Tent of Dreams: A final act of defiance

by John Zangas

It was the final act of defiance by Occupy DC, a group of people who had given their last ounce of effort in protest, their last will in a park occupation–against a system we saw as repressive. In the previous three years, millions of people had lost their homes, and millions more had lost their jobs and savings. Ordinary people climbing the ladder to the American Dream slipped and lost their foothold forever.

Why did we erect the Tent of Dreams? The bankers and stock traders on Wall Street, who nearly destroyed the economy by the summer of 2008, silently slipped under the radar of legal prosecution. Yet occupiers who expressed dissatisfaction with lack of economic opportunity were being arrested by the thousands, merely for exercising their First Amendment right to dissent. What drove us was the fundamental imbalance of power, which was made even more apparent as the Occupy movement unfolded. Occupiers were arrested around the country in an arbitrary enforcement of the law, while financial managers went unpunished, still raking in millions in fraudulent profits.

Four days before we raised the Tent of Dreams, the U.S. Park Police had left official letters on our tents, warning us that we were no longer welcome. We knowingly were breaking a federal statute which forbade sleeping in tents in public parks.

So we created a symbol of a dream–a huge blue tarp painted with falling stars, symbols, and statements of hope. Just before noon on January 30, we used long poles and strung it up over the statue of McPherson, a brass symbol of state power. We encircled it and chanted, “We are the 99 percent!” and defiantly willed the state to come and take it down!

We hunkered down and stayed together under the blue tarp, taking turns on the nightwatch for an imminent police raid. It did not come the first exuberant night, nor did it come on the second or third nights. Guitars played, drums beat, coffee was served. Camaraderie kept us assured that we were doing the right thing. Defiantly we stood together, sleepless sentinels against the inevitable.

Some of us managed to stay up the first night until dawn without sleep under that blue tarp in a “sleep strike.” We persevered for four days and nights before the last of us caved in to exhaustion. By the fifth day, our fear turned into boredom.

Little did we know that the raid police planned for February 4th would change us forever.

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The Battle of the Barn

A different version of events. Too bad this wasn’t admitted into evidence during the trial of OccuBarn defendants. I think Judge Wingo would have enjoyed it.

OccuBarn trial: Outcome

The OccuVerdict is in: guilty on all counts.

Ten defendants heard the verdict and their sentencing on June 21, the ruling handed down by Judge Elizabeth Wingo after five days of trial–almost twenty hours of motions and testimony–on charges related to a structure erected by Occupy DC in McPherson Park in December, 2011.

All eleven defendants were found guilty of the charge failure to obey in an emergency situation, and one, David Givens, had two additional charges, indecent exposure and disorderly conduct. One defendant had a waiver for his presence that day, and another, Rooj Alwazir, was acquitted last week. Two didn’t appear for trial at all and will have a separate hearing.

The judge prefaced sentencing by saying, “It is clear to me that [the defendants] acted not out of a desire to create havoc, [but out of] a desire to improve the state of the country. They did not have criminal convictions.” She also noted that for the failure to obey charge, community service was not appropriate.

Of the eleven defendants, Judge Wingo distinguished the three who climbed into the rafters of the building from seven who remained on the ground within it in defiance of a police order to vacate. All are required to pay a mandatory $50 assessment to the Victims of Violent Crimes fund.

The seven who remained on the ground within the structure received a $100 fine, suspended.

For the three defendants who took to the rafters and defended it against police the entire day, she took into consideration her assessment that their conduct was “a little more dangerous,” and she believed their “point [as protestors] could have been made another way.” She urged them to “think about the danger posed to themselves and others.” She also imposed $100 fine but did not suspend it.

In addition, one defendant, David Givens, was the last person extricated from the rafters of the OccuBarn, pried off by police officers and delivered into custody by a cherry picker. After ten hours aloft, he declined offers by police to use the porta-potty when they informed him he wouldn’t be able to return to the roof, so he relieved himself. “Urinating in an arc,” the judge said in the findings of fact, “making a display of himself, though not an extreme one.”

Taking into consideration her belief that Givens put Park Police officers “in a fair amount of danger,” she sentenced him to a $150 fine, 90 days suspended, one year unsupervised probation and 24 hours of community service, plus $150 to the Victims of Violent Crime fund.

