This great documentary by Doug Loranger chronicles early resistance to “3G” cell towers in the late 1990’s and early 2000’s in San Francisco. These campaigns paved the way for later efforts to “stop smart meters” more than a decade later.
Run time: 55 minutes. Co-produced by Gordon Winiemko.
Justice Wiley Says in Concurring Opinion That Cause of Action Was Adequately Pled, but Expresses Concern That ‘Green Light’ Is Given to Claims Based on Idiosyncratic Reactions to Common Circumstances
MetNews Staff Writer, Metropolitan News-Enterprise, Feb 19, 2021
The Court of Appeal for this district yesterday ordered reinstatement of a cause of action by a teacher against the Los Angeles Unified School District for failure to accommodate a disability—an adverse physical reaction to a Wi-Fi system—with a concurring justice remarking that under California’s lax pleading standards, a demurrer was improperly sustained, but expressing concern that offbeat disability claims will be encouraged.
Justice John Shepard Wiley of Div. Eight said in his concurring opinion:
“I worry about giving any sort of green light to this unprecedented and unorthodox disability claim. Plaintiff’s counsel was most reluctant at oral argument to admit it, but it seems clear we are the first court in the United States of America—a nation of over 300 million people—to allow a claim that ‘Wi-Fi can make you sick.’ ”
He said that “[u]p till now, the main published appellate opinion” on the subject “seems to have been” that of the Seventh U.S. Circuit Court of Appeals in Hirmiz v. New Harrison Hotel Corp. There, summary judgment was affirmed in an action against a hotel by a fired desk clerk who claimed discrimination in violation of the Americans With Disabilities Act (“ADA”), citing a disorder caused by prolonged exposure to electromagnetic voltage at the work site.
Black Cat Phobia
Then-Judge Richard Allen Posner (now retired) wrote:
“There is debate in the medical community over whether sensitivity to electromagnetic voltage is a physical disorder or a psychological one….If it is psychological, the symptoms might not constitute a disorder that would entitle Hirmiz to the protections of the Americans with Disabilities Act. A great deal of psychological distress is trivial—fear of black cats, for example.”
Wiley observed that Wi-Fi systems are ubiquitous, and remarked:
“Nearly everyone wants the phenomenal convenience of the virtual world in your hand, everywhere you go, and the faster the better. All the potential defendants responding to this popular demand may take solemn note of news that, as of today, their Wi-Fi systems now may possibly invite costly litigation from members of the public who say that Wi-Fi made them sick. And potential plaintiffs and their counsel will have an interest too.
“The law worries about junk science in the courtroom. One concern is that a partisan expert witness can bamboozle a jury with a commanding bearing, an engaging manner, and a theory that lacks respectable scientific support.”
Wiley had a suggestion: appointment of an expert by the court, pursuant to Evidence Code §§730-732. He commented:
“The option of a court-appointed expert has been available in California for generations. Few judges have tried this option, though, because the parties never suggest it. The last thing trial lawyers want is another source of uncertainty in the case: something powerful and beyond their control….
“The trial court may want to consider this option in this case.”
Once an expert is appointed, he said, “it can be startling how fast the case settles.”
Justice Maria E. Stratton wrote the majority opinion, in which Acting Presiding Justice Elizabeth A. Grimes joined. The opinion reverses, in part, a judgment of dismissal that followed the sustaining of demurrers without leave to amend by then-Los Angeles Superior Court Judge Richard Rico (now a private judge).
Stratton expressed agreement with Rico’s dumping of teacher Laurie Brown’s causes of action for employment discrimination based on a disability, retaliation for her complaints, and failure to engage in an interactive process. But Rico erred, she said, in sustaining a demurrer to the cause of action for failure to accommodate her disability—which Stratton labeled “electromagnetic hypersensitivity” (“EHS”), otherwise known as “microwave sickness.”
She found unpersuasive federal cases such as Hirmiz which do not recognize EHS as a disability, noting that Brown sued under California’s Fair Employment and Housing Act (“FEHA”) which defines a disability more broadly than the ADA. Under the FEHA, Stratton pointed out, a physical disability includes a condition that “[a]ffects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine” and also “[l]imits a major life activity.”
