Markeshia Ricks Photo
Lugo, center, with ULA’s Joseph Foran outside court after ruling.
The megaphone that John Lugo used in front of Atticus on Chapel Street was loud. Lugo admitted that he’d turned it all the way up for maximum effect — and because it was a cheap megaphone.
Its loudness got him a ticket from a New Haven police officer. But he won’t have to pay it, thanks to a judge’s decision.
Superior Court Judge William Wenzel ruled Tuesday that Lugo, a co-founder of Unidad Latina en Accion (ULA), was not guilty of creating a public disturbance during a July 30, 2016, protest in front of the bookstore and café.
The protest was part of a months-long campaign to pressure the owner of Atticus to settle a wage dispute case with a former employee and ULA member. That dispute has since been settled, but on the day of that particular protest, Lugo was hit with a civil infraction. If he had not fought it, it would have cost him about $50.
Instead of paying the fine, he decided to fight, and got attorney Patricia Kane to help him pro bono. (Kane has been involved in several high-profile cases representing protesters; read more about that here and here.)
Lugo’s trial Tuesday hinged on whether or not he had created an “unreasonable” amount of noise, and thus a public disturbance, in his use of a megaphone to amplify his protests and calls to boycott Atticus. It was his word and that of a fellow ULA member, Jesus Morales Sanchez, against that of New Haven Police Officer Anthony Magnano, who wrote him the citation.
They were the only witnesses called to testify during Tuesday’s trial, though about 20 people showed up to support Lugo.
Magnano, a rookie cop coming up on two years on the force this July, was walking the beat downtown when he received a call from dispatch at around 6:18 p.m. to investigate a disturbance in front of Atticus. When he arrived, he said he saw a group of about eight people including Lugo protesting in front of the bookstore.
He went in and talked to the manager, who complained about the loud protesters. Magnano said he could clearly hear the protesters from inside the bookstore, which has a storefront of mostly glass, and he spoke with some patrons who he said admitted to being made uncomfortable by the loud protest. But he ultimately admitted that they were not disturbed enough to stop shopping or eating.
Magnano told the court that he went outside and told the protesters as long as they didn’t block the door or the sidewalk, and put the megaphone away, they could continue the protest. He said Lugo refused to stop using the megaphone, so Magnano issued him a citation. He said Lugo signed the citation and promptly tore it to pieces and tossed it in the air.
When asked by prosecuting attorney Melissa Holmes why Magnano had given Lugo a ticket in the first place, Magnano said it was because of the noise.
“I gave the ticket because of the noise issue — because of the scene the noise was creating,” he said. Judge Wenzel said he found no fault in Magnano using his discretion to issue a simple civil infraction instead of escalating it to something bigger, and commended him for not doing so after Lugo had ripped up the ticket.
Kane: You can’t surprise people with a standard.
But Attorney Kane sensed her opening. On cross examination she asked a few simple questions. Had Lugo exhibited any violent behavior? Had he threatened anyone? Was he or any other protester blocking people from getting into the bookstore? Had he used obscenities or been insulting?
No, Magnano said. None of that happened, though he did point out that accusing someone of being an unethical employer might be considered insulting.
Kane had another question: How did he know whether Lugo and his megaphone were “unreasonably” loud? Did he test the sound to see if Lugo had violated the city’s noise ordinance? Had he exceeded that ordinance’s 62 decibel limit?
No, Magnano had not conducted any tests. In fact, Kane was able to show that though there were noise violations reported in the city that day, none of them came from Chapel Street.
Attorney Holmes objected to the relevance of the line of questioning. After all, creating a public disturbance is an infraction against state law, and not subject to the whims of a municipal ordinance, Holmes argued. The judge agreed. That was OK with Kane. She’d already made her point: Magnano had subjectively decided that Lugo had been too loud when he issued the infraction.
She also laid the foundation for her ultimate defense: that the citation had infringed upon Lugo’s First Amendment right to free speech. A mere complaint from the store manager and patrons was not enough to determine that Lugo had violated state statute, because he had not been violent or obscene in his protest. And because the legal standard of what is “unreasonable” noise is vague in statute and case law, Kane pointed out, it is impossible to define unless the court does so.
Holmes wasn’t ready to rest the state’s case. She asked Magnano what happened after Lugo tore up the citation. Did Magnano tell them to leave? To stop talking?
Magnano didn’t. Instead, the officer was the one who left the scene.
“Did they continue to protest?” Holmes asked.
“Yes,” Magnano said.
Say It Loud
Lugo had no qualms with the officer’s recounting of that day in July. He was, after all, using a megaphone just as he had done at hundreds of protests over the years. Protests in front of local businesses like the former Gourmet Heaven, Goodfellas, Thai Taste and Atticus.
The protests were meant to be loud, he told the court, to let people know that his group believes one business or another had stolen wages from employees. To let nearby businesses know that if they steal from their workers, the protesters could be at their door next.
Those protests have won an estimated $1 million in settlements from businesses that had to admit in state and sometimes federal court that they had cheated their employees. ULA has been recognized by the city for its efforts to protect workers from wage theft, Lugo said.
“This is not the first time I’ve used a megaphone,” he said. “We always use a megaphone.”
Holmes asked if the protests and use of the megaphone were deliberate attempts to annoy the owner of Atticus or its patrons. Lugo said they weren’t. He said it was an attempt to encourage patrons to boycott the business. When she asked him why he didn’t just go inside and talk to the patrons, his answer was simple: “They will call the police and arrest me for trespassing.”
Holmes argued that the state met the burden of proving that Lugo had created an unreasonable amount of noise. Lugo had been using a megaphone, and he admitted that he had it turned up as loud as possible so that he could be heard clearly inside the store and by the surrounding businesses. But had they proved that the amount was unreasonable beyond doubt?
Lugo gets a congratulatory hug inside the courtroom Tuesday.
Kane said no — and that if the judge ruled in favor of the state, it would open the door for local law enforcement to ticket any protester deemed unreasonably loud by any standard of that officer’s choosing.
Judge Wenzel said the state had not proven that the noise was unreasonable beyond all doubt, but he didn’t hang his reasoning on Kane’s logic.
“I’m not saying any speech or protest is immune from compliance with the statute,” Wenzel said. “But I’ve listened to the evidence, and I don’t believe that the state has met the burden on every point … and I find the defendant not guilty.”
Lugo said after the trial that it was a victory for protesters and their megaphones. Kane said city and its police officers are now on notice “not to do this anymore.”