More than four years after the Iraq war started, federal legislators are still trying to figure out how to resolve the conflict. In Chicago, more than four years after a massive march took place to protest the start of the Iraq war, lawyers are still trying to resolve a lawsuit that resulted in the arrest or detention of nearly one thousand individuals. The class-action lawsuit, like the conflict itself, marches on.
“After we had been standing there for some time just quietly asking to leave, more officers came in and they made like a U-shape into the crowd and then suited up with riot gear after they were already standing in the crowd with, you know, visors down, holding batons, and it was very scary to me,” said Jody Ditthardt, a then 30-year-old paralegal. “I thought I was going to get beaten.”
This is what it was like for one individual detained by Chicago police on March 20, 2003. Hundreds gave similar accounts of what really happened near the intersection of Michigan and Chicago avenues that night.
Several attorneys got phone calls on March 20, 2003 from people who had marched - and some who had not - stating they were being detained by police officers. Those calls were the start of a long and costly lawsuit, known as Kevin Vodak vs. City of Chicago, filed April 10, 2003 in U.S. District Court by attorneys Janine Hoft, Joey Mogul, James Fennerty and Melinda Power.
“On March 20, 2003, I got phone calls from people who were detained in the street, surrounded by police in what some people nicknamed the “pig pen,” said Joey Mogul, an attorney for the People’s Law Center and a member of the National Lawyers Guild. “People were saying ‘I think we’re going to be arrested. They’re not telling us what’s going on. We just want to leave.’”
Mogul turned on the news. Reporters near the scene said people were penned in and unable to leave. Other activists and attorneys were getting phone calls too. Janine Hoft, a colleague at People’s Law Center, called Mogul to figure out how they could help. Other guild attorneys, who were serving as march observers, were also being detained.
“I called the 111th Street police station and said I understood there were going to be mass arrests,” Hoft said. “The officer said they were just holding people until they could get traffic flowing again and then they would let everybody go. He was really patronizing. I said maybe he would need some help there, to facilitate, and he said ‘Oh no, that’s not going to happen.’”
Another attorney was waiting for a bus on State Street around 7:30 p.m. that night. As he spoke on his cell phone, a string of about 15 police cars went by with lights and sirens on, heading north. He didn’t think much about it and got on a bus for home, but the bus was rerouted near Chicago and Michigan Avenues.
Curious about what was happening, the attorney got off the bus, as it wasn’t every day a person saw a big demonstration. He walked to the Water Tower. As he stood there, the attorney, who will be called Smith, saw a large contingency of police officers and a large group of demonstrators coming down Chicago Avenue from Lake Shore Drive.
Officers had formed a wall of policemen at Michigan Avenue to block further movement, Smith said. There were some cars and a few busses, but police and demonstrators let them through. Demonstrators were a pretty good-humored group, he said, but tension began to mount when the police line pushed demonstrators back about 70 yards so they could stage more officers.
Smith said police kept arriving and bringing in busses and paddy wagons, plus mounted police and many more in “Robocop” uniforms. He took pictures and walked around. He never witnessed anyone being aggressive toward the police but he did see police officers beat individuals with billy clubs. Smith said teams of two or three officers would go into the crowd, grab people and arrest them.
One demonstrator was Sophia Sieczkowski, a member of a peace group, Chicagoans Against War in Iraq (CAWI). She marched on her own, her husband was out of town, and was surprised that police officers directed people onto Lake Shore Drive. They had motioned with their hands to enter the Drive and stopped traffic for the group, she said.
“On Lake Shore Drive, police were leading the march and walking alongside as if they were protecting us,” Sieczkowski said. When the crowd got off the Drive, things changed. “Suddenly we’re seeing these black ninja turtles (police in riot gear). The contrast between the friendly guys in blue and the ninja turtles in black, it changed the whole tenor of the situation.”
Meanwhile, phone calls continued to come in as people were being detained and arrested. For 24 to 48 hours, guild lawyers, including Mogul and Hoft, found out about the charges and who was being held and released. They learned that 800 to 1,000 people had been arrested and many were forced to pay a $100 cash bond to be released.
