NEWARK – A Superior Court Judge in Essex County issued an order temporarily quashing subpoenas issued by the Montclair Board of Education regarding an anonymous online poster represented by the American Civil Liberties Union of New Jersey (ACLU-NJ). In addition, the judge ordered that the board of education may not issue any additional subpoenas seeking the poster’s identity until the judge makes a decision on whether to permanently quash the subpoenas.Another hearing on the issue is scheduled for January 9.
The ACLU-NJ filed a complaint on Dec. 3 and requested a court order to quash a subpoena the Montclair Board of Education issued to Google to learn the identity of an online poster who has criticized the district. The ACLU-NJ learned through a public records request that the district has also issued a subpoena to the popular community news site, BaristaKids, seeking the identity of its client and other anonymous critics.
The subpoenas were issued after a copies of assessment exams were discovered to be posted to a public website days before they were to be given to students. The tests have been the subject of intense debate in Montclair.
The ACLU-NJ is representing one of the anonymous posters, who uses the user name, “Assessmentgate,” who has denied having any involvement with the security breach. The Montclair Board of Education issued a subpoena to Google on Nov. 7 seeking identity of “Assessmentgate,” who uses a Gmail address.
“They have no justification for believing our client is responsible for the security breach, other than the fact that our client has been vocally critical of assessment exams,” said Jeanne LoCicero, deputy legal director for the ACLU-NJ. “Speculation and unsubstantiated beliefs can’t outweigh a person’s right to speak anonymously. Regardless of where you stand on the assessment exams, we should all respect the constitutional right to free speech.”
The ACLU-NJ is asking the Essex County Superior Court to block the Google subpoena and to stop the district from issuing subpoenas that seek to uncover “Assessmentgate’s” identity. The ACLU-NJ argues the subpoenas are unconstitutional because the board of education does not have the legal authority to issue subpoenas unless it is conducting a hearing regarding a school law dispute. It further argues that the subpoenas violate the well-established right to anonymous speech and to privacy.
On Thursday, Dec. 5, the ACLU-NJ will appear before the Honorable Thomas R. Vena of the Essex County Superior Court to argue that while its request to quash the subpoena is pending, that all subpoenas issued by the school board seeking identifying information about its client be temporarily quashed and that the school board be ordered not to issue additional subpoenas about its client’s identity.
On Nov. 1, the Montclair Board of Education adopted a resolution authorizing an investigation and hearings into the security breach. The resolution called for an investigation into leaked exams and into other “incidents of conduct contrary to the board’s best interest.” One week later, it sent the subpoena to Google for information about “Assessmentgate,” who has posted critical comments about the district on the community website Montclair Patch and created Facebook and Twitter accounts using a Gmail address. These accounts were created before the ACLU-NJ’s client knew about leaked exams.
“The Board of Education and Superintendent have shown they will stop at nothing to silence dissent by any means necessary, including ignoring citizens’ rights to free speech,” said “Assessmentgate,” the ACLU-NJ client. “If we can’t trust them to operate honestly and to abide by the law, how can we trust them to do what’s best for our district and our children’s education?”
The Montclair Board of Education also issued a subpoena to the editor-in-chief of BaristaKids, seeking the identities, phone numbers and email addresses of “Assessmentgate” and three other posters who have been critical of the district.
“The Board of Education has clearly overstepped its boundaries,” said Udi Ofer, executive director of the ACLU-NJ. “The board cannot legally issue subpoenas as part of a fishing expedition and target people who have simply been critical of its policies. The use of a pseudonym to engage in political debate is part of a rich historical tradition, and the Constitution protects the rights of our client in this case.”
The hearing seeking a temporary order is scheduled to be held on Thursday, Dec. 5, at 9:00 a.m. in courtroom 404 of the Essex County Historic Courthouse. The case is captioned Assessmentgate v. Montclair Board of Education, Docket No. L-9391-13.
NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ), Seton Hall Law School’s Center for Social Justice (CSJ) and the City of Newark have reached a successful settlement in the case of Khaliah Fitchette, a Newark teenager who was illegally detained by police for using her cellphone to record an incident on a public bus in March 2010.
