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.

 

Betsie Gallardo: We’re Doing Great So Far, But January 5th Is Key

Since Christmas we’ve been talking about the story of Betsie Gallardo, a woman who is dying of cancer in a Florida prison.

When we last met, she was being starved to death, literally, at the direction of the Florida Department of Corrections (DOC), who had decided not only to withhold further treatment for her inoperable cancer, but to withdraw nutritional support as well.

Her adopted mother is fighting to have her discharged from prison so that she can die at home-and the DOC have recommended that she be released.

On December 9th, Florida’s Board of Executive Clemency (“the Board”) chose to ignore the DOC advice.

Since then, thanks to a whole bunch of outside pressure, things have changed, for the better, which we’ll be talking about today.

On January 5th, the Board meets again-and if we do this right, we can bring some closure to this story.  

The clouds dispell’d, the sky resum’d her light,

And Nature stood recover’d of her fright.

But fear, the last of ills, remain’d behind,

And horror heavy sat on ev’ry mind.

–Taken from Theodore and Honoria, from Boccace, by John Dryden

In our two previous stories we’ve discussed how Betsie Gallardo came to be in the position of facing intentional starvation while a prisoner of the State of Florida and how a variety of people who are in similar situations have been granted either clemency or a pardon by the very same Board, even as she has not.

Today we want to talk about what’s next-and since we want to keep a sense of balance in our work, we’ll also acknowledge some of the folks in Florida who are working hard to do the right thing for all concerned.

Best of all, we get to present some very good news-and this is one of those times when I’m happy to give you the good news first…and I’ll give it to you directly from Betsie’s adopted mother, Jessica Bussert.

She commented on the last story, which is posted at The Bilerico Project (it was Bil Browning, by the way, who got me to pursue this story in the first place)…and here’s part of what she had to say:

“As of the other day Betsie has finally started IV nutritional therapy and is already responding wonderfully.”

That’s right: thanks to all of your efforts-and those of a lot of others besides–Betsie has in fact been moved to a local hospital after nearly four weeks of no feedings, which is a fantastic victory in itself, even if it’s not the whole story.

So here’s what’s next: tomorrow, January 5th, the Florida Parole Commission has another meeting-and among the questions they may choose to decide is if they’ll accept the DOCs recommendation that Gallardo be released to die at home…and naturally, we want to influence that decision in her favor as best we can, so if you haven’t yet, today is the day to get in contact with the members of the Board, and I’ll give you the information you need to do that a bit farther down in the story.

But before we do that, let’s recognize some of the do-gooders in this story:

Jessica Bussert wants me to remind you that Commissioner Frederick B. Dunphy, of the Florida Parole Commission, was an early advocate for Betsie, and that he helped to get her case a badly-needed rehearing.  

She also wants us to be aware that State Representatives Daphne Campbell and Hazelle Rogers and State Senator Christopher Smith (who Chairs Broward County’s legislative delegation) were among a group of seven Florida legislators who formally requested her compassionate release, and that they’ve also written to the Governor, Charlie Crist, with the same request.

The fine folks at Haitian-Truth.org have been spreading the story within the local Haitian community-and in South Florida, that’s a fairly sizable community.

Bil Browning also has a story up that gives a lot more credit where credit is due and also points you to a petition you can sign…so have a look there as well.

Now, with the Parole Commission meeting tomorrow, you’ll want the appropriate email and other contact information for the three Commissioners, so here we go:

Chairman Tena M. Pate

(850) 487-1980

Fax (850) 414-2627

Vice Chairman Monica David

(850) 487-1978

Fax (850) 487-1220

Commissioner Frederick B. Dunphy

(850) 488-0476

Fax (850) 414-6031

Emails can be sent to the Commission’s public affairs representatives at publicaffairs@fpc.state.fl.us

So that’s where we’re at: Betsie is being fed, which, thanks to all y’all, means half the battle is already won; tomorrow is the next chance to obtain a decision that would get her released-and public pressure has been working rather well so far.

So let’s make one last push and see if we can’t start a new year by bringing this story to an end…and if we can, it’ll be a good day for not only Betsie and Jessica, but for Florida as well.  

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On Starving In Prison, Or, Who Gets Pardons In Florida?

If you were with us on Christmas Day you heard the story of Betsie Gallardo, who, unless something changes quickly, is going to be intentionally starved to death in a Florida prison after being convicted of spitting on a cop.

In fairness, the State did not decide simply to starve her; instead, the Department of Corrections (DOC) first chose to withhold any further treatment for her inoperable cancer…and then they decided to starve her to death.

Her adopted mother is trying to get her released on humanitarian grounds; the DOC recommended in October that she be allowed to go home and die, the Florida Parole Commission refused.

Governor Charlie Crist chairs the Executive Clemency Board, who could also agree to let her go…and so far, they’ve also refused to take action.

Funny thing is, the Governor and his Board have been more than willing to step in when other Floridians requested pardons and commutations, even in situations that seemed a lot less dire.

Today, we’re going to look at that history-and to be honest, as with many things in the Sunshine State, from the outside…it all looks a bit bizarre.

