Some facets of the OccuBarn trial go to the heart of First Amendment issues dogging Occupy movement protests. One of those issues is discretionary powers of police–how laws governing them are conceived, and how those powers are used and abused.
Since findings of fact could very likely go against the defendants in the OccuBarn trial, defense counsel Jeff Light has gone for the jugular in attacking the substantive basis of the charges themselves. And, not only is he challenging the constitutionality of the statutes, he’s attacking the situational basis of one charge in particular: “failure to obey order – emergency.” All fourteen defendants face this charge.
Light is calling into question whether the scene at McPherson Park on December 4, 2011 warranted a declaration of emergency by the police, and he furthermore asserts that they exercised discretionary powers at odds with First Amendment rights.
In the motion to dismiss, he cites an appellate court ruling (Washington Mobilization Committee v. Cullinane) which struck down the District police lines regulation (of which this emergency statute is a part) for being overly broad:
It is difficult to conceive of a more pernicious prescription. A police officer is given unfettered discretion to issue any order he thinks reasonable and then is allowed to initiate criminal proceedings against a person who disobeys the order.
The Catch-22 here is obvious, especially to seasoned protestors. As the motion to dismiss points out, an unjustified order to disperse, for example, can lead to arrest for loitering. During trial, Light said, “For the protection of persons and property, the circumstances are so broad that there are no limits on a police officer’s discretion and whether he believes that it’s necessary [to declare an emergency].” Without express guidelines, police may have the power to criminalize harmless conduct.
Prosecutor Sean Farrelly countered that there was no more discretion involved in declaring an emergency than for a police officer to determine whether a crime was being committed, but he agreed that police could declare an emergency whenever they wanted to.
He gave specific rationale for the police decision to declare an emergency situation at McPherson Park: the OccuBarn structure was unsafe, there were hundreds of people in the park, and it was necessary to shut down traffic around the park.
Judge Elizabeth Wingo denied the motion to dismiss, saying, “The entirety of the statute is aimed at giving police officers authority to deal with an emergency.”
The judge didn’t find the defense’s direct challenges to the statute based on over breadth and vagueness persuasive, but going forward the defense strategy clearly will be attacking the rationale for the police’s declaration.
(Photo by coolrevolution.net)
- Judge issues scathing rebuke to prosecution at OccuBarn hearing (coolrevolution.net)
- OccuBarn trial: Background (coolrevolution.net)