by Amy L. Dalton
Thursday, Dec. 14, 2000 at 5:43 AM amyldalton@aol.com Philadelphia, PA
Comparison of the preparations made for convention protests by the ACLU of Pennsylvania and the ACLU of Southern California with particular attention to recent tension between R2K Legal and ACLU-PA.
errorIn preparation for last summer’s conventions, the cities of Los Angeles and Philadelphia both bent over backwards to welcome the delegates and to stifle anyone seeking to challenge them. But while this process proceeded like a well-oiled machine in Philadelphia, it was challenged every step of the way in Los Angeles by a stalwart force of progressive lawyers.
In Philadelphia, relations between activists and the progressive legal community were weaker-particularly with the local branch of the American Civil Liberties Union of Pennsylvania (ACLU-PA). Hesitation, capitulation, and mistrust were the order of the day, according to R2K activists, rather than audacity and good faith. As a result, in marked contrast to Los Angeles where the ACLU of Southern California (ACLU-SC) is now eagerly working alongside activists on civil suits against the Los Angeles Police Force, defendants here have collectively refused to work with the longtime guardian of civil rights.
The tension has its roots in the different preparations made for the protests by the two chapters. ACLU-SC pursued extensive preemptive litigation against the LAPD in collaboration with a large coalition of groups. In Philadelphia, preemptive action was negligible and ACLU-PA focused instead on using diplomacy to secure nonbinding promises of reasonableness from the Philadelphia Police Department.
These different approaches had tangible effects. In Los Angeles, the tumultuous week ended with 200 arrests. Reports of mistreatment and rights violations in the jails were minimal and by the end of the week lawyers were optimistically estimating that all charges would be reduced to “infraction” within days. Protesters maintained brief jail solidarity but because the District Attorney negotiated in good faith with the D2K legal team, extensive pressure was not needed. Despite extensive efforts to discredit them, activists stood their ground in the legal arena.
Although activists in Philadelphia now look more than credible in the legal arena, they have fought a months-long battle for this status against a public image that pegged them somewhere between whiney kids and dangerous criminals. During the first week of August, over 400 activists were rounded up and charged with a host of offenses. Many arrested were nowhere near a protest. Bails handed out were at record levels for political arrests. Almost immediately, reports began to emerge of abuse and denial of basic rights to prisoners inside the jails, including the right to see counsel. Communication between the R2K legal team and the city broke down, and the District Attorney’s office refused to negotiate with the arrested demonstrators. Instead of speaking in support of the activists during this difficult situation, ACLU-PA Legal Director Stefan Presser told the press that he thought the preemptive arrests were constitutional and prudent, and that prisoners were probably exaggerating claims of abuse, touching off a wave of distrust between activists and the chapter that has not yet passed.
Presser’s defenders argue his statements were merely opinion. But R2K legal team member Jody Dodd said Presser’s actions were disrespectful toward his clients, even to the point of endangering some trials. Instead of dialoguing with the activists, she said, Presser relayed his concerns to an already biased press, who in turn relayed his impressions repeatedly as fact. In an opinion echoed by several other activists, Dodd alleged that Presser’s comments served to legitimize the scant and derogatory media coverage the protesters received during the convention week.
After multiple inflammatory remarks, the defendants consensed in mid-September to cut off relations with Presser, and have since sent ACLU-PA a letter explaining their decision. “We had heard from people that Stefan just didn’t get it,” said defendant Danielle Redden. “So we just wanted to outline what the situation was, why we were not going to work with the ACLU if it mean working with Stefan Presser. We also asked him not to speak on our behalf; we wanted to make sure he didn’t feel that he was in any way any kind of spokesperson for our group.”
Before relations soured, Presser helped several groups obtain permits for the weekend prior to the convention. Securing Unity 2000’s permit required the threat of a lawsuit. ACLU-PA successfully challenged a contract that the City of Philadelphia had signed with the Republicans granting them sole access to virtually all public space during the convention week. According to Frankel, the judge informed the city that it should grant permits to protest groups, or else it would be in violation of the first amendment.
This victory paved the way for the other permits-the Ad Hoc Coalition to Defend Health Care, the Silent March for Gun Control, and the Daughters of the Second Amendment. All of these marches were scheduled for the weekend before the convention. When approached by organizers planning protests during the week, Presser advised them to use the small “protest pit” in Roosevelt Park, several miles from Center City. Other groups that obtained permits that week did so on their own, and in the case of the Pennsylvania Abolitionists, despite Presser’s discouragement. Still others, such as the Kensington Welfare Rights Union, were left to stage their actions without permits. According to Frankel, Presser assisted KWRU in last minute negotiations with police that allowed the march to proceed.
