Vindication for our right to protest

October 9, 2012

Nearly 100 Occupy Chicago activists are celebrating a victory after a judge dismissed the charges against them stemming from protests last fall when they were arrested for exercising their right to protest. One of the arrested activists, Rachel Cohen, explains what the ruling means for the struggle to defend civil liberties in Rahm Emanuel's Chicago.

A JUDGE has dismissed all charges against nearly 100 Occupy Chicago activists arrested last fall while they tried to set up an encampment downtown--another humiliating setback for Chicago Mayor Rahm Emanuel's project of ruling the city with an iron fist.

On October 15 and 22 of last year, thousands of Occupy activists marched to a public plaza in order to establish a camp in a small part of Chicago's sprawling downtown Grant Park. Emanuel and his police responded by arresting more than 300 people.

But in late September, Cook County Judge Thomas Donnelly dismissed the charges against those who hadn't resolved the charges in some other way, ruling that the Chicago Police Department's arrests were a violation of the First Amendment rights of the protesters.

But Donnelly didn't stop there. He further ruled that the city was engaging in selective enforcement of the Chicago park district curfew of 11 p.m. to 6 a.m. in order to limit the rights of Chicagoans who want to exercise their rights of free speech and assembly.

Occupy Chicago activists being arrested in Grant Park on October 22
Occupy Chicago activists being arrested in Grant Park on October 22 (Timmy Caldwell)

For example, Chicago's Grant Park was the site of mass celebrations in November 2008--the night Barack Obama won the presidency--with jubilant crowds filling the area well after the official curfew of 11 p.m. But in 2011, when activists twice held sit-down protests in Grant Park in an effort to establish a protest camp, the city engaged in mass arrests. I was proud to be among those arrested that night.

The ruling is a further embarrassment for Emanuel. The day after, the Chicago Sun-Times ran a front-page story with the headline, "They fought the law, and the law lost." A few days later, a new poll showed that Emanuel's approval rating has sunk to a pathetic 34 percent.

Those who accepted a plea bargain received a sentence of 10 to 20 hours of community service in most cases, and while this decision spares this same sentence for the 92 of us who filed a motion to dismiss the charges, the real significance of Donnelly's ruling is to provide some relief for activists who have been stymied by the city's practice of arresting first and asking questions later.

Thousands of labor, community, antiwar and Occupy activists have encountered frustration while attempting to exercise their right to protest. While this ruling won't end such harassment, it does send a clear message to Emanuel and his administration that their heavy-handed use of repression won't stand up in court.

Jerry Boyle, a supporter of Occupy Chicago and member of the National Lawyers Guild (NLG), described his reaction to the ruling:

I did not expect this motion to succeed. It was a long shot, taken on principle, and not expected to hit its target. What made it possible was, I think, two factors: 1) we got a good judge, who appreciated the stakes for freedom of assembly and expression; and 2) we have good clients, who carried a powerful message in a powerful way. These were textbook mass arrests, carrying strong echoes of the best examples of civil disobedience.

And I should add that the criminal law subcommittee of the Chicago NLG Mass Defense Committee, which did the legal work on this motion, did an awesome job of showing this good judge a way to find in favor of our good clients. They succeeded despite the odds. It really helps if you have lawyers who just refuse to give up.

IN MANY cities, police crackdowns on Occupy encampments were carried out with police batons and pepper spray, but in Chicago, the mass arrests were less violent--in keeping with the image Emanuel sought to portray of cool-headed policing.

But Donnelly's decision challenges both the appearance of even-handedness that Rahm cultivated and his claim that the Occupy protests were a "threat to public safety." Instead, Donnelly wrote that the mass arrests, combined with regular harassment by Chicago police, support "a finding that the city intended to discriminate against defendants based on their views."

Occupy activists recognized this before the arrests took place last October. Prior to this, small numbers of Occupy participants kept a 24-hour presence at a single street corner in the heart of the city's financial district, but police made constant patrol stops to inspect and disrupt--lest anyone pitch a tent or become remotely comfortable.