In addition to the settlement, Police Director Samuel A. DeMaio has issued a training memorandum that affirms the rights of citizens to record police officers performing their duties and makes clear that officers cannot confiscate, delete, or demand to view a citizen’s photos or video without a warrant. The memorandum was issued in November 2011, as Fitchette’s lawsuit was pending.
The department will train officers on the new policy.
“We are pleased that the Newark Police Department has adopted a policy that clearly articulates and respects the constitutional rights of citizens to record police activity,” said Seton Hall Law Professor Barbara Moses, who, along with a number of Seton Hall Law students, represented Fitchette as a cooperating attorney for the ACLU-NJ. “We hope this policy prevents incidents like the one involving Khaliah Fitchette from ever happening again.”
Alexander Shalom, Policy Counsel for the ACLU-NJ, said other departments should follow Newark’s lead.
“With video technology so prevalent now, police officers have to clearly understand exactly what rights citizens have when they film in public,” said Shalom. “Newark’s policy makes clear distinctions about citizens’ rights, and every law enforcement department in New Jersey should adopt these kinds of guidelines.”
Fitchette, who was a high school honors student when she was arrested by police, said she hopes her case educates the public about their rights when it comes to recording police.
“I’m glad this is resolved and I can put this behind me,” said Fitchette, who is now a sophomore at Cornell University. “It’s important for everyone to know their rights, especially since most people now have cellphones with video capabilities.”
Fitchette was riding a public bus through downtown Newark after school on the afternoon of March 22, 2010. When the bus rolled down a hill, a seemingly intoxicated man fell from his seat and into the aisle, creating a scene. The driver pulled over and called Newark Police for assistance. Fitchette, who habitually used her phone to record or take photographs, began recording the incident. When the police arrived, an officer ordered Fitchette to stop recording and turn off the phone.
Fitchette stopped recording, but refused to turn off the phone to avoid missing any calls from her mom. The officer grabbed Fitchette by the arm and pulled her off the bus. One officer seized her phone and deleted the video. The police handcuffed and detained Fitchette for more than an hour, ignoring her pleas to call her mother. They finally dropped a tearful Fitchette at her mother’s workplace.
The ACLU-NJ and CSJ filed a lawsuit on Fitchette’s behalf on March 28, 2010, alleging the officers violated her constitutional rights to free expression. The lawsuit also alleged the search and seizure of Fitchette’s phone was illegal.
Recognizing the importance of taping police officers in public, the ACLU has challenged illegal police confiscations of cameras, which has become more prevalent across the country, including in New Jersey.
In July, the ACLU-NJ released a new smartphone application, “Police Tape,” which allows people to record and store interactions with police securely and discreetly. The app is available for free on Androids and iPhones.
NEWARK – The American Civil Liberties Union of New Jersey (ACLU-NJ) released a midterm report card for Gov. Chris Christie today (182k PDF), issuing mostly low marks for his administration’s handling of critical civil liberties issues such as reproductive freedom and free speech.
The report card examines Christie’s record on an array of civil liberties issues during his first two years in office. The ACLU-NJ issued a similar report card for Newark Mayor Cory Booker (229k PDF) in 2009 during his first term in office.
“Christie has two years to turn a mediocre civil liberties record into a testament to individual rights,” said ACLU-NJ Executive Director Deborah Jacobs. “The people of New Jersey expect a leader who will stand up for their freedoms, not one who will let them know that despite his unfair policies, his heart is in the right place. It’s time for Gov. Christie’s good intentions to turn into policies that strengthen our rights and improve our lives.”
The ACLU-NJ issued the following grades:
NEWARK — A Superior Court judge has validated the free speech rights of Occupy Trenton protesters and has ordered the state (240k PDF) to return all of the food, medical supplies, computers and other property that it confiscated on October 14.
“This is a victory in our efforts to secure full free speech rights for Occupy Trenton,” said ACLU-NJ Legal Director Ed Barocas. “The state cannot arbitrarily create restrictive policies just because it does not like how people are using a public space.”
