WORKING WITH AND EXAMINING PLAINTIFFS AND DAMAGES WITNESSES Janine L. Hoft & Melinda L. Power June 2018, Chicago, IL

 

I. Examination of Plaintiffs in Civil Rights Cases

         A. Preparation

                  *Case Theory and Plaintiff Testimony

What need from witness?

                  *Strategy to Deal with Weaknesses

                           Best to front

                  *Identify strengths

                           What are important areas to get out

                           Prioritize

*Study deposition testimony, other statements

         Plaintiff’s prior and other witnesses

                  *Discuss impeachment, explanations for discrepancies or                               deviations in Plaintiff’s prior statements or with other

                           witnesses

 

                  *Anticipate Cross

                           They will emphasize weaknesses

                                    Bring weaknesses out but not first or last

                           Attempt to impeach credibility

                  *Both lawyer and client

                           Understand and empathize with client and story

         B. Practice

                  *Client comfortable and at ease

                  *Consider practicing with client in the courtroom

                  *Consider practicing with other people present

                  *Important to understand each other’s language

                  *Not so sounds rehearsed, so you can engage in dance

                  *Prompt witness to bring out what you know is                                        there and practice how to present it

                  * Practice cross-examination with witness

                           Discuss pace, listening to and understanding                                                            questions

                           Try out possible questions

                           How to deal with areas of weakness

         C. Organize Examination

                  *Simple, understandable, logical flow

                           Chronological

                  *Areas of inquiry, not specific questions

                           Review elements of claims

                           Break up into episodes of story

                                    Plan transitions to each new episode

                                             Close one, break flow, start another

                  *Creativity

                           How to keep interesting

                                    (15-20 minute attention span)

                           Use of exhibits, demonstrations

                                    After first run through, to highlight not distract

                  *Anticipate objections

                           Know FRE, Motions in Limine rulings

                           Areas off limits and consequences  

                           Admissibility of exhibits             

         D. Presentation of testimony     

                  *Discuss with client how to present evidence,

                           i.e. if you say things this way, it will help the jury to                               understand what you really mean to say

                          

                  *Client to view testimony to jury as if telling friend                                         story of what happened to you

                  *Speak clearly, simply

                           Avoid so-called “powerless speech” hedging (“I think”                              “sort of) hesitation (“well” “um”) frequent use of                                           intensifiers (“surely” “very definitely”)

                  *Consider posture, reactions, facial expressions, gestures

                 

                  * Look at jury during testimony

                  *Manner of dress

                           Present client’s personality

                           Review wardrobe in advance                

         E. Execute Examination

                  *More it sounds like story the better

                  *Focus on Witness

                           Be interested in what witness says

                                    Be empathetic

                           Witness to Dominate

                           Testimony from witness not examiner

                           Lawyer’s position

                                    Maximize witness contact with jury, minimize                                         lawyer

                                    Change position to highlight important testimony,                                           move in closer

                           Give witness time to fully answer, don’t interrupt

                  *Questions simple, direct, nonleading, no unusual, complex or                               highfalutin phrases

                           Assist telling of story

                           Have witness explain

                           Use introductory and transition questions

                                    Easier to follow, retain, like headings to a brief

                  *Pace

                           To keep interesting

                           Slow down important/major information

                           Avoid unimportant testimony and tangents

                           Follow up with detailed questions on important matters

                           Change up: “Now think about question carefully and tell                                  jury…”

                                    [Experience: all know witnesses who can’t stay on                                            point, maybe nerves]

                           Avoid sounding like going through a checklist

                  *Watch and listen to witness

                           Follow up on partial, incomplete, potentially                                                    misunderstood answers

                           Don’t be stuck to your outline/questions

                                    May miss what witness saying

                                    Respond to witness

                  *Watch Jurors

                           See how they are reacting to testimony

                           Told to focus on witness/not jurors

                  *End with a bang, a strength

                           Something important

                                    Jury will retain what is most recent

         F. Special Concerns

                  *Emotional testimony

                           Be authentic

                           Jurors may react negatively, undermine credibility                                          and likeability

                                    Don’t want to identify with victims, by now                                                      witness should be over

                                             Fits in with “Reptile” but contrary to                                                        continuing damages

                  *Damages

                           Prison experience

                           PTSD

                           Relationships

II. Examination of Damages Witnesses in Civil Rights Cases

         A. Preparation

                  *Case Theory

                           What need from witness

                                    Depending on effectiveness of plaintiff

                           Testimony consistent with plaintiff, other witnesses

                  *Get to know witness

                           Talk about experience with plaintiff, impressions

                           Identify testimony

                           Use specific examples, anecdotes

                           (Experience: Avery and Harris, good chunk of time just                                    getting to know witness and relationship to plaintiff in                                  order to pull out what will be most effective, what aspect                          of damages they can speak to, can’t go in                                                  with preconceived notions, kid missing father)

