Occupiers Prevail Over Infiltrators, Unconstitutional Ordinances, Vindictive DAs

Occupy Boston members demonstrate against wealth inequality and corporate malfeasance in October 2011. Of the 193 arrested in two raids on the protest camp, the 26 with open cases in February 2013 had their charges dropped. Photo by Tim Plenk
Nathan Tempey

On the second Friday in February, Boston prosecutors announced that they were dropping all charges against 26 people who had been swept up in two late night raids of Occupy Boston almost a year and a half earlier. The move came as a surprise to the arrestees and their NLG defense team who were deep in preparation for a trial the following Monday. While it would be welcome news to any criminal defendant, the evaporation of the charges was a strange end to a long and grueling saga, especially because of what came with the announcement:

“There’s now parity with prior cases arising from the protests,” Suffolk County District Attorney’s Office spokesman Jake Wark told the Boston Globe. “They’ve served essentially the same sentences.”

Occupy Boston activists, though glad to see their charges dropped, were outraged that the D.A.’s office could confirm their harshest critiques—which held that the criminal justice process is itself a punishment enacted by the state to deter continued activism—and keep a straight face.

Despite the mixed emotions they evoked, the dismissals are undoubtedly a victory for Occupy Boston and for the Massachusetts NLG chapter, which provided legal support to the protest camp from the beginning. The win is only the latest in a string of NLG victories as the saga of the Occupy movement continues to play out in courthouses across the country.

APD Disclosure Packet_ Photo Gallery cropped.jpg

Austin police officer Rick Reza poses with a PVC pipe that he and two other undercover officers used to build a lockbox which they subsequently arrested seven Occupy activists for using.
Austin police officer Rick Reza poses with a PVC pipe that he and two other undercover officers used to build a lockbox which they subsequently arrested seven Occupy activists for using.

Texas

Greg Gladden, a Texas Guild lawyer and newly elected Mass Defense Committee co-chair scored a major win in helping to secure the dismissal of felony charges facing seven Occupy Austin protesters charged with felonies after participating in a port facility lockdown. The charges, felony possession of a criminal instrument, stemmed from the activists’ use of a lockbox which Gladden showed through an aggressive discovery strategy to have been hand-built and delivered by three Austin police officers posing as protesters.

The revelation of police involvement led to the dismissals which were actually the second time a judge tossed out the charges—after the first, a prosecutor had them reinstated through a federal grand jury. Gladden represented Ronnie Garza, one of seven Occupy Austin protesters charged for blocking an entrance to the Port of Houston with a sleeping dragon as part of the December 2011 Occupy port shutdown. In addition to the three infiltrators named for their direct involvement in the criminal case, the discovery points to the presence of at least three more undercover agents working within the Occupy camp in coordination with a local fusion center.

Also in Austin, Guild member Jim Harrington in his capacity as Director of the Texas Civil Rights Project prevailed in a federal lawsuit challenging the City’s practice of banning people from City Hall Plaza, which had been used to deter 37 Occupy Austin protesters from returning to the encampment site. Federal Judge Lee Yeakel ruled that the city’s use of criminal trespass notices violated the First Amendment and due process and banned the practice.

Chicago

Lawyers and legal workers from the NLG’s Chicago chapter coordinated the defense of nearly all of the several hundred activists arrested during Occupy Chicago demonstrations. In September, the 92 arrestees whose curfew violation cases were still open saw their charges dismissed by a Cook County Court judge. In his written ruling, Judge Thomas Donnelly upheld Guild lawyers’ motion to dismiss, finding that the park curfew ordinance was unconstitutional on its face and as applied.

The ruling states:

While the City arrested everyone remaining in Grant Park during the Occupy Chicago rally, the City arrested no one at the Obama 2008 presidential election victory rally, even though the Obama rally was equally in violation of the Curfew. That violates Defendants’ right to equal protection because it treats similarly situated citizens differently.

Philadelphia

On March 5, a Philadelphia jury found 12 Occupy Philly activists not guilty on charges of conspiracy and defiant trespass. The decision marked the jubilant end of a grueling process that began with the occupiers’ arrests at a Wells Fargo where they staged a sit-in, protesting the bank’s racist predatory lending practices. The arrestees were found guilty in an earlier municipal court judge trial but their pro bono lawyers, including NLG members Mike Lee, Michael Coard, and Paul Hetznecker pushed for a jury trial in the city’s Common Pleas Court. During the jury trial, the lawyers did not contest the facts but instead pursued a necessity defense, arguing that protesters acted to prevent a greater harm and, after 13 hours of deliberation, the jury agreed.

Following the reading of the verdicts Judge Nina N. Wright Padilla asked the defendants to approach—so that she could shake each of their hands.

Cleveland

NLG members representing Occupy Cleveland activists prevailed in the first of a series of criminal appeals in December when an Ohio appeals court ruled that a city curfew law is unconstitutional. The judgment reversed and remanded two criminal convictions under a municipal law banning activity on the public square—where Occupy camped last year—from 10:00 pm to 5:00 am and requiring a permit for other activity there. The court found that Occupy Cleveland’s occupation of public land qualified as expressive activity.

Los Angeles

In December, Los Angeles Guild lawyers filed a heavy hitting lawsuit challenging the November 2011 arrest and prolonged detention of some 300 peaceful protesters during the eviction of Occupy LA. Local police chief Charlie Beck described the clampdown involving over 1,400 police officers as a “shock and awe” campaign. The lawsuit, which is ongoing, argues that the City had no standing to remove the protest camp which city council members had lauded in a resolution just weeks before. Further, the suit demands accountability for the 60+ hours those protesters spent in jail on misdemeanor charges in a clear breach of due process.