By Peter Hermann, The Baltimore Sun
3:35 PM PDT, March 24, 2012
As Maryland State Police disbanded an anti-abortion rally along a crowded road near the center of Bel Air, a sergeant told a colleague that the 18 arrested protesters could "sit in a cell for an hour ... and two or three or four and rot."
The same trooper, during another conversation from the Bel Air barracks, said of the group holding signs depicting gruesome images of aborted fetuses, "I am about ready to tell them to get the hell out of this county."
But Sgt. Dona S. Bohlen, who retired last year, said a moment later, "I want to do it properly."
The comments of troopers and other officials, made on recorded lines, were used by protesters with Baltimore-based Defend Life in a federal lawsuit contending that the arrests on Aug. 1, 2008, were not handled properly or legally. This month, the state police settled the civil lawsuit for $385,000 after a federal judge said the activists' free speech rights had been "unquestionably restricted."
The exchanges on that Friday evening four years ago offer a rare look into the unvarnished chatter of police, catching them in unguarded conversations with motorists, a prosecutor, and each other.
They also provide a real-time example of the thorny First Amendment challenges that authorities face in confronting demonstrations that often push the limits of taste and decency. The Bel Air protest upset many motorists as they headed home during rush hour on one of Harford County's busiest roads.
"They are holding posters of, like, dead aborted babies with their heads cut off and things like that," one caller told police. "You have to go there, you'll be absolutely appalled." Another said: "The pictures are offensive, and I don't think they should be allowed to show them."
Citizens across the country repeatedly turn to police and other local authorities to set limits on speech that someone deems deplorable or offensive. And judges often step in to voice their unwillingness to impose too many restrictions on the First Amendment.
The U.S. Supreme Court ruled last year that Westboro Baptist Church had a right to peaceably picket a military funeral in Maryland with its hate-filled, anti-gay messages, writing that the Constitution "protects even hurtful speech on public issues to ensure that we do not stifle public debate."
In the Bel Air protest, state police charged 16 adults and two juveniles with disorderly conduct, impeding traffic and loitering. At least 10 of the Catholic activists spent the night in custody awaiting bail hearings — a punishment likely more severe, Harford County's chief prosecutor said in an interview, than the sentences they would have faced had they been convicted. All the charges were dropped.
The Baltimore-based activist group Defend Life, which held the protest, sued and obtained the police recordings from the Bel Air barracks under the Maryland Public Information Act. The Baltimore Sun independently obtained the same information from the state police to confirm its authenticity.
The tapes show that troopers were primarily concerned about the graphic images on the signs. Authorities struggled to find an applicable law that would allow police to disband or arrest protesters, and debated whether the group needed a permit.
Authorities concluded that the graphic nature of the signs contributed to the disruption of traffic. Police were also upset that the group ignored orders to "leave the county" and instead moved the protest four miles up the road, into Bel Air.
"When a police officer tells them 'leave the county,' they are not kidding," Bohlen told a colleague in a recorded conversation. "It's not a joke, and they need to understand that is not acceptable behavior."
Groups such as Defend Life — which has protested repeatedly over the years along Maryland roads and outside shopping centers — purposely use graphic images. Activists say such signs are designed to show "the reality of human abortion so as to persuade Americans to oppose it," according to Defend Life.
The organization's founder, Jack Ames, who was among those arrested, said he found it "deplorable, the lawlessness that went on" on the part of police. "They just arrested us and then they tried to figure out why they arrested us. ... I knew we were on intellectually solid ground, but the experience is frightening. I thought it would be the end of our group."
Attorneys for the activists said the state conceded the case in large part because of the candid comments by the troopers, including Bohlen. Her comments were singled out by U.S. District Judge Richard D. Bennett, who oversaw Defend Life's suit in Baltimore's federal court.
The judge issued a stern rebuke of the troopers' conduct in ruling that the anti-abortion group's case had merit and could proceed to trial. Bennett wrote that police enforced a "nonexistent permit" and illegally ordered the protesters out of the county.
The state police, the judge said, "unquestionably restricted" the protesters' free speech rights in "all of Harford County, and not merely a small section of Route 24."
David Rocah, an attorney with the Maryland chapter of the American Civil Liberties Union, which has worked with Defend Life on past issues, said "it's not the signs that slow traffic, it's the people driving the cars." He said the appropriate response from police to callers disturbed by the images should have been, "Yes, it's legal."
