Occupy fights the law: Will the law win?

From Boise to Nashvile, the movement faces an unconstitutional legal siege

Published February 14, 2012 1:00PM (EST)

Occupy Boise is under legal and meteorological siege.    (AP/John Miller)
Occupy Boise is under legal and meteorological siege. (AP/John Miller)

The Occupy movement is an exercise in the workings of power whether it is social, financial, policing or political. The occupations that began in September spread with an infectious passion in part because the police violence and mass arrests, the tried-and-true methods of state power employed to suppress radical movements, backfired and the movement grew more. By October hundreds of encampments had popped up nationwide with the tacit cooperation and sometimes explicit approval of local officials. For a few heady weeks Occupy Wall Street had the glow of popular legitimacy – social power – trumping whatever fusty laws prohibited camping or a continuous presence in a public space.

The inevitable counteroffensive was launched in November. Using the mass media, politicians hyped the movements as imminent threats to public health and safety, justifying aggressive evictions of prominent occupations in Oakland, Calif., Portland, Ore., and New York City. Within weeks other major encampments in Los Angeles, Seattle, Boston and New Orleans were scattered with hundreds of arrests. A third wave of closures has been underway since late January with occupations shut down from Hawaii to Miami and Austin, Texas, to Buffalo, N.Y.

Nonetheless, some encampments survive. In Houston a small contingent is legally maintaining a presence in downtown Tranquility Park, though a ban on tents and tarps has kept all but the hardy or desperate away. In Tampa Bay, after months of police harassment, occupiers found a safe haven in a privately owned public space donated by a wealthy supporter.

Now, a new strategy is being deployed to yank the rug from under occupations in four cities: legal power. Politicians have recently passed laws in Honolulu and Charlotte, N.C., that with a stroke of the pen made the occupations illegal, enabling police to sweep them away. Two more occupations, in Boise, Idaho, and Nashville, may be nearing the end as their respective state legislatures are on the verge of outlawing the democratic villages that for months have been thriving next to edifices of power. Critics charge that the anti-Occupy laws reveal how the law is not an objective code that treats everyone equally, but an arbitrary weapon wielded by the powerful.

In a separate case, the Hamilton County Commission in Tennessee gets the award for the most innovative and dicey use of the law. After passing a law on Jan. 4 that bans various activities that Occupy Chattanooga is engaged in, the commission filed suit in federal court against nine alleged occupiers, asking for a determination that the law is constitutional as well as payment for legal fees. Lawyers for the group have filed a motion to dismiss, and the suit does appear to be on shaky legal ground because “the county is trying to impose a monetary penalty on a group of innocent people for their political activity.”

Heidi Boghosian, executive director of the National Lawyers Guild, a progressive bar association founded in 1937, says, “Clearly the law is used politically. Occupy has shed a spotlight on that fact. Laws are enacted arbitrarily and interpreted as to how the status quo wants to interpret them.” She points to how camping in public space – the main rationale for shutting down occupations – is routinely allowed and even assisted by police when thousands of consumers camp overnight for Black Friday sales, the latest iPhone model or concert tickets.

On Dec. 9, the city of Honolulu approved a sweeping anti-homeless ordinance that the local ACLU testified against as being “a particularly egregious attack on the homeless.” The new law was used to arrest Occupy Honolulu members in late December and to clear out their encampment in early February, though organizers report that they are still camping in a park overnight and putting away their tents every morning.

In Charlotte, as a welcoming gift for this year’s Democratic National Convention, the City Council passed an ordinance on Jan. 24 banning camping on city property, prohibiting items such as glass bottles, sparklers, police scanners, scarves, backpacks, duffel bags and coolers within the boundaries of an “extraordinary event,” and criminalizing the use as a “projectile” of “animal parts or fluids, manure, urine, feces or other organic waste by-products.” Less than a week after the anti-camping ordinance passed, police busted up the Occupy Charlotte encampment on the Old City Hall grounds. (No word if the police have nabbed any feces flingers yet.)