         B. Organize Examination

                  *Similar to above

                                    Simple, areas of inquiry, creativity

                  *Get in and get out

         C. Execute Examination

                  *Similar to above

                  *Elicit facts and details not conclusions    

                  *Start and end with something interesting if possible,                                              but keep entire testimony focused and interesting

                  *Focus on witness, simple questions, use pacing

                           Know well enough to adjust questions

                  *Don’t ignore jury

III. Redirect Examinations

         A. Explanation of anticipated impeachment

         B. Restate most important testimony

         C. Only important issues

        

Attachments:

         Direct of plaintiff William Avery in Avery v. City of Milwaukee      

         Direct of Avery’s aunt, damages witness

                  Wrongful conviction case 

         Direct of plaintiff’s public defender, damages witness

                  Malicious Prosecution case

         Direct of Decedent’s sister in Gomes v. Lake County

                  Wrongful death in custody case

 

Sources:

 

Trial experiences and observations of the authors;

ProCLECenter, Client and Witness Preparation Strategies, Jesse Wilson,                June 5, 2018

Fundamentals of Trial Techniques, 3rd Edition, Chapter IV Direct          Examination, Thomas A. Mauet, Little, Brown and Company, 1992

The Trial Process: Law, Tactics & Ethics, Chapter 6 Direct Examinations,       7/31/02

Prepare your Plaintiff for Direct Testimony, A.H. Dudnik, Cleveland State      Law Review, 1957, Engaged Scholarship@CSU

 

 

April 26, 2018 Presentation at Kent Law School on Standing Rock protestor representation

 Lunchtime Standing Rock Presentation

Thursday, April 26th at 12 p.m. 

Room 345

In early 2016, Water Protectors created the No DAPL (#NODAPL) movement to oppose construction of the Dakota Access Pipeline, including near the Standing Rock Reservation. The pipeline threatened the region's clean water and ancient burial grounds. Protesting Water Protectors erected camps near the pipeline site for cultural preservation and spiritual resistance. Eventually, thousands of Water Protectors, including those from more than 300 tribes, resided in the camps and proclaimed that 'water is life' (Mni Wiconi!). The months of protests resulted in approximately 800 arrests and the use of excessive force by law enforcement officials. The pipeline has been built, and has already leaked. The camps were torn down. The legal struggle continues.

 

Join the Chicago-Kent National Lawyers Guild Chapter in welcoming attorney Melinda Power. Power currently represents Water Protectors in both civil and criminal cases stemming from the Standing Rock protests, and will share and describe her legal work both at the camp and in the courts. Power is both a member of the Water Protectors Legal Collective, and the National Lawyers Guild.

DEFENDING STANDING ROCK

C-K NATIONAL LAWYERS GUILD

Melinda Power, a member of both National Lawyers Guild and Water Protector Legal

Collective, is currently working on both civil and criminal cases stemming from the

Standing Rock protests. Power will speak about representing Water Protectors and will

describe her work at the camp and in the courts.

This event is co-hosted by Art and Cultural Property Law Society, Environmental Law

Society, American Constitution Society, Criminal Law Society, and ACLU

ATTORNEY MELINDA POWER, NATIONAL LAWYERS GUILD

AND WATER PROTECTOR LEGAL COLLECTIVE

THURSDAY, 4/26 - 12PM - ROOM 345 - 

University of Pittsburgh Law School: Melinda Power presents on Standing Rock 3/20/18

 

Defending the

Standing Rock Water Protectors

 

In early 2016, Water Protectors created the No DAPL (#NODAPL) movement to oppose construction of the Dakota Access Pipeline, including near the Standing Rock Reservation. The pipeline threatened the region's clean water and ancient burial grounds. Protesting Water Protectors erected camps near the pipeline site for cultural preservation and spiritual resistance. Eventually, thousands of Water Protectors, including those from more than 300 tribes, resided in the camps and proclaimed that 'water is life' (Mni Wiconi!). The months of protests resulted in approximately 800 arrests and the use of excessive force by law enforcement officials. The pipeline has been built, and has already leaked. The camps were torn down. The legal struggle continues.

 

Join the National Lawyers Guild Pittsburgh City Chapter, the Pitt Law Student Chapter of the American Constitution Society, and the Pittsburgh Sierra Club in welcoming attorney Melinda Power. Power currently represents Water Protectors in both civil and criminal cases stemming from the Standing Rock protests, and will share and describe her legal work both at the camp and in the courts. Power is both a member of the Water Protectors Legal Collective, and the National Lawyers Guild.

 

Snacks will be provided.

