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Lawyers stirring cause { May 12 2003 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A43018-2003May11.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A43018-2003May11.html
Stirring a Cause
When Things Get Rough for Protesters, These Lawyers Go on the March
By David Montgomery
Washington Post Staff Writer
Monday, May 12, 2003; Page C01
The D.C. police want everyone out of 18th Street NW, and they mean now. They're pushing their batons hard against rib cages and backs. They're grabbing shoulders and shoving.
There is panic and confusion in the crowd of 30,000 that has a permit for this recent antiwar march downtown.
"I lost my daughter!" one woman wails. A man is pinned face down on the pavement while an officer strikes him on the head several times with his stick.
The crowd surges away from the batons. But a thin, intense woman dressed in business black charges against the tide, directly at the blue police line. She whips out a camera and starts snapping, until an officer shoves her between two cars.
"If you don't move you will be locked up!" another officer says. "Get her out of here!"
She rushes up to a lieutenant in charge: "Your cops are clubbing people!"
Law school won't prepare you for a workout like this, but it's all in a day's work for a movement lawyer like Mara Verheyden-Hilliard. She and her law partner and husband, Carl Messineo, have become the constitutional sheriffs for a new protest generation. Still in their thirties, they're outpacing established free-speech watchdogs in this "I have a dream" capital of marches, crusades, lost causes and mass arrests. Picture a couple of aspiring William Kunstlers for the post-Seattle pepper-spray generation.
Their Partnership for Civil Justice is handling four key First Amendment lawsuits stemming from protests against corporate globalization, the Bush inauguration and the war in Iraq. The causes vary but the complaints are the same: That the D.C. police collaborate with the FBI and other federal agencies to suppress dissent. And that the police engage in preemptive mass arrests, spying and brutality.
Such extreme charges make opposing lawyers roll their eyes. Even the local chapter of the ACLU has parted ways with the Partnership.
But the Partnership, which also includes staff attorney Zachary Wolfe, marches on, poking under obscure rocks, making interesting discoveries:
• Two undercover D.C. Police officers have infiltrated local protest groups, an assistant chief testified recently. A federal judge has given the District one month to identify the officers' aliases so plaintiffs can tell whether their rights have been infringed. A city lawyer said the surveillance is necessary not because of suspected criminal activity but because police need to know whether more officers are required for upcoming marches. Two other infiltrators were unmasked by activists, who say one suggested planting bombs on Potomac River bridges.
• Two men in street clothes -- one wearing a black ski mask -- were captured on amateur videotape roaming through the inauguration crowd. They shove bystanders and one pepper-sprays people seemingly at random. After two years of pressing by the Partnership, the District acknowledged the men were on-duty police officers. One has admitted pepper-spraying, but both deny anything they did was improper.
• FBI agents took notes on protesters boarding buses to the Bush inauguration and monitored activists' gatherings, including one at First Congregational United Church of Christ on G Street NW, according to government records.
• A document that the Justice Department claimed is a "state secret" turned out to be mainly a list of protest groups and activities, including the Sunday Anarchist Bowling League, according to records.
• A D.C. police video obtained by the Partnership called "The Changing Face of Demonstrations" shows footage of protests, and the narrator says that "law enforcement would target anybody dressed in black," the color of "anarchists."
The lawsuits yielding these nuggets are in preliminary stages and may end in defeat for the protesters. But the lawyers say they are shining a light on methods the government applies to nonviolent dissent. They consider that no small victory already.
"We're not waiting 30 years for a COINTELPRO investigation and have the authorities say, 'We're sorry,' " Verheyden-Hilliard says, referring to the FBI's notorious campaign of disrupting protest groups in the 1960s. "We're exposing the misconduct right now so we can stop it."
Back at the antiwar demonstration, it's unclear what prompted the extended scuffle. Police call an ambulance for one protester. "If you don't beat people, you won't have to worry about ambulances," Messineo says.
Marc Frucht, the man struck on the head, is one of three arrested. Police say he ignored orders to clear the street. Frucht says he was tackled when he tried to take pictures. He has a red welt on his head. Later, the officer who struck him is put on desk duty pending an investigation.
And the Partnership has another client.
A New Era of Protest
What angers the Partnership is what Chief Charles Ramsey has maintained is good police work.
He has watched a new wave of demonstrators inspired by those who shut down the World Trade Organization meeting in Seattle in 1999. He has cited groups' plans to disrupt meetings here or shut down the city by blocking streets. In response, police have closed large sections of downtown behind fences, denied march permits for certain routes, infiltrated protest groups, corralled crowds. The department has become even more security-minded since September 11, 2001.
