March 16, 2006


Contacts:      Gideon Oliver             Lewis B. Oliver, Jr., Esq.
                        (646) 602-9242            (518) 463-7962

Late yesterday afternoon, attorneys representing Dennis Kyne, Dustin Langley, and Charles Duncan filed Kyne, et al. v. Wolfowitz, et al., a Federal Civil Rights Lawsuit in the United States District Court for the Southern District of New York. 

The suit names more than 25 individual defendants – including New York City Mayor Michael Bloomberg and New York City Police Department (“NYPD”) Commissioner Raymond Kelly – and claims that many were personally involved in a policy and practice in which top cops ordered rank and file officers to swear to patent falsehoods in accusatory instruments and commit perjury in RNC-related criminal prosecutions. 

The plaintiffs allege they were falsely arrested and imprisoned pursuant to a weft of unconstitutional policies and practices hatched and implemented by numerous NYC officials acting in concert with the United States Secret Service and Federal Bureau of Investigation (“FBI”), among others. 

According to the suit, then-Deputy Commissioner of Legal Matters Stephen L. Hammerman was personally involved in trumping up charges against Mr. Kyne, an Operation Desert Storm veteran who was in NYC during the RNC to speak out against the military’s use of Depleted Uranium (“DU”) in Iraq and the ongoing harm it has caused him and other United States Armed Forces veterans. 

Mr. Kyne now believes that law enforcement agents - including at least the NYPD, and possibly the FBI - had been gathering intelligence about him prior to his arrest on August 31, 2004, and that top cops targeted him for malicious prosecution. 

Prior to the RNC and since, Mr. Kyne has spoken out as a Veteran, across the country and internationally, about the dangers of the Federal government’s use of Depleted Uranium.  According to Mr. Kyne, he and countless other veterans inhaled tiny particles of DU from DU ordnance dropped in Iraq, prompting the Federal government to pay many for “undiagnosed illnesses” that many believe are caused by such DU exposure.

Mr. Kyne was the first of the 1,806 people arrested in NYC during the RNC to take his criminal case to a jury.  His trial lasted 3 days and ended abruptly on the morning of December 16, 2004 when the District Attorney’s Office moved to dismiss the charges against him, citing inability to prove the case.  The afternoon before, following NYPD Officer Matthew Wohl’s testimony and as Wohl’s Captain, Roland Mercandetti, waited outside the courtroom to testify, Mr. Kyne’s lawyers had turned a videotape over to the District Attorney’s Office they alleged proved that Wohl had committed perjury. 

On the first day of Mr. Kyne’s trial, he wore his United States Army uniform.  The District Attorney prosecuting the case produced a May 17, 2004 United States Department of Defense Directive promulgated by Secretary of Defense Paul Wolfowitz the District Attorney claimed prohibited Mr. Kyne from doing so, and New York City Criminal Court Judge Hon. Gerald Harris, who presided over the trial, granted the District Attorney’s application to force Mr. Kyne to change into civilian clothing.  Mr. Kyne believed that, as an Operation Desert Storm Veteran who had enjoyed an Honorable Discharge from the United States Army, he had a right to wear his uniform during his trial, and that the Department of Defense directive and its application to him violated his First and Fourteenth Amendment rights – indignities this lawsuit also challenges. 

According to Mr. Kyne, on August 30, 2004, he yelled words to the effect of “They lied to you, they lied to me, they’re taking away our civil rights” outside of McSorley’s Alehouse in the presence of NYPD Officers as New York State Governor Pataki and other RNC guests attended an event inside.  The next day, as Captain Mercandetti placed Mr. Kyne under arrest at the New York City Public Library, then-Deputy Commissioner Hammerman ordered Mercandetti, “This one is dis con and resisting,” to which Mercandetti replied, “Yes, Sir” as Mr. Kyne repeatedly protested, “I’m not resisting.”  Hammerman then approached NYPD Legal Bureau Lieutenant Daniel Albano and stated, “Hey Danny, one of the guys was the troublemaker from Pataki’s from the night before, so we got him now.” 

