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A Real Pain in the Tracks

The CTA had activist Adam Kerman arrested for leafleting at a subway stop. Think it had anything to do with his leaflets?

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By Sergio Barreto

At 6:45 AM last July 1 Adam Kerman was at the Kimball el stop handing out leaflets opposing the CTA's $380 million plan to improve service on the Brown Line. Around 7:25 he was approached by the station's supervisor, who took one of the leaflets and asked Kerman if he had a permit. Kerman, who'd never heard of such a permit, said no. The supervisor told him to stop leafleting, then left.

Kerman, who has headed the watchdog group Transit Riders' Authority for eight years, knew that leafleting on CTA property was technically a no-no. But he'd done it many times before, and no one had ever said anything. He decided to stay put.

A few minutes later the supervisor came back and again told Kerman to stop. He also said that Kerman was trespassing on CTA property, and if he refused to leave, the police would be called.

"I didn't understand how he could say I was trespassing when I had paid full fare at Western," says Kerman. "He told me to leave the platform and head to the nonpaid area [between the turnstiles and the street]. There's no point in leafleting in the nonpaid area--people aren't going to pick up a leaflet as they fumble for change and run to catch a train." He refused to budge.

The supervisor left, and Kerman never saw him again. But after a few more minutes a woman walked up and told him the police were coming for him, then got on a train. "She was talking angrily at me, like I had just done something horrible," he says. "It was very strange."

Next a janitor came, parked a garbage pail beside Kerman, and started to make friendly small talk. Kerman says, "It was like someone told him to keep me entertained until the police arrived." Around 7:45 two plainclothes officers showed up. "They pointed at the gates and told me to leave. There was a younger officer who didn't seem to care, but the older one seemed really aggravated by the whole thing. He kept asking questions about my college education, like I was some 60s radical or something."

The officer seemed to calm down after reading Kerman's leaflet. "He said, 'It seems like a decent enough leaflet, but you're not being arrested for passing it out. You're being arrested for trespassing.'"

It wasn't until a third, uniformed officer showed up that Kerman was finally arrested. "I hadn't been handcuffed, so I guess it would have been OK for me to leave until the uniformed officer arrived," he says. "But I felt that if I let the CTA harass me this time they'd do it again--if not to me, then to somebody else. I figured, if I don't stand up for my civil rights nobody will. I'm not married, I have no children--so I didn't have much to lose."

Kerman's next stop was 17th District headquarters, at 4461 N. Pulaski. He was handcuffed to an iron bench, and his belongings were confiscated. "They asked me about any identifying marks, tattoos," he says. "They said that would make it easier to identify me if they found me as a corpse. One of the officers gave me a hard time about not having my driver's license on me. I told him as far as I knew I didn't need a driver's license to ride a train."

He was charged with criminal trespass, a misdemeanor that carries a maximum penalty of 364 days in jail and a $500 fine. His bond was set at $1,000, and eventually a friend came and posted the bail.

A couple of days later Kerman was leafleting again, though not at Kimball. "I've made it a point to stay away from that station."

Kerman, who's 36, grew up in Highland Park, studied at Northwestern University, and makes a living as a consultant for nonprofit organizations. He'd been arrested once before, for refusing in 1982 to pay a ten-cent surcharge on the Evanston Express, which he insisted was illegal; the charge was later dropped. He's been involved with CTA watchdog groups, including CLOUT and the Public Transit Group, since the mid 80s, and after those groups disbanded he and Chuck Metalitz set up the Transit Riders' Authority. Working out of Kerman's living room, they tackled service issues and were mostly ignored by the CTA, though in 1992 they met with CTA president Robert Belcaster. "He claimed to want closer relations with community groups," says Kerman, who says he was soon on a first-name basis with Belcaster's assistant, Constance Mortell. But then Kerman became a vociferous critic of Belcaster's plan to tear down the Jackson Park branch of the Green Line. "Constance stopped taking my calls after that."

In 1994 Kerman's top priority became the Brown Line. "The Green Line was still shut down, and Belcaster talked about shutting down either the Brown Line or the Douglas branch of the Blue Line for repairs." Membership in TRA had long hovered around 200, though according to Kerman, "only 10 percent or so actually do anything." After Belcaster threatened to shut down the Brown Line, membership swelled to more than 400, though as soon as the CTA changed its mind membership dwindled again. "It's hard to organize people in public-transit issues in the absence of an immediate threat," Kerman says. "I tell people that they need to organize before there's a crisis, because by the time there is a crisis it's too late to organize. But they don't listen."

