Front Page  news  state

Monday, July 28, 2008

Appeals Court Upholds Decision in Anti-war Protest


Associated Press
      The 10th U.S. Circuit Court of Appeals in Denver has upheld a lower court's ruling that Albuquerque police officers are not entitled to qualified immunity on claims they retaliated against protesters at an anti-war rally.
    More than a dozen people who participated in the University of New Mexico campus rally in March 2003 sued the city of Albuquerque, Mayor Martin Chavez and several Albuquerque police officers, claiming their First Amendment rights to freedom of expression and assembly were violated.
    The protest drew between 500 and 1,000 people, who spilled onto city sidewalks and the crosswalks of adjacent streets.
    The Albuquerque Police Department claimed protesters were blocking traffic and began tossing canisters of tear gas and using pepper spray after protesters failed repeated warnings to clear the streets.
    Several protesters were arrested.
    A federal district court dismissed most of the plaintiffs' claims against the officers but analyzed their First Amendment claims of retaliation and determined the officers were not entitled to qualified immunity on the claim.
    The court determined there was "no question" that protesting a war is a constitutionally protected activity and the use of tear gas, pepper spray and physical force to disperse plaintiffs and protesters "could have chilled a person of ordinary firmness from continuing to participate in the demonstration."
    The officers conceded the use of tear gas and pepper spray affected certain plaintiffs but said their actions, even "assuming an improper motive," could not have affected plaintiffs who did not witness the officers' actions.
    The officers argued on appeal that because the plaintiffs knew of the officers' aggressive actions at places along the route, "these plaintiffs were thus chilled." The officers contended they were entitled to qualified immunity with respect to those who did not witness or were not affected by their actions.
    The appellate court, based in Denver, rejected the officers' arguments because they were not brought before the lower court.
    City attorney Bob White said Monday he had not seen the ruling.
    "We'll have to review the decision and decide how we proceed in the case from here," he said.

Copyright ©2008 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.