Read This Before You Protest: An Open Letter to Occupy Protesters from a Public Defender
by Sarah Mirk
on Fri, Oct 7, 2011 at 4:20 PM
Chris O'Connor, a public defender in Portland, Oregon, wrote this guest blog post for the Portland Mercury about what to expect at the Occupy protests if you plan to engage in an act of civil disobedience. It's not legal advice (and it's written by an attorney from a state with slightly different laws and a police department with its own set of problems), but it's sound advice as we head into a weekend of Occupy Seattle events. So listen up! — Eds
Dear Occupy Portland:
I don’t disagree with many of your goals and aims. I think that the banks and large corporations and mortgage fraudsters that made a killing off the crash need a few less bailouts and a few more criminal charges to thin out their ranks. But I am nothing if not a realistic and practical person. I want you to temper your idealism and righteous rage with a nice slap of reality. So if, in fact, you gather enough people and present your version of Tahrir on the Willamette, things are going to get bad. And I want to give you a heads up about some things you may not have been thinking about.
So you want to occupy Portland. Or at least a portion of the waterfront. Or the sidewalks outside of a park. Whatever. Give ‘em hell. Protester gotta protest and public defender gotta eat.
Unfortunately, I think the lawyers will be eating well after all this, and there is a high chance that you will be enjoying some of the fine meals at the county jail. I don’t say this to be mean, anti-democratic, or because I want you to suffer. I say this for two sets of reasons: The first set of reasons is practical, and it has to do with a realistic view of the Portland Police and their relative freedom to beat the crap out of you. The second is legal and focuses on the many many legal tools the city council and state legislature have given to the local ‘peace’ officers. Both need to be on your mind if you are planning on hanging out under the Burnside Bridge or setting up a tent city in a public park for the next few nights.
Part One: A) It Is Going To Hurt. B) Jail Deputies Will Be Looking In Your Ass. C) No One Will Care.
You need to be 100 percent realistic about the fact that getting arrested going to hurt.
A protest with hundreds of people, no permits, and intentional or unintentional violations of numerous city ordinances you are going to be dealing with some physical pain. Never forget that in this city a police officer can literally shoot you in the back with a rifle as you surrender and still get his paycheck for years. So don’t be surprised when they bust out the beanbag guns, chemical sprays and gases and riot shields. Like the early South Park episode taught us, all an officer has to say is “He was coming right at me” and the district attorney will apologize to the grand jury and the officer for wasting their time with this whole silly case. The officer’s sergeant might even buy him a drink after the debrief. Your bruises from the batons will go away in a few weeks.
If you would like a nice chant, please consider using the names Jim Chasse, Keaton Otis, Aaron Campbell, Jack Collins, Deontae Keller, Richard “Dickie” Dow, Jose Meija Poot, Kendra James, and James Jahar Perez. Those are just a few of the people killed by Portland Police. Look them up. They were not even focused on reforming or resetting the social order. Compared to them, you are a real threat to public safety.
Be realistic about who is going to win a fight. When you are out there and the police have their riot shields and are pushing the crowd back, don’t take a swing at them. Don’t drop a firecracker under the massive horses that they are using to intimidate and threaten the crowd with or kick at the police dogs. Don’t pull away when they try to put the zip-tie hand cuffs on you. You will be shoved, your arms will be twisted until you think your elbow or shoulder is going to pop, you will be taken to the ground and in some cases you may be injured. No one with any say will care. The officers will go home at night confident that the DA, the police higher-ups and the media have their backs. You will not be surprised to know that the jail will not permit you to take your medical marijuana into the cell with you.
As many people of color, the homeless, and generally poor folks in our town have found out, the police have friends with all the money, jails, and guns, so they get to do what they want. You do not. Remember that.
When you get down to the station and are subjected to your first full search, you will be humiliated. You will spend uncomfortable hours being processed sitting on uncomfortable benches. The deputy will want you to lean over with your pants down and stare at your anus while you cough so that they can be sure you are not sneaking in any anti-capitalist manifestos. You will at some point vocally lament your choices, upbringing, or the treatment that you are receiving. The corrections deputies will shrug and hopefully stick you in with the other Reedies. Don’t be an idiot and question the parentage, motives, or bias of the corrections deputies when they are around. They get to literally lock you in a cage and decide when and if to feed you. Their motivations are getting paid, keeping themselves physically safe, and getting along with their coworkers. Even the nice and kind jailers aren’t going to go out of their way to help you out.
