Protests: Violence erupts at a rally against a plan to cut ranks at ground zero. It mars the camaraderie among officers who have suffered together.
In a violent confrontation that revealed the explosive tensions simmering in the city, several hundred firefighters clashed with police officers at the World Trade Center site Friday, protesting plans to reduce the number of firefighters who retrieve human remains from the wreckage.
Five police officers were injured and 12 firefighters--including a captain, a marshal and three top fire union officials--were arrested in the melee, which shattered the image of solidarity between New York police officers and firefighters.
The march, which began peacefully at midmorning, turned violent when demonstrators near the 17-acre site broke through barricades and began scuffling with officers. They briefly occupied the epicenter, recited the Lord's Prayer over the still-smoldering ruins, and then shook hands with groups of stunned construction workers. Minutes later the crowd marched to City Hall, where police in riot gear and officers on horseback ringed the building. The demonstrators finally dispersed, shouting, "We want dignity! Bring the bodies home!" They said the city was trying to turn the excavation into a "scoop and dump" operation, more to remove debris than to find bodies.
The shocking clash drew a heated response from Mayor Rudolph W. Giuliani, who blasted the organizers for misleading firefighters into believing that the city no longer cared about recovering human remains. Yet he seemed equally saddened by the unexpected violence between New York City police officers and firefighters, who have presented a united front of camaraderie to the world.
"Emotions are very high in this city," he said at a news conference. "But the conduct displayed today is unacceptable. You can't hit police officers. For that you go to jail. You have to obey the law, no matter how much you feel like crying and venting your emotions at this time."
Fire union officials fired back, charging that police officers had provoked much of the violence at a march that was intended to be peaceful. They said the demonstration was launched by firefighters, who suffered extensive losses Sept. 11, and not by the union.
City officials "are lying when they say firefighters attacked police," said Peter Gorman, president of the Uniformed Fire Officers Assn. "We were marching peacefully to ground zero when suddenly a handful of police officers waded into a line of marchers and began pulling people out.
"Was there scuffling and name-calling? Absolutely, and I regret that. But the mayor wasn't there, and now he's libeling firefighters and excusing police misconduct by a small group of policemen. It's just plain wrong."
Police said further arrests may be made after officials have a chance to review videotapes of the confrontation. Fire Commissioner Thomas Von Essen joined with Police Commissioner Bernard Kerik in condemning the violence.
At the heart of the dispute is a new plan announced by city officials that would reduce the number of police, fire and emergency crew "spotters"--those who pinpoint possible human remains in the wreckage--at the World Trade Center site. Whenever they identify such remains, which continue to be taken out of the ruins, construction crews halt their work and special rescue teams remove the remains. Debris that does not contain remains is carted away in trucks to the Fresh Kills landfill on Staten Island.
The Fire Department lost an estimated 353 people in the attacks, of whom 250 are still missing. Estimates of the total number of people missing range was "occasioned by the fact that some local prosecutors and judges have grotesquely perverted the intent of the voters who thought the three-strikes law would be focused on dangerous offenders rather than on minor offenders."
The state law, enacted in the aftermath of several highly publicized violent killings by repeat offenders, has had a dramatic impact on the state's criminal justice system.
By May 2001, more than 6,700 individuals had received 25-years-to-life terms, while 43,000 more had been handed significantly enhanced sentences for second strike offenses.
Although more than two dozen states enacted three-strikes-style repeat offender statutes since 1993, none of them has utilized their statute even remotely as often as California.
The law has been controversial since its passage, with even some of the original proponents saying it was being used improperly to impose draconian sentences on individuals for minor crimes.
In one highly publicized case, a man was sentenced to 25 years to life for stealing pizza in Redondo Beach. A judge later reduced the term to six years.
Judges have had some leeway in sentencing since a California Supreme Court ruling in 1996 granted them power to overlook prior convictions. Judges also have the option of rejecting earlier offenses prosecutors seek to use as first and second strikes.
Support for the law remains solid in the state Legislature. Earlier this year, Assemblywoman Jackie Goldberg (D-Los Angeles) introduced a bill that would have required the third strike to be a violent or otherwise "very serious" felony. "I was unable to get that bill out of the Assembly Judiciary Committee," she said Friday.
Goldberg said. "But the punishment should fit the crime."
The case that led to Friday's ruling started on Nov. 4, 1995, when Andrade was caught leaving a Kmart in Ontario with five videotapes worth $84.70 stuffed in his pants. Two weeks later, Andrade was caught shoplifting four more videos, worth $68.84, from another Kmart in Montclair.
Subsequently, the San Bernardino County district attorney's office charged Andrade under the three-strikes law. Andrade, then 37, is a longtime heroin addict with a history of convictions for nonviolent offenses, including petty theft, burglary and parole violation. All told, according to Friday's decision, he had been convicted of five felonies and two misdemeanors before the video thefts.
