activist defense

on the intersection of activism and legal systems

Tag: first amendment

police department attempts to silence twenty-fifth annual school of the americas watch vigil

Created in Panama and moved to Fort Benning, Georgia in 1984, the School of the Americas (SOA) trained military leaders from countries throughout the Western Hemisphere in combat and counter-insurgency techniques. Hundreds of the SOA’s graduates went on to become human rights abusers, bolstering military dictatorships by killing, torturing, or otherwise suppressing political opponents. In response, SOA Watch was formed in 1990 to raise awareness regarding the SOA’s activities.

In 2000, the SOA was “replaced” by the Western Hemisphere Institute for Security Cooperation (WHINSEC), which opened in late 2001. Activists seeking to close the school were not deterred, continuing annual vigils at the main gates of Fort Benning to commemorate a 1989 massacre at the University of Central America caused in large part by soldiers trained at the SOA. Yet this year the local police department is attempting to silence the vigil, according to a National Catholic Reporter article:

The police department … has told the movement … that the city would not close the gates of the fort at that location as it has in the past. The city also said it will not close the street to vehicular traffic, that the gathering would have to be limited to 200 people and that they would have to remain on the sidewalks. Chief Ricky Boren also denied permission for a stage and sound system to be erected in its usual spot in the middle of Fort Benning Road.

As SOA Watch organizers and attorneys tackle this problem, you can sign a petition urging the police chief to reconsider.

california appeals court unanimously rules that stay-away order was constitutional

On December 30, 2011, police started writing citations against people whose items were on walkways in Oscar Grant Plaza, where Occupy Oakland had set up tents with a city permit. As an Oakland police officer was grappling with a female demonstrator, Cameron Rose allegedly hit the officer in the head with a metal folding chair. Yesterday’s San Francisco Chronicle article describes the incident:

When one woman refused an officer’s demand for identification and started to walk away, the officer grabbed her. She struggled, another woman tried to pull her away, and when two more officers grabbed that woman, Rose struck one of them from behind with a steel folding chair, the court said. He fled but was arrested a month later. Ten others had been arrested after the protest.

Rose was acquitted of a felony charge of assault with a deadly weapon, but convicted of resisting an officer and misdemeanor assault. The judge did not jail Rose, instead putting him on probation for five years and ordering that he stay out of a six-square-block area in downtown Oakland including City Hall and Oscar Grant Plaza. (Rose was allowed to travel through the restricted area via certain modes of public transportation.) Rose claimed the stay-away order was unconstitutional, but on Thursday a California appeals court unanimously ruled that the restriction was “carefully designed to promote rehabilitation.” According to the court of appeal opinion,

After considering Rose’s volatile and criminal history at that specific location as well as his mental illness, the trial court reasoned that restricting Rose from that small area would help him successfully complete his probation.

washington state court of appeals affirms dismissal of lawsuit regarding co-op’s boycott

In 2011, five members of the Olympia Food Co-op filed a lawsuit to end the Co-op’s boycott of Israeli-made products. In 2012, the trial court dismissed the lawsuit. Today the Washington State Court of Appeals affirmed the dismissal, stating as follows:

… the nonviolent elements of boycotts are protected by the First Amendment.

lawsuit filed regarding media access to prisoners implicated in prison uprising

From April 11-22, 1993, one of the major prison uprisings in U.S. history occurred at the Southern Ohio Correctional Facility outside Lucasville, Ohio. Nine prisoners and one correctional officer were killed. Five prisoners were sentenced to death, and numerous other prisoners received lengthy sentences.

For the following 20 years, the Ohio Department of Rehabilitation and Correction (ODRC) has denied all media requests for face-to-face interviews with prisoners convicted of crimes allegedly committed during the 1993 uprising. Meanwhile, ODRC has frequently granted media requests for face-to-face interviews with other prisoners, including prisoners on death row. According to a lawsuit filed last week by five prisoners, four reporters, and one teacher,

Defendants have consistently denied media access to any and all prisoners convicted of crimes during the Lucasville uprising, no matter where such prisoners are confined or at what level of security, and regardless of the severity of the crimes for which they were convicted. … The reasons offered by Defendants for this discriminatory and inconsistent pattern of decision-making are not authorized by the Ohio Administrative Code and are based on the anticipated content of the interviews.