After a while, if you’re lucky, enough of your fellow protesters will join you in the jails, resulting in mass releases of the protesters with orders to report to court in the morning. Then you can indignantly spend the following weeks dealing with stupid legal charges and bragging to your friends about how it was totally worth it. The cops who arrested you will use their overtime checks to buy a new jet ski and park it in their garage in Vancouver. They will also brag to their friends that it was totally worth it.
Maybe there will be some lawsuits in the coming years about whether that horse should have been used to break your toes, but the money won’t make up for the fact that you can’t get a job because of your resisting arrest conviction and your probation terms.
Again, please don’t take this as me being happy about all this. It will suck. I will feel bad for you. I will sympathize with you. I’ll write an angry letter to the Oregonian or help you in court as best I can. But you must, above all, be realistic. It is possible that you’ll be a famous civil rights leader and write a famous Letter From The Multnomah Detention Center that school children will read for decades to come. Maybe you will be the Vaclav Havel of your generation and be a rock star president when the old regime collapses. But most likely you will lose your job at the coffee shop because of your jail time or many court appearances. If you are of an academic bent, perhaps you won’t be admitted to the Oregon State Bar because of your criminal history. Make sure it’s worth it.
Part Two: The legal stuff is going to be as annoying as hell and you will be dealing with it for months and years and decades to come. Know what you are in for.
You know the basics. The man will try to keep you down even after the beatdown with an illusory ‘justice’ system. You’ll have to stick together and fight the system together. No doubt the protest will be crawling with radical lawyers, sort-of-radical lawyers, law students doing observing, police oversight advocates, veteran protesters and the like. They will give you the basic rundown on how to sharpie the name and phone number of a person with a land-line on your arm so you can call someone if you get arrested. They’ll tell you not to bring a little weed down there for the campout and will tell you to go limp if being arrested rather than fighting back. No pocket knifes, guns, gasmasks and all that — stay safe. Peace man. They’ll encourage solidarity and attempt to get everyone to fight their cases. You got that stuff covered.
But let me tell you about a few local ordinances and state laws you are going to have to become very familiar with very quick. I know it is a lot of information, and you are busy trying to find a sleeping bag that you don’t mind losing when the camp gets rousted, but don’t worry, you’ll have some time to consider this stuff in the many hours you spend in court.
I’ll give you ten nine laws to start with. If you want to explore more ways the authorities can charge you with a variety of crimes check out Oregonlaws.org for state statutes and the online City Code and Charter.
State and City Statutes That May Be Used to Arrest You:
1. Disorderly Conduct In the Second Degree: Among other alternate theories of Disorderly Conduct, it’s a crime if you engage in tumultuous behavior with the intent to cause public annoyance or inconvenience,. Hanging out in a park all night in a drum circle probably meets this definition. Being part of an angry mob facing off with the cops definitely meets this definition. So conduct yourself in an orderly manner.
An alternative way you can get in trouble with this is by obstructing vehicular or pedestrian traffic on a public way. So yeah, if you camp on a sidewalk it could be a problem. If you step into the street for a second, that’s a good excuse to arrest you. Also, the law makes it illegal to congregate with other persons in a public place while refusing to comply with a lawful order of the police to disperse. Which is the point, I know, but please be aware that they will treat it as a crime if they want to arrest you.
2. Interference with A Peace Officer: There are two ways to screw yourself with this one. First, it is a crime if you refuse to obey a lawful order of a cop who you know is a cop. So say the cop says, "I am issuing you a legal order to clear out of this park." And you don’t. If the order is lawful and the jury thinks you refused to obey it, you may have a bit of a problem. But wait, there’s more! Another version of this crime makes it illegal to prevent a cop from carrying out their lawful duties with regards to another person. So don’t step in front of a cop who is trying to pepper spray a group of cowering young women. That’s a crime. (Side note—this law doesn’t apply if you are passively resisting or engaging in resisting arrest! Nice! They can only get you on one or the other. Both are Class A misdemeanors though so not much difference, but I think “Interference with A Peace Officer” has a cooler name and looks so much better on your application to get a background check to go on your kid’s school field trip.)
