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Friday, October 7, 2011

Read This Before You Protest: An Open Letter to Occupy Protesters from a Public Defender

Posted by 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 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:

Stay home.

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.

Good luck.

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.)


Comments (35) RSS

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Will in Seattle 1
My recommendation is don't litter or tag.

And ignore all the Fear Uncertainty and Doubt the One Percenter who posted that js trying to scare you with.
Posted by Will in Seattle on October 7, 2011 at 4:29 PM · Report this
Just another public defender attempting to foment a defeatist attitude. "Public defender" is a misnomer; they only help people plea-bargain for crimes they don't commit.
Posted by CyberDurden on October 7, 2011 at 4:31 PM · Report this
Vince 3
My suggestion is to be kind to everyone. This is world revolution. Peace.
Posted by Vince on October 7, 2011 at 4:34 PM · Report this
stinkbug 4
Recommending that people stay home and play xbox doesn't really seem to mesh with the "in solidarity" part.
Posted by stinkbug on October 7, 2011 at 4:34 PM · Report this
In Austin they 'took over' the wide-open public plaza outside the City Hall...inasmuch as you can 'take over' a wide-open space intended for public gatherings.

The police posed for photographs with the protesters.
Posted by Anastasia Beaverhausen on October 7, 2011 at 4:39 PM · Report this
Jaymz 6
I will be there - I am also a lawyer - I do not plan to get arrested - if and when things heat up, it probably will become obvious which attendees will accept the role of detainee. I also plan to be a witness, if necessary. Fear has never kept me from participation.
Posted by Jaymz on October 7, 2011 at 4:39 PM · Report this
Yep, it took exactly as long as I thought it would for someone to stick him with a 1%er label. Folks... He's right. Please, by all means, protest how you want. But nothing he said about what you can expect to happen is factually incorrect. I hope you realize that. Cops are likely to act like assholes. Provocation will only add to that. And merely looking at a cop the wrong way counts as provocation.

He's not saying don't do it (despite pointing out how little he thinks it'll change in the end). He's just pointing out what to be ready for. And if you're not ready for it, you probably oughta not be there.
Posted by NateMan on October 7, 2011 at 4:42 PM · Report this
This dude is pretty pessimistic...…
Posted by Swearengen on October 7, 2011 at 4:44 PM · Report this
Jennifer Nicole 9
Echoing @2 and @3. This guy probably isn't the one percent - he's just one of the many cynics who don't believe this occupation will change things. As it grows, from city to state to nation to all over the world, it becomes more likely that it might.

As my "I went through the sixties" friends and loved ones have said, their protests DID cause change for years to come. They started something.

Now we have the chance to take it one step further and create a revolution.
Posted by Jennifer Nicole on October 7, 2011 at 4:48 PM · Report this
Jennifer Nicole 10
@7: His statements about potential police action are true, and his explanation of charges are as well, but his defeatist tone and assertion that one won't get hired anywhere/will question everything about themselves is an implicit statement that protesters just shouldn't do it, because hey, it's not worth it, it won't change anything, and in the end they'll regret it and feel humiliated.

I'm all for understanding the direct legal consequences of one's actions, and the legal leeway the police, government and their high-paid attorneys have. But hell, isn't that part of what we're protesting?
Posted by Jennifer Nicole on October 7, 2011 at 4:52 PM · Report this
care bear 11
Václav Havel . . . *swoon*
Posted by care bear on October 7, 2011 at 5:01 PM · Report this
Will in Seattle 12
200 people marching in Tacoma right now according to the Tacoma News Tribune
Posted by Will in Seattle on October 7, 2011 at 5:17 PM · Report this
Sargon Bighorn 13
What would be REALLY REALLY effective would be for all these unemployed folks to grab a broom and with total silence start sweeping the sidewalks. Just do SOMETHING that REALLY draws attention to work. Sitting and demanding that some one do something to ease your pain is childish.
Posted by Sargon Bighorn on October 7, 2011 at 5:19 PM · Report this
You_Gotta_Be_Kidding_Me 14
Posted by You_Gotta_Be_Kidding_Me on October 7, 2011 at 5:33 PM · Report this
dirac 15
Yeah, cuz those hobos in the 1930/40s didn't get what they wanted from protesting. Next you'll be telling them to hang out with the illegals at Home Depot so they can hopefully get a job.
Posted by dirac on October 7, 2011 at 5:39 PM · Report this
@13: Absolutely love it.
Posted by NateMan on October 7, 2011 at 5:50 PM · Report this
Total FUD. The take away from this is "you have no rights, the police will probably shoot you with bean bags, maybe with bullets if you try to speak". It isn't true and it's the opposite of helpful.