In Los Angeles, ACLU-SC went to bat for a large coalition of groups after negotiations broke down over the use of the central gathering spot of Pershing Square. The federal court ruled that it was unconstitutional for the city to limit demonstrators to a protest pit, exclude them from the square, or keep them out of sight of their targeted audience-the conventioneers. In the same case, lawyers argued that in fact the entire system of permitting and park usage then in effect in the city was ineffective, arbitrary, and therefore unconstitutional. The judge agreed; as a result, there is currently no system for obtaining a permit for marches or rallies in the city of Los Angeles.
The effects of ACLU-SC’s legal action on the protests were hard to miss. Each day, several major marches drew thousands, from the coalition march “Human Need not Corporate Greed” on Monday, which drew over 12,000, to Thursday evening’s hour-long march from the protest space to the Twin Towers Jail. This several mile trek, negotiated by police and organizers in the hour before it began, drew over 4,000 people.
In Philadelphia, not only did fewer demonstrations converge during the convention, but most events after mid-day Tuesday, August 1 lacked a visible message. This was not due to underpreparation on the part of the protesters, but because police confiscated and destroyed all of the pre-made puppets, signs and banners during a raid of a warehouse workspace in West Philadelphia.
In Los Angeles, such a raid was impossible because ACLU-SC had obtained an injunction forbidding the LAPD to enter activists’ space without a warrant signed by the presiding federal judge. Even routine inspections, such as those that closed down the Spiral Q puppet studio in Philadelphia the week prior to the convention, were forbidden without the judge’s signature. On the day before the convention’s start, the front page of the Los Angeles Times displayed a full-color shot of a jubilant Latino organizer, hands raised in victory as he celebrated the injunction. Marchers displayed clear, colorful signs and puppets all week.
According to Marina Sitrin of the the R2K legal team, organizers believed that ACLU-PA had prepared motions in case the police made preemptive strikes on activist spaces. When the Department of Licenses and Inspections shut down the Spiral Q space, though, no one filed a motion to protect the other spaces.
Frankel confirmed that ACLU-PA had prepared motions in advance for a variety of potential situations such as curfews or enforcement of the anti-mask ordinance. But he knew of no discussions about a restraining order, even after the Spiral Q raid. Frankel said that the raid of the West Phildelphia puppet space gave ACLU-SC the example they needed to get the injunction against the LAPD. “I do not think that we could have gotten a similar injunction here; I don’t think we had the evidence.”
Lawyers from Los Angeles acknowledge that they drew precedent from the events that happened in Philadelphia, but say they also were motivated to act because of similar takeovers of convergence spaces that occurred both in Seattle and in Washington, D.C. “We learned from Seattle and D.C. and Philadelphia,” said Jim Lafferty, President of the National Lawyers Guild of Los Angeles. “Just as the police learned, happily, we did too.”
Several Philadelphia activists said that ACLU-PA’s hesitancy in pursuing access to protest space came from a desire to keep the peace after a perceived victory in obtaining permits for the pre-convention marches and additional city-provided security and equipment for Unity 2000. Similar agreements regarding the use of sound and security equipment were struck in Los Angeles following the successful litigation. But in Philadelphia, the communication with the powers that be went deeper: a series of semi-formal meetings between activists, police and lawyers resulted in the force’s highly publicized promise not to use visible tools of force to control the protests.
No such promises were made in Los Angeles. Public discussion encouraged police to prepare for the worst, seizing on every opportunity to compare the situation with the 1992 civil unrest that followed the first verdict in the Rodney King case. Commentators compared protesters to terrorists; the mayor ordered in National Guard troops; the LAPD gathered military-level weaponry and held it up to the press’s approving spotlight.
According to Frankel, the difference between the two ACLU chapters’ communication with police stems from the history of diplomacy between ACLU-PA and the Philadelphia Police Department. Following litigation pursued in 1995 with regard to the 39th district scandal, the ACLU-PA obtained a consent decree focusing on fourth amendment violations of illegal search and seizure and some cases of excessive force. As a result, the ACLU regularly meets with department representatives. Judge Stewart Dalzell has repeatedly extended the consent decree, Frankel reports, because he feels there are portions with which the force has yet to comply.
“We fully believe that we have made a lot of progress through this monitoring, given the history of the Philadelphia police department,” Frankel said.
