Officers Denied Immunity For Arresting Protester

The 10th Circuit denied immunity to five police officers in Albuquerque, N.M., who allegedly arrested a University of New Mexico faculty member during an antiwar protest, simply because he was part of a "large basket containing a few bad eggs."

The court ruled 2-1 that John Fogarty may proceed with a lawsuit accusing the officers of targeting him without probable cause and using excessive force to arrest him during a March 2003 demonstration against the U.S. war in Iraq.

The protest began on the UNM campus and spread to city sidewalks and streets, with between 500 and 1,000 demonstrators voicing their opposition to the war.

Fogarty and a friend joined a drum circle that was "play(ing) a really nice samba," Fogarty claimed. But police accused the drummers of inciting the crowd and making it more difficult to clear the streets.

Capt. John Gonzales told officers to "remove the drums," a statement some interpreted as a direct order to arrest the drummers, Fogarty included. The plaintiff said he was already off the street when officers pelted him with an unknown projectile and arrested him.

Officers allegedly took the handcuffed Fogarty near an area with lingering tear gas, causing Fogarty to suffer an acute asthma attack. He also claimed to have torn a tendon in his wrist during the ordeal.

The majority refused to dismiss Fogarty's claims, ruling that he had provided enough evidence to survive summary judgment at this stage.

"The Fourth Amendment plainly requires probable cause to arrest Fogarty as an individual, not a member of a large basket containing a few bad eggs," Judge Lucero wrote. "In other words, that Fogarty was a participant in an antiwar protest where some individuals may have broken the law is not enough to justify his arrest."

Spanking Attorney Sues 'Washingtonienne' Author.

Former Senate Judiciary Committee counsel Robert Steinbuch sued Jessica Cutler, author of the "Washingtonienne" blog and subsequent book, claiming she invaded his privacy by publishing "in graphic detail the intimate amorous and sexual relationship between Cutler and the Plaintiff," including his alleged predilection for spanking.

Steinbuch also sued Hyperion Books, a division of Disney Publishing Worldwide, which allegedly paid Cutler a $300,000 advance for her book, after her blog became a sensation.

n his federal complaint, Steinbuch says, "At the time of his relationship with Cutler, Plaintiff did not know that Cutler was simultaneously engaged in sexual relationships with another man, let alone with five other men, and let alone that she was prostituting herself to some of them; and Plaintiff did not know that Cutler was recording the details of her relationship with Plaintiff in her blog, and Defendant Cutler described Plaintiff as, among other things, a committee counsel who likes spanking. That blog is the subject of a separate and distinct litigaion.

Steinbuch also claims Cutler profited by "capitalizing on the publicity generated by her blog and her relationship with Plaintiff" by signing a deal with Playboy that included a nude photo spread of her, and the "thinly disguised novel, of the roman a clef genre," in which her relationship with him is "described in graphic detail."

His complaint adds: "Hyperion specifically advertised the book as being in 'a witty, unapologetic voice, the novel's narrator Jackie tells the story of ... the staff counsel whose taste for spanking she "accidentally" leaks to the office.'"

Steinbuch demands $10 million damages for invasion of privacy, false light, and intentional infliction of emotional distress. He is represented by Jonathan Rosen of Clearwater, Fla.