Borough Councilman Arrested and Strip-Searched for Using Profanity in Complaint to Police Chief and Mayor

PHILADELPHIA - The American Civil Liberties Union of Pennsylvania filed a federal lawsuit today on behalf of Gilberton Borough (Schuylkill County) Councilman Robert Wagner, who was arrested and strip-searched last summer after using profanity in a voicemail for the town’s police chief complaining about unruly teenagers in his neighborhood.

“One of this country’s greatest virtues is the high value our Constitution places on free speech,” said Irene Ayzenberg-Lyman, an attorney at Dechert LLP, who is representing Wagner pro bono. “And free speech includes words that may be offensive to some. Cursing may not be nice, but it is certainly not against the law. To arrest and strip-search someone for cursing is a clear abuse of power.”

On the evening of July 13, 2010, Wagner called Gilberton Police Chief Mark Kessler to complain that several teenagers were loudly racing quads and dirt bikes in front of his house and disturbing the entire neighborhood. Aware of Wagner’s position on city council, neighbors complained to him about the dangerous activities of the teens and asked him to do something about the recurring problem.

Unable to reach Chief Kessler, Wagner left a voicemail, using profanity to describe the actions of the teens and to express his frustration with his local law enforcement and government officials. He then called Mayor Mary Lou Hannon and used similar language to describe his frustration about the unruly behavior of the teens in his neighborhood.

The following day, with the knowledge of the mayor, Chief Kessler arrested Wagner on two counts of misdemeanor harassment. Unable to post bail, Wagner was taken to Schuylkill County Prison, where he was processed and strip searched. Wagner spent about six hours in the prison, until his wife finally located him and posted bail. The charges against Wagner were dismissed on August 4, 2010.

“My choice of language was unfortunate, arising from frustration due to the lack of response from law enforcement to my previous requests for assistance.” said Wagner. “I was shocked by the arrest, and have endured humiliation and constant attack on my character. I am proceeding with this lawsuit to ensure that this never happens to me again or to anyone else in our small, quaint, coal-mining community.”

The lawsuit alleges that the mayor and the police chief cause Wagner to be arrested without probable cause and that they violated Wagner’s clearly established right to free speech under the First and Fourteenth Amendments of the United States Constitution.

Wagner is represented by Mary Catherine Roper and Witold Walczak of the ACLU-PA, and Fred T. Magaziner and Irene Ayzenberg-Lyman from Dechert LLP.

More information about the case, including a copy of the complaint, is available at:
www.aclupa.org/legal/legaldocket/wagnervhannonetal.htm