Two years ago the CTA announced the $380 million plan to improve service on the Brown Line, which serves a lot of gentrifying neighborhoods and has seen ridership go up 9 percent a year. The CTA wanted to expand the stations to allow for eight-car trains during rush hour. "Station improvements will not be done for another five years," Kerman says, "but Brown Line riders need relief now. Construction tends to drive riders away and inconvenience the ones that remain. Furthermore, the eight-car-train plan is intended to alleviate rush-hour train congestion. Riders would be better served by shorter trains running more frequently."

He produced a leaflet condemning the CTA plan and suggesting a number of alternatives, including operating some trains only between the Merchandise Mart and Belmont, the busiest stretch on the line; straightening the tracks, especially at the North-Halsted triple curve; and adjusting fares to encourage ridership during off-peak hours. That was the leaflet he was handing out when he was arrested.

Kerman discussed his case with a private lawyer but decided not to hire him. "He didn't ask for an exorbitant amount of money," he says, "but if I had to raise money to cover his fees, that would be money that I couldn't spend on public-transit issues. And I felt that the issues were more important than me."

He thought his best defense was to say that his First Amendment rights had been violated, so he called the local ACLU chapter. He was told to send in a copy of the leaflet he'd passed out and an account of the incident that led to his arrest. He says an intake attorney promised to recommend that the ACLU take his case. But when Kerman called the ACLU a few weeks later the attorney was gone. "They told me he had found a job with a bankruptcy law firm," he says. "I spoke to the new intake guy twice before my first court date, and he kept telling me that the ACLU doesn't deal with criminal cases. I kept telling him that what I needed was help with the constitutional issues to get the criminal charges invalidated. He didn't seem to understand that."

Kerman's first hearing was on July 28 at the Cook County Circuit Court on West Grand. But when his name was called he wasn't there. "It's almost funny," he says. "I was late because of bad CTA service. I took the Western bus to Grand and tried to get on the Grand bus. A service run must have been canceled, because I stood there for a half hour."

Kerman apologized profusely, but Judge Thomas Fecarotta wasn't impressed. The CTA's lawyer stated that the agency wanted Kerman prosecuted for criminal trespass, and a female employee Kerman didn't recognize identified him as the man she'd seen leafleting.

Kerman asked that he be assigned a public defender, but the judge denied the request, noting that Kerman was able to post bail, was therefore not indigent, and was therefore not eligible for a public defender. Kerman then asked to be allowed to represent himself, and the judge told him to speak to one of the lawyers who hang around courtrooms waiting for cases. "The guy recommended that I plead guilty in exchange for court supervision," says Kerman. "He didn't recommend that because of the merits of my case, but because the judge was so pissed off. At that point he could have had me taken into custody." But Kerman didn't want to plead guilty. The case was continued.

At his second and third hearings, before Judge John Devane on August 30 and October 1, Kerman again asked for a public defender or permission to represent himself. Devane denied the request.

CTA spokesman Noelle Gaffney says that leafleting isn't allowed in the paid areas of CTA property: "Our policy is to tell [leafleters] to move to the nonpaid area. Mr. Kerman was told to move to the nonpaid area of the station, but he chose not to do so." She also says that the CTA never issues permits for leafleting, despite Kerman's claim that the supervisor had asked if he had one. Kerman had also suspected that he was targeted because his leaflet was clearly critical of the CTA. "When I hand out leaflets I make sure to tell people that the material is about the CTA. I pretty much have to tell them, otherwise they'll run away thinking I'm some Jesus freak. And since I was obviously not a CTA employee, the material could only be critical of the agency." Gaffney denies that he was targeted because of the nature of his leaflet.

She also points out that free-speech arguments haven't worked in similar cases. Asked whether the CTA values passengers' comfort more than their First Amendment rights, she says, "We feel that the only business people have on an el platform is getting in and out of trains. Leafleting is a safety issue, because passengers might get hurt trying to run away from a leafleter who may be harassing them or trip on garbage that is left on the floor."

"I always make sure to pick up after myself," says Kerman. "And if litter is the problem here, then they should ban those Tribune vending machines, because I see a lot of those newspapers on the floor."

Kerman's next hearing was set for November 4, and he headed to the law library, determined to bone up on legal jargon and relevant case history in order to persuade the judge to let him act as his own attorney. In court, he told Judge Devane, "Your honor, I am still not able to afford a lawyer. I am as prepared as ever to act as my own attorney."