Superior Court Judge Mary C. Jacobson in Trenton granted a temporary restraining order (240k PDF) preventing the state from enforcing some of the “rules” issued in a letter from Raymond L. Zawacki, the Deputy Commissioner for Veterans Affairs in the Department of Military and Veterans Affairs, in response to the Occupy Trenton demonstration that began in Veterans Park on October 6.
Protesters will now be allowed to have their laptops, coolers, signs and other items at the park on State Street. The judge ordered the state to return all confiscated belongings to protesters by November 14. The judge further confirmed that the protesters must be allowed to maintain a continuous 24-hour presence at the park, although the protestors cannot set up tents or other structures.
The American Civil Liberties Union of New Jersey (ACLU-NJ) filed the lawsuit (2.3mb PDF) on behalf of Occupy Trenton on October 26. The lawsuit claims the state’s imposition of previously-nonexistent restrictions on the protesters, and the seizure of their property pursuant to those restrictions, violated their rights to free speech and due process.
Judge Jacobson acknowledged Occupy Trenton’s likelihood to succeed in the case, noting that the state failed to follow proper procedures when it made up the restrictions governing the use of the park. She explained that the Occupy Trenton demonstrators “are entitled to have restrictions on their constitutionally protected activities imposed by rulemaking and not informal action targeted at their demonstration.”
On October 26, ACLU-NJ cooperating attorney Bennet Zurofsky appeared in court to ask the judge to impose a temporary restraining order to stop the state from enforcing the illegal rules. The ACLU-NJ will appear in court again on December 19 for another hearing on the matter.
Occupy Trenton is also being represented by ACLU-NJ cooperating attorney David Perry Davis and ACLU-NJ Legal Director Edward Barocas.
TRENTON – The American Civil Liberties Union of New Jersey (ACLU-NJ) appeared in the Chancery Division of Mercer County Superior Court yesterday afternoon to stop the State from enforcing unconstitutional rules that violate the free speech rights of the Occupy Trenton protesters. The ACLU-NJ argued that the State illegally confiscated the laptops, coolers and other property belonging to the protesters on October 14 as a means to chill their free speech.
“The state cannot arbitrarily create restrictive policies just because it does not like how people are using a public space,” said ACLU-NJ Legal Director Ed Barocas. “Laws must be created pursuant to proper process, not created by executive fiat.”
The rules at issue were developed and enforced only after protesters first descended on Veterans Park on State Street on Oct. 6 with blankets, laptops, a small generator, coolers of food and tarps for rain. In the past, other groups have been permitted to use tables, canopies and other items that the State has prohibited Occupy Trenton from using.
On Oct. 13, Raymond Zawacki, Deputy Commissioner for Veteran’s Affairs in New Jersey’s Department of Military and Veterans Affairs, issued an edict restricting any camping or picnicking items from the park. The next day, the State Police confiscated most of the protesters’ property, including their computers, coolers, the generator and their protest signs.
During the hearing, ACLU-NJ cooperating attorney Bennet Zurofsky argued the state cannot inhibit speech activities simply because it doesn’t like the aesthetics. Zurofsky also pointed out that picnicking - including with items like coolers and chairs - is just the kind of activity for which parks were designed. The Attorney General’s office argued in court that the State can make up whatever rules it wishes regarding its property and that any “unattended” property should be considered “abandoned.” The State has essentially taken the position that property, including protest signs, is “unattended” if it is not within arm’s length of an individual. Indeed, the State seized protestors’ property despite the fact that the protestors are within a few feet of their items.
The ACLU-NJ asked the court to impose a temporary restraining order to prevent the State from infringing upon the protestors’ fundamental rights. The judge is expected to rule in the next few days.
NEWARK — Although we do not agree with the sentiments expressed on Union Township teacher Viki Knox’s personal Facebook page, her beliefs and comments are protected by the First Amendment. But because her postings raise questions about her conduct within school, the school district can and should investigate whether she is performing her job in accordance with school policies and the state's Law Against Discrimination.
