Attorneys Decry “Unlawful” Arrest

After receiving a scathing legal analysis critiquing the police’s “constitutionally troubling” actions, Mayor Toni Harp promised to look into the arrest of a local immigrant rights activist at a picket outside Goodfellas restaurant on State Street.

The letter, from Mario Cerame of the Hartford-based firm Fazzano & Tomasiewicz, analyzes the Nov. 20 arrest of Unidad Latina en Accion (ULA) organizer John Lugo as he picketed Goodfellas for longstanding alleged wage theft.

Read the letter here. Click on the above video to watch the arrest, and here for a full account of the episode and aftermath.

Mayor Harp, Police Chief Dean Esserman and Assistant Chief Al Vazquez met with ULA activists in Harp’s office Wednesday and promised to look into their concerns. Harp also offered them two seats on a community and police task force she formed. (Read about that here.)

The broader discussion was sparked by Lugo’s arrest, in which officers claimed they had to arrest him for “disorderly conduct” because a patron inside Goodfellas complained that his wife didn’t feel comfortable with the loud picketing taking place on the sidewalk outside. The legal protests have occurred regularly for six months. (Officers slapped on an additional “interfering” charge because they claimed Lugo didn’t immediately comply with an order to step aside to be questioned.)

Lugo has hired defense attorney Diane Polan to fight the charges. Polan has successfully sued the police department for violating a citizen’s right to record them, winning not just a financial settlement but a promise by the city to rewrite an unenforceable general order protecting against officer abuses; the city has failed to keep that promise. (Read about that here.)

“This arrest demonstrates once again that the city of New Haven does not train its police officers to respect the First Amendment rights of its citizens,” Polan said Thursday. “Based on my review of the video, the arrest was 100 percent unlawful and unconstitutional.”

Attorney Cerame, who has studied and written about police-community First Amendment issues in New Haven (including this article on violations of the right to record officers in action), struck and explored similar arguments in his letter to Mayor Harp, concluding that the officers’ actions outside Goodfellas violated protesters’ Constitutional rights in numerous ways. He called on her to “remedy the situation immediately.”

Cerame’s letter targeted Lugo had the right to be protesting on the sidewalk in front of the restaurant, that police could not arrest him just because patrons inside of Goodfellas were “offended,” and that protesters’ use of bullhorns did not violate any laws. The officers arrested Lugo primarily “because the speech offended,” not because he was in violation of any laws, Cerame argued.

“Imagine that instead of criticizing the restaurant — and by implication, its patrons — ULA played Franco Corelli and Mario Lanza while extolling the compassion of the restaurant owners and patrons. Or that they sang Holiday music. Same volume. Same action? I think not, and I believe a jury would agree,” he wrote. “It is more likely than not that action was taken because of the content and viewpoint expressed, not because of the volume.”

He said the officer “appears to unnecessarily escalate the situation” by putting his hands on Lugo without warning, before arresting him. The attorney also called legally specious the officers’ insistence “on taking I.D.s over the protestation of ULA members,” because of citizens’ right to anonymous speech.

“ULA members have a constitutional right to protest on the sidewalk,” Cerame wrote. “In contrast, there is no constitutional right to be unoffended by others when choosing to eat at a public establishment.” He cited the 1971 Supreme Court decision in Cohen v. California, in which the majority wrote that “[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is ... dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner”—and that that privacy interest much be located inside a home, not out in a public building.

“[I]f Cohen stands for anything, it is that mere offense is never enough to limit the freedom of speech,” Cerame wrote, citing additional federal decisions upholding that interpretation.

Cerame’s letter also took on the noise issue. Police did not bring health department monitors to assess whether Lugo’s remarks over a bullhorn violated levels prescribed in the city’s noise ordinance. Rather, it charged him breaching the peace and disorderly conduct, relevant statutes that, Cerame concluded, do not prevent protesters from using bullhorns. He criticized a police spokesman for interpreting the statutes in a manner specifically declared unconstitutional by the Supreme Court in a 1994 decision in a case entitled State v. Indrisano.