The complaint concludes that ODRC’s “total ban on media access to in-person interviews of prisoners implicated in the 1993 uprising is an unconstitutional policy and practice” designed to prevent public access to, and discussion regarding, the uprising.

minneapolis says it will stop charging people with trespassing for engaging in first amendment protected activities

The authoritarian impulse of governments to control speech is still alive in the world.

On June 9, 2011, Melissa Hill was detained and issued a trespass notice after she wrote with chalk on a public sidewalk outside the Federal Building in Minneapolis. Hill filed a lawsuit asserting violations of the First, Fourth, and Fourteenth Amendments. Today’s press release from the American Civil Liberties Union (ACLU) of Minnesota gives a more detailed explanation of the incident:

In 2011 Hill was in the process of re-chalking “Don’t Enlist, Resist” when she was handcuffed, detained, searched and questioned by security guards, [Federal Protective Service] Agents and a Minneapolis Police Department officer. The MPD issued Hill a trespass notice that prohibited her from entering the property of the Federal Building for a period of one year.

Hill recently entered into a settlement agreement resolving her lawsuit. According to the agreement, the U.S., DECO (a privately-held company providing protective security services), and the City of Minneapolis will pay a total amount of $5,000 to the ACLU of Minnesota for attorneys’ fees and costs. In February 2012, Hill settled a separate lawsuit, arising from her arrest in October 2011, for $15,000 and changes to Hennepin County’s trespassing policy.

food not bombs wins first amendment lawsuit against city of flagstaff, arizona

Yesterday U.S. District Court Judge Neil Wake overturned an Arizona state law that criminalized being “present in a public place to beg.” The Flagstaff Police Department and City Attorney had aggressively enforced the law, negatively impacting Food Not Bombs (FNB). For example, several FNB members had apparently been arrested for requesting donations from passersby. According to yesterday’s press release from the American Civil Liberties Union (ACLU),

In 2008, the City of Flagstaff adopted a policy in cooperation with local businesses—called “Operation 40”—to remove panhandlers from downtown areas by jailing them early in the day. Flagstaff utilized the now-void statute, which equated panhandling with loitering, to justify the arrests. Between June 2012 and May 2013, 135 arrests were made by the Flagstaff Police Department under the law.

On June 25, the ACLU filed a lawsuit against the City of Flagstaff on behalf of FNB and three people who had been arrested, threatened with arrest, or who feared being arrested for “loitering to beg.” Judge Wake ruled yesterday afternoon that the 1988 state law at issue was unconstitutional. He also prohibited Flagstaff from “interfering with, targeting, citing, arresting, or prosecuting any person on the basis of their act(s) of peaceful begging in public areas.”

woodford county jail bans books in response to activists posting wish list

Arrested in rural Illinois on August 14, two animal rights activists, Tyler Lang and Kevin Olliff, have been charged with “possession of burglary tools.” Police allegedly found bolt cutters, wire cutters, ski masks, camouflage clothing, and muriatic acid – a substance that can be used to destroy masks or clothing or damage documents or vehicles – in their car. They are being held at Woodford County Jail, a small jail in Eureka, Illinois.

On August 17, the judge set bail for Lang and Olliff at $100,000 and $200,000, respectively. Lang is apparently not receiving vegan food, meaning he’s had to purchase expensive food from the jail commissary. He’s also being held in a small cell block with three other prisoners, apart from the general population, perhaps because this is the only way to keep him separated from Olliff.

Now, hours after the activists’ book wish list was posted, the jail has announced a new rule banning books. Yet the Seventh Circuit Court of Appeals, a federal court with jurisdiction in Illinois, Wisconsin, and Indiana, ruled in King v. Federal Bureau of Prisons (2005) that while there may be valid reasons for limiting an inmate’s access to certain kinds of books, the refusal to allow an inmate to obtain a book, without evidence justifying the restriction, infringes on the inmate’s freedom of speech. According to a subsequent Seventh Circuit opinion, Munson v. Gaetz (2012), which quotes the opinion in King,

A prison’s refusal to allow an inmate access to a book “presents a substantial First Amendment issue. Freedom of speech is not merely freedom to speak; it is also freedom to read.” … Forbidding someone the right to read shuts “him out of the marketplace of ideas and opinions,” which is what the Free Speech Clause protects.

judge allows lawsuit against university of california berkeley chief of police to proceed

In the fall of 2009, protests erupted on the UC Berkeley campus related to state budget cuts. Three of the protests occurred at Wheeler Hall, one of the largest classroom buildings on campus. The first of the three protests was on September 24, 2009, when a group of protesters briefly occupied the building after a rally and march.