As for Boise and Nashville, both the Idaho and Tennessee legislatures are set to enact their anti-Occupy bills by wide margins, but occupiers are hoping they can convince a court to block or overturn the laws because they are arbitrary. In Idaho’s case the punishment for camping only amounts to an infraction, a non-arrestable offense, while in Tennessee those in violation could be jailed for up to 364 days and fined $2,500.

Boghosian says these laws will likely be challenged in court as unconstitutional. “It’s one thing to say people can’t sleep in the parks after midnight, but it’s another to create that law after they have already camped for an extended period of time. That is a political act … In several jurisdictions we have seen laws created targeting specific people who have a political message. As well, existing laws are frequently being enforced arbitrarily based on the political content of the message and that violates the First Amendment.”

There is another troubling legal trend impacting the Occupy movement, according to Boghosian. She says that since protesters nonviolently shut down the 1999 World Trade Organization ministerial in Seattle, the National Lawyers Guild has observed how police work with municipalities to create ordinances in advance of “national special security events” such as the Charlotte law. Boghosian says the “event-specific ordinances are often found to be unconstitutional. They ask for prohibitive insurance. They ask for restrictive permits. They tie protesters up in court and this distracts them from the message. It becomes another way the government chills free speech.”

In Chicago, where occupiers deride mayor and former Obama chief of staff Rahm Emanuel as “Mayor 1%,” the city has enacted its own questionable event-specific ordinance for the planned NATO and G-8 summits this May.  Chicago activists call it the “sit down and shut up” law because of the onerous restrictions it places on freedom of speech and public assembly. Boghosian says this is another arbitrary use of the law as it is designed to go after political messages of specific groups.

The battle of Boise

Occupy Boise strategically choose to plunk down on the grounds of the old Ada County Courthouse next to the Idaho Capitol, says Bryan Walker, a 47-year-old practicing attorney active with the group. “We selected the site because there was no statute on the books prohibiting Occupy Boise from camping there.” Walker says the occupiers informed Idaho’s Department of Administration they were going to use the courthouse grounds, and presented “operational plans” but did not ask permission. “The state acknowledged they did not have legal authority to prevent us from occupying the spot,” he added.

 The camp was set up on Nov. 5, and when I visited weeks later the organization was impressive and the lack of police surprising. It included tents serving as a kitchen, dining area, a free clothing store, arts and crafts, childcare, medical care, psychological and spiritual counseling and even a workers center.

One factor in Occupy Boise’s careful planning, explains Walker, is the presence of older members such as himself and his wife, Cyndi Tiferet. “We tend to have more patience,” he says. “There are a myriad of tools at our disposal, and we’ve been waiting for a movement like this for a long time, so we are ready to do it for the long haul.” Occupy Boise has been careful to stay within the legal boundaries and has had only a handful of problems with substance abuse or violence that have marred other occupations. When I spoke to Tiferet on the courthouse grounds, she said their legal status kept relations cordial with the police who were maintaining a low-key presence.

As evidence for Occupy Boise’s neighborly presence, Walker pointed me to a letter from Boise Chief of Police Michael Masterson, dated Jan. 31, commending the occupiers for conducting “themselves in a civically responsible (law abiding) and peaceful manner. We have found our ongoing dialogue to be helpful, constructive and respectful.”

He wasn’t just delivering warm tidings, however. Masterson wrote that because “the State of Idaho may very soon enact legislation that prohibits camping on state property … we anticipate that it may ultimately impact our future relationship.” What he wanted was for the occupiers to clean up the site and skedaddle “prior to any enforcement action.”

Masterson was referring to a bill introduced at the beginning of the 2012 Idaho legislative session with the sole purpose of banning camping on state property. The bill’s legislative intent is “to regulate the use of the grounds of the Capitol Mall and other state-owned and leased grounds and facilities in order to prevent the unauthorized use of these grounds and facilities as a temporary or permanent place for camping, lodging or living accommodations.”