The jurist quoted the operative complaint as saying that Brown suffered “chronic pain, headaches, nausea, itching, burning sensations on her skin, ear issues, shortness of breath, inflammation, heart palpitations, respiratory complications, foggy headedness, and fatigue, all symptoms of Microwave Sickness or EHS.”
“These described symptoms affect one or more of the body systems listed in the statute and limited Brown’s major life activity of working as a teacher…. Brown adequately pled physical disability within the four corners of the statute.”
She went on to say:
“Brown has adequately pled failure to accommodate. The FAC alleges that she suffers from a physical disability, but can perform the essential functions of the position with the accommodation ‘to which LAUSD initially agreed to but subsequently refused to honor and/or other reasonable accommodations, such as use of paints, fabrics and/or other shielding materials to block or minimize exposure to electromagnetic frequencies.’ ”
The case is Brown v. Los Angeles Unified School District, 2021 S.O.S. 729.
Attorneys on appeal were Joseph M. Lovretovich and Jennifer A. Lipski of JML Law in Woodland Hills, for Brown, and Anthony J. Bejaranoand David V. Greco of LAUSD’s Office of General Counsel arguing for an affirmance.
After holding educational forums, protesting, and lobbying for three years for stronger local telecom laws, Berkeleyans are engaging in non-violent direct action to stop 4th and 5th Generation cell antennas that are being rolled out throughout Berkeley. An all-night vigil near Berkeley Natural Grocery began at 12:30 AM on October 28, but antennas were installed later that day on the corner of Nielsen as well as at Monterey Market.
Officer Shedowdy has a mean attitude. Given how he treated this female elder who was arrested for a non-violent act of conscience, I fear for young men of color who may be wise to keep quiet rather than ask his colleague, as I did twice, “Please don’t leave me alone with this guy.” I was left alone with him in the police garage prior to entering the jail. He should not have been allowed to reach in and check, and then double check, my four pants pockets. A female officer should have done that with a witness present.
Earlier, I had dared tell him to stop twisting my wrist when he handcuffed me behind my back at the Gilman/Nielsen intersection where we’d been trying to prevent an antenna installation on a telephone pole. Pain compliance was unnecessary. He seemed to enjoy it. After handcuffing me, he took my right arm, another cop took my left arm, and they walked me to the patrol wagon. He pulled me hard to the right while the cop on my left held on. Good thing I can tolerate a strong yoga stretch! I got cold feet so, before they put me in the wagon, I said I’d leave the vigil if they remove the cuffs. He said, “That train left the station, lady. You’re goin to jail!” They got me into the back of the wagon and slammed the door, leaving me in total darkness.
They must have taken a circuitous route because the ride took so long that, even though I knew Berkeley’s twenty cells would likely not be full, and I had no medical conditions, I feared they were taking me to Santa Rita. I didn’t notice that he’d strapped a seat belt on me and I had visions of meeting Freddie Gray’s tragic fate. My glasses had slipped down my nose; my mask had slipped into my mouth. Hair was in my eyes; and my forehead itched. So I wriggled out of one cuff, which enraged Shedowdy. He put it back on so tightly that it blocked blood flow and left deep purple marks in my flesh. I recalled that they’d murdered Kayla Moore. Eventually I mustered the courage to mention that I’m a pianist and that I know someone whose tight handcuff caused permanent nerve damage. He loosened it.
Other cops treated me in a professional manner, except the one who fingerprinted me. Surely it need not have taken over an hour. I chatted cheerfully to calm myself and to charm them into being humane. He knew I needed a restroom, so was this a passive aggressive way of decimating my dignity, or is he touch deprived and liked holding my hand? Prints were taken of all ten digits and both palms over and over again. “What next? Want to do my toes, too? I’m well trained in patience. One of my first jobs was in a nursing home. Waitressing required more patience. Being a dental hygienist required even more. Hey, I had many famous patients! I met Grace Kelly, the epitome of grace.” He said he just needed my right middle finger again. I flipped it, saying, “Sorry, couldn’t resist,” and we all laughed, but then he did that whole hand again. Finally, he put me in the cell, tired of my banter, or perhaps because I said I considered this to be a mild form of torture.