“Forgiveness, particularly at this time of year, is a very worthwhile message for all of us to be reminded of…”

–Florida Governor Charlie Crist, December 9, 2010

So right off the bat, if you’re 21 years old and you’re having sex with a 15 year-old, you’re looking at some trouble if the police find out. In fact, you’re going to be regarded as a sex offender in the eyes of the law if you’re doing something like that and you get caught.

But as it turns out, in Florida, if you marry the young person in question, you can get a pardon. In fact, it comes up often enough that they’re called “Romeo and Juliet” pardons, and the Executive Clemency Board actually handed out a couple of them in 2009 to John Kemp and Virgil McCranie, who were dating 14 and 15 year-olds when they were originally convicted.

Actually, you don’t even have to marry the minor in question if you can obtain their consent for the underage sexual encounter and demonstrate a reasonable degree of remorse: that happened to Gregory Allen, who was 40 when he was convicted of having sex with a minor.

Describing the events that led to Allen’s conviction, Alex Sink, who was not elected Governor to replace Crist:

“…later expressed frustration with the state’s classification of people as sex offenders even though they may have been convicted of having consensual relations.”

Suzanne Squires killed her own daughter and seriously injured another woman while driving drunk, and just this month the Board commuted 12 years of her 23-year sentence so that she could return home to her family.

18 year-old Jennifer Martin was driving way too fast, and in the eventual crash she killed one of her passengers, and injured another, although she was sober when she did it; she received the second commutation granted by the Board under Crist’s chairmanship when her 16 year sentence for manslaughter by culpable negligence was cut in half in 2009.

The Doors’ Jim Morrison, who is not at risk to die in prison, was posthumously pardoned by the Board just this month for an indecent exposure “event” that took place in 1969. Reached for comment, Morrison suggested that these were strange days indeed when he could be pardoned in death and Betsie Gallardo can’t be pardoned in the final days of her life.

Donald Keehn lent a neighbor $7,000. When she couldn’t repay the debt, he drove by her house and shot up the place-five times.

He was 88 at the time, she was 66, but instead of starving him to death because of his cancer, congestive heart failure and kidney failure, the Board chose to commute half of his five year sentence in 2009 and set him free.

Remember when I suggested that Florida, to the outside observer, seems a bit bizarre?

Well…consider this:

If you date underage girls in “Chain Gang Charlie’s” Florida you can get a pardon or a commutation. In fact, if you do…they even have a special name for it.

If you kill someone drunk driving-or even driving sober-there might be a commutation for you, too.

Did you ever wag your penis onstage 40 years ago, then die, and now you’re having trouble finding a job because of your besmirched reputation? Governor Crist wants to help-and the Board has his back.

Have you ever committed a series of drive-by shootings, and then developed a series of serious physical problems that make you seek a commutation so that you can go home and die? Florida will find a way to let you out.

On the other hand, if you spit on a cop, and then you develop inoperable cancer…and your name’s Betsie Gallardo…Florida not only won’t let you out of prison to go home and die-they’ll starve you in prison, just to make your death come a bit faster.

Wanna discuss any of this with the Board? Here’s some handy contact information for Crist and the other three members:

Charlie Crist, Governor of Florida

(850) 488-4441

E-mail: charlie.crist@myflorida.com

http://www.flgov.com/contact_governor

Bill McCollum, Attorney General

(850) 414-3300

Click here to e-mail Mr. McCollum

www.myfloridalegal.com/contact  

Charles Bronson, Commissioner Florida Department of Agriculture and Consumer Services

(850) 488-3022

commissioner@doacs.state.fl.us  

http://www.doacs.state.fl.us/

Alex Sink, Chief Financial Officer Florida Department of Financial Services

(850) 413-3100

Alex.Sink@myfloridacfo.com  

http://www.myfloridacfo.com/

I don’t know how many of you remember the show “Daria”, but all of this reminds me of an episode of Sick Sad World-except that in this case the application of outside pressure is having an effect on the DOC…and that means we need to keep the pressure coming.

If we drag them to it, kicking and screaming, I’m sure the State of Florida will be just as compassionate and humane toward Betsie Gallardo as they were to all the other fine folks you read about here today-and with your help we’ll be able to write a happier ending to what has been, so far, a rather unhappy story.  

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Two Once Powerful Pols On Trial

Vince Fumo’s federal corruption trial resumes today in Philadelphia while former Superior Court Judge Michael Joyce’s insurance fraud case also goes to court.  Senator Fumo was once one of the most powerful officials in Pennsylvania brokering much important legislation through Harrisburg.  He is accused of defrauding taxpayers, his non profit and a museum of millions he used for his personal benefit.  A new judge in the trial delayed proceedings.

Judge Joyce is accused of faking injuries suffered in a car crash to finance a lavish lifestyle.  How the mighty have fallen due to their greed and hubris.

After a fender-bender in 2001, a Pennsylvania appellate judge claimed he was left in constant pain, unable to golf or swim or even at times hold a cup of coffee steady.

Yet the following year, prosecutors say, he was golfing regularly enough to keep up his handicap, piloted a plane at least 50 times and renewed his membership in an association of professional scuba divers.