Mr. Kyne was loaded into a Prisoner Transport Vehicle where he first met Officer Wohl, who had not witnessed the events leading up to his arrest at all, the suit alleges.  Later, at Pier 57, Officer Wohl was summoned by a group of NYPD supervisory officers who apparently recognized Mr. Kyne as he stood in line with hundreds of other arrestees, according to the suit.  Mr. Kyne swears that, when Officer Wohl returned, he said words to the effect of, “What did you do out there?  You must have done something to piss them off.  That’s the Commissioner, he talks to the President.”  Mr. Duncan and Mr. Langley, who were near the two when the exchange occurred, confirm Mr. Kyne’s account.

According to the suit, Hammerman, Mercandetti, and other NYPD Officers involved in planning for and effecting mass arrests on August 31, 2004 and throughout the convention created a disturbance among a peaceful crowd gathered at the library by engaging in needless, heavy-handed, and blatantly provocative crowd control tactics, using uniformed and plainclothes or undercover officers who may have been Federal agents. 

According to numerous videotapes and photographs taken at the library on August 31, 2004, as Mr. Langley, a United States Navy veteran and an antiwar activist with the International Action Center, watched and took pictures about 15 or 20 minutes before Mr. Kyne and Mr. Duncan arrived separately at the library as Captain Mercandetti and other NYPD officers arrested 2 French Canadian men and a Portland, Oregon woman for attempting to drape a banner over a statue. 

One tape shows that Mercandetti said, “You can’t hang a sign on Parks Department property.  You can hold it, but you can’t hang it,” seconds before rushing in and arresting the 3.  The arrests prompted peaceful chants and protest from the gathered citizenry – all of which had subsided by the time the other plaintiffs arrived at the library.

Just after his arrival at the library, Mr. Kyne and a friend approached one NYPD Lieutenant and, unaware of the irony, asked him whether they needed a permit to hang a United States flag.  As the officer refused to respond, other officers grabbed an individual a few feet away, and a plainclothes or undercover law enforcement officer assisted them in searching his backpack.  As another tape shows, the NYPD’s actions prompted another round of peaceful chants and protest from onlookers and bystanders, in response to which NYPD officers formed police lines and began to push them back. 

According to other evidence, as Mercandetti pushed his way through the crowd saying “move back”, he pushed Mr. Langley, then suddenly shouted “collar!” and forcefully arrested him.  A nearby Mr. Duncan, then a North Carolina State student acting as a reporter for The Technician, took pictures of Mr. Langley’s arrest before walking away from the scene to call his girlfriend, whom he had lost sight of. 

As he stood talking on his cellular telephone with his back to the street, 4 NYPD officers – none of whom was Officer Wohl – passed him, each carrying 1 limb of an arrestee who was neither Mr. Kyne nor Mr. Langley.  About a second after the officers passed Mr. Duncan, one of them abruptly dropped the leg he had been holding, and charged Mr. Duncan from behind, forcing him to the ground as incredulous onlookers said, “He didn’t do anything.”  When Mr. Duncan asked the unidentifiable police officer what he did, the officer consulted with others and replied, “You spit in my face.”

After Mr. Langley and Mr. Duncan had been arrested, a NYPD Captain gave dispersal orders to the gathered crowd.  As Mr. Kyne walked down the stairs, he shouted “You fucking Nazis!” at the police a number of times over the course of a number of seconds.  Mercandetti and other officers arrested Mr. Kyne, whom videotape and photographs show was completely compliant the entire time.  Hammerman then ordered Mercandetti to trump up charges against Mr. Kyne, because, the suit alleges, Hammerman recognized Mr. Kyne and wanted to keep him off the streets.  Among other things, Mr. Kyne was charged with Riot in the Second Degree and Resisting Arrest, each of which are misdemeanors punishable by up to a year in jail.  Sadly, according to a Legal Guide written by Hammerman and others for the RNC,

