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A federal judge in Puerto Rico gives short shrift to newsgathering as a protected right. From the Fall 2007 issue…

A federal judge in Puerto Rico gives short shrift to newsgathering as a protected right.

From the Fall 2007 issue of The News Media & The Law, page 26.

A federal judge in Puerto Rico dismissed a civil rights case brought by a group of journalists who were pushed, kicked, hit and pepper-sprayed by FBI agents while covering a February 2006 search of a Puerto Rican independence advocate’s home in San Juan.

In June, Chief U.S. District Judge Jose Antonio Fuste granted the FBI’s motion for summary judgment, finding that the agents were protected by a qualified immunity from liability for their actions because they were not violating clearly established constitutional rights.

Noting that the reporters were not threatened with arrest and did not have their film or videotape confiscated, Fuste found no First Amendment violation.

Fuste ignored the more violent acts of agents when assessing the First Amendment violation, instead considering those actions only under the journalists’ separate Fourth Amendment “excessive force” violation — which he also dismissed.

The physical actions were justified, he ruled, because of the threat the crowd posed to the safety and security of the agents and others.

Fuste did not distinguish between the journalists, who had come through the gate to enter the building, and the crowd of protesters, who were not near the agents or building during the incident.

William Ramirez, an attorney with the American Civil Liberties Union of Puerto Rico who represented the journalists, said the judge’s ruling was a surprise.

“We all had the same reaction; it was kind of a collective sigh,” Ramirez said. “We couldn’t believe what the judge was saying.”

The ACLU is appealing the case to the U.S. Court of Appeals in Boston (1st Cir.).

In February, FBI spokesman Bill Carter had said agents were forced to use the pepper spray because the journalists “refused to comply with a lawful order to remove themselves from a crime scene.”

But Ramirez said the reporters were positioned outside the home of political activist Lilian Laboy, well out of the way of investigators conducting the raid.

Laboy was a member of the Breaking the Perimeter Coordination group, a group associated with the Puerto Rico Independence movement. The FBI had raided the homes of several members of the Breaking the Perimeter Coordination while they were at work.

Journalists had gathered at the home after the raid was underway, and a crowd of protesters gathered as the search continued over a few hours, according to numerous accounts and videotapes of the incident.

As FBI agents left the building and got into their cars to leave the grounds of the apartment building, reporters, who had been waved into the building by a Laboy relative inside, moved toward the building and started asking questions of the departing agents.

The agents gathered around the journalists and started herding them back through a pedestrian gate.

When the crowd did not move through the gate, at least one agent began using pepper spray on the group.

A videotape of the incident shows one agent leaning toward journalist Normando Valentin, who was on his knees after having been pepper-sprayed, and spraying him again, directly in the face.

As FBI agents drove away after the incident, a handful of protesters banged on the cars’ hoods and threw rocks at the rear windows. The incidents caught on videotape make clear that those who attacked the vehicles were not the journalists covering the story.

Ramirez said the press and members of the public were in separate areas throughout the day.

Fuste said agents were justified in using pepper spray, as well as kicking, punching and hitting reporters with batons, because they could have reasonably believed the force was necessary to quell an “angry mob” and to “prevent the situation from escalating.”

Three federal lawmakers of Puerto Rican origin — Reps. Jose E. Serrano (D-N.Y.), Luis V. Gutierrez (D-Ill.) and Nydia Velazquez (D-N.Y.) — wrote to the FBI a week after the incident asking for an investigation to determine whether the FBI’s actions were “excessive or unwarranted.”

In March 2006, an ad hoc House committee of seven Democrats convened by Rep. John Conyers, the then-ranking Democrat on the House Judiciary Committee, heard testimony from the journalists in hopes of establishing a record for further Judiciary Committee hearings on the incident, but no formal hearing was ever held.

Based on reports by writers Kirsten Mitchell, Sean Hill, Heather Shoenberger and Gregg Leslie