What protesters need from lawyers is advice about what rights they do have, how to keep things from escalating into the riot-gear, police brutality stage, and how to protect themselves if it does.
Posted by no_reply on October 7, 2011 at 5:51 PM · Report this
TVDinner 18
Ok, so your ass gets searched. What if you have a vagina? Does it get searched as well? Should I bedazzle it beforehand?
Posted by TVDinner http:// on October 7, 2011 at 6:13 PM · Report this
Jennifer Nicole 19
Occupy Vagina Pre-Protest Bedazzling Party.

Location TBD.

Bring Your Own Jewels.
Posted by Jennifer Nicole on October 7, 2011 at 6:30 PM · Report this
stinkbug 20
He could have also mentioned that, in general, the more people that show up the less likely you are to be arrested or to get in trouble (assuming you're an "innocent" person just walking around).
Posted by stinkbug on October 7, 2011 at 6:34 PM · Report this
This suggestion to stay home and out of trouble is a beautiful illustration of the reason protests don't work in America. Americans don't want to be inconvenienced, are terrified of losing our comfortable lifestyles, are unwilling to sacrafice anything, and are absolutely programmed to believe we're powerless. I count myself in this.

Do you think any of the protesters in Egypt gave a shit whether or not they had to be at work the next day, or if they'd have a police record, or if they'd get a booboo? Those guys wanted change and were willing to sacrifice whatever they had for it, and that's why they got it.

Not us. We have X-Boxes to think about.
Posted by salmonpatty on October 7, 2011 at 7:21 PM · Report this
why would i be arrested for peacefully attending a legal gathering? i thought there was a permit in place for Westlake tomorrow.
Posted by legacy builder on October 7, 2011 at 7:36 PM · Report this
Geraldo Riviera 23
Fuck this twerp. And fuck Sarah for posting this bozo's barf.
Posted by Geraldo Riviera on October 7, 2011 at 7:38 PM · Report this
smade 24
How many teabaggers were maced and arrested during their reign of terror?
Posted by smade on October 7, 2011 at 8:15 PM · Report this
That was beautiful and very realistic. And for god's sake, he didn't really mean stay home and play Xbox; he meant think about it really hard before you get yourself arrested. Somehow I doubt Seattle cops are any better than Portland cops. One of ours killed someone and simply quit the force.
Posted by sarah70 on October 7, 2011 at 8:47 PM · Report this
my question wasn't rhetorical. i was honestly (and naively) asking why i need to be concerned.
Posted by legacy builder on October 7, 2011 at 9:36 PM · Report this
asteria 27
@26 If the police feel that the gathering is getting out of control, theoretically they could shut it down & order everyone to disperse. I really, really doubt that will happen tomorrow, but a permit is not a 100% guarantee that people won't get arrested.

I think this guy's legal advice and advice to not bring expensive things you don't want to lose is good, but he lost me on the stay at home part; he seems a bit jaded. I've seen cops act like real assholes at some protests since WTO, but those were smaller, fringier protests with no mainstream media or labor support. I think there will be a lot of both tomorrow, so I'm not worried.

A few people might get arrested if they get angry & confrontational with the police, but I don't think you have anything to worry about.

Also everyone: bring snacks and water!
Posted by asteria on October 7, 2011 at 10:57 PM · Report this
@21 Yah but they don't have the comfortable lifestyle thing. I mean when it gets right down it, that is sort the point. Security, food, shelter, the ability to think what you want, et al. A comfortable good life. So if for the most part you have that, why would you want to give it up? What more are you really hoping for?