It must be stressed that the content of the speaker’s message may not influence a decision by the police to limit freedom of speech.  Indeed, one of the primary obligations of the police is o protect the right of the speaker to exercise First Amendment rights, no matter how offensive the message.  Officers must remain neutral in their approach to these situations.  It is only when the speech is “criminal” that the police may take action to halt the message.  A person may not, for example, incite a riot or shout “fire” in a crowded theatre.  Since court challenges may follow any limitations on speech, it is critical for police personnel to document the specific reason why speech or assembly was limited or curtailed. . . . Police officers are often the targets of criticism at demonstrations, and it is not unusual for the police to be the target of chanted curses and personal insults.  While understandably difficult, it is important for police officers not to react to such criticism.  Often, the goal of the vulgarity is to cause an overreaction by the police and to provoke a confrontation.  Courts have found, however, that police must have “thicker skins” and tolerate verbal abuse that would otherwise constitute harassment if directed at an ordinary citizen.  It is virtually impossible to sustain in court a charge of harassment based on verbal insults directed at a police officer.”

After the 3 plaintiffs were loaded into a Prisoner Transport Vehicle and transported to Pier 57, according to the suit, Mr. Kyne was singled out for malicious prosecution by Commissioner Kelly, Deputy Commissioner Hammerman, and/or other top cops.  According to the suit, as Mr. Kyne, Mr. Langley, and Mr. Duncan were detained for between 8 and 14 hours at Pier 57, Captain Mercandetti, Officer Wohl, and other defendants met and Officer Wohl was ordered to lie and swear that he had seen each of the plaintiffs violate the law when he had not. 

The suit presents what happened to Mr. Kyne, Mr. Langley, and Mr. Duncan as a microcosm of a widespread, de facto policy implemented by the NYPD during the RNC, in which 5 was the “magic number” of arrestees each “arresting officer” was assigned to “process”, where “processing” included making false sworn statements, in writing and orally, maliciously supporting criminal prosecutions they knew were baseless at their outset and months later.

In accordance with those policies and practices, the suit alleges, on the morning of September 1, 2004, as the plaintiffs were fingerprinted and those fingerprints were transmitted to the FBI, Officer Wohl swore that he saw Mr. Langley parading on the street with at least fifty other individuals without a permit from the Police Commissioner and ordered him to leave the area on numerous occasions, but Mr. Langley sat down and refused to move. 

He also swore that he saw Mr. Kyne “yelling and screaming and behaving in a violent, tumultuous, and threatening manner” – by yelling “Look what they are doing.  The government is taking away our rights.  They lied to you; they lied to me” – words Mr. Kyne admits to yelling the night before, but not at the library. 

Officer Wohl also swore that Mr. Kyne was “told repeatedly to calm down and leave the area” but that he refused, and that, as Officer Wohl was personally arresting him, Mr. Kyne was “punching and kicking and trying to throw himself onto the ground to prevent the officers from effecting the arrest.”  Neither of Wohl’s sworn complaints mention Mercandetti as a witness or source of information.  Another officer swore out an instrument charging another defendant with laying on the ground and refusing to get up or put his hands behind his back, swearing that five (5) police officers therefore had to carry him.

At Mr. Kyne’s trial, Officer Wohl testified that he personally observed Mr. Kyne yelling in a “boisterous” manner just before he was placed under arrest, although he could not specifically remember what Mr. Kyne was yelling, and he did not hear him yell “You fucking Nazis” at all.  Officer Wohl testified that he personally effected Mr. Kyne’s arrest along with two other unidentified officers.  According to him, Mr. Kyne was “screaming, yelling, and moving around” throughout the process.  When asked how Mr. Kyne had resisted arrest, Officer Wohl testified that his “mouth, heart, and eyes” were moving, and that he lunged in a number of different directions, “almost like what a little kid would do.” 

He also testified that Mr. Kyne “went down to the ground himself” and that Wohl and three others had to pick him up and carry him across the street “while he squirmed and screamed” all the way to the back of the NYPD transport vehicle.  Shortly before the District Attorney moved to dismiss the charges against Mr. Kyne, Kyne’s attorneys had Wohl identify himself on a set of pictures that showed other officers walking Mr. Kyne and Mr. Duncan to the back of the Prisoner Transport Vehicle at which the lawsuit filed today alleges Wohl had remained, unable to see or hear what was transpiring on the library steps and plaza, in the minutes leading up to and through Mr. Kyne’s, Mr. Duncan’s, and Mr. Langley’s arrests.