 

https://www.facebook.com/events/1831431740209911/

 

WHEN

Tuesday, March 20th

6:00 PM - 7:30 PM

 

WHERE

University of Pittsburgh, Barco Law Building

 

 

 

Albert Woodfox Receives the National Lawyers Guild Arthur Kinoy Award

August 1, 2016, New York City. 

Isn't it wonderful that we can celebrate and honor Albert Woodfox tonight with the Arthur J. Kinoy award!

This was established in 2008 to be given on special occasions to those individuals whose work and passion would have especially appealed to Arthur. Arthur was a legendary and life-long Guild member who was a legal pioneer and movement lawyer.

Albert Woodfox is a fighter who for over 44 years struggled to win his freedom, the freedom of his prison comrades, Robert King and Herman Wallace, and to change the inhumane conditions of prisoners not only in the infamous Angola Prison in Louisiana but throughout the US. 

He walked out of prison last February and has kept on fighting to end solitary confinement, the abusive prison system and to free all political prisoners. 

Albert was held in solitary confinement for 44 years longer than any other prisoner has ever been in solitary in the US. 

He was a political prisoner, targeted by the Louisiana prison system, due to his participation in the Black Panther Party in the 1970s. 

He is a free man today because of a movement that was determined to free him, as well as Robert King and Herman Wallace. 

Albert was one of six children born to his beloved single mother. He was arrested and convicted in New Orleans, then sent to the infamous Angola Prison in Louisiana. He became politicized due to his personal experiences, and the civil rights and Black Power movements. 

In Angola Prison, he and Herman Wallace, courageously formed a chapter of the Black Panther Party.

Robert King, who is also here with us tonight, later joined them in their struggle. Please stand up. 

Angola was racist from the get go. In 1880, a former Confederate general began warehousing prisoners in the former slave quarters of a plantation named Angola. Angola's white supremacist nature hadn't changed one iota when Albert got there. 

Albert, Herman, and Robert successfully organized other prisoners to fight together to end the intolerable conditions at Angola. 

Angola prison officials saw them as a threat, which they were to the degrading and brutal Louisiana prison system. To silence the threat, prison officials framed Albert and Herman for the murder of a guard. A Louisiana jury convicted them, despite the lack of physical evidence and an unreliable eyewitness. 

Robert spent the next 29 years in solitary confinement; Herman 41 years and Albert 44 years. 

44 years! Can you envision spending even one week, totally alone, in a 6 feet x 9 feet cell? His only human contact was with racist white guards. 

It was hot, (Louisiana hot) for example, 126 degrees for 85 days in 2012. He was confined in an unsanitary cell where he spent 23 hours a day and ate lousy food. Despite having an exemplary prison record, the prison wouldn't let him attend his mother's funeral. Most of us would just give up in despair. Not Albert. As he said: "if a cause was noble, you could carry the weight of the world on your shoulder."

Albert, Herman, and Robert continued to fight together to establish their innocence, free the Angola 3, to change conditions for prisoners in the US and to free Black people. Their courage and commitment inspired friends and family who organized a national and then an international movement. 

He walked out of prison last February. Since that happy day, he has not forgotten what he suffered or what thousands of men and women are suffering every moment of every day in US prisons. Solitary confinement is torture and it must end. 

He knows that there are other prisoners who are still incarcerated solely because of their political beliefs and actions. He is committed to freeing all political prisoners, including former members of the Black Panther Party and the Black Liberation Army who have been imprisoned since the early 1970s. Just as he continues to struggle, we need to redouble our efforts to free all our political prisoners. 

Albert's presence tonight is dramatic proof that when we work together to end solitary confinement and to free political prisoners, we can win. 

We need to break down the prison walls! 

I am so honored to give the Arthur Kinoy award to a man who serves as an inspiration to so many of us. 

Please join me in welcoming Albert Woodfox!

What Attorneys Can Do to Help Police/Citizen Relations

What the Legal Community can do to Restore the Faith of the People and Police in each Other. 

Chicago Bar Association 2/5/15

Greetings and thank you to Noah Graf and the Constitutional Law Committee of the Chicago Bar Association for inviting me to speak.

First of all, let me say that I find this topic both intriguing and very difficult to answer or even attempt to answer since profound changes are required if we hope to improve relations between the police and citizens. 

This program is being held due to the recognition of the profound problem that exists throughout the U.S. and certainly in Chicago with the police. To try to resolve this problem, it is essential to define and attempt to understand the source of the problem. The source of the problem is the police attitude to and behavior towards African Americans and Latino people. 

Although the topic is defined as the police and "the people", we need to define who are the people whose faith needs to be restored in the police. To posit a universal police/public dichotomy ignores the reality of many white people's generally positive interactions and perception of the police versus the nature of African American and Latino people's negative dealing with the police. Because of this sharp division, I want to focus on police treatment of and attitude towards people and communities of color in the U.S. 