You don't have to be a radical lawyer to question the tactics. Last month Kathy Patterson, chairwoman of the D.C. Council's Judiciary Committee, announced an investigation of how police handle demonstrations.
Verheyden-Hilliard and Messineo "hold the state accountable and they are not afraid to push things as far as they can to get what's right and to challenge the system," says Heidi Boghosian, executive director of the New York-based National Lawyers Guild, whose members have represented activists since the 1930s.
Still, the Partnership can come on too strong even for natural allies. The lawyers have made enemies in the legal community that specializes in protester defense. The Washington model has been for lawyers to stay out of the sectarian fray, but Messineo and Verheyden-Hilliard are on the leadership committee of International ANSWER, the coalition that sponsored the recent antiwar march. Verheyden-Hilliard spoke from the podium as a fire-breathing partisan about U.S. troops in Iraq: "We know that occupation is not liberation. We know this is part of the endless war drive!"
Some activists and lawyers also complain that the Partnership, in the crusade of representing dissenters, brooks no dissent.
The ACLU and the Partnership started as teammates in the lawsuit filed by protesters after the World Bank demonstrations of April 2000. The ACLU eventually quit -- after being fired by several plaintiffs who wanted the Partnership to continue representing them. Some others dropped out rather than continue to be represented by the Partnership.
The reasons are shrouded behind attorney-client privilege, and the lawyers won't comment. Interviews with clients suggest neither legal team was satisfied with the work of the other, and there were arguments over everything from tactics to meeting court deadlines. The Partnership wanted to be more "political," according to one.
Nadine Bloch, a veteran activist who quit the lawsuit, says of the Partnership: "I'm sad to say that these two smart lawyers are increasing the division that exists in the legal community that supports progressives."
Says Verheyden-Hilliard: "There was a division in the anti-globalization movement after Sept. 11 as some felt it was wrong for that movement to take up the challenge of fighting Bush's war drive. We were criticized . . . by those who were unable or unwilling to make that transition."
Still, the Partnership is left standing with the big cases while its elders are on the sidelines.
Only the Partnership objected to the unprecedented security at the Bush inauguration -- including the requirement that everyone attending the parade pass through police checkpoints. That suit has produced some of the biggest rocks to turn over.
Last fall the D.C. Police did again what the Partnership has alleged before in a lawsuit: Surround a crowd and arrest hundreds. This time the department's own internal investigation showed that the crowd was given no chance to disperse.
The Partnership filed a class-action suit. A rival suit was filed by the same ACLU team that quit the earlier case, plus Covington & Burling and its deep pockets. A judge must pick among them. It's a clash of legal vision, turf and ego.
"I think we can do a better job," says ACLU legal director Art Spitzer. "Between the ACLU and Covington & Burling, we can bring a lot more expertise, experience and resources to bear."
"No one can accuse them of being excessively humble," Verheyden-Hilliard replies.
The Partnership lawsuit speaks sweepingly of "systematized mechanisms of government disruption of free speech and assembly to criminalize dissent."
The ACLU brief takes the police to task for alleged illegal conduct at this one mass arrest, but does not allege broader patterns. Nor does the ACLU team share the Partnership's theory that federal agencies abetted the police, so it's not suing the FBI and Park Police. In a filing to block the Partnership suit, the federal defendants noted that the ACLU does not consider them responsible.
"Witness for the defense," Messineo quips.
Verheyden-Hilliard notes an irony in Covington's representing protesters who, among other causes, were demonstrating against fossil fuels and car culture: The firm's clients include ExxonMobil, Chevron, Texaco, Marathon Oil and Goodyear.
Saul Alinsky, who wrote the handbook "Rules for Radicals," used to say real radicals do what it takes to win. Does that mean hiring a corporate law firm and pursuing a narrower, less politically charged case?
Hard to say. But it's not the Partnership's style.
Raising a Ruckus
They met 10 years ago during an expense-account lunch at a fancy Manhattan restaurant when both were summer associates at a corporate law firm.
Having independently planned careers in low-to-non-paying public-interest law, they had each made the same calculation, Messineo says: Take a summer job in the belly of the beast and "for one summer we'd eat in every single great restaurant we'd never be able to eat in again."
That afternoon they walked the streets of the city, sat on a bench in Central Park, and talked for hours about doing work they believed in. Messineo proposed marriage. Verheyden-Hilliard said yes.