The superfluous nature of the bill is not lost on observers. It’s a case, as the Idaho Statesman puts it, of “trying to solve a problem that doesn’t exist. … As a response to Occupy Boise, this bill makes its sponsors look like they are out to quash public protest.”

Because the bill singles out one group, it may backfire. Walker asserts, “The legislation is weak on due process grounds. The intention is to put an end to our vigil, which is protected freedom of speech. It is an abridgement of our first amendment rights.” The bill is designated as an emergency, meaning it will go into effect once it is signed into law instead of the state’s normal process of enacting new laws on July 1.

Ironically, the bill has been a boon to Occupy Boise. Walker says, “If this legislation had not cropped up we may have ended the camp already. But it gave us precisely what we wanted, the political expression.” Rather than diverting their energy, says Walker, “It’s been a huge favor because the media attention has been incredible. It has given us the bully pulpit … The letters to the editor and comments on articles about the proposed legislation have shifted markedly in our favor. It’s gone from people griping about damage to the grass to saying you need to listen to these people.”

Occupy Boise has mobilized up to 60 people to attend various legislative committee hearings on the bill, which Walker says has been an empowering experience. “I had never testified before the legislature and here I am doing it. People from the camp are showing up and testifying in House and Senate Committee hearings. People who are homeless or who have come out of prison with no training or resources are coming into the Capitol, standing before their senator or sepresentative and having their say.”

Even though the anti-camping bill passed the Idaho House by a 53 to 16 margin (and is now before the state Senate), the occupiers’ regular and, by all accounts, respectful presence in the legislature won them the support of the entire Democratic caucus plus three Republicans. Not all legislators see it that way. The House speaker has ordered the building to be locked down, which is designed to be open to the public. The body has been prohibiting signs and placards in the chambers, and on one occasion asked a dozen occupiers to remove American flags pinned to their clothing.

Walker says, “In more than 120 years in the state of Idaho the Legislature has never felt a need to do that before. Plus the high level of security they are pouring into the statehouse has provoked comments to the legislators like, ‘What are you afraid of? They are doing exactly what you want them to do.’”

As for next steps, if the bill passes as an emergency measure then Occupy Boise will almost certainly fight it in court. Walker says, “If we don’t have to decamp until July, then it’s up to the general assembly to decide if we should stay or not. My opinion is we need to go with what’s effective and focus on our goals.”

 Safety in Nashville

Occupiers in Nashville have traveled a similar, if bumpier, road. On Oct. 7 they descended on the Legislative Plaza within sight of the state Capitol, Supreme Court and Legislature. Michael Custer, a 46-year-old line cook, musician and father of four, calls it “the place to address the state of Tennessee,” adding that “it’s always been used for that.”

Gov. Bill Haslam’s administration wasn’t too happy about that. So it secretly drafted a nighttime curfew on the plaza, and hours after unveiling it on Oct. 27 began hauling away members of Occupy Nashville and their gear. The problem was, in trying to criminalize Occupy Nashville Haslam was acting illegally. The state arrested more occupiers the following night, but night court Judge Tom Nelson refused both times to keep the protesters jailed because “I can find no authority anywhere for anyone to authorize a curfew anywhere on Legislative Plaza.”

Days later Federal District Court Judge Aleta Trauger issued a temporary restraining order on the new policy and observed, “I can't think of any more quintessential public forum than the Legislative Plaza.” Trauger added that the state was at fault for exercising “clear prior restraint of free speech,” and two weeks later issued a preliminary injunction on the policy.

Notching a victory against governmental abuse of power was a shot in the arm for the Nashville group. But the preliminary injunction noted the state could still enact new laws regarding the use of the public area, while Occupy Nashville and others could likewise challenge those rules.

