COURT TO HEAR ACLU APPEAL CASE INVOLVES POLICE ARRESTS

FITCHBURG - The U.S. Court of Appeals in Boston will hear arguments
today in a case involving a civil rights lawsuit against members of
the Fitchburg police tactical response unit.

The Worcester County Chapter of the American Civil Liberties Union of
Massachusetts is appealing a lower court's dismissal of the case,
saying police acted unconstitutionally in arresting six young men for
blocking a sidewalk in October 1993.

In April 1998, a U.S. District Court jury in Worcester dismissed the
lawsuit after a 13-day trial. The suspects had been accused of
violating the city's anti-loitering ordinance. The charges were later
dropped.

The arrests were made by members of the Police Department's Special
Response Team, which is made up of specially trained officers wearing
dark paramilitary uniforms.

ABUSE ALLEGED

At the trial last year, the plaintiffs and their lawyer, John A. Bosk,
said the officers physically and verbally abused the suspects during
the arrests. Bosk said police officials overreacted by using the SRT
unit, which is normally deployed for high-risk drug raids.

The jury ruled in favor of the Police Department on all counts. In
addition to determining that the claims of abuse were unfounded, the
jury discounted allegations that the SRT members failed to identify
themselves as police officers when the arrests were made.

Darragh K. Kasakoff, a Worcester lawyer who is handling the appeal for
the civil liberties union, said he does not plan to challenge the
jury's verdict. Instead, he said, he will challenge a summary judgment
made before the trial by Judge Charles Swartwood III.

Swartwood ruled in favor of the city on two constitutional issues
raised by the civil liberties group. In the original suit, the group
said Fitchburg police acted unconstitutionally in arresting the six
men for an offense that does not carry a jail term, and in using the
SRT unit to make the arrests. The issues were dropped from the case
and never considered by the jury.

"These are constitutional and legal issues upon which juries do not
make decisions," Kasakoff said. The appeals court will be asked to
rule on the two issues, he said.

By using the special unit, the civil liberties group claims, the
Police Department violated the Fourth Amendment of the Constitution,
which prohibits unwarranted searches and seizures.

The group also claims the Police Department has no right to arrest
people for a city ordinance that carries only a fine for a penalty.
ARREST AUTHORITY

Patrick J. Costello, a Boston lawyer who will be representing the city
at today's hearing, said state law gives police in Massachusetts the
authority to make arrests in cases involving obstructed public ways.
He said the law covers the anti-loitering ordinance in Fitchburg.

Costello also said the arrests did not involve a search or seizure. As
a result, he said, the Fourth Amendment does not apply.

"We plan to argue that this was the most reasonable action to be taken
to bring compliance with the ordinance," he said.

At the trial, police Capt. Mark W. Louney said he repeatedly asked the
suspects to move off the sidewalk. Each time, he said, the suspects
refused and one of the suspects swore at him.

Louney said he called the SRT unit to remove the men because the team,
which had just done a drug raid in the area, was available. He said he
didn't use regular patrol officers because other areas of the city
would have been left uncovered.