An Injunction Against the First Amendment

by Walter Brasch

Vera Scroggins of Susquehanna County, Pa., will be in court, Monday morning.

This time, she will have lawyers and hundreds of thousands of supporters throughout the country. Representing Scroggins to vacate an injunction limiting her travel will be lawyers from the ACLU and Public Citizen, and a private attorney.

The last time Scroggins appeared in the Common Pleas Court in October, she didn’t have lawyers. That’s because Judge Kenneth W. Seamans refused to grant her a continuance.

When she was served papers to appear in court, it was a Friday. On Monday, she faced four lawyers representing Cabot Oil and Gas Corp., one of the nation’s largest drillers. Seamans told the 63-year-old grandmother and retired nurse’s aide that to grant a continuance would inconvenience three of Cabot’s lawyers who came from Pittsburgh, more than 250 miles away. He also told her she might have to pay travel and other costs for the lawyers if she was successful in getting a continuance.

And so, Cabot presented its case against Scroggins.

The lawyers claimed she blocked access roads to Cabot drilling operations. They claimed she continually trespassed on their property. They claimed she was a danger to the workers.

Scroggins agreed that she used public roads to get to Cabot properties. For five years, Scroggins has led tours of private citizens and government officials to show them what fracking is, and to explain what it is doing to the health and environment. But she was always polite, never confrontational. And when she was told to leave, she did, even if it sometimes took as much as an hour because Cabot security often blocked her car.  Cabot personnel on site never asked local police to arrest her for trespassing.

But now, Cabot executives decided to launch a mega-attack, throwing against her the full power of a company that grosses more than $1 billion a year and is the largest driller in the region.

In court, Scroggins tried several times to explain that while near or on Cabot drilling operations, she had documented health and safety violations, many of which led to fines or citations. Every time she tried to present the evidence, one of Cabot’s lawyers objected, and the judge struck Scroggins’ testimony from the record. Cabot acknowledged Scroggins broke no laws but claimed she was a “nuisance.”

Scroggins tried to explain that she put more than 500 short videotapes online or onto YouTube to show what fracking is, and the damage Cabot and other companies are doing. Again, Seamans accepted Cabot’s objection, and struck her testimony.

And that’s why Cabot wanted an injunction against Scroggins, one that would forbid her from ever going anywhere that Cabot has a lease. It had little to do with keeping a peaceful protestor away; it had everything to do with shutting down her ability to tell the truth.

Four days after the hearing, Seamans issued the temporary injunction that Cabot wanted. It forbid Scroggins from going onto any property that Cabot owned, was drilling, or had mineral rights, even if there was no drilling. The injunction didn’t specify where Scroggins couldn’t go. It was a task that required her to go to the courthouse in Montrose, dig through hundreds of documents, and figure it out for herself.

The injunction violates her rights of free speech by severely restricting her ability to document the practices of a company that may be violating both the public trust and the environment. According to the brief filed on her behalf, “The injunction sends a chilling message to those who oppose fracking and wish to make their voices heard or to document practices that they fear will harm them and their neighbors. That message is loud and clear: criticize a gas company, and you’ll pay for it.”

The injunction also violates her Fourteenth Amendment rights of association and the right of travel. Scroggins can’t even go to homes of some of her friends, even if they invite her;  that’s because they had leased subsurface mineral rights to Cabot. However, Cabot never produced a lease, according to what the ACLU will present in court, to show that “it had a right to exclude her from the surface of properties where it has leased only the subsurface mineral rights.”

Because Cabot had leased mineral rights to 40 percent of Susquehanna County, about 300 square miles, almost any place Scroggins wants to be is a place she is not allowed to be. That includes the local hospital, supermarkets, drug stores, several restaurants, the place she goes for rehabilitation therapy, and a recreational lake. It also includes the recycling center-Susquehanna County officials leased 12.5 acres of public land to Cabot.

The injunction establishes a “buffer zone.” Even if Scroggins is on a public street or sidewalk, if it is less than 150 feet from a property that Cabot has a subsurface mineral lease, she is in violation of the court order.

The injunction, says the ACLU of Pennsylvania, “is far broader than anything allowed by the U.S. Supreme Court or Pennsylvania courts.”    

Not everyone agrees with Scroggins or her efforts to document the effects of horizontal fracking. Many consider her to be a pest, someone trying to stop them from making money. Hundreds in the region have willingly given up their property rights in order to get signing bonuses and royalties from the extraction of natural gas. Their concern, in a county still feeling the effects of the great recession that had begun a decade earlier, is for their immediate financial well-being rather than the health and welfare of their neighbors, or the destruction of the environment.

The anti-fracking movement has grown from hundreds slightly more than a half-decade ago to millions. Where the oil and gas lobby has been able to mount a multi-million dollar media campaign, the people who proudly call themselves “fractivists” have countered by effective use of the social media and low-budget but highly effective rallies. Where the oil and gas lobby has been able to pour millions of dollars into politicians’ campaigns, the fractivists have countered by grass-roots organizing and contacting government officials and politicians, promising them no money but only the truth.

Vera Scroggins never planned to be among the leaders of a social movement, but her persistence in explaining and documenting what is happening to the people and their environment has put her there. Cabot’s “take-no-prisoners” strategy in trying to shut her voice has led to even more people becoming aware of what fracking is-and the length that a mega-corporation will go to keep the facts from the people. No matter what Seamans does to correct his unconstitutional order, Cabot has lost this battle.

[Dr. Brasch’s current book is Fracking Pennsylvania, an in-depth investigation into the process and effects of horizontal fracking, and the collusion between politicians and the oil and gas industry. The 466-page critically-acclaimed and fully-documented book is available from Greeley & Stone, Publishers; Amazon.com; Barnes & Noble and independent bookstores.]      

Former Editor Sues Philadelphia Police for Constitutional Violations in Her Arrest

Editor’s note:  The owner of OpEDNews Rob Kall, is a personal friend.  John

by Walter M. 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 her 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.