Catholic World News News Feature

Is the Nightmare Over? January 02, 2002

By James McCoy

Six years ago, the "Pittsburgh Nightmare" case--in which women involve with Operation Rescue women charged that they had been subjected to officially sanctioned physical abuse and sexual harassment by city police and county jailers--came in with a bang. As defense attorney Stacey Vernalis summarized the complaints, "The plaintiffs promised to show at the outset of the trial that a riot occurred and that corrections officers tortured and brutalized 60 women."

In May, the case went out with a whimper. The lawsuit that was expected to shock the conscience of a nation failed to shock a western Pennsylvania jury.

Most of the facts in this case were disputed until the bitter end. The pro-life plaintiffs reported that after being arrested outside an abortion clinic on March 11, 1989, they had face an astonishing range of abuse. Women said that they had heard dozens of lewd comments, and a few threats of rape, from the police officials who incarcerated them. Young women said that they had been dragged through the prison partially undressed, and subjected to strip searches while male guards looked on. One young woman, who suffered a severe asthma attack in jail, said that guards had deliberately blown cigarette smoke in her face until she required emergency medical care.

Law-enforcement officials in Pittsburgh denied that such abuses had ever taken place. If the women had been treated roughly, they argued, it was because they had refused to cooperate with the police who were trying to move them from one place to another. But in the civil lawsuit they filed in 1991, the women contended that they had been "victims of officially sanctioned, intentional and malicious physical brutality," of "sexual harassments and excessive force by male correction officers in the men's Allegheny County Jail" to coerce their cooperation.

A few facts, however, are beyond dispute. Something prompted 60 pro-life activists in Pittsburgh to file a class-action lawsuit about the treatment they had received subsequent to their arrest. Something made the women pursue their complaint for two years, carrying their search for justice from the offices of the city police force all the way to the federal Justice Department--without ever receiving a satisfactory response.

ALL DOORS CLOSED

Rosanna Weissert, a lawyer who once served as deputy attorney general for the Commonwealth of Pennsylvania, became involved in the case because her husband Mark had been one of the activists arrests on March 11, 1989 for blocking the entrance to the Allegheny Reproductive Health Services clinic in Pittsburgh. Although she herself did not participate in the blockades at the abortion clinic--in fact, she did not endorse them--Weissert heard the stories of the women who had been abused, and made sure that their statements were recorded soon after they were released.

"We tried to file complaints with the local magistrate," Weissert recalled. But at that first level the pro-lifers were told, "since you can't identify the guards, we can't take the charges." The women reported that, in violation of standard policy, the guards had worn neither badges nor name tags on the day of the arrests.

Next Weissert sought for a probe by county officials, but their response was merely a "paperwork investigation," she says. "They took complaints from the women, which they reduced to writing. The warden said they had no case, and closed the file." (That warden, Charles Kozakiewicz, was himself later named a defendant in the class-action suit.) Next Weissert went to Judge Robert Dauer, the head of criminal court for Allegheny County, with a petition asking the judge to order a district attorney to take up the investigation. Several months later the women received copies of their complaints, stamped "not approved."

Weissert recalls that her frustration was building, because "everyone was saying, 'you have to follow procedures'--but the procedures blocked us." She and her clients called the office of the state attorney general. They contacted members of the US House of Representatives, and won some support from Congressmen Bob Dornan of California and Chris Smith of New Jersey. The Federal Bureau of Investigation was called upon to take up the case, but Weissert reports that this, too, was a pro forma probe; most of the Pittsburgh women were never even contacted by FBI agents. In August 1989 the women took their complaints to William Allen, a member of the US Civil Rights Commission. But despite Allen's recommendation, the other members of the commission refused to take up the investigation. "The warden just said nothing happened, and everyone took his word for it," Weissert concludes.

The victims of the Pittsburgh Nightmare were pursuing their complaints at a time when police departments across the country were trading ideas on how to deal with Operation Rescue blockades. Since pro-life activists would not move away from the doorways of the abortion clinics when police officers ordered them to do so, many police department had turned to "pain compliance"--tactics deliberately intended to cause pain as a way of ensuring cooperation.

