Newark Police Settles Lawsuit Over the Arrest of Teen with Cellphone Video

Gov. Christie Earns Mixed Marks on Civil Liberties During His First Two Years

ACLU-NJ examines Christie’s record on respecting rights

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:

• B in Freedom of Religion. Gov. Christie made headlines several times in his first term for defending the religious freedom of Muslims and warning against extremists trying to promote discrimination against Islam.


• F in Freedom of Speech. When provided the opportunity to speak up for our nation’s most fundamental value, the Governor stood idly by, letting the Department of Military and Veterans Affairs trample the rights of Occupy Trenton, and going so far as to endorse the termination of a NJ Transit employee fired for exercising his right to free expression.


• B- in LGBT Rights. Although the Governor has spoken out against bullying and supported some interests of the LGBT community, he has turned his back on marriage equality for same-sex couples.


• D in Open Government. Although the Governor signed a bill that lowers the cost of copies in New Jersey, his administration has put itself on the wrong side of open government disputes numerous times, allowing agencies to hide public documents and forcing citizens to go to court to get them.


• C in Police Practices. Improvements made by the Office of Attorney General (OAG) to its statewide police Internal Affairs policies were a step forward, but the OAG has failed to address other important issues, such as developing a statewide policy on the use of confidential informants.


• C in Privacy Rights. The governor conditionally vetoed a bill that sought to open adoption records, taking into account the privacy rights of birth parents. At the same time, he signed into a law a bill that allows police to collect DNA of people once they have been arrested in violation of privacy and due process rights.


• F in Reproductive Rights. Not only did the governor cut $7.5 million from the budget for family planning centers, but he also withdrew an application for a federal program that would have covered family planning expenses for some of New Jersey’s most vulnerable women and children.


• D in Separation of Powers. The Governor refused to reappoint New Jersey Supreme Court Justice John J. Wallace, Jr., calling into question the tradition of evaluating judges based on merits, and personally attacked a Superior Court judge because he disagreed with the outcome of her ruling. Gov. Christie’s actions threaten to undermine the judiciary’s independence and credibility.

ACLU-NJ Wins Temporary Restraining Order in Favor of Occupy Trenton Protesters

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.

Related Content

• Occupy: Order
• Occupy: Brief
• Occupy: Complaint
• DMAVA Letter

ACLU-NJ goes to court to defend Occupy Trenton's free speech

State illegally confiscated computers, signs and medicine from protesters

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.

Related Documents

• Occupy: Brief
• Occupy: Complaint
• DMAVA Letter

ACLU-NJ’s Statement on Union Township School Teacher’s Facebook Post

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.

Related Content

• Student Rights Handbook (1mb PDF)

Appeals Court Rules Newark Journalist Who was Wrongfully Arrested by Police is Entitled to Damages

Newark Police violated Roberto Lima's First Amendment rights

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.

New Jersey Transit Agrees to Reinstate Worker Fired for Protest Activities

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 Police Illegally Detain Honors Student Over Cellphone Footage

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.

Related Content

• From the Back of the Bus to the Back of a Police Car

ACLU-NJ and City of Newark Reach Agreement on Circus Protest Lawsuit

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.

The complaint, captioned Nicholas Botti v. City of Newark, along with the settlement order (454k PDF) and past ACLU-NJ work in Newark regarding free speech, can be read online.

ACLU-NJ Circus Suit Makes Free Speech the Elephant in Room

NEWARK, N.J. — The American Civil Liberties Union of New Jersey’s (ACLU-NJ) has filed suit today against the City of Newark for its unconstitutional arrest of an animal welfare advocate while he was exercising his First Amendment right to protest on a public sidewalk outside of the Prudential Center.

The complaint, filed in Superior Court in Essex County, charges Newark Police violated Nicholas Botti’s rights when they refused to allow him to stand on a public sidewalk with a sign depicting the prodding of an elephant next to the words, “This is Ringling Baby Elephant Training.” Botti, a resident of Atlantic Highlands was arrested on March 7, 2010 when the Ringling Bros. and Barnum & Bailey Circus was in town.

“Botti was standing on a public sidewalk, exercising his Constitutionally-protected free speech,” said Bennet Zurofsky, who is representing Botti on behalf of the ACLU-NJ. “He was not blocking the sidewalk, nor was he blocking pedestrian traffic. If he can get arrested for standing on a sidewalk with a sign, what’s to stop Newark Police from arresting anyone else who is doing the same?”

Botti and seven other animal welfare advocates distributed leaflets opposing the treatment of animals by Ringling Bros. and Barnum & Bailey Circus. When they arrived at the center, police corralled them into a designated “protest zone” far from the arena, in an area that saw significantly less pedestrian traffic than the front of the center.

When Botti asked a Newark Police lieutenant what law required the protesters to stand in a protest zone, the officer replied, “My law.”

Although the City of Newark does not have specific written guidelines for political activities in front of stadiums, arenas, or other public venues, it does have an ordinance requiring a permit to hold demonstrations with more than 50 people – a number much greater than the animal welfare activists at the Prudential Center the day of Botti’s arrest.

Botti and another activist moved from the designated zone to the intersection of Mulberry Street and Edison Place diagonally across the street from the arena, where their signs could be seen more readily. When Botti refused to return to the designated zone, police arrested him on charges of obstructing the sidewalk and failing to move when ordered by police, even though neither he nor his sign were blocking traffic.

“Standing on a public sidewalk holding up a sign, irrespective of content, is basic free speech,” said Botti. “The fact that the police arrested me for blocking a sidewalk and didn’t arrest, or even address, the street vendor standing right beside me on the sidewalk shows how unfair it is to single out just the people who speak up as targets.”

The ACLU-NJ has challenged the City of Newark a number of times over impediments to free speech. In 2004, it successfully challenged a city requirement for all groups to get the police chief’s permission before distributing information and to secure a $1 million insurance policy before holding a march. In 2008, the city passed an ordinance ensuring that basic free speech activities would not be subject to the insurance requirement.

The complaint is captioned Nicholas Botti v. City of Newark.