Rocah added, "I understand that people don't like it. That's precisely why the people holding the signs do it." He said it appears troopers arrested protesters "simply out of desire to purge the public sphere of speech that bothers someone."
Maryland State Police spokesman Gregory M. Shipley declined to comment on the recordings and referred to a statement he issued on March 7 when the lawsuit was settled. That statement says troopers responded to numerous complaints from motorists about traffic being disrupted and acted in good faith "with advice from the county state's attorney's office."
Bohlen, who at the time had more than two decades of police experience, could not be reached for comment. She defended her actions in a declaration that is part of the civil court file, in which she described an overwhelming number of complaints about the protesters — a call a minute for 20 minutes.
"Almost all of the callers reported that the protest was backing up traffic and creating a hazard," Bohlen wrote, noting one from a motorist who said she nearly crashed upon seeing the images.
A trooper asked one motorist: "Are they interfering with traffic?"
The caller answered, "Yes, because everyone is drawing attention to these pictures of those dead children."
Bohlen told her troopers were on the way. "Oh, thank goodness, because that was the grossest, most disgusting thing I have ever seen," the woman responded.
At the scene of the demonstration, troopers heatedly discussed the situation with the protesters, even as their colleagues elsewhere were trying to figure out what to do.
Bohlen told Sgt. Frank Childress, the duty officer at Pikesville headquarters, "We had about 30 to 50 anti-abortionists interrupting my roadways. I want to find out what I can tell them and what I can't tell them, you know what I mean? … Because I am about to tell them to get the hell out of this county … because I am a bitch."
Childress answered: "I'm not saying anything."
Bohlen responded: "I want to do it properly."
Trooper First Class Charles Mohr, who was at the Bel Air barracks, sought advice from Harford County Assistant State's Attorney H. Scott Lewis. In a recorded phone call, the trooper described the protesters and said, "They don't even have a permit to be there."
Lewis, who was at home, said: "I think there is, isn't there a county code?"
Mohr responded, "That's what we're trying to find, but we can't find it." The trooper suggested charges of disorderly conduct, saying, "it's causing more of a disturbance."
Lewis suggested a charge such as obstructing traffic and asked Mohr if troopers knew how far cars were backed up.
"It isn't just at this point a mild protest," Lewis told him. "It's actually maybe something even under the traffic code for obstruction or you know basically causing obstruction … I think under any of those theories, you're gonna be able to tell them, 'You gotta go.'"
Meanwhile, a Defend Life member was making a video recording of the confrontation, which was later posted on YouTube. A trooper is seen telling Ames, "You need to pack up and go away if you don't have a permit." He and another protester pressed him to explain the permit process
"It's Harford County law," the trooper responded, adding, "You're not from this county. ... Yet you're going to tell me how to run this county? That's not going to happen. … I'm a state police officer. I know the law. That's it."
From the Bel Air barracks, Mohr advised a trooper on Route 24, "Worst-case scenario, if they don't listen to what you tell them, you lock up one for disorderly and charge all the rest of them." Mohr also said that the prosecutor, Lewis, was "almost positive there's a county ordinance on that."
The protesters moved four miles north, to Marketplace in Bel Air, and Bohlen said in her statement that the barracks received another 10 calls within a 15-minute span. "I directed the troopers to arrest those protesters, who, by resuming the protest, had disobeyed the troopers' earlier order," she wrote.
Bohlen then had to find a way to transport the detainees to the barracks. She called the Harford County Sheriff's Department and said to a lieutenant: "OK, we told them to leave the county, and they waited an hour and did what they typically do. ... We told them if they did it again we're locking them up, so can we borrow your paddy wagon to transport?"
The lieutenant, whose name was indecipherable on the tape, promised help. But another supervisor, who identified himself as Lieutenant Williams, called Bohlen back with some bad news.
"The captain said they were not to get involved," Williams told Bohlen.
"Are you kidding me?" the state police sergeant answered.
"I am not kidding you," Williams responded. "I do not make stuff up."
Bohlen answered: "Oh, my goodness."
"Yeah, apparently we were told we could help keep the peace or whatever, but that we were not to get involved as far as assisting with arrests or transports or something like that," Williams said.
The Bel Air Police Department sent help, and the Sheriff's Department also sent at least one wagon after further discussion among commanders, according to the recordings, but only to help after arrests had been made. Sheriff's deputies did not participate in making arrests.