In January 1990, Weissert was present in Washington, DC, as a group of lawyers and other representatives of various advocacy groups met with officials of the Justice Department. The group saw a videotape of an Operation Rescue blockade in Los Angeles, California, which showed police officers breaking the arm of an unresisting pro-lifer. "The head of the Justice Department looked at the video and said, 'there's nothing wrong with this,'" Weissert recalls. "They're using approved techniques taught at Quantico.'" (At their base in Quantico, Virginia, the US Marines are trained in hand-to-hand combat--although the tactics they learn are not intended for use on practitioners of civil disobedience.)

TACTICAL ERRORS

Finally the Pittsburgh plaintiffs decided to file a federal lawsuit to vindicate their claims. Larry Washburn, an expert in constitutional law from the New York-based Legal Center for the Defense of Life was brought in to spearhead the effort. Weissert, having finally obtained the names of the guards who had been on duty during that fateful day in 1989, turned the information over to Washburn, hoping that her own involvement in the case would now be ended.

Unfortunately, the pro-life activists who had risked so much to blockade an abortion clinic were not equipped to wage a long-term legal campaign. And their new attorney, overworked and unpaid, could not manage all the necessary preparation. Operation Rescue had shown a great deal of raw courage, and occasional streaks of tactical brilliance, in its sidewalk struggles. But a lawsuit is like a game of chess: if key pieces are lost at the outset, the game is lost.

The first step in an ordinary lawsuit is "discovery"--the taking of sworn statements from all of the individuals involved in the case. In the Pittsburgh lawsuit, the plaintiffs never undertook discovery. It was Stacey Vernalis, the attorney representing the defense, who took depositions from five of the women who had complained of abuse. Vernalis also offered testimony from Warden Kozakiewicz and his deposition as evidence for the trial. "And that was all the discovery that was done after I left," Rosanna Weissert laments.

Because depositions had not been taken from the prison guards who were accused of abusing the Rescue women, the plaintiffs were not able to call a single guard to testify in the case. During the trial five guards were placed on the witness stand by the defense; all of them said that nothing unusual had happened during the time the Rescuers had been in jail.

Next the plaintiffs missed the deadline for filing the appropriate certification for a class-action lawsuit. When the judge assigned to the case ruled that the plaintiffs had thereby lost their right to class-action treatment, the number of plaintiffs suddenly dropped form 60 to 5.

NO QUICK SETTLEMENT

Three of the five women still involved in the lawsuit chose to accept an out-of-court settlement rather than pressing the case to trial. Attorney Weissert explains that these women were offered a $4,000 payment--which, in effect, appeared to constitute an admission that the women had been wronged. On the other hand, if they continued to push for their claims and finally lost the case after trial, the women were persuaded that they might be required to pay the defendants' legal fees.

Still three women continued to press their claims. One of them, Sandy Saunders, the mother of three young children, explained that a cash payment does not bring about justice. "In raising kids, when there's a squabble between two kids, you don't just write one a check," she observed.

Saunders, who says her ribs were severely bruised when prison guards threw her onto a table in an interrogation room, persevered in her suit, she explains, "because I thought these men are getting away with it, and because they're getting away with it for us, it'll be easier for them to abuse other pre-trial detainees. Even after my ribs healed up, and I took it to the Lord, and forgave them for what they did, I still felt they had to be held accountable..."

Throughout the process of the case, Saunders said that she was willing to drop the suit if city and county officials would make a public admission of their guilt, and apologize for their treatment of the Rescue women. But any hope of such public vindication vanished a few weeks before the case came to trial, when a federal judge dismissed the city and the county as defendants, citing a Supreme Court decision which indicated that in order to pursue charges against a government agency, the plaintiff must demonstrate that the agency had caused an injury through deliberate conduct. So individual police officers and prison guards could not be held liable unless they could be identified as having abused the women, and the departments could not be held liable unless the plaintiffs could show that some policy--based either on a deliberate decision or a flagrant lack of training--had led to the misbehavior. In this case the pro-life plaintiffs were not prepared to demonstrate either problem.

So when the Pittsburgh Nightmare case finally came to trial in May, the endgame required the plaintiffs to show that the sole remaining defendant, the prison warden--who, as Rosanna Weissert notes, was now introduced to the court as a retired grandfather--was personally liable for the mistreatment the women had suffered. Sandy Saunders had to show that in his capacity as warden, Kozakiewicz was "deliberately indifferent" to her being slammed into a desk. Her fellow final plaintiff Tammy Nelson, who reported that she had been dragged up several flights of stairs with her sweater intentionally lifted so that her breasts were exposed, was likewise obligated to show that the warden had somehow approved that treatment.