There are two main reasons for bad police relations with African Americans and Latinos. 

The first is undeniably racism directed by the police towards African American and Latino people since the reality of African American and Latino people's interactions with the police are too often a produce of racism by the police. Racist treatment or even mistreatment by the police is not the reality experienced by most, though not all, white people and this certainly impacts white people's attitude towards the police. Research and polls document that racist police encounters are the reality for many Black and Latino people but not for most white people. 

Historically, polls and research have consistently shown that white people are less critical of the police than are African Americans and Latinos. Yet, recent events such as Ferguson, the death of Eric Garner on Long Island and Tamir Rice, the 12 year old boy in Cleveland shot by the police in a public park 2 seconds after they arrived at the park, have not only sharply eroded support for and trust in the police among African Americans and Latinos but also among white people. 

For example, in a study by the International Association of Chiefs of Police published in 2001, the Association found the following: 
Race. 

One of the most persistent findings in public opinion polls about the police is that whites are more satisfied with police than nonwhites. This finding has been consistent over the past four decades, emerging from dozens of studies and polls, both in the United States and abroad (Bayley and Mendelsohn, 1969; Bradley, 1998; Cao, Frank, and Cullen, 1996; Huang and Vaughn, 1996). For instance, in a study of citizen satisfaction with police in 12 cities, conducted by the Bureau of Justice Statistics in 1998, 90% of whites were satisfied with police, compared with 76% of blacks and 78% of those of other races (Bureau of Justice Statistics, 1999). 

Contrast those findings with a Gallup poll conducted 8/20/14, in the aftermath of Officer Wilson's murder of Michael Brown. The poll found that 59% of white people vs. 37% of Black people had quite a lot or a great deal of confidence in the police. Additionally, 24% of young Black men between the ages of 18-34 and 22% of Black men between the ages of 35-54 who were interviewed said the police had treated them unfairly in the last 30 days. Almost 25% of Black men between the ages of 18-54 said that they had received unjust treatment from the police within the last 30 days! One wonders what would be the percentage if they had been asked if the police had mistreated them within the last year. 

Astudy directed towards Latinos' views of the police published in 5/13 by the Department of Urban Planning and Policy at UIC found that: When asked how often police officers stop Latinos without good reason or cause, 62 percent said very or somewhat often, including 58 percent of US-born respondents, 64 percent of foreign-born respondents, and 78 percent of undocumented immigrant respondents.

Are these attitudes justified? In my experience as both a criminal defense and civil rights attorney, I have found that the mistrust of the police is justified. For example, I work in the Puerto Rican community on Division Street. Although gentrification of the area has reduced the number of Latinos in the area, I would routinely see the police stop and search young Latino men who are doing nothing other than walking or hanging out. 

When I go to criminal court, the vast, vast majority of defendants are Black and Latino, as are the vast majority of my clients. Hopefully we can all agree that Blacks and Latinos are not biologically disposed to commit more crimes than are white people. Thus, we need to admit that a disproportionate number of Blacks and Latinos are arrested due to their race, not their criminal behavior. 

For example, a recent study by the ACLU in 2013 entitled the War on Marijuana in Black & White starkly established the racial disparities in arrests between African Americans and white people. As the findings show, and I quote, 

Despite the fact that marijuana is used at comparable rates by whites and Blacks, state and local governments have aggressively enforced marijuana laws selectively against Black people and communities. In 2010, the Black arrest rate for marijuana possession was 716 per 100,000, while the white arrest rate was 192 per 100,000. Stated another way, a Black person was 3.73 times more likely to be arrested for marijuana possession than a white person a disparity that increased 32.7% between 2001 and 2010. 

In addition to racism, the other major problem with the police is the almost unlimited power they have in the communities they patrol and their frequent abuse of that power. They have the power to stop, question, frisk, arrest and charge individuals. That is an incredible amount of power that is too often misused. Their actions commence the induction of African Americans and Latinos into a criminal justice system that, just like the police, is often racist. 

I will give you three examples drawn from my own cases to illustrate the point. I have a pending case in which the police pulled over the car in which my client was a passenger, claiming he didn't have on his seat belt. He is a young Puerto Rican man who was in a car with another Puerto Rican man and woman. The police ordered him out of the car based on the oft-used police justification that he was making "furtive movements". When he and the woman challenged the actions of the police, he and the woman were both arrested for resisting arrest and assault. He now has to go to court and face possible jail time based on the actions of the police. 

