Whatcom Watch Online - Demonstrations Push Limits of Protest

August 2013

Author's Viewpoint

Demonstrations Push Limits of Protest

by J.S. Cline

J.S. Cline is a journalist, poet, and activist with special interests in decolonization and political speech analysis.

From fall 2011 through winter 2012, demonstrations against the Gateway Pacific Terminal resulted in the prosecution of several members of the community. The arrests of the Bellingham Twelve and Eviction Four, as well as the prosecution of Daniel “Ten” Young for a mic check at the February 2012 Whatcom County Council meeting, demonstrated limitations that local officials are willing to place on certain forms of public protest.

Each case presents unique circumstances that raise questions about what the right to free speech does or does not cover. Legal interpretations of property rights have been called into question in the cases of the Twelve and the Four. Allegations of prosecutorial misconduct and political influence from the defense of Daniel “Ten” Young’s mic check case, are serious enough to warrant a closer look at the facts. These three cases being defended by attorney Lawrence Hildes and legal assistant Karen Weill, pit the right to assemble and petition the government against government’s power to maintain public order. The legal ramifications of these cases, if and when they go to trial, have the potential to influence future cases that arise when peaceful demonstrations end up in court. Given the power of legal precedent, the Occupy Bellingham cases serve to illustrate how constitutional, treaty, and human rights are interpreted and practiced at the local level.

The following sections summarize important facts of the cases and the legal issues emerging through pre-trial hearings.

Eviction Four

The Occupy Bellingham encampment at Maritime Heritage Park began on 28 October and lasted until 28 December, 2011. The encampment was organized for a number of reasons, not least of which was outrage over the planned coal terminal. Numerous demonstrations were held that effectively shut down city streets and railroad traffic, though no violence broke out. According to Attorney Lawrence Hildes, no nearby business owners complained about the encampment.

Some people did take issue with the encampment, leading to conflict between Occupiers and coal port defenders who say the terminal will bring much needed jobs to the community. Although disagreement between the two sides did not get out of control, Bellingham Mayor Dan Pike gave the eviction order prompting Bellingham police to clear the park, citing damage to the park and complaints from local residents and business owners. Bellingham police cleared out the encampment, arresting four individuals who refused to leave the camp.

The defense claims that delays in receiving crucial evidence have negatively affected the case, and they call into question police and eyewitness accounts. Hildes also claims discriminatory police practices that targeted Occupy protestors, while ignoring counter-protestors’ more aggressive and threatening tactics. Procedural entanglements aside, these three misdemeanor counts of trespassing and one of disorderly conduct already have the elements of a legal battle ahead. The issues being heard in this case have far-reaching implications about limits imposed upon First Amendment speech rights with respect to property rights. Whether or not this U.S. Constitutional issue will be brought up and considered in court remains to be seen.

Hearings continue in Bellingham Municipal Court on August 21, 2013.

Bellingham Twelve

On December 12, 2011, twelve Occupy protestors were arrested for trespassing on Burlington Northern-Santa Fe railroad property, after creating a human blockade on the railroad tracks at the intersection of C Street and Roeder Avenue. Officers responded to the call from BNSF about the blockade by first asking the protestors to move out of the intersection, which they did. However, five protestors had already locked themselves to the tracks, with seven people joining them by locking arms. All twelve were arrested.

The defense first tried to justify the Twelve’s action through necessity, calling the Twelve’s action’s justifiable in light of the threat that coal presents. Judge Smiley was not convinced.

Jurisdictional boundaries were brought up during the June 20th hearing, when Hildes referred to Washington case laws, some dating from more than a century ago, which will be laid out in detail as the pre-trial process continues. The defense claims the tracks that the Twelve occupied are on land that is actually owned by Bellingham, which could invalidate the charges of trespassing,

One aspect of the case to consider is that Prosecuting Attorney Rick Peterson is stepping down from his position. Whoever takes the prosecutor’s place may alter the direction of the case, but important property rights issues linger.

Property rights have been a long-standing struggle in the United States, and many battles are fought to defend and amend them. Human and civil rights have also progressed, with much credit due to peaceful resistance to oppressive institutions and practices. A well known historical example of civil disobedience leading to positive change, a model of protest incorporated into Occupy strategy, was the 1960 Woolworth’s lunch counter sit-ins in North Carolina, which contributed to a movement that ended de jure (legal) racial segregation. Many people were arrested for breaking laws that society and the Supreme Court eventually saw as unconstitutional and wrong, and many people were labeled and treated as criminals for breaking those laws. Some activists see this as an occupational hazard, which is why the Twelve prepare for their day in court.

In the time that this trial has been building up, several railroad blockades have occurred in the Pacific Northwest and in several other states and countries. It’s causing headaches for railroads and the fossil fuel industry that uses them heavily, as well as underground pipelines and sea ports. Environmental concerns plague all methods of fuel transport, meaning that railroads are only part of a much broader movement by several industries to expand fossil fuel consumption and abolish or curtail environmental regulation. This global problem is being addressed at local levels all over the world, and blockades are becoming popular. Social media sites and public demonstrations have spread awareness of the environmental issues raised by the Twelve, but the legal issues being discussed in this case may be just as, if not more, important.

Hearings are set to resume in Bellingham Municipal Court on September 18, 2013.