The final checkmate appeared inevitable when the judge charged the jury not to hold Warden Kozakiewicz liable for his alleged indifference unless the alleged abuses "shocked the conscience" of a reasonable person. After five hours deliberation, the jury rendered its verdict: they did not. TAKING STOCK

After the trial was over, defense attorney Vernalis said that the jury's verdict demonstrated that the accusations against Kozakiewicz had been "unfair and unfounded" all along. "These women and their organization persisted in an 8-year campaign in the press, where they have done nothing but take potshots at Kozakiewicz," she said. "Not only was absolutely no person tortured or brutalized, there was no person whose rights were violated."

From the plaintiffs' side of the aisle, attorney Washburn said that he might appeal the case, on the basis of the judge's charge to the jury and/or the decision to exclude the city and county as defendants in the trial. Sandy Saunders, on the other hand, felt that she had discharged her duty. "I believe the battle is the Lord's," she said. "The story did get told, and God's in control ... Now it's up to the Lord to move upon the hearts of the guards and the warden--because they're not gonna be healed until they deal with what they've done and own up to it."

For Rosanna Weissert--who had always been skeptical about Operation Rescue, despite her husband's participation--the jury's final verdict came as no surprise. Weissert felt that the jury "believed everything the women said, but they didn't find that it shocked their conscience." The jurors were "farm people, local people," Weissert reported. "Women jurors were misty eyed while the women testified about their abuse." Yet their not guilty verdict, she said, is an indicator of "the temperature of the nation." As she put it: "What can shock your conscience if you watch TV?"

The treatment which Operation Rescue activists received at the hands of police and prison officials reminded Weissert of her own days as a student at Kent State University in Ohio in the spring of 1970. When the National Guard arrived on campus in response to student protests, many of her classmates insisted that the guardsmen were carrying guns only for show--that the weapons were not actually loaded. Weissert thought otherwise, and she explains that she was not on hand for the showdown in which four of her fellow students were shot and killed, "because my dad said every gun was loaded." Putting that practical wisdom to use for the benefit of her Operation Rescue clients, Weissert says that she has learned to expect that pro-lifers should expect to face hostility at the hands of the police. "Now I know every county jail is 'loaded,'" she concludes.

FADING INTO HISTORY

Now that the trial is over, the "Pittsburgh Nightmare" case can fade into memory like a bad dream. But the abortuary in front of which 124 rescuers were arrested in 1989 is still quite very much a reality. Although it has moved to a new location, the Allegheny Reproductive Health Services facility is still busy. Eight years ago, the clinic was being battered by wave upon wave of Operation Rescue blockaders, and some pro-lifers seriously believed that they could close down the abortuary forever. Now Reproductive Health Services faces only a trickle of picketers and sidewalk counselors; it is open for business as usual. The experience here seems to confirm the prediction that feminist leader Eleanor Smeal made in 1991: "Operation Rescue is a mere footnote--a pathetic, miserable little footnote--in political history."

Smeal made that prediction at a time when Operation Rescue was at its peak--during the "summer of mercy" in which more than 2,700 people were arrested outside clinics in Wichita, Kansas, in an earnest effort to stop abortion in that city permanently. From May 1988 to August 1990 there were 683 "rescues" across the United States, in which 60,000 people risked arrest and 41,000 were jail for blocking entry to abortion chambers.

Today, faced with vigorous federal prosecution and draconian legal penalties, Operation Rescue has shrunk to a tiny fraction of that activity. Larry Washburn, the attorney who handled the Pittsburgh case, admits: "We don't have thousands anymore. We have hundreds of what you may call this remnant."

Did Operation Rescue, which build up with a bang, only to go out with a whimper? Has the price of pro-life activism become so high that the movement can no longer recruit new members--while the faithful remnant is consigned to long prison terms? Is it impossible to shock the conscience of ordinary Americans by letting them know about the abuse which pro-life activists have suffered? What happened to the pro-life activists' dream of closing down abortion clinics by raising up a virtual army of people willing to engage in civil disobedience? The answers to these questions may be indicated by legal denouement of the Pittsburgh Nightmare.

[AUTHOR ID} James McCoy writes from Pittsburgh.