Cerame put the blame for the arrest not on the officers, but on department policy and training.

“I am not second guessing the patrolman, mind you. He is probably conducting himself in a manner that he has been trained — formally trained or informally coopted into culturally. Again, I see an administrative failure. I see a lieutenant, captain, chief, and academy that failed to prepare the officer for this moment,” Cerame wrote.

Harp said Wednesday after the meeting that she will “look into allegations about how the police handled the situation.”

Lugo has not yet entered a plea in his case; he said he plans to plead not guilty.

Sit-In Leads To Meeting

Paul Bass Photo Last week, on Thanksgiving eve, 40 ULA and New Haven Workers Association activists staged a sit-in at the mayor’s office (pictured) to protest Lugo’s arrest as a violation of First Amendment rights and to urge the city to crack down on employers who take advantage of immigrant workers.

Aliyya Swaby Photo A week later, they made a few specific demands of the city and police.

ULA volunteer Joseph Foran said his group asked the mayor to look into potential “retaliation due to the relationship between police and Goodfellas.” In 2011, ULA filed a complaint alleging police made lists of activists picketing in front of the restaurant and used it to create a “no-hire list,” he said. That kind of “retaliation” is “constitutionally illegal,” he said.

Activists Wednesday also asked the mayor to look into shutting down Goodfellas’ outdoor seating area, since the city has jurisdiction over that permit.

“We asked the city to collaborate with the state in enforcing” labor laws, Foran said.

They also requested that Esserman and Vazquez appoint an officer to write reports to facilitate workers getting U visas, given to immigrants who are victims of violent crimes. “In New Haven, the police are very sluggish about writing out a simple report,” Foran said.

Esserman said after the meeting that he will not be “deaf” to the immigrant activists’ concerns. “We spent a long time listening to their concerns ... We want them to feel that they are a part of our beloved community,” he said.”

The mayor and police promised follow up with the group next week.

The discussion Wednesday did not touch on Lugo’s arrest, activists said. Harp said afterwards that she is not sure what she can do about closing Goodfellas’ outdoor seating area. She said she hopes that naming two ULA activists two seats on the community and police task force will make them a formal part of the conversation on community policing in New Haven.

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posted by: darnell on December 3, 2015  4:28pm

@I live here
Noteworthy
robn
T-ski1417
vcman
Felowery67
Wilkus van Werwe

Where are you guys?

posted by: darnell on December 3, 2015  4:37pm

The attorney’s letter covers all bases and I think strikes the right tone.

posted by: SwampfoxII on December 3, 2015  4:54pm

I don’t care what a self-promoting lawyer says, if you incessantly and needlessly scream through a megaphone while people are trying to enjoy a peaceful dinner, and you admit that your purpose was to disrupt people’s peace, then isn’t that the very definition of a breach of peace or disorderly public conduct?  I think it was a good arrest.  I wonder if that lawyer would feel differently if people showed up pn the sidewalk in front of his house and used megaphones to yell their opinions for hours on end.  Wanna bet he’d call the cops?

posted by: ILivehere on December 3, 2015  5:15pm

@darnell
Shocker a lawyer paid to defend someone is putting forth a defense.

Even in this article the lawyer tries to change the facts of the case. He wasn’t arrested for offensive speech or for protesting he was arrested for disorderly conduct following a disturbing the peace complaint.

posted by: robn on December 3, 2015  5:38pm

DARNELL,

I’m not an attorney but I especially liked these quotes from State v. Indrisano

“the predominant intent (of the law) is to cause what a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity, a deep feeling of vexation or provocation, or a feeling of anxiety prompted by threatened danger or harm. In order to sustain a conviction for disorderly conduct, the state must begin by demonstrating that the defendant had such a state of mind. This limitation ensures that a person who does not wish to violate § 53a-182 will not inadvertently do so, and that those involved in enforcing and applying the law have sufficient guidance to carry out their duties.”