By then I didn’t care that the toilet in the cell had no privacy. The cot was comfy enough to cop a nap, much needed since our vigil had begun at midnight. I put my Covid mask over my eyes because I couldn’t turn off the bright fluorescent light.
Providing a toothbrush was nice, but it’s impossible to clean teeth with that ridiculous finger cap brush. If I’d been incarcerated more than a few hours, I’d have gotten a migraine from the strong disinfectant smell. Some inmates may be so hungry that they’d eat a genetically modified taco, microwaved in a plastic wrapper, but jails shouldn’t serve pork. Islamophobia? I’m vegetarian. I hesitate to complain, given the police brutality that Black people routinely endure. I want to use my privilege to help others.
People who are EMF (electromagnetic field) sensitive also often have multiple chemical sensitivities. They would have suffered terribly in the Berkeley jail. I was there for them, four of them having confided to me that life won’t be worth living if 5G is deployed as Big Telecom plans, with antennas on every block and no escape from involuntary exposure 24/7, causing myriad health problems as proven by 1,000+ peer-reviewed studies. It even kills insects, and it’s an energy glutton, a big deal in Berkeley. Ugly antennas also lower property values, destroy privacy, and seriously increase fire risk. NASA scientists predict 5G will decrease weather prediction accuracy by 30%. We’ve just had high wind predictions that warranted prepping for fire evacuation!
For over three years we’ve been lobbying for stronger local telecom laws. We formed a non-profit, WIreless Radiation Education & Defense (WiRED), held educational forums and film screenings, pamphleted, created swag, waited hours to give one minute public comments at many a Council meeting, and protested. We raised funds and hired attorney, Ariel Strauss, to craft protective local laws as in other cities like Encinitas, which work continues.
Dozens of neighbors near Monterey Market and Berkeley Natural Grocery signed affidavits attesting that they never received the required notices that AT&T claims were sent. We got an attorney to send the city two Cease and Desist letters based on that and other violations of the law (lack of NEPA checklist environmental review.) We were ignored. The City Manager could have revoked telecom permits that expired in August. Instead, she extended them into 2021 and got the local police to protect a multibillion dollar corporation instead of the community. AT&T will reimburse the city for the cost of having cops violate the city’s laws by facilitating illegal corporate activities and violating our rights to defend our neighborhoods. Shouldn’t local cops be cruising to interrupt and prevent crimes, rather than harassing protesters on behalf of AT&T?
Now that the roll out has begun, contractors erect tall fences in the middle of the night, violating Berkeley’s noise ordinance, to keep us from occupying the public sidewalk around poles. We’re protecting our public commons and children who are more vulnerable.
After being locked around a pole at People’s Park for four hours on October 20, on our way home Sierra Murphree saw a gap in the fence for an antenna on MLK near Berkeley High School across from Washington Elementary. Pretty Jessica Wall distracted the contractors while Sierra, Cynthia Papermaster, and I ran in and plopped down by the pole, linking elbows and telling the startled workers, “Party time!” Cops were called, pried us apart, and roughly dragged us out.
We delayed but could not stop an antenna at the School District building on Bonar where Oxford and other school children will study. Several preschools are nearby. After a trench in the gutter is bored to the transformer, and the “smart” meter installed, that one will go live. Antennas are planned across from Crowden and Jefferson schools on Rose, on Dwight across from Herrick Medical Center, on Fourth Street, and on the roofs of apartment buildings including HUD housing at Cedar/MLK. Some are 4G, but 5G works with 4G, so we’ll still be hit with microwave radiation in addition to the new millimeter waves.
Mayoral candidate Aidan Hill attended the People’s Park pole protection, as did Copwatch. Candidate Wayne Hsiung sent a supportive representative to the all night vigil on October 28. Mayor Jesse Arreguin wrote later that day, “I have reached out to the City Manager to find out what happened and asked that any charges be dropped against those engaged in civil disobedience opposing the antenna installation.” Councilmember Cheryl Davila has been extremely helpful. Councilmembers Kate Harrison, Ben Bartlett, and Susan Wengraf have also been helpful over the last couple of years.