“Most people arrested for misdemeanors who don’t have arrest records or criminal histories get released on their own recognizance, what’s known as an I-bond,” Mogul said. “In this case, the police wanted to make everyone put up $100 when most did not have criminal histories. People were being arrested on misdemeanor charges, which we are adamant were completely false and fabricated.”
Within weeks of the arrests, the National Lawyers Guild attorneys organized a meeting at the Chicago Temple. Hundreds of people who had been arrested or detained packed the church and filled out forms describing the events March 20, any charges or court dates. More than 300 people faced criminal charges. Mogul said the Guild would help with all the cases – and this was the start of what demonstrators call the “March 20th Lawsuit.”
“A lot of people were freaked out and didn’t know what would happen in court,” Hoft said. “That’s when Joey (Mogul) promised everyone we would provide representation. We were successful and most of the cases were dismissed outright.”
Although criminal charges were dropped against most demonstrators, some had to go to court up to three times, some lost property including bikes and an American flag, and some were injured during their arrest or detention. Many pages of court documents and depositions state – consistently – that demonstrators were prevented from leaving the area. Under oath, individuals testified that they were not given an opportunity to leave and they did not hear an order to disperse.
There was no notice to disperse according to Smith, who said he was close enough to have heard if any announcement was made. The City trapped people, he said, and there was no way to get out. Even during the arrests the crowd was well-behaved, Smith said, but the police overreacted and it was clear that people were wrongfully arrested.
Male arrestees were taken to the 111th Street station. Several said it was uncomfortable in crowded jail cells but not a terrible experience. Many were not processed until morning or, in some cases, the police didn’t even ask their names. Some used cell phones in the police wagons to tell friends and family members they had been arrested. Others took pictures and said they were laughing and talking with one another.
Female arrestees did not fare as well at the Grand and Central Station. Some officers on duty said they were unhappy to be working overtime and treated arrestees harshly. Besides not being allowed phones calls, many women were questioned, fingerprinted and photographed and, in the process, moved from crowded cell to crowded cell, according to court documents and arrestee statements.
The City admitted arresting more than 500 people for “reckless conduct,” according to court documents. CPD also admitted boxing in protesters, forming a “skirmish line” to contain the crowd and randomly selecting individuals to arrest. Officers testified that they gave each individual the “opportunity to leave” and refusal to do so was grounds for arrest. Most arrest reports contained the same “boilerplate” allegations.
Arrest reports for about 300 males stated: “The above subject was arrested for reckless conduct and he endangered the bodily safety of citizens by acting in such a reckless manner as to disrupt vehicular traffic and pedestrian traffic. The defendant acted with total disregard for the personal safety of motorists and pedestrians.”
Reports for more than 160 women stated: “The above subject, along with thousands of persons, endangered the safety of others in that they blocked access to a fire station, positioned themselves in front of the water pumping station and blocked access to the emergency entrance to Northwestern Hospital and refused to leave after being ordered to do so.”
Based on hundreds of affidavits and 120 depositions, Mogul and Hoft said everyone they spoke to said they had no intention of getting arrested on March 20. They simply wanted to express their first amendment right to oppose this war and, after marching and standing for several hours, many were tired and just wanted to go home when they reached Chicago and Michigan Avenues.
“Many people that were part of the march that weren’t detained or arrested said it was a wonderful event, it was a peaceful event, and they were proud to be a part of it,” Mogul said. “It was something useful in being able to express their dissent for the war – and then it was trampled and stomped on by the Chicago Police Department by falsely detaining and massively arresting people. We fear that it will intimidate others from expressing dissent with this government ever again.”
Plaintiff attorneys have deposed Anthony Bouza, a former police chief in New York and Minneapolis who has handled hundreds of mass demonstrations and written eight books on police procedure. Bouza reviewed case documents and CPD records to prepare for testimony and wrote a report of his findings. First and foremost, Bouza said, police need to understand the community they are trying to police in order to evaluate the challenges and identify possible troublemakers.
“For the police to move in mass against the demonstrators in mass means that they’re making no discrimination between honest citizens and the few troublemakers in their midst,” Bouza said. “That’s where they make their mistake. Because they inevitably respond mistakenly to the mass (and) the mass are decent patriotic citizens.”