“We conclude that, given the language of subdivision (1) and its authoritative gloss, subdivision (1) is not unduly vague as applied to the defendant’s conduct.”

The conviction was overturned on the technicality that it was based not only upon these constitutionally upheld laws, but also upon another section which was “unconctuitutiaonlly vague at the time of the defendents conduct leading to his conviction.”

posted by: Noteworthy on December 3, 2015  6:09pm

Legal Beagle Notes:

1. The primary legal opinion is written by a child lawyer, fresh out of law school with very little experience and at a law firm known primarily for its union work, criminal and personal injury. But it sounds good.

2. Polan has made a very good living out of happily suing city taxpayers - but claiming 100% of anything sounds better than the reality.

3. I hate to see the First Amendment prostituted for anything other than what it is intended - that is a protection of free and open speech. That doesn’t include yelling Fire or being a public nuisance, harming unrelated people and diminishing their life with bullhorns and the like. To say otherwise is to create a mockery of what the First Amendment was really targeting and certainly a 100% violation of common sense.

4. It is a terrible idea for Mayor Harp and Chief Esserman to cowtow to this group or cater to their ongoing disruptive behavior. There is a process to be followed. The labor department is investigating. There are the courts if the labor department is not moving fast enough. That’s the message that should be given to the Lugo posse.

5. The poll is objectionable and completely biased. It assumes these legal opinions are valid which is highly suspect.

6. The article itself is troublingly slanted.

posted by: vc man on December 3, 2015  6:34pm

Darnell, we aren’t going to agree, so why bother?

posted by: Adelaide on December 3, 2015  6:36pm

So Swamp, your minor discomfort is some how far more important than employees who go with out wages and decent working conditions??

If the protestors show up on someone’s lawn, we r talking @ something entirely different. A PRIVATE persons lawn is just that PRIVATE! This is PUBLIC space and if my family had gone without pay for work done, u better believe I will be out there with a bullhorn!! I don’t know that I would stop at one either!

THis place is in violation of FEDERAL law. Not just a little bit and slap on the wrist but LARGE SUMS of cash and deadly working conditions!! THis didn’t happen overnight, this has been years in the making. Goodfellas is notorious and when was it that the police force in New Haven had nothing beter to do than harass LEGAL protestors??

I wonder just how YOU would tolerate no wages and horrible working conditions?? U dont pay me the money I am due,  I will spend a lot of time making you as uncomfortable as I can given the meal you are enjoying was at the expense of my family!!

posted by: darnell on December 3, 2015  7:09pm

I’m not an attorney, but it seems to be common sense for me that if you go to a site where there is a complaint of noise, and if you don’t bring a meter to measure the noise, then how are you going to prove that a person was breaking the law and disturbing the peace? I guess you don’t care, why not just arrest them and make them go though the system, knowing at the end of the day that the charges will be dropped. I guarantee you that the states attorney will drop the case, after making this guy go to court at least 4!or 5 times. They definitely won’t take it to trial.

After the charges are dropped, you all will claim that doesn’t mean that he is innocent.

posted by: Noteworthy on December 3, 2015  7:12pm

What’s missing in this and every other article is any evidence whatsoever that wage theft actually happened. Where’s the evidence?

posted by: robn on December 3, 2015  7:37pm

DARNELL,

I guess we both agree that we’re not attorneys, but we disagree on the subject of peacefully dining out as lawful activity.

In case you missed it, heres the chestnut from State v. Indrisano

“a reasonable person operating under contemporary community standards would consider a disturbance to or impediment of a lawful activity”

....not to mention that in Frisby v. Schultz, the Supremes declared protests in residential neighborhoods out of bounds.

posted by: Wikus van de Merwe on December 3, 2015  9:04pm

I’m shocked to learn that a defense attorney believes the police were wrong!

posted by: Wikus van de Merwe on December 3, 2015  9:07pm

I’m equally shocked the NHI would post a poll assuming the defense attorney’s letter was as good as a decree from a judge…

posted by: 1638 on December 3, 2015  9:14pm

Looks like a good arrest.
What we need are more good arrests.