So on October 15, a worldwide day of action that inspired protests in more than 100 cities around the globe, Occupy Chicago led a march of thousands into Grant Park, hoping the strength of our numbers would allow us to set up an encampment that could be used as a mass organizing space. That night, 175 people were swept up, arrested, held in large cells and released after a few short hours.

One week later, activists again organized a mass rally, march and sit-in to establish an encampment in the same spot in Grant Park. This time, a number of unions mobilized in solidarity--including National Nurses United (NNU), whose members constructed a health station in the center of the plaza. The nurses were among the more than 130 people arrested that night.

This time, police didn't release us after a few hours. Instead, they split us up in pairs and held us in smaller cells, effectively undermining the jail solidarity we engaged in the first time. Most activists were held for 18 hours in awful conditions--and the police singled out the nurses by holding them nearly 24 hours.

The message was unmistakable: Chicago's police weren't interested in "protecting the public" but silencing dissent. While Emanuel wined and dined the city's tax-dodging corporate elite, Chicago's 99 percent were treated as criminals for sitting in a public park. And if nurses could be punished for providing free medical care, activists would need to organize a serious legal and political defense campaign.

The nurses joined in a protest at City Hall on the very day of their release. Jan Rodolfo, one of two NNU members arrested, told the Chicago Tribune that by the time they were released, "We were tearful and exhausted and shell-shocked, [but a] person and their rights don't stop at 11 p.m. in the city of Chicago."

In the following months, Occupiers formed a civil liberties defense committee to coordinate with the NLG, whose attorneys defended many of the hundreds arrested. The lawyers accompanied Occupiers to court, helping many to obtain plea deals and appealing to courts to consolidate the remaining cases. They also filed the motion to dismiss the charges on the basis of the Occupiers' First Amendment rights.

The city repeatedly delayed judgment on the 92 remaining cases. Meanwhile, the mayor and city council introduced new restrictions on speech and protest with changes to city ordinances that activists collectively dubbed the "sit down and shut up" laws. These permanent legal changes, passed ahead of the NATO summit held in Chicago last May, include a number of unreasonable barriers to obtaining protest permits, as well as steep penalties for violations.

The new laws were accompanied by intimidating press releases from Emanuel's office tallying up the millions of dollars that the supposedly cash-strapped city was spending to arm and equip tens of thousands of security personnel during the NATO summit.

Occupy Chicago's civil liberties defense committee helped organize a response. The group mobilized supporters to courtrooms during each status hearing in the Occupiers' cases; spearheaded a petition drive; and mic-checked Rahm Emanuel, sending him scurrying from one photo-op downtown. And NLG lawyers continued to pursue the motion to dismiss even as the cases dragged on after the height of Occupy and the anti-NATO mobilization.

THE DISMISSAL of these unjust charges for violating a curfew should encourage everyone to continue to stand for civil liberties. In particular, it's essential to organize in defense of the NATO Five--five activists languishing in Cook County Jail since May while they await trial on charges of "terrorism."

The NATO Five were arrested in the days before a May 20 permitted mass march during the summit. The thread connecting all five is the involvement of police infiltrators who presented themselves as "out-of-town activists" coming to Chicago on May Day to take part in the many planned actions during the month. But their real aim was to entrap activists.

As for the Occupy arrest cases, the city plans to appeal Donnelly's dismissal of the charges. As Boyle points out, this is because the city is trying to preserve as many of its repressive powers as possible:

The court held that there was a pattern of discrimination against Occupy Chicago by the city...If, for instance, the pattern of discriminatory enforcement continues, that finding could be helpful in future legal actions.

The prosecution of the NATO Five and the "sit down and shut up" ordinance are more one-offs, I think, specific to NATO. Both were more about generating fear and scaring people off the streets, so they served their real purposes when downtown was effectively shut down for NATO. The prosecutions obviously have terrible consequences for those charged, and the ordinance remains on the books like a loaded weapon, ready to be picked up by any mayor with a repressive agenda.

By continuing to organize against all of Emanuel's attacks on Chicago's 99 percent--from his war on Chicago teachers to the upcoming trial of activists arrested while protesting the closure of half of the city's mental health clinics--we can challenge the confidence of all the politicians and law enforcement officials who try to steamroll over civil liberties in order to maintain "order" in our deeply unequal society.

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