They lived under a dictator with no right to vote, express oneself, and most were poor in a way we really can't fathom.

And remember while suffering is indeed up, for most people life has pretty much gone on as it always has be it a rich life or a poor one.

I'm all for some change, but we have it pretty damn good. Hardly worthy a revolution. Unless your too fucking naive to know what that really means.
Posted by giffy on October 8, 2011 at 12:44 AM · Report this
The only problem with Portland is that no one cares about Portland, kind of like Canada. You are preaching to the choir in an easy environment. Your numbers don't mean anything in the context of the hot nation.
Posted by Candace on October 8, 2011 at 1:50 AM · Report this
PS We don't have the balls for revolution. Get over it. Sorry.
Posted by Candace on October 8, 2011 at 1:55 AM · Report this
@25: agreed. A lot of people seem to get involved in large protests thinking it will be a weekend outing to a park and have no idea what getting arrested could mean. If you're going to engage in civil disobedience, you need to be prepared to go to jail and possibly go through the justice system. And that could have impacts on your future employability and other aspects of your life. If that's not something you're ready for, get your entertainment in other ways, or help distribute raw footage from people who are getting arrested and cavity-searched out there.

Sorry this guy was a downer, but I am so glad he wrote this. If reading this is too depressing or discouraging, then a police baton is going to be a rude shock.

(this from someone who was arrested for civil disobedience and then flown across the country in shackles. I was ready for it, but it was not a barrel of laughs)
Posted by MemeGene on October 8, 2011 at 5:48 AM · Report this
This is decent advice when framed as a worst-case "this could happen" but is ridiculous when framed as "this will happen". It isn't impossible, but it isn't likely, unless you are drunk or high or something else idiotic.

My advice from years of working with greenpeace etc:: Remember, the police are not the people you are protesting (not the 1%). Be polite and cooperative, but they will get frustrated and make mistakes if things go sour. Dont get angry. Do be prepared to get hurt. Have your bail money with some one you trust, and know their number by heart (better: write it on your arm with a sharpie). Protesting is always a potentially dangerous activity.
Posted by wingedkat on October 8, 2011 at 9:09 AM · Report this
pdonahue 36
Just a reality check, I was arrested at Westlake last Wednesday. Because I am a balding, middle aged white guy, I did not get into a WWF style confrontation my younger more energetic co defendants engaged in. The cops were so fucking relieved I was going to walk with them they let me carry my sign and handed me off to two polite, professional and may I say very attractive members of the Bike police for a little latex glove treatment around the wasteband, through all my pockets, ect.

Like the man says it can get worse. I have been strip seached in jail, deloused with chemicals, had my glassed take away, put into orange coveralls and thrown into general population. I have been peppersprayed, arm-barred, kicked in the stomach while on the ground and threatened with sexual assault (digital rectal thermometer cavity search) by police. But each one of those times I made a critical error, I attempted to talk to the police, to argue, to shout, to persuade, to fight with my bare hands. They don't want to be talked to, persuaded, spat on or touched in any way, they hate you because you are preventing them from getting back in their car and pretending like they are doing something. I have seen way too many eager young people place the focus of the movement on the bozos doing the shit work for the corporations and gov't. Don't do it.

Block streets, occupy banks, march into corporate boardrooms, chain yourself to a bulldozer; hate the game, not the player. Change the system, not the man. Expect the worst but don't make the BDSM that cops engage in all you can think about.
Posted by pdonahue on October 8, 2011 at 9:49 AM · Report this
@36, thanks for sharing your experience. I'm glad the writer took the time to share his/hers as well - I hope nobody ignores the lawyer's factual offering because of ideological impurity.
Posted by gloomy gus on October 8, 2011 at 11:17 AM · Report this
@ 28, that's exactly my point. We have it so good, and we're so unwilling/unprepared to give that up, that we can't affect change here.
Posted by salmonpatty on October 8, 2011 at 11:23 AM · Report this

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