D.C. mass arrest settlement offers needed reminder of rights

By Robert McCartney
Thursday, January 7, 2010

Even pricey K Street lawyers don't get this hourly rate. The District government has agreed to pay John Passacantando, 48, nearly $3,000 an hour for the 17 hours he was in custody when police arrested him improperly during a demonstration against the International Monetary Fund and World Bank eight years ago.

The self-described "lifelong activist" is one of more than 1,000 protesters and bystanders set to share a whopping $22 million in compensation for their mistreatment when D.C. police broke up two rallies in 2000 and 2002.

The planned payouts, which are big sums for class-action arrest cases, are an unwelcome cost for D.C. taxpayers, whose government is struggling to close a large budget deficit.

The money is well spent, though, because it drives home the message that the government must protect the constitutional right to demonstrate peacefully even when the public at large is hostile to the protesters and is concerned more about preserving order in the streets.

That lesson is especially critical in our region, given that we consistently provide the stage for the country's most important demonstrations. The lawsuits remind us of the distasteful fact that the District was actually a pioneer in using unacceptable tactics of preemptive mass arrests starting in 2000 and continuing in the notorious detentions at Pershing Park near the White House in 2002.

"The authorities made a big mistake that day, and they really know now not to make that mistake again," said Passacantando, who was executive director of Greenpeace USA when police detained him. He and many others were hogtied for hours, with right wrist bound to left ankle, despite lack of evidence that they had broken the law or were about to.

Passacantando and 30 other named plaintiffs in the two suits are to receive $50,000 apiece under preliminary accords reached late last year. The vast majority of other arrestees are to receive $18,000 apiece.

The plaintiffs sought, and got, more than money. The District agreed to require additional police training, to ensure that outside law enforcement agencies comply with District law when lending a hand and to put in place a new computer system to keep track of police reports on protests.

Admittedly, it's hard for police to strike the right balance in handling demonstrations. The First Amendment guarantees "the right of the people peaceably to assemble," but the key word there is "peaceably."

Protests are emotional events, and often some demonstrators (and sometimes police as well) are interested in provoking physical conflict. I've seen anti-globalization demonstrations in Berlin in which masked young people systematically broke windows and hurled stones at police in what was clearly planned violence.

If you're a police officer facing a large crowd of spirited demonstrators, and one or two rocks fly at you, it's tempting to lock up everyone. You shouldn't do that in a democracy, though, and the District got in trouble for doing worse. It locked up people in advance mostly because it feared violence could ensue.

District Attorney General Peter Nickles said the authorities did not have the right procedures at the time to ensure that they had legal grounds to arrest everyone in mass. The police were not prepared to show that "each of the members of the crowd coming at you were involved in potentially unlawful activity, either parading without a permit or destroying property or involved in disorderly conduct or what have you," Nickles said.

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