posted by: SwampfoxII on December 3, 2015  10:35pm

@Adelaide:  A public sidewalk in front of someone’s home is not a “private lawn”.  My question remains the same.  If someone had a beef with you, do you think they have the right to stand outside and use a megaphone for the purpose of harassing you and disturbing your peaceful enjoyment of your home?  I doubt it.  It’d be a breach of the peace. You’d call the cops. If these people have a beef with the restaurant’s owners, fine - let them picket or hand out leaflets to diners going in.  IMHO, they don’t have the right to use a megaphone to disrupt and annoy people inside trying to enjoy their dinner in peace. That’s not peaceful protest, that’s just being a bully.

posted by: TheMadcap on December 4, 2015  1:42am

Demanding the evidence isnt exactly an easy request. These are allegations workers are making involving financial matters that is probably going to take an accountant going over ample piles of business records to settle. Its not finding marked bills in a car that matched descriptions. But let’s repost this from the last article to get an idea of track record

. Iannaccone’s criminal record:

11/6/07   CT DOL found Goodfellas guilty of stealing $9,300 (failure to pay minimum wage to 8 bartenders)

2/1/08   CT DOL found Goodfellas guilty of stealing $5,353.99 from 6 bartenders. The correct minimum wage was $7.02 and he paid $5.41.

8/13/08   CT DOL found Goodfellas guilty of stealing $786.22 from a bartender

5/28/09   CT DOL found Goodfellas guilty of stealing $402.72 from a worker who was not paid final paycheck upon termination

9/14/09   CT DOL found Goodfellas guilty of stealing $1769.18 from workers who were not paid final paycheck upon termination.

5/27/10   CT DOL found Goodfellas guilty of stealing $1,215.40 from workers who were not paid final paycheck upon termination.

These records were obtained through a Freedom of Information request covering 2006-2011. This does not include other complaints that may have been filed before 2006 or after 2011.

In addition:

April 2011   US DOL found Goodfellas guilty of stealing $23,000 from 4 workers

5/1/2015   Five former Goodfellas workers filed a federal lawsuit alleging wage theft and harassment. The lawsuit is pending.

posted by: T-ski1417 on December 4, 2015  8:10am

@darnell

I’m right here and I am so shocked that a lawyer that someone is paying for is mounting a defense because as I’m sure your aware all lawyers are right.

Don’t get me wrong, I’m all for people exercising their freedom of speech rights and right to protest when a wrong is being done, however you don’t have a right to be a nuisance to the general public which this professional protester is becoming. In my opinion his fight is getting lost in translation. He is sacrificing the core of his gripe for the ability to cause a nuisance with his antics, just my opinion.

There also has been no proof of wrong doing by the restaurant. As you say guilty until proven guilty. Weren’t you arrested unjustly yet you unjustly accuse without proof.

posted by: TheGhostOfRogerSherman on December 4, 2015  8:41am

This article almost feels like it was authored by the defense attorney.

They should have picketed, handed out leaflets, chanted their rhymes, etc. Pointing a megaphone in front of a restaurant and yelling sounds like Breaching the Peace to me. This was not the free speech issue as they are making it out to be.

If they, to use the example in the story, had chanted holiday music I don’t think anyone would have complained. If they had pointed a megaphone at the front of the restaurant and yelled holiday songs I think, yes, people would complain.

posted by: Noteworthy on December 4, 2015  9:26am

@Madcap - Listing prior transgressions is no guarantee that these allegations are true. Lugo’s posse surely has some sort of evidence - timesheets, a calendar, pay stubs, a work schedule - this is not hard to come by and one would expect that there would be something to back up the allegations. The NHI and other sympathizers assume there’s smoke because it’s predisposed as such. If the evidence was so clear, one would think the Labor Department would move faster. If Lugo has a young lawyer willing to spend time drafting letters, perhaps the lawyer also reviewed the evidence upon which the protest is based?

