Say What? Big Brother's Lists A-OK?

Ken Krayeske is a political activist. He is outspoken. He is brash. And, insofar as Connecticut law enforcement is concerned, he is marked man. Guess what? That's just fine and dandy, according to a recent ruling by a United States District Judge.

Krayeske actively supported Green Party candidate Clifford Thornton in the 2006 race for governor in Connecticut. Not surprisingly, Thornton was defeated in the general election by N. Jodi Rell, the oh-so-vanilla Republican incumbent. During the campaign, Krayeske attended Rell events. He raised questions. He was provocative. He exercised his right to freedom of speech.

This earned him a spot on a watch list apparently maintained by the Connecticut State Police. When Gov. Rell strutted peacock-like down the streets of the state capitol in January 2007 during her inaugural parade, Krayeske turned up, camera in hand, to take pictures. He wrote on a blog page encouraging others to show up and show something less than support for Connecticut's queen bee.

Before the parade, law enforcement officers were alerted to Krayeske's dissident ways. He and others had spoken out, you see. Officers spotted Krayeske as he arrived at the parade route. The surveillance society succeeded in isolating and targeting a critic. Krayeske, a law student and free-lance journalist, took out his camera. Officers pounced. He was arrested, although he had committed to crime. We appeared in criminal court on his behalf and insisted on a dismissal of the charges against him. When the case was dismissed, we sued in federal court, challenging, among other things, the practice of law enforcement's keeping lists of outspoken persons.

Yesterday, United States District Court Judge Stefan Underhill, rumored by some to be on the hot list for appointment to the United States Court of Appeals for the Second Circuit, heard argument on the defendants' motion to dismiss. He ruled from the bench: it is no violation of a person's constitutional rights to be so listed. Krayeske's suit lives, but only as to the arresting officer's unjustified decision to seize Krayeske and subject him to criminal prosecution. Those who generate and maintain such chilling lists were told all is well.

The judge's ruling disappoints. I tried to review the rationale for his decision this morning, but, sadly, there is no written opinion. The court ruled from the bench. Those trying to discern the labyrinth of constitutional interpretation that establishes the state's constitutional right to keep lists of dissidents will look in vain for the court's reasoning.

I am deeply disturbed by the court's ruling in this regard. At a minimum, this case should have been permitted to go to trial. But for the list and the action of the other defendant's in subjecting Krayeske to increased scrutiny on account of his political expression, his decision to take photographs of the governor at her inaugural parade would never have amounted to his arrest. The acts and omissions of officers in creating and disseminating the list were proximate factors that played a substantial role in the events leading to Krayeske's arrest. Insulating law men who keep such lists from liability on an attenuated theory of causation merely encourages a culture of government secrecy and deception. Endorsing this conduct without so much as a written decision reeks of the inquisitors scorn.

We'll go to trial on the remaining count, and we will ask a jury for punitive damages in an amount sufficient to deter other law enforcement officers for arresting people because their political opinions render them suspect to those in power. The Krayeske decision rendered yesterday terrifies. When the court pats Big Brother on the back, winks and whispers "all is forgiven," there is reason to shudder.


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