One other example. On a hot summer night, a group of African American men was hanging out on the street corner in the Humboldt Park area of Chicago. Four police officers drove by and shortly thereafter returned. The police had received no complaints from neighbors; there was no loud music, disruptive noise or behavior from the group. Nevertheless, the police stopped and got out of their car, claiming in their arrest report that prior to exiting the police car, they knew that the liquid in plastic cups held by some of the men was vodka. Let me remind you that vodka is transparent, has no odor and is often mistaken for water. Things escalated and my client ended up tasered with injuries to his eye and ribs, which the police were unable to explain. Does anyone think this would have happened to a bunch of white guys? Possible, especially if the white guys were poor, but unlikely. 

Another example is another pending case I have. My client was a passenger in a BMW driven by a friend with another friend was in the back seat. The police pulled the car over and searched everyone in the car. The justification the police offered was that the driver of the car passed in a bus lane. Photos of the scene establish that there isn't a bus lane located where the police claimed one was located. Additionally, the ordinance under which they charged the driver does not apply to the driver's alleged action. My client was searched and the officers claim they found a controlled substance on him. They claim he resisted arrest. Yet, he was so badly hurt by the police that he was taken to emergency hospital and needed extensive medical treatment. Is it a surprise to know that the three men in the car were Black? 

In the face of a system that allows and even supports racism and abuse of power by the police, what can we as lawyers do? 

There are individual and systemic actions we can take. 

Individual actions:

1. When we are in court, at work, or really anywhere, if we see the police abusing people, we need to do/say something. As lawyers, we have enormous privilege that enables us to challenge what the police do. Many of us like to avoid challenging anyone, particularly the police, but it makes a difference when we do. We might have an impact on their behavior. And, we feel better about ourselves to know that we have stood up and challenged racist behavior.

2. Write letters to the editor opposing police misconduct. Support reparations for victims and survivors of torture by Burge. Volunteer to represent a prisoner in a parole hearing. Volunteer with the State of Illinois Torture Inquiry and Relief Commission to investigate prisoner's allegations of police torture. In fact, it was due to the efforts of lawyers that the torture used by Burge was initially exposed. 

Systematic Actions: 
In reviewing a series of articles and reports on problems with the police, quite a few articles suggested that police training could sharply reduce many of the bad interactions citizens have with the police. I think the culture of the police department is so entrenched around issues of racism and power that training alone won't solve the problem. However, it could make a difference. Here are some issues that the police could use training on: 

-Cultural, racial, gender and sexual diversity and how to understand and respect it.
-How to treat people with mental or physical illnesses who may be slow or unable to respond to police requests or orders.
-Alternatives to arrest such as mental health, addiction, alcohol treatment. 

3. Police do not need to have guns. If they didn't have guns, Michael Brown and Tamir Rice would be alive today. We can organize for a use of force model that does not permit and severely punishes excessive use of force by the police. For example, the Economist magazine recently reported that British citizens are about 100 times less likely to be shot by the police than are American citizens. Easy access by the police to a weapon frequently leads to unjustifiable homicides by the police that are so rarely punished by the police that police murders appear to be sanctioned by the police. 

Hopefully, others will share their ideas about what lawyers can do to change the police/citizen dynamic.

The changes I have suggested could help ameliorate the police/citizen interaction. However, until the police department as an entity changes its nature and structure, these changes may improve but not resolve the contradictions. By this, I mean that far too often, the purpose of the police is to preserve and maintain an unequal society that relies on the criminalization of entire sectors of its population in order to concentrate power and privilege in the hands of a few.

Protest, Free Speech, and the Legal Battle to Protect First Amendment Rights

A pattern has emerged across the United States in the last ten years. The police falsely arrest peaceful protestors to intimidate protestors, to stop others from protesting and to discourage dissent. The police then fabricate a story that peaceful protestors are violent and unruly. 

These arrests violate peoples’ First Amendment right to free speech. Additionally, when the police falsely arrest protestors without legal justification they violate peaceful protestors’ Fourth Amendment rights. These two Amendments and the cases that have interpreted them make it crystal clear: people in the United States have a right to peacefully protest without being falsely arrested by the police. 

In 1965, the United States Supreme Court (USSC) clearly established in the case of Cox v. Louisiana, 85 S. Ct. 453, 379 U.S. 536, (1965) that people have a right to peacefully protest. The Court held that once the police give demonstrators permission to march, they can’t stop and arrest those demonstrators without first giving them an order to disperse. 

The Cox case involved a demonstration of 2,000 African Americans who were protesting racial discrimination in Louisiana. The police originally let them march. Then, without warning, the police revoked permission to march and later arrested Mr. Cox, the march organizer. He was convicted of disturbing the peace. However, the Supreme Court later overturned his conviction. 