The ACLU believes that the response to offensive speech is not the restriction of speech, but more speech, which is why the ACLU has created programs like the "Don’t Filter Me" project, which ensures the public schools aren’t illegally denying students access to positive, affirming information about LGBT issues. The ACLU-NJ has participated in this program and successfully advocated for a school in Vineland to remove a filter blocking sites that were supportive of LGBT issues.
Ms. Knox’s Facebook comments highlight the work that still needs to be done to help people understand why LGBT equality is so important. The ACLU will continue working hard to make sure public schools are safe for all students, including LGBT students, in New Jersey and in communities across the country.
|Roberto Lima & Baher Azmy|
NEWARK — The United States Third Circuit Court of Appeals issued a ruling today holding that Newark journalist Roberto Lima is entitled to the entire amount of a monetary offer made by the City of Newark in a case stemming from his wrongful arrest in 2007, and that his attorneys are also entitled to now seek fees in addition to those monetary damages.
"The actions taken by Newark Police that day were a clear violation of Mr. Lima's First Amendment rights as a journalist," said Seton Hall Law School professor Baher Azmy, who served as a cooperating attorney for the ACLU-NJ. "Police cannot arrest innocent journalists to suppress stories that they may not like or may embarrass them."
Lima, the editor of the Brazilian Voice newspaper, was held by police in September 2007 after a photographer discovered and photographed a decomposed body covered by debris in the Ironbound section of Newark. The photographer notified Lima about the discovery, and Lima thereafter notified the police. After arriving at the scene, officers intimidated Lima, seized his camera and ordered him to turn over all copies of the photographs including originals. The officers at the scene were led by Samuel DeMaio, who was a deputy chief at the time. DeMaio currently serves as acting director of the Newark Police Department.
DeMaio ordered Lima not to publish the photos and told officers to physically seize his camera. While at the scene, DeMaio also demanded that the photographer disclose his immigration status, a demand for which DeMaio was later reprimanded by the state Attorney General's office which has banned any law enforcement official from inquiring about the immigration status of a crime witness or victim.
After Lima voluntarily gave a statement at the police station, he was handcuffed to a bench until he agreed to turn over all originals and copies of the photographs.
Lima expressed relief at the court's ruling. "I hope that the Newark Police has learned its lesson and trained its officers so that no journalist or citizen is ever bullied, intimidated or harassed the way I was," Lima said. "This case was about standing up for my constitutional rights as well as the rights of others - especially journalists."
Before filing suit in January 2008, Lima and his attorneys from the ACLU-NJ and the Seton Hall Center for Social Justice attempted to settle the matter, but the city refused.
In November 2009, the City of Newark made a formal "Offer of Judgment" to pay Lima $55,000 for the plaintiff's claims for relief against the city. But when Lima's attorneys filed an application for attorney's fees, the city balked and said the $55,000 offer included attorney's fees. The Court of Appeals today determined that Lima was entitled to the entire $55,000 as damages, and said a separate petition for attorney's fees can be filed.
"We wish it did not have to come to this," said ACLU-NJ Executive Director Deborah Jacobs. "If the city had acknowledged its officers' unconstitutional conduct and taken expedient steps to retrain officers, we never would have had to go to court. Now we can only hope that the city takes steps to ensure this never happens again."
Lima's case was also one of hundreds of allegations in the ACLU-NJ's 2010 petition to the Department of Justice asking it to investigate the Newark Police for civil rights violations.
The American Civil Liberties Union of New Jersey today announced that it has reached a successful settlement in the case of Derek Fenton, the New Jersey Transit worker who was fired for burning three pages of a Koran during a rally held in protest of a proposed Islamic community center in Lower Manhattan last year.
As part of the settlement (494k PDF), New Jersey Transit has agreed to give Fenton his job back and provide him with back pay. In addition, New Jersey Transit will pay $25,000 in damages and $25,000 in attorneys’ fees.
