were already declared illegal), than they were for the plaintiffs (who were four of those arrested.) Also noteworthy is plaintiff Robert Siegel’s observation that “As for the First Amendment issues, the reason that the four plaintiffs were not permitted to assert those constitutional claims was that their attorneys had agreed to waive the claims as part of the settlement with the City. In other words, the City demanded that if they were going to pay $18 million, the First Amendment claims must not go forward, even with any remaining plaintiffs.”(from an email from Siegel, 10/2014)

It might be useful here to provide some biographical information regarding the judge and the defendants. Sullivan, who was appointed to the federal court by George W. Bush in 2007, is best known for various white collar crime cases he presided over. The policemen, Terrence Monahan and Thomas Galati, are both longtime veterans of the NYPD and currently serve as deputy chiefs. Monahan is currently the second in command in the Bronx borough and is part of the Narcotics division. Galati is an assistant chief and the head of the NYPD’s Intelligence division and has come under fire for its role in spying on (primarily antiwar and leftwing) protest groups and mosques. Indeed, as recently as 2013 he defended the “cataloging” of “ethnicities and nationalities” in the New York City area based solely on the ethnicity and nationalities of those being watched. During the Occupy Wall Street protests, he found himself in the middle of action, wielding a baton and threatening protesters. Although he was not appointed to run the intelligence division until 2008, given his later appointment and apparent problems with protesters who ignore the permitting process, Galati’s role in the events discussed in the RNC trial deserve mention.

As of year’s end, it is unclear if there will be any further wrangling in court over these arrests. However, at least one of the four plaintiffs in the case, Steve Ekberg, hopes there is. Robert Siegel, the one other plaintiff I have had an opportunity to communicate with, does not believe such a trial is forthcoming. As noted previously, in an email he sent me in October 2014 he wrote regarding the First Amendment issues in the trial: “the City demanded that if they (New York City) were going to pay $18 million, the First Amendment claims must not go forward, even with any remaining plaintiffs….” In other words, the money trumped the First Amendment rights of the protesters. Plaintiff Howard Gale wrote in regards to this in an article quoted to me by Siegel: “The vast majority of First Amendment cases like mine, involving arbitrary or preemptive arrest, get settled for money…. This provides clear evidence that settling cases for only money has absolutely no effect on deterring illegal police behavior….”

As I write this, New York has been rocked (along with many other cities and towns in the United States,) by protests against the racism and brutality of police officers and the system they work for. New York’s current mayor Bill DeBlasio—who was elected in part because of his progressive background and support of first amendment rights—now appears to be supporting a court ruling demanded by the New York police that (according to Carl Messineo, the legal director for the Partnership for Civil Justice Fund), “says you don’t need to give fair warning. You don’t need to give notice and opportunity to comply with police directives before those hundreds of persons can be arrested.” If this occurs, scenarios like the one described in this article where the police did not appear to give fair warning, would be allowable and without repercussions. In short, it would give even more power to the police– the ever expanding police state’s front line against its citizens.

Ron Jacobs is the author of a series of crime novels called The Seventies Series.  All the Sinners, Saints, is the third novel in the series. He is also the author of  The Way the Wind Blew: a History of the Weather Underground . Jacobs’ essay on Big Bill Broonzy is featured in CounterPunch’s collection on music, art and sex, Serpents in the Garden.    He is a contributor to Hopeless: Barack Obama and the Politics of Illusion, published by AK Press. His book Daydream Sunset: Sixties Counterculture in the Seventies will be published by Counterpunch. He can be reached at: ronj1955@gmail.com.

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Ron Jacobs is the author of Daydream Sunset: Sixties Counterculture in the Seventies published by CounterPunch Books. His latest offering is a pamphlet titled Capitalism: Is the Problem.  He lives in Vermont. He can be reached at: ronj1955@gmail.com.

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