The two videotapes tell the story.

It was March 20, 2003, and hundreds of people were peacefully protesting the Iraq war in front of the University Bookstore in Albuquerque.

One of the protestors, an Albuquerque family practice doctor named John Fogarty, was beating a drum to express his opposition to a war he believed would bring needless injury and death to thousands of American troops, not to mention Iraqi civilians.

Fogarty, along with hundreds of others, followed directions from Albuquerque riot police to disperse from Central Avenue onto the University of New Mexico campus.
Two independent, amateur videotapes show what happened next, says his attorney, Mary Han.

Masked police officers arrested Fogarty, 43, and dragged him into clouds of smoke and tear gas. During the arrest, police tore tendons in his wrist. Exposure to the gas and smoke caused Fogarty to suffer an asthma attack, and he was rushed by ambulance to a hospital emergency room.

Albuquerque police arrested many other protestors at the event and a number of first-person reports from that day characterized the police action as unduly harsh.

On Dec. 8, Fogarty will get the chance to tell his story in U.S. District Court as part of his civil rights suit against then-police chief Gilbert Gallegos, three Albuquerque police officers and the City of Albuquerque.

Though he is the single plaintiff in a suit that seeks damages for unlawful arrest, excessive use of force and other civil rights violations, the legal action is really not just about him, says Fogarty.
He says that it’s about the uniquely American right to free speech, freedom of assembly and freedom to lawfully criticize our government and its actions.

Apparently, what happened to Fogarty could happen to anyone who publicly expresses opposition to the war, and that’s not right.

(In fact, a large group of other protestors have filed a separate, similar lawsuit against the city and a number of police officers stemming from the events of that day. That case is working its way through the courts and has so far seemed to support their claims that their First Amendment rights were violated.)

As part of his case, Fogarty’s attorneys will show the two videotapes showing his unprovoked arrest. Then, they will call a number of people who were at the protest that day and suffered similar treatment from the police. The list of witnesses will include members of the UNM medical school faculty, a Catholic nun, and a woman who was pregnant at the time and exposed to smoke and tear gas.

Finally, the attorneys will call every single police officer who was at the protest that day, most of whom were masked or otherwise obscured, and all of whom have claimed in depositions that they had nothing to do with Fogarty’s arrest, said Han.

According to Han, Fogarty’s case has already caused changes in the law to require police officers to openly identify themselves.

Fogarty’s trial will open Dec. 8 at the U.S. District Court house in Albuquerque before Judge William P. Johnson and is expected to last a week.

Fogarty, who now lives in Santa Fe and works for the Indian Health Service, says he welcomes anyone who supports the cause of free speech and the right to assemble to attend the trial -– peacefully, without protesting — and observe the legal process in action.