Trial of Ten

On February 28, 2012, Daniel “Ten” Young spoke out at a Whatcom County Council meeting. After the council chair was bringing the open comment period to a close, Young called for “mic check,” a tactic sometimes employed by Occupy protestors to disrupt the decorum of government to draw attention to a message. Young spoke and several supporters echoed the words, directed toward the County Council:

“Mic check! Mic check!

Your process proposal — regarding the open mic session — raises the question — of where your interests and loyalties lie. It betrays the confidence and trust — of those in the community — who understand the issues upon which — your job it is — to make decisions — regarding the welfare and well-being —- of the community — as a whole. We of the community — have come to you now — as one voice — to remind you — those whom we have elected and appointed — that to pass a decision — regarding our lives — without first hearing our concerns — is despicable — irresponsible — unethical — and a total betrayal — of that trust — we have placed in you.

It would be in your best interest — as our policymakers — to remind yourselves — that the whole world is watching! — And we, of the ninety-nine percent — will hold you accountable — to an ethical standard — where the respect of life — comes first — before profit.”

At the call of “Mic Check,” four council members left the room and sheriff’s office deputies responded to the event. As Young read his speech, at least two others began to record the scene. The event is recorded and made publicly available, not from the county’s cameras, which were censored from public record, but from protestors filming the event despite an effort by Tea Party supporter Greg Brown, to prevent recording.1

Young was not arrested and the Occupy demonstrators left without resistance to law enforcement officers. Prosecution of Young was brought up during a March 13, 2012 Whatcom County Council Special Meeting of the Whole. At the top of their agenda was developing a plan of action to prevent future disruptions of council meetings.

Some council members supported metal detectors and some supported a policy of not filming and releasing footage of disruptions. After Ken Mann suggested editing Lynn Barton’s recording to remove the disruption, Whatcom County Prosecutor McEachran stated that “editing the video recording would create a situation of altering public document,” which is exactly what happened in this case. Council members suggested banning people they find to be disruptive, but McEachran made clear that “people cannot be prohibited from future meetings unless they have been convicted of the crime.” McEachran went on to clarify the crime being called into question, when he stated that “it is a disorderly conduct misdemeanor to intentionally disrupt a lawful meeting.” Councilmember Barbara Brenner made the request to press charges “against the one person who organized the most recent disruption,” to which McEachran responded “the council doesn’t need to vote on that.”2

Young and friends began receiving phone calls and visits from sheriff’s office detective Alan Smith in April 2012. Some described Smith’s phone calls as “intimidation,” when he allegedly threatened to post security outside their homes if they did not cooperate with locating Young.

By mid-May, Young was receiving daily phone calls from Smith, so he contacted Hildes and Weill for legal counsel. Hildes’ numerous attempts to contact McEachran to issue a Cease and Desist Order went without response. Hildes contacted Detective Smith directly, who allegedly responded to Hildes with, “I can do whatever I want.” Soon after Hildes contacted Sheriff Bill Elfo, Smith’s phone calls stopped and a summons was delivered to an address that Young no longer lived at. Several mis-delivered court notices would create turbulence throughout the hearing process, according to Hildes.

Young faces the charge of Disorderly Conduct under RCW 9A.84.030 1a, which determines guilt if a person “uses abusive language and thereby intentionally creates a risk of assault.” Essentially, Young is accused of inciting a riot based mostly upon his speech transcribed above. The fact that the protestors left peacefully without a single arrest or any reports of threats or acts of violence, may present legal obstacles to the prosecution’s case.

Hildes alleges prosecutorial misconduct in Ten Young’s case, which his associate Karen Weill says, “is clearly politically motivated.” The omission and deletion of public records creates potential problems for the prosecution’s case, but it also serves to exemplify the way County Council members respond to political dissent.

Young and other Occupy activists conducted the February 28th 2012 mic check to voice dissent for the County Council’s decision to move the public comment period later into the meeting, after priority bills were voted on by the Council. Several people were upset with the Council, claiming that citizens’ concerns were not being taken seriously. For these reasons and more, Young led the mic check that has him scheduled for trial August 20th at Whatcom County District Court.

In Defense of Democracy or Political Climate Change

Several people are being prosecuted for taking political speech too far in the eyes of some. Disrupting business and government meetings to drive home a point comes with risks. Today, the defendants in the Occupy cases face the prospect of receiving criminal charges for doing what they believed to be right, necessary, and protected by the U.S. Constitution. Regardless of how the public may react to these cases, the courts will be shaping the boundaries of political protest with their decisions.

In the meantime, members of the Bellingham Twelve continue to rally through social media sites for continued activism and financial support for their legal defense. To all appearances, GPT is still poised to move forward after the Environmental Impact Statement is released, despite resistance from citizens and several local and state officials.

The coal issue hangs over the region like a dark cloud that’s not going away, and growing resistance from first nations’ people who say that sacred and vital lands are at stake, fuels further debate on property and free speech rights. What happens in the court rooms may indicate challenges and possibilities that lie ahead for the future of anti-coal activism and political dissent in and beyond Whatcom County.

• http://seattletimes.com/html/localnews/2017113732_occupybellingham29m.html

• http://bham12.org/wordpress/moving-to-dismiss

http://www.occupybellinghamwa.org

• http://www.ecy.wa.gov/geographic/gatewaypacific

• http://www.communitywisebellingham.org/cwb-studies-report3

• http://warriorpublications.wordpress.com

• http://gatewaypacificterminal.com