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
Activists arrive for Wednesday’s policing powwow.
A week later, they made a few specific demands of the city and police.
Foran and Megan Fountain before the meeting with Harp.
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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