Harford County Attorney Robert McCord said the county settled with the protest group last year, but he declined to provide an amount or discuss details, saying it was his policy to wait until the case had ended for each jurisdiction.
While Maryland's Board of Public Works has approved the state police settlement, the federal judge has not officially closed the case. McCord did say, however, that the sheriff's deputies who rejected the state police call for help were "acting on the advice of counsel."
Harford County State's Attorney Joseph I. Cassilly said that by the time his prosecutor, Lewis, got in touch with the state police, "they had already done what they were going to do" with the Defend Life protesters on Route 24. He said police "had already taken them into custody and had in their own minds what they wanted to charge them with. They were bouncing ideas off [Lewis], and he wasn't real sure."
Cassilly said he dropped the charges because many protesters had spent nearly 12 hours in jail. Some protesters alleged in the civil suit that they were mistreated during the arrests and their detentions, and subjected to abusive strip searches.
Cassilly criticized the District Court commissioner for setting bails for the defendants, which prolonged their incarceration, on charges that he thought should have been handled with citations.
"I felt like they had already been prosecuted," Cassilly said of the protesters. "I felt like we spent enough fire and fury on this thing. Enough is enough. Let everyone sort it out in some other forum and not with criminal charges."
Motorists complain to police about protesters
Caller 1: "They have humongous, like, life-sized posters of dead babies. … I want to know if this is legal and if they're allowed to be doing this because it is extremely disturbing. … I have to pull over because I am terribly crying. … You have to go there, you'll be absolutely appalled."
Caller 2: "I don't care about the politics … they got these huge graphic pictures of dead babies. … They're real pictures, not cartoons. You know, this is disgusting to me, and I can't believe someone would go and put these up for people to see. ... It's absolutely awful."
Caller 3: "These pictures are offensive, and I don't think they should be allowed to show them."
Caller 4: "I have kids in the car and they're upset about it and it's just not right. ... It's quite disturbing, and I almost got into an accident because of it. ... I mean, I understand what they are trying to do is all wrong, but I don't mind but to have like, ugh, it was awful."
Source: Maryland State Police 911 calls
Police discuss anti-abortion protesters
Maryland State Police Sgt. Donna Bohlen, to a colleague: "We had about 30 to 50 anti-abortionists interrupting my roadways. … I want to find out what I can tell them and what I can't tell them, you know what I mean? … Because I am about to tell them to get the hell out of this county."
Harford County Assistant State's Attorney H. Scott Lewis: "Because what they're doing is, it isn't just at this point a mild protest. It's actually maybe something even under the traffic code for obstruction, or you know, basically causing obstruction."
Trooper First Class Thomas Mohr: "Yes, obstructing free flow."
Lewis: "Well, I mean they can but the reality is they can't obstruct, you know, you are talking rush-hour traffic in Bel Air. They're obstructing traffic, in, also if you hope that some of your troopers know how far you know traffic was being backed up and impacted."
Mohr: "They just want to know where they stood."
Lewis: "Yeah, I mean as far as them being on the roadway with all that crap."
Later Bohlen said to a Harford County sheriff's lieutenant: "We just locked up 15 to 20 protesters or we're in the process of doing that. … They all have the graphic pictures and they're walking into traffic and everything."
Lieutenant: "Oh no."
Bohlen: "OK, we told them to leave the county, and they waited an hour and did what they typically do ... . We told them if they did it again we're locking them up so can we borrow your paddy wagon to transport?"
The lieutenant said he would check, and a Lieutenant Williams called Bohlen back: "The captain said … we are not to get involved, so I don't know what to tell you on that deal."
Bohlen: "Are you kidding me?"
Williams: "I am not kidding you. I do not make stuff up."
Bohlen: "Oh, my goodness ..."
Williams: "Yeah, apparently we were told we could help keep the peace or whatever but that we were not to get involved as far as assisting with arrests or transports or something like that, so unfortunately if the captain said I can't do it, then I can't give you anything as far as the wagon or transport, so I apologize for that."
Bohlen, to a colleague: "They're bringing them all there and they can sit in a cell for an hour … and two or three or four and rot. … When a police officer tells them 'leave the county,' they are not kidding. It's not a joke, and they need to understand that is not acceptable behavior."
Source: Maryland State Police recordings
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