ACLU-SC’s relations with the LAPD are far more antagonistic, particularly after the recent scandals over corruption and systematic planting of evidence in the Rampart Division. At one point during August’s convention, spokespersons for the chapter stated bluntly that the federal government needed to take over the force since it had proven that it was incapable of self-monitoring. According to Dan Tokaji, lawyer with ACLU-SC, the chapter pursued an aggressive litigation strategy in preparation for the protests “simply because we know the LAPD...we knew that if we were going to hold them in check at all, we would have to get injunctions against them, and that’s what we did.”
On the surface, the differing levels of diplomacy appeared to have predictable effects. In Philadelphia no tear gas was used, and reports of excessive force by police on the streets were limited to a few apparently anomalous situations. In Los Angeles, the police threw a pepper spray party. Without shame they dispersed concert-goers using billy clubs and rubber bullets, blocked marchers from continuing along pre-planned routes, chased bicycle protesters up the wrong way of a one way street and then arrested them for reckless driving. And they shot the cameras of press who were photographing it all.
But behind the scenes the reality was more complex. As is becoming evident as over 200 defendants make their way through the courts, the reality of the roundup in Philadelphia was far from the clean save that most believe it to be. Based on the rate of convictions so far, it is clear that many, if not most arrests were arbitrary, preemptive and hasty. Protestors gave numerous accounts of police brutality to the R2K legal team and independent journalists; these reports grew progressively more alarming after activists were in custody. In the midst of this downward spiral in relations between activists and the city, Presser made his most controversial statements. That Friday, the Philadelphia Inquirer wrote that “Stefan Presser...said the Police Department acted within the law if it targeted leaders planning an unpermitted and, hence, illegal demonstration... ‘It’s probably smart tactics,’ Presser said, referring to the selective arrests. ‘And it probably succeeded, if you look at the speed at which the city returned to normalcy. I don’t see that there’s a constitutional question here.’”
Several days later he was quoted as having doubts that mistreatment was going on in the jails. “I think it’s highly unlikely, the kinds of things that have been described,” he told the Inquirer following the one trip he made to visit the arrestees.
Activists suspect police led Presser down the primrose path, showing him only the bare minimum of the prisons and preventing him to speak to the majority of the jailed protesters. Most defendants say they never saw Presser while in jail. “I did hear that he visited defendants but I never saw him,” said Redden, who volunteers in the R2K legal team’s office facilitating communication between the defendants. “And I’ve never spoken with anyone who talked with him.”
According to Dodd, the same thing happened in other situations, such as when police were threatening protesters keeping vigil in the park across from the Roundhouse with arrest. Presser called the police in response to Dodd’s call and the police told him that they were not planning on arresting anyone, an answer she said satisfied Presser. “He believed the police and the city before he believed us,” she said.
Los Angeles police were unapologetically brutal in the streets, but they were tightly watched and sharply sized up by progressive lawyers at every turn. At a press conference the morning after Monday night’s fracas, when police violently broke up a Rage Against the Machine concert, ACLU-SC was one of the most vehemently critical voices weighing in. “What happened last night-make no mistake about it-was nothing less than an orchestrated police riot,” said Tokaji. After his speech, video-graphers from the Independent Media Center put in a tape of the night’s events. As the footage rolled, Tokaji stopped in his tracks: it was the first time he had seen such documentation. His comments had been delivered based on the testimony of the activists and legal observers, the prior knowledge he had of the LAPD, and the trust he had in his clients’ integrity.
ACLU-PA issued a press release on August 7 that obliquely suggested Presser’s comments were not the final word. “Over the weekend, credible stories concerning serious injuries inflicted upon those who were arrested last week have been reported to the ACLU,” the release said. It promised further investigations into the matter, although R2K legal team members say the chapter has not followed through on this promise. According to R2K legal team spokesperson Kris Hermes, Human Rights Watch tried to initiate its own investigation into the allegations of prison abuse during that week, and upon calling ACLU-PA for consultation, was discouraged from doing so by Presser. Since the convention, ACLU-PA has issued several additional statements in support of the protesters: one criticizing police overreaction, and one expressing concern over apparent infiltration of protest groups.
But neither Presser nor the chapter has issued a direct response to the furor over the comments-no retraction, no apology, no public acknowledgement. Presser declined to return phone calls for this story, and according to Frankel, ACLU-PA made an internal decision that Presser will not speak to press on convention-related matters. Because protesters are in the midst of trial, documents that would clarify the degree to which his statements erred cannot be made public, and the R2K legal team will not discuss them on record. Were Presser working with the defendants, he would have access to this documentation—including xtensive interviews with over 400 protesters taken upon their release, and records of reports received via phone during the incarceration.
