Kokomo Tribune; Kokomo, Indiana

May 22, 2013

Occupy protesters file federal lawsuit

Attorneys allege excessive force used in 2011 arrests

By Scott Smith
Tribune staff writer

— Protesters involved in a 2011 courthouse fracas with Howard County Sheriff Steve Rogers have filed suit in federal court, alleging civil rights violations.

Rogers and deputies tackled and arrested two Occupy movement protesters after one of the men entered the Howard County Courthouse with a dollar bill stuck over his mouth.

In anticipation of Occupy protests, Howard County Superior 1 Judge William Menges had issued a court order banning the wearing of masks in the courthouse the day prior to the Dec. 30, 2011 incident.

The incident, including the arrests of protesters Darren Burke and Greg Lambert, was captured on video.

When Burke entered the courthouse, Rogers told him, “Take your mask off.”

“I don’t have a mask on,” Burke responded.

“I don’t care. Take your mask off,” Rogers said.

The sheriff then grabbed at Burke’s face as the protester turned around and shouted, “Get off me. I’m going outside.”

Rogers and deputies pushed Burke into a wall, at which point Lambert became involved in the fray. Occupiers said Lambert was trying to protect a tablet Burke was holding.

Both Burke and Lambert, who live in Indianapolis, were arrested and charged with resisting law enforcement.

In the lawsuit, filed Tuesday in Indianapolis by the American Civil Liberties Union of Indiana, Lambert and Burke claim Rogers, Howard County Sheriff Lt. Kurt Georges and other deputies involved had no legal basis for the arrests.

“It was a horrible thing. It was excessive force at the least,” Lambert said Tuesday. “If there was some way I could get criminal charges filed [against Rogers] I would.”

Rogers said he had no comment on the lawsuit Tuesday.

Gavin Rose, ACLU Indiana’s staff attorney, said the right to protest is protected by the Constitution.

“When law enforcement acts with reckless or callous indifference to these rights, they must be held accountable,” Rose said in a statement Tuesday. “In December 2011, the sheriff and deputies assaulted the protesters, who had entered the courthouse to inform the department of protest activities the following day. Darren Burke, one of the protesters, had a dollar bill taped over his mouth, which officers alleged violated courthouse rules against wearing a ‘mask.’”

The ACLU claims the video of the incident, which was given to the Kokomo Tribune immediately after it happened, shows the protesters did nothing to threaten the officers. According to the lawsuit, Lambert lost consciousness during the incident and was later diagnosed with a concussion.

Last week, both men entered into pretrial diversion agreements to resolve the criminal charges. If both men avoid any criminal charges for the next six months, the Howard County charges will be dropped. Neither of the protesters was required to admit guilt in return for receiving diversion.

Lambert said attorneys advised he and Burke to wait to file the federal lawsuit until after their criminal charges were resolved.

Among the allegations contained in the lawsuit, the protesters claim Menges didn’t have any legal authority for his order banning masks. The lawsuit claims the Howard County Commissioners, not the judge, is tasked with establishing and maintaining the county courthouse by the Indiana Constitution.

The lawsuit also alleges Rogers and his deputies used excessive force against the protesters.

“At no time either prior to or after assaulting Mr. Burke did the sheriff and/or the officers instruct Mr. Burke to freeze, to get down on his knees, to place his hands against the wall, to get down on the ground, or to assume any other position that would have been designed to enable the assault-free arrest of Mr. Burke,” the lawsuit states.

According to the lawsuit, the protesters’ attorneys filed a tort claim against the county in February 2012, but have yet to get a response. Howard County attorney

Larry Murrell couldn’t be immediately reached for comment Tuesday.

Scott Smith can be reached at 765-454-8569 or at scott.smith@kokomotribune.com