posted by: SwampfoxII on December 4, 2015  10:11am

@TheMadcap:  Your vocabulary is hyperbolic and dishonest.  Iannaccone’s “criminal record” you say?  He was “found guilty” of “stealing”  you say?  You’d make a good propagandist.  There is no “criminal” record.  He was not found “guilty” of any crime.  He was not charged with or convicted of “stealing.”  The DOL is a labor agency, not a criminal court. Using defamatory language does not help your cause. These are wage disputes, and beefs over final paychecks upon termination.  There’s a federal lawsuit pending, the article says, which seeks redress for alleged wage law violations.  Fine, that’s where the dispute belongs. In the meanwhile, leave the innocent diners alone, and stop bullying people.

posted by: William Kurtz on December 4, 2015  10:46am

From the story:

“The broader discussion was sparked by Lugo’s arrest, in which officers claimed they had to arrest him for “disorderly conduct” because a patron inside Goodfellas complained that his wife didn’t feel comfortable with the loud picketing taking place on the sidewalk outside. The legal protests have occurred regularly for six months. (Officers slapped on an additional “interfering” charge because they claimed Lugo didn’t immediately comply with an order to step aside to be questioned.)” [emphasis added]

A lot of people don’t “feel comfortable” with the speeding drivers, marauding dirt bikers, loud motorcycles, and other assorted peace-destroying elements of city life.

I would like to politely insist that the police begin arresting every single one of those offenders as well. Thanks!

posted by: ILivehere on December 4, 2015  10:58am

@William Kurtz
He was not arrested because of the complaint. He was asked to stop using the bullhorn when he refused is when it went south for him.

posted by: SwampfoxII on December 4, 2015  12:55pm

@Ilivehere: you state a simple truth, but it’s an inconvenient one for some of the other posters.

posted by: HewNaven on December 4, 2015  1:48pm

A lot of people don’t “feel comfortable” with the speeding drivers, marauding dirt bikers, loud motorcycles, and other assorted peace-destroying elements of city life.

I would like to politely insist that the police begin arresting every single one of those offenders as well. Thanks!

Exactly right. NHPD has ignored THOUSANDS of complaints from residents over the years regarding noise, and yet ONE diner at an “italian” restaurant “feels uncomfortable” because of a few protestors so NHPD comes running to his rescue.

Way to get the public support you need, NHPD!

posted by: westville man on December 4, 2015  2:13pm

I am about to disagree with many of the commenters here that I usually agree with: Putting the intricacies and details of this case aside for a minute-  are you really saying that protesting with bullhorns outside places of business while they’re open is ok ?  Can you imagine what it would be like a 3 or 4 protest groups against different businesses in the same area all using bullhorns at the same time?
Geez, I am for free speech and right of assembly. But how can this NOT be disturbing the peace? What of nearby residential apartments?  Other businesses trying to conduct their business as well as Good fellas? Or is this case-specific to Goodfellas?

posted by: TheGhostOfRogerSherman on December 4, 2015  2:24pm

I like the end of the video, where he grabs the door and yanks it. This guy is not just protesting. He is instigating.

posted by: HewNaven on December 4, 2015  2:46pm

Can you imagine what it would be like a 3 or 4 protest groups against different businesses in the same area all using bullhorns at the same time?

The question remains:

Why did NHPD decide to SELECTIVELY enforce our noise ordinance in this case?

Can you imagine what it would be like to have roaming hoardes of dirtbikes and ATVs, illegal exhaust on motorcycles becoming commonplace, loud music on residential streets coming from amped-up car stereos constantly? Oh, the horror!