I’m petite. Sgt. Rodrigues could have ordered a couple of her henchmen to drag me across the street on October 28 instead of arresting me. Use of force has sometimes been excessive. In a dream, she turned into a leopard and attacked me as I tried to morph into a cougar. She growled and drooled on my face. As I was losing our strenuous wrestling match, I awoke with a start. Daniel Borgstrom reassured those of us who are traumatized by cops, saying we might forget all about it when 5G is rolled out everywhere because EMF/RF radiation impedes memory!
As she charged into view on October 28, I said, “Sargent, we have to keep meeting like this!” WiRED co-founder and community organizer Stephanie Thomas mused, “They must have approached slowly with headlights off because it was as if a space ship landed. About six police cars came out of nowhere with lights flashing around 4:30 AM like a tornado, suddenly surrounding us. It was like they were playing war games and had a predetermined plan, not a decent engagement with peaceful protesters allowing for things to unfold in a humane manner. Cops immediately announced they had a vehicle to take us to jail if we didn’t move.” I didn’t hear that.
We were not given the standard three orders to disperse that morning or on other occasions. Most of my cohorts would have left voluntarily, but on October 28, police swooped in. It was a surprise blitz before the contractors even arrived, a preemptory escalation of Berkeley police taking AT&T’s side against the people, another reason to fire the city manager and police chief Greenwood. Such a lovely name, but as ugly as industrial clutter in our neighborhoods if it means prioritizing dollars over people! Has fascism come even to the Home of the Free Speech Movement?
Author Phoebe Sorgen, co-founder of WiRED (WIreless Radiation Education & Defense), may now identify as a jailbird. She is on the National Committee of the Green Party US (the decision-making body) and on the Peace, International, and Conflict Resolution Committees of the GP-US. She is an activism addict and voice teacher.
Berkeley police do AT&T’s illegal bidding, forcefully removing Berkeley residents who were protecting the public commons from wireless “small” cell installations.
On October 5, nearly twenty people began vigils before 1:00 AM at two sites in hopes of stopping wireless antenna installations on utility poles in the public right of way. Residences and a school are near the sites at the popular Monterey Market and Berkeley Natural Grocery. AT&T contractors arrived at 3:30 AM and, seeing the “pole protectors,” called the police who removed the residents and activists by force at both sites. Grounding wires were then installed, but not the antennas and “smart” meters.
Former Planning Commissioner Clifford Fred who lives nearby said, “I’m shocked that city officials knew that AT&T violated Berkeley Municipal Code 16.10.040 by not notifying people within 500 feet of the 1321 Gilman or 1550 Hopkins poles before the controversial cell towers were approved, but let AT&T get away with violating the city laws. Officials used to care but now are keen on letting big telecom companies have their way.”
Background:After trying for three years to get local laws improved, residents and activists prevented installations eight times in recent months by refusing to leave utility poles when contractors arrived, or by asking to see their permit, examining it, and telling them they must leave if it had expired. Work is not allowed prior to 7:00 AM, so the team took turns guarding the poles starting at 6:30 AM on weekdays.
On August 19, contractors arrived at 6:00 AM and quickly put up 8-foot tall chain link fences around the poles. Cynthia Papermaster parked her car close enough to be used as a ladder. Lloyd Morgan, who became an Environmental Health TrustSenior Research Fellow after surviving a brain tumor caused by EMF radiation, climbed onto the roof of her car, and then over the barrier. He is a spry 78 year old, but one foot got stuck on the fence. Papermaster reached high and pushed that foot over. He landed on a sturdy trash can inside the barrier where he stood for three hours until the workers and police gave up and left.
On September 21, the AT&T contractors and police beat the protectors to both sites, noisily setting up the metal fence at 2:00 AM, and then waited until 7:00 AM to install ancillary equipment. Since then, an elder and a young neighbor, Sierra Murphree, have sometimes slept in a tent at the foot of one pole so, if workers arrived, they could awaken and alert other protectors to join them before the barriers went up.