CPD did not have a clear vision of what they wanted demonstrators to do, Bouza said. He also noted the limited influence of group leaders at such a large and spontaneous event and that negotiations would therefore have limited impact. The vast majority of marchers were law-abiding citizens, he said, who would not knowingly break the law and would think that walking on city streets is perfectly legal.
The crowd was estimated at 10,000 in Federal Plaza, according to Bouza and other reports. Although he said CPD ran a “rather sloppy operation,” they did allow people to march on Lake Shore Drive, which is not necessarily an offense or breach of law, even if marchers did interfere with traffic or lack a proper permit, as the city contends in its defense and counterclaim.
“I think they allowed it for very good reason,” Bouza said. “That the priority of public safety was best served by doing that, by suspending the rights of vehicle traffic for a moment and permitting citizens to march. I think that’s a great example of the police massaging a situation into a reasonable outcome.”
Regarding CPD penning or boxing in a group of individuals, Bouza said this type of action violated standards of law enforcement conduct. Police should always allow a safety valve or an escape hatch, he said, and penning a bunch of people is “terrible police practice” that “escalated the danger beyond any reasonable limit.”
Police officers testified that they were wearing their “BDU’s” or black riot gear the night of the demonstration, which included clubs, shields and plastic hand restraints. Officers were instructed to form lines, some said up to five deep, and then were sent in to arrest people in tactical teams, with instructions to arrest no more than 10 to 15 individuals, depending on the officer. Officers prepared for the mass arrests at the “staging area” on Chicago Avenue just east of Michigan Avenue.
Several reports from arrestees mentioned the increasing concerns and anxieties of people in the penned in area, particularly as police lines pushed in and pressed people closer and closer together. Excerpts from the court testimony of several individuals detained or arrested that night illustrate the tension.
“I was up against the brick wall (by the pumping station) and this girl was really getting kind of hysterical,” said Michael Galvin, then a 52-year-old cable technician. “We were pretty jammed in there.”
“After we had been standing there for some time just quietly asking to leave, more officers came in and they made like a U-shape into the crowd and then suited up with riot gear after they were already standing in the crowd with, you know, visors down, holding batons, and it was very scary to me,” said Jody Ditthardt, a then 30-year-old paralegal. “I thought I was going to get beaten.”
“We were just all pressing up against each other. There was nothing we could do,” said Prudence Browne, then 29, who said she was not protesting that night. “We were pressed up against each other body to body. People who were currently sitting on the curb had to then stand because you would get trampled if you were sitting.”
As some people were being arrested and others detained, an occasional person was allowed to leave the area, according to police and demonstrators, what police called a “trickle out.” However, leaving individual members of a crowd with no route of exit created a situation “likely to cause panic,” Bouza said and “crowds do panic and trample and people die.”
As part of their defense, CPD submitted videotapes taken at the scene which showed people milling around and having exchanges with police officers. Bouza reviewed the tapes and police reports, made before anybody knew there would be a lawsuit, and said police commanders boasted about outflanking the demonstrators and penning them in. They backed off of their claims when they learned of the suit.
“So the reality is that they knew by penning them in that they were doing something atrocious,” Bouza said. “But they thought it was clever and they thought they would get away with it, and they didn’t.”
Bouza said the CPD actions were legitimate in Federal Plaza, on Lake Shore Drive and even on Oak Street, where there was a temporary standstill after marchers exited the Drive. Bouza concluded, and concurred with reports from hundreds of demonstrators and bystanders, that things completely changed at Chicago Avenue.
“From the point that they (CPD) outflanked them, sealed them in, and very arrogantly and proudly claimed that they committed some brilliant military maneuver and then began to order mass arrests, then you’re looking at a police atrocity,” Bouza said. “Completely wrong, unacceptable bad faith.”
CPD claimed protestors were “hostile” or “about to become a mob.” They cited public safety concerns, although cars, busses and fire station vehicles easily passed out of the area. They claim organizers did not have a legal permit to march or gather. They claimed protestors were given orders to disperse, collectively and individually, and that those who refused to do so were subject to arrest despite hundreds of witnesses stating they heard no such order and were not given an opportunity to leave.