When it overturned the conviction, the USSC reaffirmed the right to free speech. The Court recognized that one legitimate purpose of free speech is to create controversy, unrest, and dissatisfaction with present conditions and to stir people to anger. The Court emphasized that this is precisely the purpose of free speech: to shake things up by challenging our prejudices and preconceptions. If we want to live in a democratic, open-minded society, we must protect our right and the right of others to dissent. 

Free speech exists when we are able to protest and raise unpopular ideas without being arrested and prosecuted for so doing. The inherent purpose of demonstrations is to raise criticism of, for example, government or economic policies with which the protestors disagree. The First Amendment exists to ensure that we all have the right to do precisely that. 

Let me give you one more historical example when the Court affirmed people’s right to protest. Demonstrations opposing the war in Viet Nam swept the country in the early 1970s. U.S. Congressman Ronald Dellums was addressing the crowd at one of these demonstration when, without warming, the police arrested the whole crowd, including Congressman Dellums. The arrestees filed a lawsuit to protest the arrests. The Court of Appeals for the District of Columbia reaffirmed that it was well established that people have a right to peacefully demonstrate. The Court held that the police couldn’t arrest peaceful protestors without first telling the protestors they have to leave and giving them an opportunity to do so. 

The law is clear. Everyone in this room and this country has a right to peacefully protest. Yet, police are threatening our right to free speech when they falsely arrest peaceful protestors and then attempt to justify those arrests by fabricating stories about violent and unruly protestors. 

This right is so well established that courts regularly dismiss charges against those who were falsely arrested. In some cases, the falsely arrested protestors then bring civil rights lawsuits in order to vindicate their right to protest, to obtain compensation for the false arrests and to secure a change in police policy so that in the future similar false arrests will no longer occur. These lawsuits have resulted in settlements that compensate the arrestees and affirm the right to free speech without fear of illegal arrest by the police. 

Why do the police continue to falsely arrest peaceful protestors in the face of the successful lawsuits? They do so because the police and the “powers that be” want to stop protestors from doing exactly what the USSC established is our First Amendment right: to dissent, to criticize and to challenge the policies of the government. 

To illustrate exactly what the police are doing and the impact their actions have had on peaceful protestors, I want to discuss in detail the March 20, 2003, anti-war protest in Chicago. 

On March 20, 2003, the day after the U.S. attacked Iraq, the Chicago police penned in and then arrested over 850 peaceful anti-war protestors. I, along with 3 other attorneys, sued the City of Chicago and the police commanders who had arrested the peaceful protestors. The lawsuit alleged that the police falsely arrested the protestors in violation of their First and Fourth amendment rights. For nine years, the police refused to admit they had wrongfully arrested the protestors. In February, on the eve of trial, we settled the case. 

The settlement is a huge victory! It reaffirms people’s right to peacefully protest. One result of the settlement is that the arrestees will get 6.2 million dollars. Another result is that the police have changed their practice when arresting peaceful protestors. The police now approach each protestor and tell him or her that if they don’t leave they will be arrested. The police then give that person an opportunity to leave prior to arrest. This settlement is a resounding victory for the First and Fourth Amendments not only in Chicago but also throughout the country. Attorneys across the country have let us know they cite our case to argue for the rights of protestors to voice dissent without fear of arrest. 

I now want to return to the events on March 20, 2003 and explain what happened that night. I will contrast what really happened with the version of events fabricated by the police. Then I will briefly discuss the long road we traveled to achieve victory in court. I’m going to start with a brief clip from a documentary about the demonstration so that you can see for yourselves what happened. 
Video 1 Clip first 3 minutes of Where We Stood

On March 20, 2003, the day after the US bombed Iraq, 10-15,000 people rallied in downtown Chicago to protest the war. After the rally, a loud, boisterous and peaceful march threaded its way through the downtown and onto Lake Shore Drive, a main thoroughfare in Chicago. At the entry to Lake Shore Drive, police vehicles were positioned to stop vehicles entry onto the Drive in order to facilitate the march's access to the Drive. 

The march exited LSD, planning to return to where it had begun. Without warning or an order to disperse, the police suddenly trapped demonstrators by forming police lines on either end of the march. The police them proceeded to randomly detain and arrest 850 of the protestors. 

Afterwards, the police invented a story of what happened to justify their arrests. They said the demonstrators did not have police permission to march. In fact, the police led the demonstration the entire way, marching in front of, beside and behind the demonstration. The police stopped traffic on city streets so that traffic would not impede the march. The police never told people not to march. This is known because the attorneys obtained a police recording of a police commander calling police headquarters to tell the police to stop traffic on the Drive so that demonstrators could march on it. This same commander was videotaped gesturing to demonstrators to enter onto the Drive.
Video Where We Stood of Risley motioning on protestors

The police transported 500 of the 850 people to police stations. At the police station, the police released about 1/2 of the 500 people because no police officer was willing to take responsibility for the arrests.