Oh wait. that’s the city we all live in.

posted by: SwampfoxII on December 4, 2015  4:11pm

@HewNaven:  Uh, did it occur to you that in other cases where a noise complaint was made, the reason the person was not arrested is because he cooperated with a police request to stop or tone it down?? Police won’t automatically arrest if the person acknowledges and agrees to quiet down. They will arrest if the loud mouth belligerently insists on staying loud and continuing to breach the peace.  Looks like that’s what happened here.  Instead of cooperating, the guy acted like a jerk, and got pinched.  He’s playing the faux victim here.

posted by: ILivehere on December 4, 2015  4:24pm

@HewNaven
They didn’t enforce a noise ordnance. Only the health department can enforce a noise ordnance and even then only with a sound meter. They responded to a noise complain just like they would do if your next door neighbor through a large party and you called the cops or if any nut case was standing in front of your home screaming at 2am.
The police respond to these type of complains all the time.

posted by: SwampfoxII on December 4, 2015  4:55pm

@ILiveHere:  Geez, don’t you get it?  This was not a noise ordinance issue; this was a breach of the peace issue, a guy totally disrupting diners with a loud mouth plus a bullhorn.  And I watched the video.  The guy arrested clearly was not cooperating with the police, waving his arms, resisting them, yelling - he wouldn’t shut up. The woman who also wouldn’t shut up kept yelling and jawing at the officers and was being completely illogical.  And why must they yell all the time??  Can’t these people speak in a normal and civil tone? Honestly, I don’t know how police can put up with these kind of people.  I wouldn’t want that job.

posted by: HewNaven on December 4, 2015  5:13pm

Um… the NHPD does not respond to complaints of noise, especially ATVs and parties next door. Stop joking!

posted by: robn on December 5, 2015  8:09am

So this was tolerated for months and then finally there was a crackdown when it got out of hand. Sounds to me exactly how most DTP complaints are managed. In other words, the protestors were tolerated until they got ridiculously loud and finally someone couldn’t take it anymore and pressured the police to respond.

As far as the offices conduct, City Hall and the Chief should be praising these guys. I want you to imagine you’re closely surrounded by an upset crowd of people that’s hemming you in. What could possibly go wrong? How about that you’re carrying a sidearm in a holster and the only thing between the crowd and that weapon is a button snap.

Back to the issue of workers rights; I’m sympathetic to the sentiment but the ire should be focused upon the governing agency (the Dept of Labor)  first with proof and second with political pressure. One of Mr Lugos protest buddy’s was arrested not too long ago in Fairfield for exactly the same shenanigans. Good cause but bad behavior.

posted by: TheMadcap on December 5, 2015  11:54am

“are you really saying that protesting with bullhorns outside places of business while they’re open is ok ? “

Yes, this is the point of protests.


Also swampfox I have some bad news for you, you can be found guilty of things by a legal authority outside of criminal court.

posted by: SwampfoxII on December 5, 2015  2:19pm

@themadcap:  Your “bad news” for me is nonsense.  You used the words “criminal record” - and “guilty” of “stealing” to refer to the owner.  He doesn’t have a criminal record as a result of these wage disputes.  If he failed to pay wages, then fine, he’ll be made to pay up by the DOL. But if YOU failed to pay your doctor, a hospital, or even a mechanic for money owed for services provided to you, would YOU be “guilty” of theft or “stealing” and have a “criminal record”?  NO. So stop it.

posted by: westville man on December 5, 2015  3:57pm

Madcap   And what of the innocent business next-door? The ones who are struggling to stay open.  You obviously don’t own a business and don’t know much about how difficult it is to run one.
  You can protest, but do it peacefully.  Using bullhorns doesn’t qualify for that.

posted by: Wikus van de Merwe on December 7, 2015  8:51pm

I will reiterate:

The Health Department does not handle noise complaints, the New Haven police do.  If civilian dispatch tells you otherwise they are lying to you; they do that frequently.  Get the operators ID number and ask to speak with their supervisor.  If that still doesn’t do anything bring it up with your police district manager at your monthly ward meeting.

posted by: ILivehere on December 7, 2015  10:02pm

@Wikus van de Merwe
the police handle noise complaints as the case was here. i.e a house party at 11pm
The health inspector handles violations of the noise ordnance i.e a bar emitting music above the allowed decibel level they are completely different.

posted by: STANDUP on December 8, 2015  1:22pm

In my opinion he was arrested because Goodfellas wanted him arrested to prove a point. Then fed the officers once they arrested him.