The resolution of Mr. Kyne’s criminal case received national attention on April 12, 2005, in Jim Dwyer’s New York Times article entitled “Videos Challenge Hundreds of Convention Arrests”.  In response to Mr. Dwyer’s article, on April 25, 2005, Hon. John Conyers, Jr. and 5 other members of the House Judiciary Committee wrote Attorney General Alberto Gonzales and requested “immediate federal scrutiny by the Justice Department” of “credible and troubling reports of police misconduct and perjury . . . as criminal deprivations of rights under color of law and civil violations of the police pattern and practice laws.”  On June 28, 2005, the Justice Department responded and indicated that its Civil Rights Division’s Criminal and Special Litigation Sections would “examine your information, along with any other relevant information they receive, to determine whether action is warranted under the Section’s statutory authority.”

Mr. Kyne, Mr. Langley, and Mr. Duncan are represented by Lewis and Gideon Oliver of Oliver & Oliver, who also represented Mr. Kyne at his criminal trial.  Said Lewis Oliver, “After the DA dismissed Mr. Kyne’s case, we wrote Hon. Morgenthau and asked that his Office investigate these plaintiffs’ arrests, and others, and consider charging Officer Wohl and Captain Mercandetti with perjury.  We turned over a number of videotapes and other evidence and we understand the District Attorney’s Office has been actively investigating our allegations.” 

According to Gideon Oliver, the NYPD’s Internal Affairs Bureau has contacted him and expressed an interest in interviewing Mr. Kyne and others who were arrested or witnessed or videotaped or photographed arrests at the library.  “The IAB Sergeant I spoke with indicated the Police Department was only investigating whether Officer Wohl committed perjury, without considering involvement higher up and without considering the other things Wohl and other officers swore they saw, and didn’t.  He asked to speak with Mr. Kyne and others in order to ask them questions about where they had been before earlier that day, what they were doing in the City during the RNC, and such.  I believe we are going to file the Police Department’s investigation under the category of unserious on “fox in the henhouse” grounds; given the wealth of documentary evidence and availability of numerous police witnesses, the Police Department should be able to investigate these allegations without resorting to gathering further “intelligence” from Mr. Kyne.  Shame on Mayor Bloomberg and Commissioner Kelly for protecting the bosses and hanging rank-and-file officers like Matthew Wohl out to dry in potential departmental disciplinary proceedings or perjury prosecutions.” 

Others among the defendants named in the lawsuit are a bevy of City and NYPD officials – usual suspects in the many such lawsuits that have been filed since the RNC ended on September 2, 2004 - as well as the Hudson River Park Trust, its President, and Roland W. Betts, a close friend of President George W. Bush whom Mayor Bloomberg appointed as part of what the City described as a “dream team” to lobby the Republican National Committee to hold its 2004 nominating convention in NYC. 

The suit alleges that Betts and the HRPT colluded and/or acquiesced in efforts to commit widespread civil rights violations because they knew or should have known it was unconstitutional to plan to house thousands of arrestees for excessive periods of time at Pier 57, citing, among other things, a May 3, 2004 “Preliminary Engineering Estimate” based on a series of site visits conducted at Pier 57 in November 2003 by engineers and inspectors from Arup Consulting Engineers and AKRF Environmental Consultants that included “costs associated with establishment of basic building services and life safety systems and environmental cleanup of asbestos, lead and contaminated soils, spills, tanks and miscellaneous equipment” and put the total of such costs at $33,690,302.00.  The suit claims that Betts and Connie Fishman, the HRPT’s President, both personally knew about those conditions:  Just prior to the RNC, Betts was actively lobbying the HRPT to allow Chelsea Piers Management to develop Pier 57 into a commercial and park destination.  Fishman subsequently signed a Memorandum of Understanding with the NYPD authorizing the police to use Pier 57 as a secondary mass arrest processing center – then complained to Commissioner Kelly at the height of the RNC in a formal letter when it became clear the Pier was the NYPD’s primary mass arrest processing center.

A copy of the Complaint is available online at:  http://www.oliverandoliverlaw.com/KVW.pdf

The plaintiffs are available for comment through their attorneys.