Daily Archives: July 19, 2017

A federal judge has ruled that a local anti-police-brutality activist has a legitimate free-speech argument to present to a jury about why a former top cop barred her from a weekly CompStat data-sharing meeting.

U.S. District Court Judge Stefan R. Underhill, a Clinton appointee, agreed in a decision released last week that activist Barbara Fairs First Amendment rights might have been infringed and the case should proceed. The city had sought to have the case dismissed.

Underhill ruled that Fair may proceed to seek changes in policy through her suit, but not any money.

The alleged violation stems from a spat two years ago, when the former police chief, Dean Esserman, temporarily shut community members out of the weekly CompStat meetings, after cops complained that Fair used them as a venue to protest the departments treatment of minority communities. Fair contended that Esserman was trying to bar her from meetings until controversy blew over. The day Esserman barred the public from the meeting spurred on by discomfort of some of his officers with the presence of a vocal anti-police-brutality activist he also allowed another member of the community, preacher pal Rev. Boise Kimber, to come upstairs and attend.

In his ruling, Underhill squelched Fairs pursuit of damages, but he agreed to hear her case on injunctive relief. To win the case, the longtime activist must prove that Esserman disliked the content of her speech, rather than the manner in which she gave it, and that he intended to cut off public participation until activists lost interest in using the meeting to speak out.

Fair has continued to speak out publicly against police misbehavior and clash with the department. The police arrested her July 8 for allegedly refusing an order to keep her distance when they were arresting her nephew at a counterdemonstration against a white nationalist recruiting event on the Green. (She denied the allegation.)

And Compstat meetings, less elaborate affairs since Esserman departed the department, are open to the public again.

Fairs attorney, Norm Pattis, called the judges green-lighting of a trial an early win.

Any time that a jury can can [evaluate the conduct of a police officer], thats good to do for the republic, he said. We hope that never again will [the police] decide that some members of the public arent entitled to attend a meeting, when they have invited the public in general. When the community is given a chance to speak, the police department cant put stoppers on it based on the content of what its hearing.

As part of his community policing push, Esserman had opened up these weekly reviews of crime statistics and major cases, known as CompStat, to the public. (The name comes from comparative statistics.) The meetings revolve around reports from policing districts about crimes over the past week and plans for the upcoming week. Under Esserman, they expanded to include reports to and sometimes from the community, with dozens of local people joining the cops at headquarters on Thursday mornings to listen in on the departments crime-fighting strategies. (The department brass review pending investigations in greater detail at daily intelligence briefings, which are closed to the public.)

It was not, however, a forum for discussion, Esserman stated in his deposition. It was to let people see how the police department worked in a transparent way, and if people had presentations they wanted to make we would try to schedule them in.

Fair sought to make it a forum. In March 2015, after video of a black 15-year-olds takedown during an arrest emerged, Fair joined a protest in front of City Hall. There, she allegedly overheard cops and counter-protestors making racially charged remarks. Shortly after, Fair went to a CompStat meeting to speak up.

At the meetings end, she asked the assistant chief for permission to speak. (Esserman was absent.) Unrelated to any of the discussion that morning, she proceeded to criticize the department and called out the foul-mouthed officers. Fair said that one cop looked upset by her comments, but another officer told him to let Fair voice her concerns. I know I ruffled some feathers, she admitted in a follow-up email to the assistant chief. Still, no one present reprimanded her, asked her to sit down or escorted her out of the room.

News later reached Esserman, though, that Fair had been disruptive, loud, and argumentative. When she returned to Union Avenue for Compstat the following week, Esserman asked Fair to leave, saying she had made people very uncomfortable. After an exchange, Fair said, As long as its a public meeting, Im going to sit here. Esserman decided to close it all off.

Same thing the following week: Fair and State Sen. Gary Winfield couldnt even get past the front desk to the meeting. (Rev. Kimber, on the other hand, a friend of the chief, was buzzed in and went upstairs to attend the meeting.) Esserman maintained in his response to the suit there was no ban on Fairs attendance; she didnt subsequently try to go back.

In his initial analysis of the evidence, in which he tried to give Fairs arguments the best light possible, as a jury might similarly do, Judge Underhill explained that, to prove a First Amendment violation, the plaintiff must show (1) that her speech was protected by the Constitution, (2) that the forum was public and (3) that the justifications for excluding her speech werent up to snuff.

Fairs speech, addressing racist strains in the police department, is clearly protected speech, Underhill wrote, referencing an established right to complain to public officials.

Likewise, Essermans admittedly deliberate choice to open prior CompStat meetings made them limited public forums, Underhill added. Thats true even though observers generally didnt speak, he said. The judge cited a 1991 ruling about ACT UPs intent to hold a silent protest in a state legislatures gallery: [T]he elected officials receive the message, by the very presence of citizens in the gallery, that they are being watched, that their decisions are being scrutinized, and that they may not act with impunity outside the watchful eyes of their constituents, that precedent said.

Esserman argued that, since he opened the meetings, he could have closed them at any time.

Sure, Underhill wrote, thats true of any public forum. [H]owever, as long as the forum remains open, government regulations of speech within it must meet the standards of a public forum.

What are those standards? Underhill said speech may be limited only by content-neutral regulations time, manner, place unless theres a compelling state interest. In fact, he noted, Esserman might have been on surer footing if he had shut down the public participation entirely. But because the break was only temporary, it implied that the chief didnt like what Fair had to say on a current event, the judge noted. He referenced several rulings that arbitrariness and unpredictability about when a forum is open to the public can easily cover up censorship, as in choosing to shut down a park on the day a particular person is scheduled to speak.