They graduated from law school the next spring -- she from Columbia, he from the University of Pennsylvania -- and got married the same week. They opened the Partnership in 1994.
She had grown up in a liberal activist family in Chevy Chase. Her mother is a feminist education specialist, her father a communications professor. The house was often full of demonstrators with sleeping bags and guitars on the eve of marches for civil rights, against the Vietnam War, for women's liberation. She attended her first protests in a stroller.
"The biggest pride I have in this city is when it can play host to tens and hundreds of thousands of people coming to change the direction of this country," she says.
Messineo grew up in a working-class family in Pittsburgh. His political awakening came from watching his divorced mother holding down three jobs totaling 80 minimum-wage hours to support him and his brother. His mother and some colleagues at a Yellow Pages advertising company tried to organize with the Teamsters. The company fired them, he says.
After the young lawyers got to town, they set up shop in a small suite overlooking Pennsylvania Avenue -- boulevard of presidential parades, police blockades and protester sit-downs. Ground zero for so much of their work.
But at first they specialized in gender and race discrimination, not protests. They won a $5 million verdict for a man who suffered sexual harassment and retaliation at a food service company. They won $200,000 for a woman whose husband shot her and tried to sue her for her savings.
Then on the drizzly morning of April 15, 2000, police raided a "convergence center" -- protest headquarters -- on Florida Avenue NW. The stated reason: fire code violations. They seized puppets and literature for the next day's protests against the World Bank.
Frantic activists called the Partnership. It was an ambiguous debut for the Partnership in the movement, because while the lawyers got an emergency agreement with city attorneys to reopen the convergence center, police on the scene kept the place locked until the protests were over anyway.
Later, in the course of their lawsuits, the lawyers turned up a tantalizing document: production notes for a video to train D.C. Police how to handle protesters. The notes suggest showing "footage when Intel shut down the convergence center." To the lawyers, the reference to the police intelligence unit is evidence the raid was about disrupting protest, not fixing fire code violations.
The same notes refer to such training topics as "locking up the troublemakers on the first night," "sleep deprivation tactics" and "going in when you spot a section of 'All Black.' "
The Choke Point
Lawyers for the District and federal agencies being sued by the Partnership decline to comment on pending cases. But their disdain comes through in court filings.
In the inauguration case, a lawyer for the city wrote: "At mass demonstrations, particularly an inaugural event subsequent to a deeply divided and controversial presidential election, police must prepare for the worst and hope for the best. . . . Plaintiffs, however, apparently perceive such planning as animus or hostility toward protesters or protest groups."
The Presidential Inaugural Committee, the private group that organized the inauguration celebration, also scoffed at the notion of their suppressing dissent. Its lawyers from Patton Boggs wrote: "It is incredible to suggest that the PIC had official policies relating to the protesters given its short life, limited purpose and rushed existence."
Eye-rolling all around. Then the Partnership turned over some rocks.
And discovered the PIC had a $332,500 contract with a security company "to prevent any disruptive episodes from protesters and to neutralize any disruptions that may occur in an efficient lawful manner."
The partners also argued that a PIC volunteer named John Durkin directed security at the checkpoint at Freedom Plaza, a key access to the parade route for protesters. PIC lawyers denied that Durkin had authority to act on behalf of the PIC -- though the Partnership discovered that the PIC had treated Durkin to five nights at the Mayflower Hotel for $658.38 per night.
A light rain was falling that morning of pomp and protest on Pennsylvania Avenue. Durkin identified himself to Washington Post reporters covering the parade and watching the scene at the checkpoint. Verheyden-Hilliard and Messineo were there, too, dressed in black and working the streets as usual.
Durkin told police to stop the protesters from coming through the checkpoint. He said there was a "technical" issue with their permit, and he was acting after cell phone conversations with the "office of the president."
Eventually, he let the checkpoint open, but the flow was too slow for the protesters.
"I'm in charge!" Durkin shouted. "This isn't the airport, okay? This is Freedom Plaza."
"Can you spell 'freedom'?" a demonstrator chanted in his face.
"I can spell 'freedom,' " said Durkin. "Can you wait one minute?"
But he also said: "I'm trying to clear it up. Everyone has a right to be heard in America."
Verheyden-Hilliard was standing nearby, furious in the drizzle. "It's not his decision," she muttered, powerless to do anything about it just then.
Staff writer Sewell Chan contributed to this report.
© 2003 The Washington Post Company
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