“I am pleased that the matter is now successfully settled,” Fenton said. “Our government cannot pick and choose whose free speech rights are protected, based on whether or not they approve of the content of our statements or actions. This is the very essence of the First Amendment.”
Fenton will not make any additional public comments on the matter.
Fenton, an 11-year New Jersey Transit employee, burned three pages of the Koran during a September 11, 2010 rally. It was his day off and he did not identify himself as a New Jersey Transit employee. A newspaper photographer captured and published the photo of Fenton burning the Koran. When his employers saw the photo, he was terminated on September 13, 2010.
The ACLU of New Jersey filed suit on his behalf, explaining that New Jersey Transit’s actions were illegal, because the law prohibits public employers from firing workers for engaging in constitutionally protected speech on matters of public concern in their personal capacities. Gov. Chris Christie and four members from his office were named in discovery as persons with information relevant to the decision.
“The First Amendment protects Fenton’s right to protest just as it protects the freedom to build a religious center at the location of one’s choosing. And it protects his right not to get fired by a public employer for exercising that right,” said Frank Corrado of Barry, Corrado, Grassi & Gibson, who, along with Rubin Sinins of Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins, represented Fenton on behalf of the ACLU-NJ.
“The ACLU understands that Fenton’s speech falls into that category of speech that is offensive to many. In fact, the ACLU itself has denounced anti-Muslim sentiment expressed during the controversy over the community center,” said ACLU-NJ Executive Director Deborah Jacobs. “But while we may disagree with the sentiments expressed by some protestors, we stand up for the constitutional right to express all viewpoints.
The ACLU-NJ filed the federal lawsuit on November 5, 2010. The court was informed of the settlement on April 11, 2011. It signed an order dismissing the case on April 13, 2011, subject to the settlement being carried out within 60 days. The settlement itself was finalized on April 21, 2011.
“This is an important result for free speech rights of public employees. Public employees should not have to worry about their livelihoods being threatened for exercising their constitutional rights,” said Sinins, who also served as the ACLU-NJ’s cooperating attorney in the case. “No matter what their personal beliefs are, if those beliefs have no bearing on their job, they should have the right to express those beliefs on their own time.”
NEWARK, N.J. — The American Civil Liberties Union of New Jersey (ACLU-NJ) and the Seton Hall Law School Center for Social Justice (CSJ) filed a lawsuit today against the Newark Police Department for illegally handcuffing and detaining a Newark high school honors student who captured video footage on her cellphone of officers responding to an incident on a New Jersey Transit bus.
The lawsuit (1674k PDF), alleges officers violated the constitutional rights of Khaliah Fitchette, 17, by arresting her, seizing her cellphone, and deleting the video footage. The search and seizure was illegal and violated the student’s right to free speech.
“Individuals at the highest levels of the Newark Police Department have continued to turn a blind eye to repeated, pervasive unlawful behavior by its officers,” said Seton Hall Law Professor Baher Azmy, who is representing Fitchette as a cooperating attorney for the ACLU-NJ, and has brought cases against the Newark Police Department in the past. “The abuse of the rights of Newark citizens will continue, unless the Newark Police Department finally confronts and implements serious reforms among its officers.”
Fitchette, an honors student and at the time, junior class president at University High School in Newark, was riding downtown from school on the afternoon of March 22, 2010. Soon after boarding the bus, the driver called Newark Police to attend to a man who had fallen on the floor several rows in front of Fitchette. When Newark Police Officers Noemi Maloon and Lloyd Thomas boarded the bus, Fitchette started to record the scene using the video capability of her cellphone. Fitchette was standing approximately 10 feet away and was not obstructing or interfering with police activity.
Maloon spotted Fitchette recording the scene and demanded she turn her phone off. Fitchette refused because she needed the phone on in case her mother needed to reach her. The officer then grabbed Fitchette by the arm and pulled her off the bus. During this seizure, Maloon stated, “Kids think they can do whatever they want.” She also stated that she didn’t want any footage of this public incident to go on the Internet.
Fitchette said she was startled by what was going on and asked if she was being arrested.