The remaining 300 or so people who were detained on the street at the demonstration were released in small groups, if and only if, they went through a police line with their hands up and threw away their signs and buttons. This is a further violation of protestors’ First Amendment rights. 

Video hands up release protestors from the CPD. 
The police falsely claimed they had to stop the demonstration because it had gotten out of control, was violent and the demonstrators refused to leave. Again the facts show otherwise. Let’s look at a police video clip that shows that it was the police who refused to let people leave, not demonstrators who refused to leave. 
Clip of police video w/ people standing around asking to be let go. 

The police attempted to justify their actions by claiming that the protestors were violent. This was not true. The videos show that the demonstration was peaceful. Protestors and even some patrol officers testified that the demonstration was peaceful. 

The police commanders ordered an extensive police investigation of the march because they hoped to establish that the demonstrators were violent and unruly. Ironically, it established the opposite. The thorough investigation failed to uncover violent and unruly behavior. To be totally accurate, it did reveal a few incidents. 
- The police arrested one woman on Lake Shore Drive for chalking on the sidewalk;
- One police car had footprints on it from unknown people walking on it;
- And, a police Lieutenant was hit by a flying skateboard belonging to an unknown person. 
I hope you agree with me that these three incidences fail to establish that the crowd of 10-15,000 was out of control or violent. Indeed, the police investigation confirmed our position that this was a peaceful protest with the exception of one or two minor and isolated incidents. 

I began by stating that one reason the police are falsely arresting people is to intimidate and punish protestors. One clear example of that is how the police treated the people they arrested at the protest. Every protestor was handcuffed, some so severely that they suffered injuries to their wrists. Some officers were unnecessarily rough with the protestors. As you saw in the first clip, the police pushed and shoved the protestors. The police broke the nose of one protester, the arm of another and causing minor injuries to dozens of protestors. This is called excessive force. 

The police confined the protestors in stuffy, overcrowded police transport vehicles for hours, during which time they had no access to food, water or bathroom facilities. 

At the police station, the police fingerprinted and photographed the arrestees, creating a criminal record for the protestors. The police took away the protestors' personal belongings. The police then crammed up to 40 protestors in cells built to hold ten people. Each cell had one open toilet with a fountain attached to it. Most protestors had no access to food or the telephone while at the police station. To add insult to injury, some police officers came to the holding cells to berate the arrestees for being unpatriotic. 

The protestors were held in custody for anywhere from 12-48 hours, which is much longer than necessary. The police in Chicago have the power to release people charged with misdemeanors without the time consuming warrant checks and without requiring that money be posted for release on bond. The police did neither. Despite the fact that most arrestees had never been arrested before, the police checked for outstanding warrants on every single arrestee. During the lawsuit, written records were obtained which revealed that the police command ordered that no arrestee be released until he/she posted $100.00 bond and that all fingerprints must be checked before release.

Concerned and frightened family members and protestors who were not arrested called Chicago attorneys, including me, to alert us to the mass arrests. Attorneys sprang into action to protect the protestors’ rights and to get them out of jail. We went to the police station to make sure the protestors were released as soon as possible. Attorneys from the Chicago chapter of the National Lawyers Guild (NLG) held a mass meeting for arrestees a week after the arrests. The NLG is a national legal organization founded in 1937. We formed to oppose the then racist policy of the ABA, which did not let Black people join its organization. Over the years, the NLG has continued to stand on the side of people who are abused in this society. Our motto is "human rights over profits". We provided free legal representation for any protestor who wanted our services for their criminal case. 

The prosecutors finally dismissed the charges and in doing so, admitted that they were unable to prove that the protestors had done anything wrong. 

Four NLG attorneys, including me, filed a class action lawsuit on behalf of everyone detained and arrested on 3/20/03. We did this to protect the right of people in Chicago to protest without fear of unlawful arrest. 

The main issues we raised were:
Did the police violate the protestors’ First and Fourth Amendment rights when the police penned in and arrested the protestors without first telling the protestors to leave and giving them an opportunity to do so? 

The lawsuit went through a lengthy pre-trial process that lasted until 2008. On the eve of trial, a district court judge found that the arrests were legal. She dismissed our case. She held that there was no legal precedent requiring the police to tell demonstrators who had previously been given police permission to march that the march was over and they needed to leave.

You now know from the Cox and Dellums cases I discussed earlier that she was incorrect. We knew our clients had done nothing wrong. We refused to permit a legal precedent to be established allowing the police to arrest protestors w/out telling them to leave and giving them an opportunity to do so. 

We appealed the Judge’s decision and appeared before the Appellate Court to argue our case. One of the attorneys for the police argued that the demonstrators were unruly as part of their defense. In response, one of the judges referred to the police video you just saw of demonstrators being allowed to leave only after they put their hands up and discarded their signs. She asked, "What do you mean, it looked like a police state?”