“I think the notion of mass arrests, sweeps and round-ups, indiscriminate, are really the hallmarks of irresponsible police behavior,” Bouza said. “They have an obligation to secure evidence of a crime and evidence of the guilt of the accused, as an individual act.”
A March 26, 2003 police report labeled “Public Peace Violation – Public Demonstration” included charges of criminal damage to vehicles but found only two cases of minor damage. There was a report of property damage to federal buildings or adjoining property, but the review found none. Finally, their investigation claims “acts of civil disobedience occurring in the 1st and 18th districts … culminated in the mass arrests of 543 individuals.”
Despite the attempt to use CPD reports and videotapes to bolster its case, the plaintiff’s attorneys believe it has had the opposite effect. Mogul and Hoft say that the CPD’s “myth” that it was an out-of-control mob is demonstrably false and can be proven by videos, testimonials and the volumes of documents produced for this case that the City of Chicago has already spent $2 million to defend.
“It is not just the money they are spending, but it is the arguments the City is willing to make that are so repulsive,” Mogul said. “Essentially they are trying to say that any time anyone is going to march on the sidewalk or the street, they need a permit to do so. They are trying to use technicalities which do not support their argument but still they’re proffering these technicalities to try to demonize and criminalize ten thousand people who marched that night.”
As far as the CPD behavior that night, Bouza said he’d never seen anything like it and he believes there was no basis for ordering this mass arrest. The fact that about one third of arrestees were released fairly quickly, one third were released after detention without charges and one third were not prosecutable, he said, proves it. He also noted that the deliberate falsification of police records in the case, which included references to individuals not present at the events in question, suggests fraud.
Instead of sitting down with the guild attorneys, as judges have encouraged, the City continues to fight the lawsuit and opposed class certification, which makes the case more manageable for all involved. Guild attorneys successfully argued and Judge Virginia Kendall ordered class certification on April 17, 2006. The suit contains three sub-classes of individuals: those that were detained, those that were arrested and those that were charged.
Mogul and Hoft expect to complete legal briefs soon. The next step is to file a motion for summary judgment stating that CPD violated people’s fourth amendment rights to be free from unreasonable seizure by not allowing them to leave that night. Although the case received class status a year ago and has been going on for more than four years, there is no way to predict when it will end. If it doesn’t settle, the attorneys say it will go to trial.
“We are very confident that we will prevail in this case,” Mogul said. “We are looking forward to getting this resolved as soon as possible and having our day in court.”
This pending case may have impacted how CPD manages demonstrations, attorneys said, since this kind of incident has not reoccurred in the last four years. The attorneys hope that this case can lead to a roadmap of instructions for CPD and other police departments that they cannot engage in mass arrests and detentions.
“It’s the criminalization of any dissent and the criminalization of street protest that I really think is at war in this lawsuit,” Mogul said. “That’s what we are fighting for: people’s right to amass in protest in the street.”
*About this story: The reporter was on the scene (but not on duty) March 20, 2003 and was arrested along with several family members. For this story, she interviewed attorneys working on the case, an attorney who witnessed the arrests and individuals detained and/or arrested.
The reporter also reviewed hundreds of pages of court documents including: original complaint, depositions from both sides, judge's order granting class certification, police testimony, police expert Tony Bouza's testimony and Chicago Police Department's investigation report on possible property damage entitled 'Public Peace Violation,' from which she got the title of her story.
Stories posted following the event contained factual errors and incorrect assumptions (such as the arrests were made for not having a permit or that those arrested were involved in civil disobedience and/or confronted police officers). Since the real story was not being covered - that hundreds of law-abiding citizens were detained/arrested without rights for expressing dissent in a democracy - this reporter felt obligated to investigate and 'set the record straight.'
Here is an update on the lawsuit from an Aug. 21, 2007 court proceeding:
http://chicagokeri.blogspot.com/2007/08/citys-move-may-chill-class-action.html
(c) Keri Lynch
No comments:
Post a Comment