“I was confused by what was going on,” Fitchette said. “The police were treating me like a criminal even though I had done nothing but take a video of a man on the bus.”
The officers handcuffed Fitchette and put her in a patrol car. Officer Thomas seized Fitchette’s cellphone and deleted the video. Violating state law, the officers ignored Fitchette’s repeated pleas to call her mother. Instead, they drove her to a juvenile processing center then to an adult processing center, in order to charge her with a crime, even though she was a juvenile and they had no lawful basis to charge her. After the officers finally acknowledged they could not continue their prolonged detention, they dropped off a crying Fitchette at her mother’s workplace.
“I was scared,” said Fitchette. ”Because I was a junior and I was about to apply to college and I didn’t want a criminal record that I didn’t even deserve, to hold me back from applying.”
Deborah Jacobs, executive director of the ACLU-NJ, said incidents like this erode the public’s trust in the department. In September, the ACLU-NJ filed a petition with the U.S. Department of Justice, asking it to intervene and monitor the troubled department.
“This is another example of egregious misconduct by the Newark Police Department,” Jacobs said. “We have already filed a petition documenting 418 incidents of beatings, false arrests, retaliation and other misconduct by Newark Police. This case is another reason why we desperately need federal intervention from the U.S. Department of Justice.”
The ACLU has challenged illegal police confiscations of cameras, a problem growing more prevalent across the country, including in New Jersey. In 2008, the ACLU-NJ and the CSJ represented Roberto Lima, editor of the Brazilian Voice newspaper, who had been arrested and held in custody by Newark police officers until he relinquished photos of a dead body in an alley taken by his publication. The ACLU-NJ also supported a CBS news camera man who was taken into custody for taking video of an anti-violence rally.
Counsel for Fitchette includes Seton Hall Law School students Dan Bause, William Conaboy, Mark Keogh and Doug Nelson.
Fitchette’s case is captioned Phillips v. City of Newark.
NEWARK, N.J. — As the circus comes to town this week, free speech comes right behind.
The American Civil Liberties Union of New Jersey (ACLU-NJ) and the City of Newark have reached a settlement that vindicates the rights of animal welfare activist Nicholas Botti, who was arrested nearly a year ago, while protesting the treatment of animals by Ringling Bros. and Barnum & Bailey Circus. Botti was standing on a public sidewalk outside of the Prudential Center when he was arrested on March 7, 2010 – the last time the circus was in town.
“Most people don’t know how cruelly the animals are treated, and if people have the right to attend the circus, we should have the right to oppose it,” said Botti. “Looking back, it was futile to tell the police we weren’t breaking any laws, but if my experience means the police don't infringe on the rights of other people for speaking their minds, then it is a victory for both civil rights and animal rights.”
On the day of Botti’s arrest, police officers corralled a group of 7 animal-welfare advocates from the sidewalk in front of the Prudential Center to a distant “protest zone,” where sparse foot traffic exposed fewer people to their signs and literature.
As part of the agreement, the City of Newark will train all police officers and city employees responsible for special event permits in Newark’s free-speech policies every six months. The city has an ordinance that requires a permit for free speech activities only when the number of people reaches 50.
“Any policy can only be as good as its enforcement,” said ACLU-NJ Legal Director Ed Barocas. “Over the years we’ve helped Newark build strong free speech policies, and with new emphasis on teaching those policies, they’ll be even stronger.”
The incident last year unfolded when Botti and another activist moved from the fairly isolated “protest zone” to the intersection of Mulberry Street and Edison Place, diagonally across from the arena, where their signs could be seen more readily. Even though neither Botti nor his sign — which read “This is Ringling Baby Elephant Training” next to an image of a prodded elephant — blocked traffic, police arrested him on charges of obstructing the sidewalk and failing to move when ordered by police.
The city requires a permit only when demonstrations exceed 50 participants — much greater than the number of advocates who joined Botti last year.
“We’re gratified that Newark not only recognized the importance of enforcing its free speech ordinances, but responded quickly to institute it,” said Bennet Zurofsky, the attorney who represented Botti for the ACLU-NJ.