According to Michael Custer, the occupation has stabilized at a few dozen regulars while the state has pursued an underhanded strategy to chip away at its support while preparing to legislate it away. As in Boise, police have been largely absent from the Legislative Plaza, but in Nashville’s case that’s a problem.

Custer explains that “unsavory vagrants” are the issue. “We have a pretty small group and, well, we’re easily intimidated.  So we had to call the city police many times to get violent people removed from the camp.” Calling the police was a difficult decision for occupiers, says Custer. “We do band together and try to chase off the violent people. We will call the police when violence is happening on the plaza, and it hurts to do it, but we’re not going to let the violence happen.”

Now, says Custer, the police are “using the injunction that we have against them to justify why they’re not there.” When they call to file a complaint the police retort, “Yeah, well, we can’t tell you apart. Y’all look the same to us!” He adds that they have informed the state “many times” of their code of conduct against drinking on the plaza, possession of drugs, sexual assault or harassment or violence.

The Nashville media have reported on the protesters’ “pleas for improved security,” to which one official responded that the state cannot “go out and, in effect, baby-sit protesters 24/7.” The concern about manpower did not stop the state from reportedly deploying more than 70 state troopers and other law enforcement personnel to enforce the now defunct curfew two nights in a row. And both the city and state had enough resources to infiltrate undercover police into the Occupy Nashville movement from the beginning.

At this point the damage is done. Custer says some media stake out the site looking for footage of public urination or drug use that then shows up on the nightly news as the face of the movement. Over the last few months, Custer says, polling has shown public approval of Occupy Nashville drop from 70 percent to 30 percent.

This loss of social power has opened the door to wild claims about Occupy Nashville that are used to legitimize the legal attack. Rep. Eric Watson, who introduced the anti-camping bill, seems obsessed with the genitals of occupiers. In October Watson said he saw some members engage in a sex act outside his office, which allegedly triggered the police infiltration. (An unnamed legislative aide also claimed witnessing an “orgy going on out on the plaza.”)

During recent hearings before the House Judiciary Committee, which Watson chairs, he bellowed indignantly that an occupier “peed on” a secretary taking a cigarette break. His solution: “If you approve of that and you think that’s peaceable assembly, you need to be peed on.”

Custer responds, “We know that Homeland Security is out there and we have been told by state police that they are photographing and recording us. If someone was breaking the law so blatantly then they should have been arrested.”

It was during those judiciary committee hearings that the one-year jail time was added for anyone maintaining “living quarters on publicly owned property” where residency is not allowed. To get rid of the Occupy movement, the state is taking a sledgehammer approach by also effectively criminalizing homelessness.

Occupy Nashville is almost certain to challenge the law in court once it passes. Like their compatriots in Boise, they hope to block implementation of the law or even have it overturned. In a perverse manner, the laws are a sign of success of the Occupy movement. Novelist Arundhati Roy told me that she doesn’t think “the state will allow people to occupy a particular space unless it feels that allowing that will end up in a kind of complacency, and the effectiveness and urgency of the protest will be lost.”

That urgency will be on display repeatedly this year. On May Day. In Chicago during the G-8 and NATO summits. In Tampa Bay, Fla., for the Republican National Convention and Charlotte for the Democrats. And in ways no one can predict. In each instance the confrontation will come down to a question of power. The government will deploy all the ideological, policing and legal power at its disposal. On the other side, the Occupy movement has the power of a unifying idea and social legitimacy. It’s a lopsided battle, but no one could have ever imagined that the Occupy Wall Street movement could have come this far already.

By Arun Gupta

Arun Gupta, a New York writer and co-founder of Occupy the Wall Street Journal, covers the Occupy movement for Salon.

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By Michelle Fawcett

Michelle Fawcett, Ph.D., is an adjunct professor in the Department of Media, Culture and Communications at NYU and is reporting on the Occupy Movement nationwide.

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