Officer who refused to arrest anti-LGBT activists files suit

Officer who refused to arrest anti-LGBT activists files suit

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A Kutztown University police officer has filed a federal lawsuit claiming that he was wrongfully disciplined for refusing to remove anti-LGBT demonstrators from campus two years ago.

According to his suit, Cpl. Steven Armbruster says he was adhering to the U.S. Constitution when he rejected an order by Kutztown University Police Chief William F. Mioskie to remove members of Repent America from campus on April 18, 2007.

About 20 anti-LGBT protesters appeared on campus during the Day of Silence commemoration at the university, an annual event that spotlights anti-LGBT harassment and discrimination.

But the demonstrators were greeted with anything but silence.

Instead, about 300 KU students gathered near the demonstrators, and many erupted into chants of “Racist, sexist, antigay — Born-again bigots, go away!”

Within an hour of their arrival, two of the demonstrators — Michael A. Marcavage and James Deferio — were arrested and charged with disorderly conduct. The crowd reacted to their arrests with jubilation.

However, the charges eventually were dismissed by a local judge.

Deferio, 58, of Syracuse, N.Y., said his arrest was unwarranted.

“A college campus should be a free exchange of ideas, and to have the police try to shut down this exchange was illegal,” Deferio said.

Armbruster filed suit in Philadelphia on March 6, and the case has been assigned to U.S. District Judge C. Darnell Jones.

Armbruster was suspended for five days after the incident and a disciplinary letter was placed in his personnel file. He lost about $600 in wages due to the suspension. According to the suit, he’s also been passed over for training and promotional opportunities.

Armbruster is seeking an unspecified amount in compensatory damages, to be determined by a jury, according to his lawsuit.

Additionally, he’s asking the judge to issue a permanent injunction requiring university officials to remove the disciplinary letter from his file, and to agree not to punish him in the future if he refuses to remove demonstrators from campus, according to the suit.

Matthew L. Santos, a university spokesperson, declined to comment for this story.

Randall L. Wenger, an attorney for Armbruster, said the officer simply followed the Constitution when declining to move the demonstrators off campus. To do so would have violated their free-speech rights and their right to be free of unlawful seizure and/or arrest, he maintained.

“The issue is whether Cpl. Armbruster has a right to refrain from violating other people’s constitutional rights,” Wenger said. “He’s sensitive to the Constitution, and he didn’t want to threaten someone with arrest by enforcing a law that wasn’t applicable.”

Wenger said there was no impending threat of violence to justify removing the demonstrators. If officials had been more patient, both sides eventually would have left the area without any need for arrests, he said.

“Just because the students were upset and didn’t like the message, that’s not a valid reason to order the demonstrators off campus,” Wenger added.

At the time of the incident, demonstrators at the university were required to schedule their appearance at least two weeks prior to the event and be affiliated with a campus group.

Repent America had followed neither requirement.

Since that time, the university has modified its requirements. Currently, public demonstrations must be scheduled at least 24 hours in advance of the event, and demonstrators don’t need to be affiliated with a campus group.

But if a disruption is expected, remedial steps must be taken to minimize the disruption, under the current requirements.

In addition to Mioskie, Armbruster’s lawsuit names Kutztown University President E. Javier Cevallos as a defendant, along with John C. Cavanaugh, who serves as chancellor of the Pennsylvania State System of Higher Education.

Wenger said PASSHE should have ensured that police officials at Kutztown University were adequately trained on the First Amendment rights of demonstrators. “Judging by the actions of Chief Mioskie that day, his training on constitutional issues was woefully inadequate,” Wenger said.

Mioskie declined to comment for this story.

Kenn Marshall, a spokesperson for PASSHE, said campus police must attend a state-mandated training program.

“I can’t respond to the lawsuit itself,” Marshall said. “But I can say that all of our campus police officers are required to complete a state-mandated training program.”

Marcavage, 29, was pleased to learn of Armbruster’s lawsuit.

“This case has the potential to affirm the rights of Pennsylvania police officers to refrain from participating in unconstitutional arrests, despite any illegal orders by their superiors,” Marcavage said.

Tim Cwiek can be reached at (215) 625-8501 ext. 208.

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