In March 2011 the Appellate Court unanimously overturned the District Court decision. A well-known, well-respected, very conservative Appellate Court Judge, Judge Posner wrote the opinion. He relied on the following facts for his decision:

- the police made no objections to the march;
- the police "trapped" the protestors and
- the law is clearly established that the police cannot arrest peaceful protestors for refusing to leave before the police tell them they have to leave. 

Judge Posner further held that even if this law was not clearly established that: and I quote: 
"the Fourth Amendment does not permit the police to say to a person go ahead and march and then, 5 minutes later, having revoked the permission to march without notice to anyone, arrest the person for having marched without police permission." 

The Appellate Court unanimously ruled that the lower court had incorrectly dismissed our case. Finally, almost nine years after the false arrests, the police conceded defeat and settled the case. 

In the beginning of my presentation I told you that what happened in this case parallels other false arrests of peaceful protestors across the country. The police routinely fabricate stories about violent and out of control protestors. Then, in court, judges typically dismiss the criminal cases because no crime was committed. Protestors then file lawsuits that have been settled in protestors’ favor. And taxpayers end up paying the bill for the illegal activity of the police. 

I do not yet have any documents that prove that the arrests are part of a national plan to quell protests. However, these arrests are so frequent and so similar that they cannot be mere coincidence. Let me tell you about a few similar cases across the country. 
- In 2002, DC police penned in and falsely arrested people participating in "anti-globalization demonstrations without probable cause. The case subsequently settled on behalf of the protestors for millions of dollars;
In 2003, Miami police penned in and falsely arrested peaceful protestors demonstrating against the Free Trade of the Americas. The City of Miami settled with 21 wrongfully arrested protestors for 1/2 million dollars in 2007;
- in 2004, the police arrested 1300 peaceful protestors during the Republican National Convention in NYC. There are currently several class actions pending against the police. Schiller v. New York. As of 12/11, the City of New York had spent over 8 million in litigation hours to defend these cases; 
- In September 2009, the police arrested protestors and non-protestors alike during a meeting of the G-20 economic group in Pittsburgh. Many of the students arrested by the police said that despite the fact that they weren't demonstrating, the police corralled and then arrested them. The City of Pittsburgh has settled some of those cases and some are pending. 
- Most recently on October 1, 2011 in New York City, police surrounded and arrested 800 Occupy protestors who were peacefully walking across Brooklyn Bridge. 

The law is clear: these arrests are illegal. Why, then, do the police persist in falsely arresting peaceful protestors? The police arrest peaceful protestors not only to stop them, but to discourage all of us from exercising our right to free speech and to challenge the status quo. 

Protests cause disruption and may challenge the status quo as the USSC has clearly permitted. Those who benefit from the status quo want the status quo to remain unchanged. Protests are often a challenge to those in power. 

Additionally, history makes clear that protests and the movements that often develop from them are major catalysts for change. Our history is filled with social movements that have produced significant changes in society. Think for example of the following significant movements and how they have transformed society:
- the abolitionist movement, which helped to end slavery; 
- the movement for women's suffrage, which resulted in women being able to vote
the civil rights movement, which helped to end legal discrimination based on race in the U.S.;
- the gay and women’s movement which have changed laws and attitudes; 
and now the Occupy movement which has raised issues concerning economic inequality in this country and the extreme wealth, power and privilege of the 1%.

Those who don't want such changes to occur want to prevent protest since they often develop into movements that have the power to create change. One of the best ways of doing that is to arrest those protesting. 

I discussed in detail what happened to the protestors in Chicago after they were arrested. I want to share with you the impact this had on those arrested and others who participated in the demonstration. The arrests were a very traumatic experience for many protestors, particularly those for whom this was their first protest. Additionally, the arrests sent a message to others that if they protested, they too would be subject to arrest. The police actions scared the protestors and others. The impact of the arrests had consequences beyond the time people were locked up. The conditions of the bond prohibited arrestees from leaving the state until their case was over. The arrestees were stuck with a criminal record, unless they won their case and had their criminal records expunged. Many protestors told me that as a result of the arrests on March 20, 2003, they were too scared of the police to protest. I suggest that this is precisely what the police wanted. 

Fear favors those who are happy with and benefit from the current economic and political set up. We cannot let the police silence dissent by falsely arresting those who voice it. This is not right; it is not democratic; and it violates the spirit and the law of the U.S. Constitution! When we protect the rights of others to dissent without fear of false arrest, we protect our right to dissent as well. We help to ensure that democracy survives and thrives. Each of you can contribute to the preservation of our First and Fourth amendment rights by opposing illegal police behavior and by supporting the right to dissent. I urge you to do so.