The second protest at Wheeler Hall was on November 20, 2009, when a group occupied and barricaded the building. Approximately 2,000 people gathered outside. Confrontations with police ensued, resulting in injuries and at least 40 arrests.

The third protest at Wheeler Hall was on a Monday, December 7, 2009, when a group of protesters occupied the building and announced that they intended to occupy it for the entire week. The next day, a UC police officer told one of the protesters that the University was prepared to informally allow the occupation as long as the protesters exited the building before final exams that Saturday morning. Yet when Wheeler Hall closed every evening, UC officers continued to tell protesters that if they remained in the building, they were subject to University disciplinary proceedings and criminal charges.

The protesters scheduled a hip-hop show inside Wheeler Hall, featuring Boots Riley of the Coup, for the Friday night before final exams. A flyer said the party would last “until the cops kick in the doors.” University officials asked the protesters to change their plans, but the protesters declined.

At approximately 4:35 a.m. that Friday, UC officers entered Wheeler Hall and arrested 65 people. Roughly 12 of the arrestees, who had previously been arrested in the past month for occupying campus buildings, were taken directly to jail. Although the officers planned to cite and release the remaining arrestees inside Wheeler Hall, most of them were also taken to jail, where they were cited and released. (Full disclosure: I represented one of the arrestees after he re-entered the campus with a protest sign two days later, despite having received a notice of exclusion ordering him to stay away. The prosecutor dismissed the case.)

The arrested protesters sued, arguing that the University never informed them that they no longer had permission to remain in Wheeler Hall. Last week U.S. Magistrate Judge Laurel Beeler disagreed, but she allowed the case to proceed on another issue the protesters raised: whether sending them to jail instead of citing and releasing them inside Wheeler Hall was in retaliation for, or to chill, their exercise of First Amendment rights. Judge Beeler emphasized that in response to activists’ plans for a noon rally at Cal Hall regarding the arrests, the UC Berkeley Chief of Police said the following in an email to the campus crisis management team:

The good news is that the arrested protestors are still at Santa Rita getting booked so they won’t be able to participate in the rally.

Officers can’t book people in retaliation for First Amendment activity. Judge Beeler’s decision means the case will continue moving toward trial.

food not bombs files first amendment lawsuit against city of flagstaff, arizona

An Arizona state law makes it a crime to be “present in a public place to beg.” The Flagstaff Police Department and City Attorney have aggressively enforced this law. Such enforcement negatively impacts Food Not Bombs (FNB), according to a lawsuit the organization filed yesterday:

FNB members have become hesitant to participate in organizational activities and services due to the regular presence of police officers on the periphery of the feeding site and … the awareness that Flagstaff is arresting and prosecuting persons for asking for donations for food. FNB members who have experienced threats about and arrests for begging are particularly reluctant to enter into, and participate in activities in, areas with a Flagstaff Police department presence. As a result, FNB has experienced a loss of membership and a reduction in its capacity to serve the poor and hungry in Flagstaff.

Several FNB members have apparently been arrested for requesting donations from passersby. The American Civil Liberties Union represents FNB in the lawsuit, in addition to three people who have been arrested, threatened with arrest, or who fear being arrested for “loitering to beg.”

chamber of commerce withdraws lawsuit against the yes men over spoof press conference

In October 2009, The Yes Men held a spoof press conference in which Andy Bichlbaum impersonated a U.S. Chamber of Commerce representative. The Chamber responded by filing a lawsuit against The Yes Men, which the activists moved to dismiss on First Amendment grounds. Instead of opposing the motion, the Chamber recently abandoned the case. According to today’s post by Corynne McSherry at the Electronic Frontier Foundation, which defended The Yes Men,

In the lawsuit, the Chamber had claimed that a 2009 press conference—in which a Yes Man posing as a Chamber of Commerce spokesperson announced the Chamber was reversing its long held position and endorsing climate change legislation—infringed the Chamber’s trademark rights. Before the press conference was even completed, a Chamber of Commerce representative rushed into the room and announced that the Chamber’s position on climate change legislation had not in fact changed. The result: widespread media coverage of the event and the Chamber’s humorless response.

The lawsuit was the only time in 17 years that anyone has sued The Yes Men. Approximately one year after the Chamber of Commerce stunt, The Yes Men partnered with Rainforest Action Network and Amazon Watch to create a fake version of Chevron’s $80 million ad campaign with the tagline “We Agree.” The media picked up the fake version, which launched first, as real.