ACLU ASSERTS SHERIFF’S OFFICERS VIOLATED 4TH AMENDMENT PROTECTIONS IN TREATMENT OF BUSBY PARTY HOST, PEPPER SPRAYING OF GUESTS

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D.A. and Sheriff's Dept. Open Investigations into Incident

 

By Miriam Raftery

 

July 3, 2009 (San Diego) – The American Civil Liberties Union (ACLU) has issued a statement accusing the San Diego Sheriff’s Department of excessive use of force and violations of civil rights against the hostess and guests at a fundraising party for  Francine Busby, Democratic candidate in the 50th Congressional District.  

 

According to Kevin Keenan, executive director of the ACLU San Diego & Imperial County, “The Sheriff’s deputy may have illegally entered a private home, disrupted lawful political activity, demanded personal information that was not required, and used physical force that was unnecessary.  It is almost unfathomable how this incident was allowed to escalate to this degree."

 

He added, “The fact that this incident escalated so quickly, and involved physical force, repeated use of pepper spray affecting numerous attendees, several older guests reportedly knocked to the ground, at least eight law enforcement officers, including a sergeant, a helicopter, an ambulance, two people being booked at Vista Detention Facility and perhaps several others arrested or detained for “talking back to an officer” or taking photos with their cell phones but later released at the scene—all because of a vague noise complaint—speaks to a serious lack of law enforcement restraint.”

 

The incident has drawn national media attention, including MSNBC's Keith  Olbermann naming the arresting officer "Worst Person in the World" award for the week for his seemingly unprovoked rough handling of elderly women at the event.

 

On Friday, June 26, a San Diego Sheriff’s deputy responded to a noise complaint and entered the home of Shari Barman, 60, who was hosting the party.  Guests have stated that they believed the officer was there to address a neighbor who witnesses said shouted obscenities and anti-gay slurs (Barman is a lesbian).  Busby and numerous witnesses say that there was no excessive noise, no live music and Busby’s speech had ended at 8:30.  The officer arrived about 9:30, half an hour before the County’s 10 p.m. noise curfew begins.  The officer asked for Barman’s date of birth. When she questioned why, according to witnesses, the deputy grabbed her arm, put it behind her back and forced her to the ground, ignoring onlookers who warned that the woman had recently had shoulder surgery. The officer then pepper-sprayed numerous guests, including elderly persons, arrested Barman, and summoned back-up forces.

 

“Clearly she was in pain,” Busby told East County Magazine, adding that Barman is "doing okay" physically following the incident.  But she added, “It was so shocking and so unnecessary.”  Asked about the noise level, Busby replied, “The point was there was no noise. The party was over and even earlier there was no noise,” she said, adding that the large home is located on nearly an acre of land.  The party had no amplified music or entertainment, according to numerous reports. “The caterers were packing up. The call itself was unfounded. We don’t even know who made the call,” said Busby, who added that she believes it was politically motivated since the officer told guests the caller complained of a Democratic rally or demonstration. 

 

“We will be asking for the records to make sure that if it was politically motivated, it doesn’t happen again," Busby pledged. "These fundraisers go on for every office from City Council to President…To have the hostess arrested with violence and wrestled to the ground is something that should concern us all…The obstruction of justice is not something to be taken lightly.”

 

Under the Fourth Amendment of the U.S. Constitution, which protects the privacy of one’s home, peace officers generally may not enter a home without a warrant or consent. The ACLU questions what right the deputy had to enter the property without the owner’s permission in a non-emergency. “Proper constitutional procedure would have been for the deputy to ask for the homeowner to be called to the door” to be informed of a noise complaint, the ACLU statement said.  The deputy did not observe excessive noise personally, the ACLU concluded after reviewing witnesses statements. (A second witness who spoke to ECM confirmed that  there was no significant noise and that the officers’ actions seemed excessive.) 

 

The Sheriff’s Department has opened an internal investigation and refused to answer question from ECM or other media related to the incident, leading the ACLU to also call on the Department for full disclosure of records including the anonymous complaint call.   Other neighbors nearby reported hearing “nothing at all until the eight back-up patrol cars and a helicopter arrived,” according to the ACLU.  It is not a crime to refuse to provide information that officers have no legal right to require, nor is it a crime to question an officer’s right to seek such information, the ACLU confirmed.  “That the Sheriff’s deputy used physical force against a 60-year-old woman when she questioned whether providing her birth date was necessary is of grave concern.” Even if events occurred exactly as described by a Sheriff’s Department spokesperson, “there appears to be no justification for the melee that the deputy’s actions created,” the ACLU concluded.

 

The Sheriff’s Department has also been criticized for Sgt. Thomas Yancey’s statement in the San Diego Union-Tribune suggesting Busby for not taking a “leadership role” to “nip this thing in the bud.” The ACLU concluded Yancey’s comment “reflects an arrogance and dismissiveness unbefitting a law enforcement officer,” adding that officers have a responsibility to handle situations with “professionalism and respect for the rights of the public.  The ACLU calls for a full an independent investigation and appropriate action taken.”

 

"Why won't the Sheriff release the 911 tape?" asked Joe Vecchio, local independent writer/researcher with Campaign for Progressive Radio (www.cprsandiego.org). "Law enforcement releases these all the time to the media." Vecchio expressed concern that all five San Diego County Supervisors are Republicans, with the Sheriff under their jurisdiction.  "Can anyone imagine an officer showing up at a home hosting a fundraiser for Duncan Hunter Jr. or Sr. or Darryl Issa and start handcuffing people or using pepper spray?" asked Vecchio. "Has Deputy Marshall Abbott been put on administrative leave?"

 

In addition to the Sheriff’s Internal investigation, District Attorney Bonnie Dumanis, a Republican, has announced that her office will also investigate the incident.

 

Busby, who has run for the seat previously against Bilbray, a Republican,  also faces a primary challenge from attorney Tracy Emblem in the 2010 election.  The seat has long been a GOP stronghold, previously held by Randy “Duke” Cunningham who was convicted of bribery and other charges. But Busby remains optimistic about her chances for victory.

 

“People who knew and supported me are happy to see me running again,” she concluded.  “I’m very pleased with the campaign…Even though we still have more Republicans than Democrats here, it’s clear with Barack Obama’s victory (including a majority of voters in the 50th district) that people want something different. People want change.” 

 


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