Upon learning that Givens spent five days in jail when he didn’t identify himself in court, the judge said, “Mr. Givens is committed.” The defendants responded with twinkle fingers, an Occupy signal of solidarity.

Defense counsel Jeff Light was generally pleased by sentencing. “We asked for $1 fine, and got a $0 fine,” he said.

He also thought they were in an advantageous position for appeal. “The judge did a great job of laying out the facts. Findings of fact were great. They’re now and forever the gospel.”

The case will go to appeal, first to an Associate Judge in DC Superior Court, then to the Court of Appeals.

UPDATE: In statement released by his office, Attorney General Irvin B. Nathan said, “We respect the right of Occupy DC participants to communicate their message to the public, but they crossed the line by refusing lawful orders to leave a structure that had been declared unsafe. I commend the work of the prosecutors in our Public Safety Division for securing this conviction.”

Corrections: A previous version of this post incorrectly stated that eight defendants were given a $100 suspended fine, rather than seven. Also, David Givens was charged with disorderly conduct, not urination in public.

OccuBarn trial: Architect vouches for safety

Architect’s original drawing of OccuBarn

On Day 3 of the OccuBarn trial (June 18), the defense brought architect Kash Bennett to the stand to testify as an expert witness. Bennett works for the firm RTKL Associates, Inc. The architect who actually designed the structure has chosen to remain anonymous.

Charges against the defendants include failure to obey in an emergency situation. Throughout the trial, defense counsel has been attempting to poke a hole in the assumption that this was an emergency situation in the first place. One plank in police rationale for declaring an emergency is that the structure was dangerous and therefore a threat to public safety.

The defense needs to address safety concerns brought up in testimony by prosecution witnesses. Lt. Robert LaChance of U.S. Park Police said he heard “cracking” noises and that the structure started to collapse when police were extricating the last of the Occupiers from the rafters. And the DC Regulatory Affairs inspector who posted “Danger” signs on the OccuBarn testified that by definition the structure was not safe because it had not gone through the permitting process.

Bennet prepared for testimony by reviewing blueprints, drawings, and a 3-D “sketch-up” and found that they were in accordance with many pictures of the structure “in location.” The OccuBarn was intended to be a temporary structure, and Bennett testified that generally such structures are not any less stable, but “over time” one could be concerned with stability since they have no embedded foundation.

On an easel, Bennett drew diagrams to demonstrate architecturally sound design principles, including triangulation and cross-bracing, and compared them with the design of the OccuBarn. He noted that some of the wooden beams were larger than standard for this type of structure.

“This structure in my estimation is actually overbuilt,” he said, explaining that usually a structure is constructed only as safe and functional as necessary. “Everything else is extra cost. [This structure has] an extra margin of safety.” He concluded that it was built in a structurally sound way, repeatedly calling it “strong” and “robust.”

Viewing a photo of Park Service bulldozers demolishing the building, he pointed out how strong the structure was. “See how difficult it was for the demolition crew to take it down,” he said.

Cracking noises, such as those reported by Lt. LaChance, could be accounted for by “settling,” or “a little play in the joinery.”

While he didn’t calculate wind lodes on the structure, saying that such calculations would depend in part on information he didn’t have, such as wood grade, he claimed that it was irrelevant in a structure both small and sturdy. Large temporary structures like concert venues might need wind lodes calculated, but under strong winds, he said, “other tents in the park would be in danger before this would flex a millimeter.”

Under cross-examination, Bennett admitted that “without testing it, you couldn’t be 100% certain [of structural integrity].” But he was confident in his evaluative judgment, saying, “Can a human lift an elephant? The answer is obvious.”

The DC Regulatory Agency inspector testimony and the prosecution’s cross-examination of Bennett relied heavily on demonstrating non-compliance with DC building code. On Day 4, the prosecution will bring its own expert witness, Jatinder Khokhar, to the stand to rebut Bennett’s testimony and testify on building codes, inspection and the permitting process.

McPherson Park, like all parks in the District, is federal land, and it’s not even certain that DC Code even applies. We expect defense counsel to pull that punch in the late stages of trial.

OccuBarn trial: Emergency situation

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)