Devane, clearly running out of patience, placed both hands on his desk and stared hard at Kerman. "I want you to understand the seriousness of the charges you face," he said. "Do you understand that you can get up to 364 days in jail?"

"Yes, your honor."

"Did you go to law school?"

"No, your honor."

"Did you ever take any law classes?"

"No, your honor."

"What makes you feel you are competent to represent yourself in a court of law?"

"I've read a few cases--"

"This is a very serious charge, Mr. Kerman. If you cannot find yourself proper representation, I advise that you talk to one of the bar association lawyers present. They are here as a service to people such as you."

Kerman talked to another lawyer, who also advised him to plead guilty in exchange for court supervision. Again Kerman refused. "I don't believe I was trespassing," he says. "I feel it was perfectly within my rights to be there doing what I was doing. I can't be bullied into pleading guilty to a crime that I did not commit."

The judge ordered a change of venue and set the next hearing for December 13.

Kerman planned to testify at the CTA's annual budget hearing that evening, but first he had to take care of his ailing mother, who lives in the suburbs. He missed CTA president Frank Kruesi's opening remarks and the testimony of a union organizer, who shouted that if the CTA instituted more service cuts he would organize a general strike in Rogers Park. And he missed 42nd Ward alderman Burton Natarus pitching his downtown-circulator idea for the zillionth time and then ripping into the CTA board: "A few months ago you had an ad on your buses that compared wildlife to Division Street nightlife. I've lived on Division for many years. We have lawyers, businessmen, decent people living there. I don't know where you people got the idea to say Division is wild. I can't believe you insulted my neighborhood like that."

Kerman finally arrived and managed to get his name on the list of people testifying. When it was his turn, he complained about the design for a new bus terminal as well as a parking structure by the Howard el station, which he claimed would cause a traffic disaster. CTA chairman Valerie Jarrett interrupted him to say he didn't have his facts straight. "It was the first time this plan was discussed publicly," he said later, "and she didn't like that."

Kerman did praise the board for its plan to introduce diesel-electric buses, which he believes will be more efficient than the current diesel models. "It's not like I never tell them anything nice."

Kerman knew that not having a lawyer had hurt him. "The judge ordered the change of venue to Branch 46," he says, "because they dispose of cases in that courtroom."

He had called the ACLU at least once before each hearing and says he even talked to executive director Jay Miller, who he at first thought was receptive. Miller, who doesn't recall speaking to Kerman, says, "Sometimes we hear criminal cases, but we tend to avoid them because they are outside our area of expertise. There are plenty of lawyers out there that specialize in criminal cases, and people will be better off going to them. Our area of expertise is civil cases." After saying it isn't the ACLU's policy to discuss why it turns down cases, he notes, "We can only hear so many cases, and we have to pick carefully. Sometimes people call and say, 'I'm an ACLU member--you have to help me.' It doesn't work like that." He adds that the staff consider whether a case will break new ground, which venue will hear it, and what the chances of winning are. "We looked at the history of recent similar cases, and we felt that chances for his case did not look good."

"It's not like I was mad at them for not taking my case," Kerman says. "They didn't have to take my case. The problem was they seemed incapable of making up their minds."

In early December Kerman went to a conference on civil rights issues at DePaul University. "It was a melange of liberal issues," he says. "They had speakers on issues like immigration and police brutality." But he did run into a law professor who told him how to make his case for why he needed a public defender. "He said that if I explained to the court that I planned to mount a constitutional challenge, they would have to give me a public defender."

At the hearing he explained that he wanted to make such a challenge, and the judge agreed to give him a lawyer. Robert Campbell is now preparing the challenge, which he'll present on February 18. He's also preparing a defense against the criminal charges in case the constitutional challenge fails. "Campbell seems enthusiastic about the case," says Kerman, "and he believes the law is on my side."

Meanwhile Kerman is meeting with representatives of the Pilsen Alliance to discuss service cuts and structural rehabbing of the Douglas branch of the Blue Line, which he believes are the most important issues the CTA will have to resolve in the near future. He has no intention of giving up his crusade, even though he admits he hasn't been very successful. "I failed to attract attention to the Green Line issue, I'm failing to attract attention to the Brown Line issue, and I'll probably fail with the Blue Line too," he says. "I suppose it's possible that I'm not doing this right. But I have yet to figure out a different way to do it."

Art accompanying story in printed newspaper (not available in this archive): photo/Robert Drea.

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