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Oakland’s Cop-out: Equal Opportunity Abasement

By Gar Smith, News Analysis
Tuesday August 03, 2010 - 05:49:00 PM

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

— The First Amendment to the US Constitution

In a democracy, how can there be such a thing as an “illegal assembly”? 

On July 8, a crowd assembled in downtown Oakland to protest the verdict in the murder trial of BART police officer Johannes Mesherle and a loud but peaceful demonstration ended in a blaze of looting and violence. Police were charged with overreacting (by arresting scores of nonviolent citizens) and under reacting (for failing to protect several businesses from wholesale looting). In the aftermath, the Oakland Police Department (OPD) has threatened to bring charges against two City Councilmembers, Jean Quan and Rebecca Kaplan. 

Quan and Kaplan stand accused of interfering with police who were on the scene to disperse troublemakers. Chan and Kaplan contend that they were, in fact, working to preserve the peace by serving as buffers between the cops and citizens who had peaceably assembled to protest what some saw as the leniency of the accused BART officer’s sentence for involuntary manslaughter in the 2009 shooting death of BART passenger Oscar Grant. 

When the police declared an “unlawful assembly” and moved to clear out the people in the immediate area, they wound up corralling and arresting 83 people. Out of those arrested, only nine were ultimately charged with felony counts involving violence and looting. Three others were charged with misdemeanor counts of “failure to disperse” and “engaging in a riot.” 

Among those arrested was Oakland School Board member Jumoke Hinton Hodge (held for “suspicion of failing to disperse”) and attorney Walter Riley, who was placed in a chokehold and slammed against a wall by a California Highway Patrol officer as Riley attempted to enter his office at 1440 Broadway. Riley was jailed overnight and ordered to appear in court to answer charges of “failure to disperse.” 

A Chokehold on the First Amendment? 

Riley has objected to his arrest, pointing out that police should not be given the power to declare when a public gathering becomes an “illegal” assembly. “Freedom of assembly requires a lot more than that,” Riley told the Chronicle. Riley, a member of the National Lawyers Guild, claimed the "police provoked a greater degree of disruption" by standing by and allowing a small number of people to vandalize businesses. Riley has suggested that the OPD may have wanted the protest to become violent to win public support to stop the cash-strapped city’s plan to lay-off 80 officers. 

Cops reportedly arrested people who were simply sitting at tables playing chess. They beat and arrested grey-haired elders, the disabled, and attorneys who were attempting to monitor the protests. The injured included former East Oakland school principal Susan Harman, who was pushed to the ground, clubbed in the back of the head and had her arm wrenched behind her back, aggravating a former broken shoulder injury. Harman, 69-years-old, was also forced to spend the night in a cell packed with 20 other arrestees. 

OPD spokesperson Holly Joshi subsequently explained the rationale behind the assaults on the innocent. Once the police issue “lawful orders to disperse,” Joshi told the press, anyone caught in the dragnet is fair game. “Whoever they are and whatever walk of life they are, they were given a chance to disperse, and once that dispersal order is given, it is now an unlawful assemble and everyone has to go. The way the law is written, it’s supposed to be equal. We’re supposed to apply it equally across the board.” 

In other words, collective punishment was now defined as a “civil rights” issue, where the goal is to mistreat everyone “equally.” The OPD’s defense was that they were legally compelled not to discriminate against anyone in the instantly criminalized crowd simply because they might happen to be old, female, or handicapped. All were equal — and equally guilty — in the eyes of the law. 

But guilty of what? What makes an assembly “illegal”? 

In an odd aberration from due process, it only takes a declaration by a single officer to declare a public gathering an “illegal assembly.” Unlike wiretaps and search warrants (which are supposed to require a judge’s review and consent before the police can act), a declaration of an “illegal assembly” requires no review. A supervising police sergeant is granted the power to act as both judge and executioner. Why is it that the Constitutional right to be secure in one’s home receives special protection while the right of peaceable assembly can be dispensed with at the wave of a nightstick? 

Why Did the Police Arrest More Citizens than Looters? 