It seems clear that a temporary shutdown intended to stifle discussion on a particular topic, with plans to reopen the forum after controversy surrounding that topic had been suppressed constitutes impermissible censorship under any First Amendment analysis, Underhill wrote.

Esserman argued that the case is mooted, to some extent, because hes no longer on the job. Indeed, at this past Thursdays CompStat meeting, the new chief, Anthony Campbell, said the meetings are open to the public. The only restriction might be if journalists are asked not to publish information about an imminent apprehension, he said.

Pattis responded that the First Amendment rights at issue could crop up with any police chief, not just the last one. Whats important is that the department realize that it has enduring obligations to the community, and that those do have the force of law behind them, he said. This will make sure Campbell isnt tempted to do the same.

A trial will likely be scheduled for sometime in the fall, Pattis said.

The NHPD should have NEVER allowed CompStat (and TASCA before it) to be a fully open public meeting. There is far too much need to know information being shared with people in the room who should not be privy to it. As a compromise, if the NHPD wanted to keep the doors open to the public and the press, they should have instituted a 2 part meeting. The first would be open to the public, the second to Law Enforcement only. By not doing this, they created this problem. And, Esserman, who always knows he is the smartest person in the room (just ask him, or he would tell you without asking) failed miserably in dealing with Fair. She set him up and he took the bait.

The NHPD should also do some type of vetting of those who attend.

NHI article, July 8, 2016, posted at 9:31PM about a non-permitted rally on the green of 700 people, after many of them had taken to the streets and blocked traffic. It was a rally against police brutality. The following is taken from that article, without editing:

I have seven sons activist Barbara Fair said. We say we dont know when the hour comes. The hour comes for me when one of them pigs do something to my child. I salute those mothers who can somehow carry onyou take my child, and I want you to hear it around the world. You take mine and you will not sit around the station and tell your story. Because Im gonna go completely off. You want to take my childs life? Your life is gone too. You better believe me. I mean it to the bottom of my heart, to my toes and my soul. And when I say my sons I mean my grandsons too. Dont even try it.

In response to this law suit, the NHPD would be wise to restructure CompStat into a 2 part meeting (public and non-public) and outline the new structure and rules of order for those meetings in an NHPD Document.

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Judge Allows First Amendment Trial - New Haven Independent

HAMBURG, N.Y. -- Aspiring journalists are telling their own stories this week at Hilbert College. While they're learning everything from writing a catchy headline to how to frame an interview, there's a deeper truth here that these 12- to 18-year-olds are uncovering.

With President Donald Trump accusing the media of reporting fake news and making up sources, the students are getting an important lesson on the foundation of journalism. The hope is the junior high and high-schoolers understand the meaning behind the First Amendment and the duty they could one day have to protect the freedoms that go along with it.

"It's about wanting to do it, to be passion it about doing it, and also about defending our rights as citizens; freedom of speech, freedom of the press, it's really only the job that's protected in the constitution," Chris Gallant, associate professor of Digital Media and Communication said.

Camp may be fun and filled with field trips to the federal courthouse for example, but just two days in and Hope Artis and the others have already grasped something we strive to prove in the stories we share with you every day.

"We need to know and understand people," Artis said. "That's what news in its heart is all about."

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Campers take up defending our First Amendment rights - TWC News

The Knight First Amendment Institute July 11 filed a lawsuit against President Donald Trump and his communication teams, claiming they are violating the Constitutions First Amendment by blocking people on Twitter.

The lawsuit was filed in the Southern District of New York on behalf of seven people who were blocked by the presidents @realdonaldtrump account because they criticized the president or his policies on the social media, the institute said in a news release.

The suit hopes to have the court determine that Trump and his teams actions constitute viewpoint-based blocking and is unconstitutional.

President Trumps Twitter account has become an important source of news and information about the government, and an important forum for speech by, to, or about the president, Jameel Jaffer, the Knight Institutes executive director, said in a statement. The First Amendment applies to this digital forum in the same way it applies to town halls and open school board meetings. The White House acts unlawfully when it excludes people from this forum simply because theyve disagreed with the president.

About a month prior to the lawsuit being filed, the institute wrote a letter to the White House suggesting it would file suit if the president didnt unblock the individuals.

The institute, which never received a response from the White House, said that the Trump administration has promoted the @realdonaldtrump account as a primary communication channel between the president and the public including making formal announcements thus constituting it as a public forum protected by the First Amendment.

The blocking prevents or impedes these people from reading the presidents tweets, responding directly, or participating in the discussions that take place in the comment threads generated by the presidents tweets, the institutes release said. The complaint argues that the @realDonaldTrump account is a public forum under the First Amendment, meaning that the government cannot exclude people from it simply because of their views, it added.

The lawsuit also contends that the White House is violating the seven individual plaintiffs First Amendment right to petition their government for redress of grievances.

The White House is transforming a public forum into an echo chamber, said Katie Fallow, a senior staff attorney at the Knight Institute, in a statement. Its actions violate the rights of the people whove been blocked and the rights of those who havent been blocked but who now participate in a forum thats being sanitized of dissent.

Prior to joining the Knight Institute as executive director in June 2016, Jaffer was deputy legal director at the American Civil Liberties Union and director of the ACLUs Center for Democracy.

Born in Canada to Ismaili Muslim parents originally from Tanzania, he is a graduate of Williams College, Cambridge University, and Harvard Law School.

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Knight First Amendment Institute Files Lawsuit Against Trump for Blocking Twitter Users - India West