Stand off! On October 5, protectors arrived long before workers at both sites, but were escorted, dragged, or carried across the street by police. Papermaster, who screamed when she thought her arm was being broken as she was hauled off, later said, “More important than my pain is that we were removed from a public sidewalk so that a private multi-billion dollar company, with help from the police paid by our taxes, could perform non-essential work in the middle of the night, violating Berkeley’s laws.”
Jason Winnett wrote of the incident to the Berkeley City Council, “I exercised my constitutional rights where crews were attempting to erect a cell tower which has been protested, clearly unwanted by residents. According to my understanding, there were actions by private parties as well as Berkeley police that have questionable legality… 24 hours later, I am experiencing lingering injuries, pulled muscles from being handled roughly. I was appalled to see women in their 70’s, concerned citizens who, after being up in vigil all night, were roughly handled by a large number of young, strong officers… We seem to be heading into what is known as fascism.”
Meave O’Connor, treasurer for WIreless Radiation Education & Defense (WiRED), was also injured by the police’s excessive use of force, photographed her bruises, and filed a complaint. She wrote to the City Council, “By trying to stop AT&T we had the Berkeley law on our side but it did not help us defend our Commons. The police were called and brutally removed us, roughing us up badly… Berkeley is voluntarily handing its autonomy to the telecom corporations, even using police to do corporate bidding… Who gave the orders to use the Berkeley police in that way?”
After being dragged offsite that night, WiRED co-founder Phoebe Sorgen asked Sgt. Ronnie Hernandez who was paying the police, and was told that AT&T will reimburse the city. Instead, why aren’t the police patrolling the streets to stop assaults and burglaries? Catalytic converters have been stolen from three WiRED members’ cars.
Sgt. Hernandez then asked what the fuss is about. Sorgen told her that antennas emit EMF/RF microwave radiation that sickens people and harms flora and fauna. They also increase fire risks, and overloaded, weathered poles sometimes fall. Business and property values plummet nearby. 5G is an energy glutton too. Wired connections—whether copper or fiber—will always be faster, greener, safer, more reliable, and more secure than wireless. “We need to preserve our right to privacy. Furthermore, there’s no AT&T service gap here, and the people don’t want additional ugly industrial clutter destroying the character and peaceful enjoyment of our neighborhoods. 5G is a scam for corporate greed.” Though appalled by the police misconduct, she is grateful that no one was jailed and that those who obeyed the police order to leave were not injured. However, several of them said they were emotionally traumatized. Daniel Borgstrom, whom police escorted across the street, mused, “According to scientific reports, microwaving from 5G can cause memory loss, so maybe we’ll forget all about it.”
Onward! AT&T has unsigned permit extensions to install twelve more antennas onBerkeley sidewalks, many near residences, schools, and healthcare facilities. Most of the permits expired in August, but were extended until 2021. Without a signature, they are invalid. Berkeleyans had urged the City Manager to exercise her option of requiring AT&T to reapply. WiRED has been lobbying and raising awareness since 2017, including hosting public forums. Two City Councilmembers co-hosted a forum featuring Dafna Tachover of Children’s Health Defense. WiRED is fundraising to pay attorney Ariel Strauss, of Greenfire Law, who helped craft stronger local laws such as requiring companies to put equipment underground, but the laws do not apply retroactively, and the City Council did not go nearly far enough, so WiRED is pushing for amendments.
Similar injustices have occurred nationwide. When public officials or officers brutally take the side of giant corporations against the public health and interest of the people whose taxes pay their salaries, they betray their oaths of office. They are no longer public servants. Instead of serving the people they are supposed to represent, they are serving corporate interests, which is the definition of fascism. Big Telecom will stop at nothing to increase profit. We, the people, are able to stop our officials from doing Big Telecom’s bidding against us. Wherever you are, please forge alliances, educate your neighbors, strategize, and resist creatively together. Now is the time to stand up to the corporatocracy, non-violently but assertively, in order to reclaim our power.
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