Andrade was convicted of the two thefts--both charged under the three-strikes law with possible terms of 25 years to life. Under the state's repeat-offender statute, the trial judge, Joan Borba of Rancho Cucamonga, was required to impose the terms consecutively, meaning that Andrade would be required to serve 50 years--with no possibility of parole. That meant he would be 87 when he was eligible for release.
In the opinion Friday, Judge Paez noted that a 37-year-old man had a life expectancy of another 40 years. That meant that Andrade was likely to die in prison and that the sentence was the equivalent of a life term.
"Andrade's indeterminate sentence of 50 years to life is exceeded in California only by first-degree murder and a select few violent crimes," Paez wrote in explaining why he thought the sentence was "grossly disproportionate" to the offense.
Paez, whose opinion was joined by Mary M. Schroeder, the circuit's chief judge, said Andrade's case was similar to to one in 1983 in which the U.S. Supreme Court ruled that a South Dakota court had violated the 8th Amendment for sentencing to life without the possibility of parole a seven-time nonviolent recidivist who had written a $100 check while having no funds in th from 2,400 to nearly 5,000. City engineering officials have said it may take a year before the full 1.2 million tons of debris are removed.
For weeks, fire and police spotters have roamed the area freely. But the work has been complicated by the fact that fires from the attacks are still burning underground. In recent weeks, construction crews have discovered red-hot steel beams just beneath the surface. On occasion, they have said, sudden shifts of material caused massive cave-ins and other threats to people who have been walking through the sprawling debris pile every day.
High-ranking fire officials have also said there may be hazardous air quality at the site, although no definitive conclusions have been reached by federal or city environmental officials.
Giuliani said city engineering experts had told him that the site remains physically dangerous and that too many police and fire spotters, more than 200, had been roaming the area. In recent weeks, he noted, there were several "near misses." A huge crane almost hit a firefighter in the head, he said, and several spotters working just below the surface were almost run over by a large truck. The risk of further injury, he added, was "very real."
"This is a crime scene, it's a disaster area, it's a burial ground," he said. "It has to be handled with professionalism and safety and dignity."
The new plan, revealed earlier this week, calls for no more than 75 spotters to be in the area at any given time. The news sparked a furious response from firefighters, who brushed aside the arguments about safety.
They vowed to mount future demonstrations--with thousands of people in the streets next time--if the city does not change its new staffing plan. Union officials called the attack site sacred ground, "a place very much like Pearl Harbor," said Michael Carter, vice president of the Uniformed Firefighters Assn. Carter was arrested at the demonstration, along with Vice President Jack Ginty and Steve Carbone, the union's secretary.
Firefighters and Giuliani, however, blasted published reports that some firefighters and police officers were trying to run up overtime hours at the site so they could pad their paychecks and reach retirement earlier.
"Cutting the number of firefighters at the site is like telling people that the city is turning this into a scoop and dump operation--like they were just cleaning it up now," said firefighter Bob McGuire, who helped lead protesters to City Hall after the demonstration at ground zero.
Others shook their fists at City Hall, demanding that Giuliani and Von Essen address them. The crowd eventually quieted down and sang "God Bless America" before union organizers and police urged people to leave.
As they waved signs in protest and walked away from City Hall, demonstrators conceded that the explosive protest was as much about their frustration and anger as the debate over excavation and removal. The last six to seven weeks have been "terrible, unbearable for us," said fire union official Rudy San Filippo. "We've lost so much. We never expected to see this kind of devastation, this big human tragedy take place in New York City."
As he watched the unruly crowd, a young police officer in riot gear shook his head and said he too could not believe what he was seeing.
"We really don't need this," said the officer, one of many protecting City Hall against its own firefighters. "Not in New York. Not now."
On the other hand, Paez wrote, Andrade's case was different from the last major cruel and unusual punishment ruling issued by the Supreme Court in 1991. In that instance, the high court held that it was not a violation of the 8th Amendment for Michigan courts to impose a life sentence on a man for possessing more than 650 grams of cocaine.
In the decade since that ruling was issued, there has been only one instance in which a federal court has struck down a sentence on 8th Amendment grounds, according to the dissent issued Friday by Judge Joseph T. Sneed, who said the majority had failed to apply the reasoning of the 1991 decision--Harmelin v. Michigan.
Sneed contended that the 9th Circuit had failed to give proper deference to the Legislature and California voters, who overwhelmingly enacted the three-strikes law in 1994. "We must accord great deference to state-mandated sentences," Sneed wrote. "We should not employ our power to strike down a sentence as unduly harsh when its primary purpose is the incapacitation of a habitual criminal offender."