Alibi V.17 No.51 • Dec 18-24, 2008 

Civil Rights

Protester Loses Civil Rights Fight

From the   Alibi’s   March 27, 2003 cover: Protesters met police in riot gear in the UNM area on the day the United States entered Iraq.
From the Alibi’s March 27, 2003 cover: Protesters met police in riot gear in the UNM area on the day the United States entered Iraq.
Singeli Agnew

Dr. John Fogarty was sure his case was cut and dry.

But after two hours of deliberation on Friday, Dec. 12, the jury pulled the plug on his years-long case against Albuquerque police and the city. The verdict was not in Fogarty's favor.

On March 20, 2003, the day the United States and three other countries invaded Iraq, several hundred citizens demonstrated near the University of New Mexico. "The mood of the crowd was almost festive," Fogarty says. "People were playing music. People were singing and chanting."

Police characterize the protest differently. Capt. John Gonzales oversaw the situation for the Albuquerque Police Department. He recalled during testimony last week protesters wearing masks and backpacks, which, he said, could have contained anything.

Fogarty showed up at the tail end of the 2003 march that went west on Central before returning to the Cornell area. He says he knew what police were asking the protesters to do: Get out of the street. So he found a spot in front of the UNM Bookstore, an African drum in his hands. "I was a professor teaching a class on human rights at the university at the time," he chuckles ruefully. Fogarty is a physician with Indian Health Service and an assistant professor of family medicine at UNM.

They put cuffs on me. They never read me any rights. They never charged me with anything.

Dr. John Fogarty

Four police officers came onto campus and arrested Fogarty. "I was dragged out into the street where I was exposed to some of the tear gas, and I had an asthma attack. I was not able to walk. The police became more violent. They put my wrist in a lock-hold and tore a tendon in my wrist." Fogarty says he was also shot with a pepperball gun, and because of the asthma attack, was taken to the emergency room by ambulance.

There is video of the arrest. Because of the protective gear the police were wearing—including face masks—no badges were visible. Fogarty couldn't identify who was arresting him. He says when he asked for names and badge numbers, the officers refused. A police report detailing his arrest wasn't filled out. "They put cuffs on me. They never read me any rights. They never charged me with anything. They never took me to the booking station. I wasn't given any paperwork." There were many arrests that day.

Capt. Gonzales testified that he would be remiss in sending police into a dangerous environment without protective gear and said it wasn't intended to obscure officers' identities. Badges are expensive, he added, and individual badges with identifying markers would be prohibitively so. Since the incident, he said, APD began using numbers on the back of ballistic vests to keep track of who's who.

The protest in 2003 was one for the books. Letters poured into the Alibi, which also published numerous accounts of injuries and tear gas, including Fogarty's tale [Newscity, March 27, 2003].

These people had hate in their eyes. It went from 'Let's protest Iraq' to 'Let's mess with police officers.'

Capt. John Gonzales

The drums were energizing the crowd, according to Gonzales, and that's why he ordered Fogarty's arrest. Audio tape was played during the trial of Gonzales commanding "I want that loud drum." Drums also interfered with the police's ability to be heard giving orders over the PA system, Gonzales said. The prosecution countered that police were making a lot of noise by intermittently sounding the sirens on their squad cars to drown out chanting.

As representatives of government, police are the first target for demonstrators’ ire, Gonzales added. At some point during the protest, the crowd began to despise the officers, he said. "These people had hate in their eyes," he testified. "It went from 'Let's protest Iraq' to 'Let's mess with police officers.' ”

Five years and nine months later, Fogarty's civil rights case made its way to the U.S. District Court. And in the end, the eight-person federal jury unanimously sided with the APD officers and the city. No damages were awarded Fogarty, though he says the case was never about money. That day, he says, the police violated his right to freedom of speech and his right to assemble.

Fogarty says he was seeking a change in APD's policy. He hoped a verdict in his favor would "set an example that the police No. 1 can't hide behind face masks and cover their badges. No. 2, the city and the police department have to be much more respectful of the right of citizens to speak freely."

One of Fogarty's lawyers, Mary Han, says she was stunned when the verdict came in. "I cannot imagine how a country such as ours, with the kind of rights we have conferred upon us, could take something like that for granted." Han is from Korea, and adds, "I'll tell you what, we might as well be living there.”

Since the trial ended, she says she's begun to wonder if she should continue practicing civil rights law. “The impression I’m getting is that nobody cares. They really don’t think this is important unless this is happening to them.”

Luis Robles, who defended several officers named in Fogarty's case, says in his mind there isn't anything controversial or nuanced about the situation. "It isn't so much about the content of speech; it's about time, place and manner."

For Han, the implications are broad: "Our country, as unique as it is in its special rights, is no different from any other country where people are allowed to trample on each other's rights."

Robles disagrees about the decision's effects. "The next time there's a conflict that polarizes people in the United States, there will be protests," he says. "I don't see this case educating people protesting 20 years down the road."