According to a recent issue of Police: The Law Enforcement Magazine, “the city of Oakland, and especially the Oakland PD, had been preparing for possible violence for 18 months.” So why was it, as the San Francisco Chronicle reported, that during the July 8 looting, “riot-clad officers [stood] by as protesters set trash fires, smashed windows and looted shops.” 

Shop-owners watched in stunned disbelief as live TV broadcasts showed their stores being vandalized and eviscerated, despite the presence of nearly 900 uniformed police from 15 law enforcement agencies. The Foot Locker was trashed and emptied. The Green Circle mail store sustained $27,000 in losses. Looters stole $15,000 worth of wigs and hair extensions from the Grace Beauty Supply. JC Jewelry lost more than $50,000 worth of diamond rings, gold chains and grill tooth-caps. 

“Why did the police let this happen?” asked Green Circle storeowner Thillo Bramah. “Police were… everywhere, but they did nothing,” said JC Jewelry’s Tony Moeuth, who stood with family members in an unsuccessful attempt to defend the store against the onslaught of looters. What explained the failure of nearly 1,000 police to prevent wholesale looting of downtown Oakland? Moeuth told the Chronicle: “It looked like [the police] were scared themselves. Others have different theories.” 

What Went Wrong: The Police Cop a Plea 

The post-mortem in Police seems to blame the OPD for turning a raucous but peaceful assembly into a maelstrom. “The protest in front of City Hall became larger and louder, but remained peaceful,” Police reported. “The first real sign of the massive police presence was overhead TV aerial footage of a large formation of field force vehicles moving slowly in the direction of the growing City Hall demonstration…. The first reports of trouble were reported with … a number of simultaneous incidents, including at least one confrontation between demonstrators and police…. TV cameras on the ground and in the air showed massive numbers of police in riot gear methodically advancing on foot toward demonstrators.” At this point, as could have been expected, “some of [the protesters] were throwing objects at officers.” 

Police noted that the officers attacked the protesters before the looting broke out when “arrest teams of ample officers conducted forays into the mobs to arrest select targets, and then whisked them back behind the lines.” It was only later that a “splinter group” broke away and began looting. The police, meanwhile, seemed preoccupied in a “containment area,” trying to corral members of the “crowd turned mob.” The violence that broke out after the police began arresting “targets” raged for five hours. As many as 80 businesses were damaged or looted. 

What Happened? Don’t Ask the OPD 

Seventeen days after the looting, Oakland’s Assistant Police Chief Howard Johnson, told the Chronicle: “I don’t know what happened there, but the department will be looking into the incident and doing a debriefing … in the coming weeks and getting feedback.” 

Two weeks after the looting, a top Oakland police official still has no idea “what happened there”? Two weeks after the looting, no one has yet “looked into the incident”? Two weeks after the looting, the department is only considering “a debriefing… in the coming weeks”? Two weeks after the looting, the OPD is only looking forward to “getting feedback”? One last rhetorical question: Doesn’t this all sound like the working definition of “incompetence”? 

OPD’s Johnson told the Chronicle that commanders visited the vandalized storeowners and “apologized” for failing to act but concluded, “all things considered, we did a damned good job.” 

The Pro-Mehserle Rally in Walnut Creek 

On Saturday, July 19, 146 uniformed countywide officers were on hand in Walnut Creek for another demonstration — this one in support of convicted BART police officer Mehserle. Some uniformed officers were there to provide “crowd-control” services but, according to an eyewitness report from the Chronicle’s Phil Bronstein, other officers — in and out of uniform — had shown up to join the demonstrators in support of Mehserle. 

This would have put the “crowd-control” faction in a difficult position had the shouting escalated into shoving. Had the gathering been declared an “illegal assembly,” the concept of “equal justice” (as practiced against the Oakland crowd on July 8) would have compelled the 146 uniformed officers to club and disperse their fellow officers who were among those who had gathered for the rally. 

