Drumming Anti-War Protester's Civil Rights Claim Survives

Fogarty v. Gallegos, 2008 WL 1765018 (4/18/08) (Published) - The 10th affirms for the most part Judge Johnson's ruling in favor of the civil rights plaintiff in denying summary judgment motions by officers involved in the crack-down on Iraq War protestors near UNM. The plaintiff had sufficiently alleged that his disorderly conduct arrest was without probable cause because his calm drumming of a samba in the street at a reasonable volume, not in an "inciting marching cadence," [while perhaps not concert quality] did not have the potential to cause violence or other serious public disruption. The officers' defense relied on characterizations of the protest in general. But they needed individually-justified probable cause to arrest the plaintiff. "The 4th Amendment plainly requires probable cause to arrest Fogarty as an individual, not as a member of a large basket containing a few bad eggs." The plaintiff also sufficiently alleged an excessive force claim where the officers hyperflexed his wrist, dragged him towards a tear gas cloud and shot him with a projectile, while the plaintiff posed no immediate threat to flee or to the officers' safety [lack of artistic merit was not a justification]. The plaintiff sufficiently alleged that some of the officers witnessed the arrest and maltreatment and had set it in motion or should have intervened. For some officers, the plaintiff did not show they saw the constitutional violations. Interestingly, the plaintiff was not able to identify which officers actually arrested and mistreated him because the officers, per department orders at the time [since rescinded], had taped over their name tags.

Judge Ebel dissented in part on the ground that the officers had probable cause to arrest the plaintiff because he participated in a drum circle [how seditious!] that the officers believed was one source of interference with their ability to communicate with the crowd.