3. Resisting Arrest: Say a police officer is arresting your friend and you pull on the offficer's sleeve (or your friend's sleeve) and say, "Don’t arrest her!" Bam. That’s a resisting arrest. You can’t resist your own arrest or somebody else's. The key is that there must be some physical resistance that creates a risk of harm. If you are going to be in there pulling on sleeves, that’s dangerous because you or your friend might get injured.
4. Harassment: Don’t subject another person (like a police officer or park ranger or noise enforcement guy to offensive physical contact. That would be shoving, pushing, spitting on and similar types of conduct.
5. Attempted Assault of a Public Safety Officer: Assault is causing physical injury to another person. It is a felony to cause physical injury to a police officer. It is a misdemeanor if you ‘attempt’ to do so. (Officer to fellow officer: “Look out! He’s got a book! He’s coming right at me!”)
6. Offensive Littering Don’t create an objectionable stench or degrade the beauty or appearance of property or detract from the natural cleanliness or safety of property by intentionally depositing rubbish, trash, debris, other refuse or tents on a property or roadway you don’t own. (I made up the bit about tents, but you can see where I am going with this one.)
7. Depositing Burning Material on A Roadway: It’s pretty clear: “No one shall, at any time, throw away any lighted tobacco, cigars, cigarettes, matches or other lighted material, on any forestland, private road, public highway or railroad right of way within this state.” Rubbing out a cigarette butt or tossing it in the gutter is going to get someone in trouble if the officer is looking for trouble.
8. Sit Lie II: Blah blah blah sidewalks. Blah blah blah Amanda Fritz. Blah Blah freedom of assembly. Even thinking of how to explain the needlessly complex sidewalk obstruction ordinance is putting me to sleep. Just don’t block the sidewalk. I’m sure the officers can explain this one to you at 4am as they are pulling you out of your sleeping bag. Or ask city commissioner Amanda Fritz. She has useless and boring meetings on it every month.
9. Erecting a Structure: No erecting structures in a public right of way or non-park public property in the city of Portland! A tarp between two shopping carts is a structure, as many individuals experiencing homelessness can tell you. Your tent and tepee are, in fact, structures.
Part Three: Some Recommendations Based On A Combination of Part One and Part Two. I’m a cynical bastard. Years of reading thousands of police reports will do that to you. It is frustrating to constantly deal with otherwise intelligent people who don’t understand that when the police say “We will use your statements against you in court” the police officer is saying that whatever you say will in fact be used against you in court. I make no apologies for shaking my head at you. I am old and grouchy and burned out, apparently. But I suspect that I will not get hit in the head with a baton in the next four days.
So my recommendations are as follows:
Play some X-box. I could play Left For Dead 2 all weekend. Great game.
If you do go down there, take nothing you don’t want to lose. I’d suggest a bus ticket, sharpied phone numbers on your arm, and cash.
Don’t drink, don’t camp, don’t sit down, don’t talk.
Don’t speak to cops. Don’t make eye contact with them. It can upset them.
If you get arrested, you don’t have to speak to the cops. I suggest you demand an attorney. You don’t have to give them your name, but they can hold you until they figure it out. Also, don’t lie about your name. That is a crime in and of itself.
Stay near the cameras.
Especially stay in the view of the cameras that are automatically uploading to the internet.
Leave your fancy smart phone at home. If you do show up with it, put a password on it. Because if that cop seizes it, the pictures of him ‘escorting’ your friend may not be there when you get it back.
Smash the state.
Yours in solidarity, Chris O’Connor
(Who is writing for himself, and whose views should not be considered those of his employer, his union nor any particular groups he is involved in. These opinions are offered for entertainment purposes only and you should seek independent counsel for individual and specific legal questions.)