As it turned out, there was only a lot of yelling between the pro- and anti-Mehserle protestors. The bill to the taxpayers for having these officers stand by and observe the raucous but legal three-hour-long demonstration: $60,000. 

Overtime Pay: A Conflict of Interest? 

Starting pay for an OPD officer is around $71,000. (In New York, that figure is about $44,000.) With overtime and other compensation, a newly hired officer can pull down more than $100,000 a year. The San Jose Mercury News compensation database reveals that more than 71% of the OPD’s 909 employees were making in excess of $100,000 annually. A report from the Berkeley School of Journalism further notes that, “with overtime pay and various shift differentials, officers often earn more than double their base salaries.” With overtime, it’s “not atypical” to have a cop earning in excess of $244,000 — more than double the salary of Oakland’s mayor. 

Policing public protests constitutes one of the major prompts for overtime pay. So much so, that one suspects news of an impending public protest might set an officer’s pulse racing in expectation of a “combat” bonus. And it’s not just pay for policing the events: police are also paid for time spent “preparing” for deployment. In the case of the three-hour Walnut Creek rally, the police were also paid an additional three hours of overtime pay for time “preparing” for the event. 

When officers stand to be rewarded so richly for overtime hours, it should not be the police who determine when and where overtime assignments are appropriate. There is an obvious conflict of interest when officers stand to benefit from the extra pay that comes with overtime work. Civilian oversight of the nation’s military and the neighborhood police is an essential safeguard against abuse of power. Perhaps it is time to require that declarations of an “illegal assembly” — which amount to a suspension of the US Constitution’s First Amendment protections — should be made by a municipal judge and/or elected officials, be they the mayor or a committee of the City Council. 

In a sense, that is the function that Councilmembers Quan and Kaplan were attempting to fill when they put their bodies between the advancing police and the crowd that had not yet become a “mob.” 

Illegal Assembly and the Law 

Over the years, the American Civil Liberties Union has challenged unlawful assembly statutes as unconstitutional. These statutes generally make it illegal for “three or more persons” to assemble with intent to "carry out any purpose in such manner as to disturb the public peace," especially if the assembly threatens "any act tending toward a breach of the peace." These statutes provide for the instant criminalization of "every person participating therein by his presence." 

California’s “illegal assembly” statue — “2686: Refusal to Disperse: Riot, Rout, or Unlawful Assembly” — is even more rigorous. It defines an unlawful assembly as any occasion where "two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner." Two Californians don’t even have to create a “tumultuous” disturbance (in which case they could be arrested for causing a “riot”), they also can be cuffed and jailed if the police deem that they are “about to start a disturbance” — i.e., a “rout.” (The Free Speech Movement students who occupied Sproul Hall in 1969, were officially charged with being “at the scene of a rout.”) 

California law specifies: “When two or more people assemble to do a lawful act in a violent manner, the assembly is not unlawful unless violence actually occurs or there is a clear and present danger that violence will occur immediately.” (Emphasis added.) If it were only “actual violence” that could trigger a declaration, well and good. But current law also extends an interpretive wand to the police, inviting them to divine when violence is about to occur — a “pre-crime” scenario right out of the film “Minority Report.” In any event, an innocent bystander playing chess or walking to his law office retains little protection against unlawful arrest since, under California law, “The People” (which is to say, The State) “do not have to prove that the defendant participated in the (riot[,]/ [or] rout[,]/ [or] unlawful assembly.” 

There are many divisive issues before us as a nation. There will be more occasions when people will feel the need to gather in the plazas, parade in the streets and stand before the palaces of power. Under current law, the police maintain an inordinate ability to criminalize activities otherwise protected under the Bill of Rights. This authority becomes a graver threat when its execution serves the financial interests of the individuals entrusted with police powers. 

The unquestioned and unsupervised ability of any police agency to “instantly criminalize” “two or more” citizens assembled in public should be seen as a threat to civil liberties and an invitation to martial law. It is time to revisit the question of what constitutes — and who defines — an “illegal assembly.” 

Berkeley resident Gar Smith is an investigative journalist and co-founder of Environmentalists Against War.