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A second appeal in a politically charged case alleging FBI brutality against a group of journalists in Puerto Rico got an airing on Thursday at the 1st U.S. Circuit Court of Appeals. At issue was how much the Fourth Amendment restricts law enforcement officers from using force against journalists peacefully gathering news. The case was before the 1st Circuit a second time because, in 2008, the appeals court found that the district court “erroneously adopted the defendants’ characterization of the day’s events.” In that prior ruling in Asociación de Periodistas de Puerto Rico v. Mueller, the 1st Circuit reversed a summary judgment for the defendants on the plaintiffs’ excessive-force claims. The current appeal is of an August 2009 summary judgment ruling by Chief Judge José Antonio Fuste of the U.S. District Court for the District of Puerto Rico. Fuste determined that it wasn’t clearly established that the Fourth Amendment would apply in cases in which officers used force to control a potentially unruly crowd and remove protesters: “Plaintiffs have not cited, nor have we discovered, controlling cases from this circuit or the Supreme Court prior to the events in this case holding that when police use force to remove individuals from an area, without arresting them, they have seized them for Fourth Amendment purposes.” The underlying lawsuit stems from a Feb. 10, 2006, confrontation between FBI agents and journalists in San Juan, Puerto Rico. That morning, the FBI searched the apartment of Liliana Laboy, a well-known advocate for Puerto Rican independence. According to the plaintiffs’ brief, filed by the American Civil Liberties Union, another pro-independence activist had been shot and killed six months earlier when the FBI attempted to arrest him. That death sparked public demonstrations and media attention. About 20 to 30 people, including the seven named journalists and camera operator plaintiffs gathered outside of Laboy’s condominium complex during the early hours of the search. According to court filings, when a helicopter labeled “Department of Homeland Security” landed in a nearby field, reporters went to investigate. Plaintiffs Joel Lago-Ramon (identified as Lago in court filings) and Annette Alvarez claim they were pushed away by armed agents who came out of the helicopter. When Lago stated that he was just doing his job and asked his question again, one agent pushed him again and another pointed his rifle at Lago, according to the association’s documents. Both sides agree that 10 to 20 journalists entered the complex through a condominium gate because they believed that Laboy’s adult daughter, Liliana Hernández-Laboy, who did not live there, signaled them in. After the reporters entered the complex, the FBI agents told them to leave. According to the plaintiffs’ brief, the FBI agents physically pushed the reporters back to the pedestrian entrance and sprayed pepper spray. The two sides disagree about whether the journalists failed to comply with orders to leave and whether the FBI gave any warning before using the pepper spray. According to the plaintiffs’ papers, an FBI agent hit Lago in the abdomen with a baton during the incident. They also claim he was hit in the face with pepper spray. Both sides agree that Lago sat on the ground after being sprayed and that an agent sprayed him in the face before picking him up and removing him from the premises. The defendants claim that Lago ignored an order to leave, got into an altercation with an FBI agent who threatened to arrest him and was “blocking the gate” when he initially sat on the ground. The FBI’s brief also indicates that the at least one agent saw members of the crowd covering their faces with T-shirts and bandanas. The agent was concerned that those people might be affiliated with a violent Puerto Rican independence group, the Macheteros, who have threatened the FBI and been involved in shootouts with the agency. Their brief also claimed that, before the reporters entered the complex, a journalist at the event told the FBI commander at the scene “he had overheard members of the crowd discussing plans to harm FBI agents by gathering rocks to throw at them.” Judge Paul Barbadoro of the U.S. District Court for the District of New Hampshire, sitting at the 1st Circuit by designation, opened by asking the plaintiffs’ lawyer, Catherine Crump, a staff attorney with the ACLU Speech, Privacy and Technology Project, to give her clients’ view of the facts. “This group of 20 came in through the gate at once, in circumstances officers had reason to fear was a storming of the gates episode. Do your facts contradict this?,” Barbadoro asked. Crump replied that there was a peaceful crowd outside the gate for most of the morning. “Some individuals did yell, but the plaintiffs testify that that’s normal and to be expected at a demonstration,” Crump said. She also responded to a question about the FBI agent who observed people covering their faces with bandanas by noting that a dozen other agents’ affidavits didn’t mention the fact. “There’s no evidence in the record that the one agent saw someone with a bandana ever communicated that fact to anyone else,” Crump said. “That can’t go to the reasonableness of what the other agents did. The agent who used the pepper spray was not the person who testified to seeing the bandana.” Crump further said that the lower court denied the plaintiffs permission to depose the reporter who allegedly told the FBI agent that spectators were planning to throw rocks. The FBI’s lawyer, H. Thomas Byron III, an appellate attorney in the Justice Department’s Civil Division, said the FBI agents “were forced to make the kind of precise decisions the Supreme Court referred to in Graham v. Connor.” The court’s 1989 ruling in Graham concluded, “the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” “The use of force was appropriate,” Byron said. “It did not violate, or at least a reasonable officer could not be held to have violated, a reasonable standard under the Fourth Amendment.” Byron also argued that the “district court took seriously the admonition on remand.” He said the judge permitted the submission of additional declarations and “personally oversaw in chambers the deposition of FBI agents on the scene.” 1st Circuit Judge Michael Boudin asked Byron to explain why Lago was a potential danger. “Let’s assume there’s a reasonable amount of potential tumult and a reasonable amount of concern by agents,” Boudin said. “What [kind of testimony or evidence] do you have to directly respond to a claim by reporter that he was down on the ground, essentially not resisting, hoping to get up and out, and the agent took action of spraying pepper spray at him a second time? What’s your response to that? [How is this] a situation of potential danger?” Byron said that at this stage of summary judgment, the government isn’t taking issue with the facts. “Many are undisputed although characterizations differ,” Byron said. Byron said the crowd of about 50 people outside the gate was quite agitated by that time and “there’s disputed evidence about why [Lago] was on the ground and in what way he was on the ground.” “There was reason to believe he was blocking the gate,” Byron said. Boudin then asked if the government believed Lago was deliberately blocking the gate. Byron replied that the question was whether Lago’s blockage of the exit increased risk of harm to the officers and the public. The officer who sprayed Lago a second time realized he would likely need to be carried out of a narrow space in order to close the gate, Byron said. “In order to do so, an agent would have to lean down, get off balance and put himself at risk of attack,” Byron said.

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