Frankel now concedes that Presser’s comments “may have been premature.” Although he still expresses pride in the ACLU’s relations with the police force here, he now wonders if the city ever intended to cooperate with the activists. He admits that the evidence of infiltration raises the possibility that the negotiations may have been a front for a concerted sabotage effort aimed at protesters. “We’re still trying to understand how much public deception was going on,” he said. “Was all that good P.R. work that the Commissioner did to put a happy face while they were planning other things?”
For most of the R2K defendants, this healthy skepticism is too little too late. The legal team is currently making do without any support from ACLU-PA, a response to what longtime activists say is the last straw. Several groups have reported similar problems with Presser stretching back years. Referring to the attempts to obtain permits to protest at the 1987 Constitutional Bicentennial Celebration, Rita Adessa of the Lesbian and Gay Task Force recalled, “At every step of the way I had to argue as much with him as with them [the police].”
According to organizers, the issue is trust and accountability. If some of Tuesday’s violence came about because of aggressive police tactics, would we have heard about it? Would the ACLU of Pennsylvania have stood up and stated that fact? Defendant James Graham guesses not. Graham was arrested while performing the duties of a legal observer for the National Lawyers Guild-he was photographing a violent arrest of a 22-year-old female activist who had not been involved in a demonstration. He says he would not trust Presser or the ACLU of Pennsylvania with his case. “Its clear that we can’t stick a camera anywhere near his face without him turning around and stabbing us in the back!”
“[The situation] feels personal, but its really not,” Dodd said. “Its about this individual who works for an organization that has a history of working to protect citizens against state violations, but who for some strange reason wants to align himself with those that violate rights instead of those whose rights have been violated.”
The activists and their lawyers are now facing the possibility of pursuing civil cases without ACLU-PA’s resources. Plaintiffs in existing civil suits have indicated that they will follow the defendants’ lead and refuse to work with Presser. Whether this situation will thaw over time is unclear. Since the central issue has been the way Presser dealt with media, defendants and civil suit plaintiffs might accept a situation where Presser was on the legal team but in a background role that gave him restricted decision-making power and forbade him from speaking to press on behalf of the legal team. But even this is a stretch. “If the issue is his name showing up on documents, then I just don’t know,” said Redden, when asked if a compromise was feasible. “Once trust has been violated between a lawyer and a client, then it is really hard to work with that lawyer.” From the defendants’ letter, it is clear that they will not accept working with ACLU-PA unless another lawyer were handling the case.
But Presser is the Legal Director at ACLU-PA, has a long history of litigating such cases, and is a central and respected figure and friend to many of the lawyers currently working with the activists-the chances of such a compromise seem slim, even to the activists who are demanding it. Some have concluded that the schism is unmendable in the short-term. “It’s very unfortunate that the ALCU will not be a part of [the litigation],” said Dodd, “but we just cannot work with them if Stefan Presser is the only option.”
The activists are not the only losers in this scenario. At writing, America’s historic “defender of civil liberties” is standing silent on the sidelines while over 200 activists make their way in a deliberate bloc through this city’s legal system in what could well be the largest group of political trials in our country’s history. Observers describe these cases and the issues underlying them as precedent-setting, and the civil suits that could emerge concerning infiltration, surveillance and use of force could be, as Frankel himself recognizes, quite significant.
ACLU-PA has understandably expressed a strong desire to pay a key role in whatever civil suits are pursued. On September 9, the Philadelphia Inquirer reported that Presser had predicted that the ACLU and others would sue the city over the puppet warehouse raid. But Frankel hesitates to overstep his bounds. “We would very much like to be involved in any of the litigation, in one role or another, because we think people’s rights were violated, we would like to vindicate those rights, and we think we have experience, skill, and knowledge and some credibility with the courts.”
This surprises Hermes. “Why would the ACLU want to represent this group of people after having made such damning statements about them?” he asked. “They’re wanting to take on cases about which they spoke in a derogatory manner just weeks ago. It would seem that they would want to counter those statements before proceeding.”
Defendant Kate Sorensen emphasizes that there are other options. “If the ACLU [of Pennsylvania] was willing, there are ways to work with them, not specifically on civil suits,” she explained. “[For example], there needs to be a nationwide legal collective that creates preemptive policy that protects activists’ civil rights...It seems like the ACLU across the country should participate in this. I think the Philadelphia ACLU should step up to the plate and do the right thing. And I think there’s nothing that would prevent them from taking that on.”