Will Irvine’s Occupiers Face Legal Consequences?

By
Greg Diamond
– October 14, 2011Posted in: "The OC", Fresh Juice

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Will those who stay in Civic Center Park past the 10 p.m. Saturday park closure face legal consequences?

That is the question, isn’t it?  That’s what I keep getting asked, by people for whom the answer may matter and by people for whom it does not.  I’m a member of the Civic Liaison and Legal committees for Occupy Irvine, and I’ve been dealing directly with the Irvine Police, so I’m in as good a position to provide information as anyone.

I’ll start with the conclusion: I don’t know. I’m not even sure that the Irvine Police yet know.

Demonstrators at Occupy Wall Street

Demonstrators at Occupy Wall Street, Sept. 30 (Wikipedia Commons, David Shankbone)

Whether they know or not, they aren’t saying, but my guess is that they’re going to size up the situation first.  An encampment of 10 people may receive a different response than an encampment of 100 — and an encampment of 1000 may receive yet a different one.  The presence or absence of news organizations to take dramatic night-vision footage of arrests, the context of what’s been happening in other parts of the world where protests and occupations would take place tomorrow — all that may play a role.  What I do know, I’ll say below.

Because I am a lawyer, I should make clear one disclaimer from the outset:  what I say here should not be taken by anyone as legal advice or a solicitation for representation.  I’m not a criminal defense lawyer; the National Lawyer’s Guild would normally handle that.  (I may get pressed into service, of course, as may many other lawyers before this next week is through.)  What I say is primarily based on my experience as a political scientist (in my pre-law academic career), a political activist, a political observer, and someone who has been involved in discussions both with the police and with Occupy Irvine participants.  I am, for the most part, simply relaying information that I have received from the police; in some cases I add my commentary — but this is a political, not a legal, analysis.

(1) Yes, staying past closing time in the park violates Irvine’s municipal ordinances on its face, regardless of the actual consequences.

I will state clearly up front something on which I think that both the Irvine Police and Occupy Irvine agree: people who want to stay in the park past 10 p.m. should take this step seriously due to the possibility of legal consequences.  Legal consequences could include anything from mild (like unwanted searches) to serious, both for property on the site after 10 p.m. (which could conceivably be confiscated or intentionally or inadvertently damaged) and liberty.  One step they could take is to issue people misdemeanor citations for later court visits.  A stronger step is to order people to leave the property and physically remove and arrest them if they do not, which generates the possibility of other offenses such as resisting arrest and refusing to obey a lawful order from police.

(2) Physical harm to occupiers

Then there is the possibility of physical harm.  While everyone I’ve spoken to at Occupy Irvine seems devoted to principles of non-violent resistance, you never know when someone — someone who reacts instinctively to a police action (like pulling back when grabbed for an arrest), or who didn’t realize that they would find certain police actions intolerable, or who is from a splinter or unaffiliated group who wants a violent confrontation, or who is a paid agent provocateur of the police, all of which are conceivable — is going to act violently or act in such a way that police see as allowing a violent response.

More importantly, the police do not know if someone may be acting violently towards them.  That gives them comparatively great license — meaning the ability to survive internal investigations and court proceedings — to act in self-defense, even self-defense that values prevention of a small likelihood of danger or injury to them over reactions that guarantee a certainty of significant danger or injury to others.

Among the things that police don’t really know, regardless of what they believe, is how the officers around them, which may include ones with which they are unfamiliar, may react in a situation like this.  They may not even know how they themselves will react.  This is a new thing for Irvine.  This is an escalation of civil disobedience.  Some have expressed assured beliefs that the police themselves, being part of the 99% whose economic status has largely stagnated since 1981, will be on the side of protesters.  That’s a logical possibility — but there are strong reasons to think otherwise.  They have jobs — careers — to protect; friends on the force who depend on them; senses of honor and shame and perhaps even a desire to harm those who put them in this position.  They may think that a massive, outsized response will snuff this protest in its cradle.  They could be right about that.  My guess is that if this is what they believe, they are very, very wrong — and the results may be worse than either side suspects.

(3) What does “a worse result” mean, anyway?

My bias is towards non-violence on the part of protesters and forbearance on the part of the city and its police.  If one boils the message of Occupy Wall Street down to one sentence, it is this: “Things are so far out of whack that we can no longer afford business-as-usual.”  That’s why this is an occupation.  Rallies are easily ignored; they are avoided and shrugged off by those in power.  The Irvine Police Sergeant to whom I have been talking seems quite proud of the city’s record in facilitating protest rallies and keeping participants orderly and safe.  An occupation is something different: it is a statement to the authorities that the participants are not going to obey the law, that an emergency exists that must take precedence over such ordinances as park closing times.  The objectives are to get attention and to garner popular support.  And those are what can make a worse result — arrests, police violence, protester violence — likely.

My goal over the past few days has been to make such a worse result less likely.  From what I can tell, I’ve failed.  That doesn’t mean that a worse result is likely, but only that it isn’t foreclosed.

As an attorney, I want to keep people out of trouble.  My personal advice, as an attorney, for everyone whose personal interests I would try to support would be: “don’t break the law.”  That may sound pathetic in a world where many of us believe that law-breaking among elites is both rife and unpunished, due partly to the deterrent effect of high-powered legal counsel, but that’s pretty much my job.  Because I don’t want to convince anyone to occupy or not to occupy — I’m not your advisor and it’s not my place — I limit myself to setting forward the facts that I know.

One fact is this: what is good for the individual is not good for the movement.  What is good for the movement is often what is bad for a few — or not so few — individuals.

Sometimes, what is bad for the individual can also be bad for the movement.  If someone spits on a cop, brings a weapon, craps on the lawn, destroys property, etc., a “spirited” police response will be bad for both the individual and the movement.  That is why police usually characterize protesters as having done something to warrant a “robust” — tired of those scare quotes yet? — police response, usually by something conveniently not on camera.

If cops break their own policies to pepper spray, beat on, park a motorcycle on the foot of (as happened today in New York), or otherwise manhandle sympathetic demonstrators, the city loses.  We’ve seen that again and again this month.  Good for the movement.  Bad for you if it’s your eyes, your head, your foot.  But that’s what you risk.

The main thing that may stay the hands of police is looking bad.  That’s not good for Irvine, not good for UCI, not good for the businesses here, not good for the government (and, in the event of a successful lawsuit, expensive as well.)  So the main thing for demonstrators to keep in mind is this: don’t give police a reason to impose violence on demonstrators without looking bad.  I hope that they won’t do it at all.  But if they do it, I want them to eventually come to regret it.

I want to break this up into multiple parts, lest it get too long, so I’ll talk about my specific discussions this week with police in the next post.  And I also do want to post this exactly at 10 p.m., 24 hours before the law is to be broken.

About Greg Diamond

Somewhat verbose attorney, semi-disabled and semi-retired, residing in northwest Brea. Occasionally ran for office against jerks who otherwise would have gonr unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.) His daughter is a professional campaign treasurer. He doesn't usually know whom she and her firm represent. Whether they do so never influences his endorsements or coverage. (He does have his own strong opinions.) But when he does check campaign finance forms, he is often happily surprised to learn that good candidates he respects often DO hire her firm. (Maybe bad ones are scared off by his relationship with her, but they needn't be.)