ARREST FACTS JUST 'DIDN'T ADD UP': LAWSUIT

RACINE - When the City of Racine dismissed more than 400 municipal
citations it had given people for attending a rave-like party, it was
done to head off a possible class-action civil rights lawsuit.

In return for that, and other steps taken by the city, the American
Civil Liberties Union agreed not to bring or help bring such a lawsuit
against the city.

Jason Witheril was not part of that deal.

Witheril was at the party that ran late Nov. 2 and early Nov. 3, 2002.
He was in a restroom stall when uniformed Racine police officers
kicked in the stall door and arrested him. Witheril claims police
violated his civil rights - his right to privacy in a restroom stall,
his right to attend a large event, and his right not to be
unreasonably searched and arrested - and has filed a lawsuit against
police and the city.

He's asking for unspecified compensatory and punitive damages.
Witheril's attorney, Jill Packman, offered to settle the case with the
city for an undisclosed amount of money. But the city's finance
committee rejected that offer, and the Racine City Council will take
up the matter Tuesday.

In the lawsuit, Witheril claims he went to an electronic music party
at the Tradewinds Village, 1518 Washington Ave., on Nov. 2, 2002.
Police, acting on a tip that the party was a rave and there was drug
use going on, raided the party.

Witheril was in the restroom, in a restroom stall when police kicked
in the stall door, yanked him out, threw him to the floor and held a
gun to his head, according to his complaint. He claims he was
handcuffed, forced to wait an hour inside the Tradewinds Village,
another two hours at the police paddy wagon outside, and three more
hours at the Racine County Jail.

Witheril said police issued him a municipal citation for possession of
marijuana. They found two marijuana cigarettes on the bathroom floor
in the stall where he had been.

Packman said police used unreasonable and excessive force when they
detained Witheril. Just holding the gun to his head constituted deadly
force, she said, citing a federal court ruling.

In their response to the lawsuit, filed three weeks later, police
denied putting a gun to Witheril's head, or to giving him a municipal
citation for drug possession. Police said they arrested and charged
him criminally for possession of marijuana.

Witheril filed a complaint about the arrest with the Racine Police and
Fire Commission. When he was questioned by the Police Department's
Internal Affairs division, Witheril admitted he was scared, wasn't
sure if all the officers had their guns and that he didn't see the gun
put to his head because his eyes were closed, according to police
reports. Witheril said he felt the gun touch his jaw.

Packman said there's a lot about the police department's version of
what happened that doesn't add up. She said various police reports on
the raid don't always include the same

information.

"It's really unclear from the reports who did what," Packman
said.

For example, she said that two of the officers who entered the
restroom never mentioned seeing suspicious movement by Witheril until
after Witheril had filed a complaint with the Racine Police and Fire
Commission. When they were interviewed by Internal Affairs, the two
officers then said they saw Witheril moving around in the stall. One
officer said he could see Witheril standing atop the toilet,
apparently trying to put something on the windowsill there.

Packman said it doesn't make sense that police would fail to mention
those details in their original reports if they really happened.

"When you're trying to bust somebody for leaving drugs on a bathroom
floor, and you fail to mention details that would virtually guarantee
that person faces charges, it's somewhat questionable," Packman said.

Since the lawsuit was filed, the city tried to keep out as evidence
the fact that it had dismissed 440 citations issued at the party. All
those citations, save for Witheril's, were irrelevant to the lawsuit,
the city claimed.

Packman disagreed, saying the mass issuance, and later dismissal, of
citations is crucial to Witheril proving his civil rights were
violated, and the city's liability for it.

Judge Charles Constantine denied the city's motion in
April.

The case is scheduled for trial on Nov. 15.