While Occupy has already seen a scattering of individual cases go to trial, starting last week, the movement had its first mass arrests trials, beginning with proceedings for the November 13, 2011 “eviction” from Chapman Square. Over that weekend, police arrested 51 people for various infractions associated with refusing to clear out of the occupied park and yesterday, Multnomah County Judge Cheryl Albrecht heard the final arguments in the cases against the protesters. But don’t expect verdicts anytime soon—these cases won't be ultimately decided until December.
But even with her final decision well off in the future, yesterday’s court proceeding did give us a hint of what the upcoming trials will look like. At issue in yesterday’s Chapman eviction trial was whether or not eleven Occupy defendants were in violation of a police order that closed the park to protestors. Deputy District Attorney Brian Lowney—who somehow got stuck prosecuting the vast majority of Occupy cases—took pains to prove that the protestors knew the cops wanted them out of the square.
To this end, Lowney tried to establish that the Occupiers heard police orders to vacate the park coming from the sound truck (sometimes called the “ice cream truck,” it's a large police vehicle with a bullhorn attached for issuing orders during protests). A typical cross-examination sounded this:
Deputy DA Lowney: Do you remember hearing the sound truck?
Occupy Defendant Forest Brannon: I remember seeing it, I don't remember hearing it.
Lowney: “Do you think the police wanted people to move out of the park at that point?”
Brannon: “I don't know what the police wanted.”
And on and on, ad nauseam.
Not just Brannon, but all the defendants testified that they couldn’t hear the orders coming from the sound truck, a fact that many ascribed to the cacophonous noise of hundreds of chanting and yelling protesters crammed into the square. When his initial tactic failed him, Lowney attempted to demonstrate that police actions alone—including loading tear gas canisters and carrying batons—demonstrated their intent to clear the square. Lowney’s implication was that it’s pretty clear what police want when they're coming at you in full riot gear swinging batons, and therefore the defendants should have known to leave Chapman Square.
Lowney at one point even tried to verbally ensnare a defendant who put on a gas mask during the protest, suggesting that the act of putting on the mask showed an intention to violate the law. The defendant responded by saying putting on a gas mask was proof of nothing, other than wanting to protect himself.
Besides saying they didn’t hear the ice cream truck order, many defendants also testified that the police orders were confusing and contradictory. Around 6:00 am on November 13, the Portland cops, in an attempt to open 3rd Avenue to cars, ceded control of Chapman Square to the protestors. Defendants testified that the police at that time ordered them to go back to the square and stay out of street.
“We cheered,” said defendant James Tardy, who told the court he and others saw the order to move back into the park as a partial victory for the movement. Tardy and other defendants were therefore surprised when, at around 11:00 am later that day, the police decided to clear the park. Defendant Jeffery Arlo Stone reiterated Tardy’s claim, saying, “It wasn't clear. There was a second command contradicting the first command that the protestors return to the park.” To which Lowney responded in his closing statement, “I find it interesting that they all heard this announcement, but nobody heard this other announcement that would make them criminally responsible.”
The confusion was heightened, say defendants, because cops not only ordered protesters back into Chapman Square, but they also searched them on their way in, which lead many to believe the cops had given up on reclaiming the square.
The sound truck announcement appears to be the only verbal statement made by the cops to the protestors showing they intended to clear the park. Multiple defendants testified when the cops entered Chapman Square they did so swinging batons, not issuing orders, or giving Occupiers the option to either leave or stay and get arrested. In a very vivid description, defendant Jacquelyn Miller told the court she wasn’t asked to vacate the park, her first knowledge of the cops’ intentions came from the “sound of clubs on flesh.” Miller said she was then clubbed and arrested. Many other defendants also described the cops’ heavy-handed eviction, which included the pulling of hair, boots on backs and faces, and beatings with batons. Actions many defendants said weren’t justified by the measly violation charges they later received.
Part of their surprise at the cops’ actions, say defendants, was due in part to the fact that many thought the police had to wait until evening to make their arrests. "My assumption,” Brannon told the court, “was they were going to clear the park later that day when the park closed.” In fact Chapman Square lacks an official curfew, which is perhaps why the cops turned instead to a city ordinance that said they could close the park if an emergency situation required it.
The defense and the DA also argued over whether there was an actual emergency that justified the removal of the protestors. To date, Occupy trials have heard countless references to the health of Portland parks’ grasses—and whether the wellbeing of the city’s greens should trump constitutional rights—and yesterday’s trial was no exception. But grass aside, the bigger issue was whether or not the park was safe. Earlier testimony by police told of fights, drug use, sexual assault, and piles of garbage that attracted rats. These were the dangers Adams’ office and the police used to declare an emergency. But the defense called bullshit on this.
"A blanket closure was simply the most convenient option for the city,” said defense lawyer Peter Castleberry. “It prevented them from having to take more steps to make sure the park was clean and safe.” Castleberry’s statements where echoed by defense lawyer Thomas Friedman who said that for every health and safety concern the cops and the mayor had there was a law they could have enforced. Defense lawyer Steven Sherlag also called the police actions strategic and referred to earlier police testimony that called November 13 “the most opportune time” that provided “the least resistance” to reclaim the park.
Of course, what all of these arguments will mean is still up in the air until December. Judge Albrecht, who is presiding over the majority of Portland's various Occupy-related cases, recently set the tentative final court date for all of the cases on the Occupy docket as December 13 of this year. On that date, she'll hear any final objections to her rulings, issue a final verdict, and then the cases will finally wrap up with a "guilty" or "not guilty." Why the long wait? Defense lawyers who spoke with the Mercury suspect she’s just trying to get it right.
At yesterday’s trial, Judge Albrecht told the court that because the majority of Occupy cases have yet to be tried, she wants to carefully consider the constitutional arguments brought by the defense in the Chapman eviction cases as they relate to all the Occupy cases under her purview. Hence the winter date when, she says, all the cases she’s presiding over should be finished. The decision surprised no one. The Occupy cases are Albrecht’s first trials for mass arrests, and she’s has been careful about setting legal precedent for future protest cases.
Also unknown is whether Judge Albrecht will consider the act of occupying as constitutionally protected free speech. Still, defense lawyers told the Mercury they are happy with how the judge as proceeded so far. Even many of the occupiers, who have lost their patience with the months and months of pretrial fights seem happy with how the judge is handling their cases. While Lowney rolled his eyes at many of the statements made by the pro se, or lawyerless, occupiers who had to defend themselves in front of the court, Judge Albrecht was once again patient taking the time to explain the law to them. At the end of yesterday’s proceedings, showing their gratitude the Occupy defendants invited her for drinks at Lotus Cardroom & Cafe. She declined.
The next Occupy court date is set for later this month. For a full list of dates check out the Elk Law Krewe website.
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