AN INVENTORY OF PRACTICES
THAT CHILL FREE SPEECH

Heidi Boghosian,
National Lawyer's Guild


PREFACE

There is perhaps nothing so frightening to the elites than the prospect of loosing control of the streets to what it sees as "the mob." This is what happened to the elites during the Vietnam War when LBJ and Richard Nixon were swept from power largely as a result of huge "street demonstrations." It's not that the elites lost the war in Vietnam – they did not; they lost the war in the streets of America's cities. The elites won't let that happen again!

The name of the game insofar as controlling the streets is concerned in the United States is INTIMIDATION! IT'S A GAME BORROWED FROM THE TACTICS THE ELITES HAVE BEEN USING FOR YEARS IN THE THIRD WORLD TO COWER THOSE POPULATIONS INTO SUBMISSION.

Two-time Nobel Prize winner Johan Galtung has said,

"... HOMELAND SECURITY IS, SIMPLY STATED, A TROJAN HORSE through which the government has unleashed its storm-troopers on America."

Galtung has said that what the elites are doing is establishing a "LEGALLY CRIMINAL SOCIAL STRUCTURE" in the United States. By "legally criminal" Galtung means that the government is legalizing otherwise criminal acts aimed at cowering the American population and the growing number of economic "cast-offs" of American society – especially insofar as making sure that these "cast-offs" are prohibited from taking their rage to the streets to stop the oppressive policies of the government as they did during the Vietnam War.

The creation of a political police force is an undeniable "marker" of totalitarianism - and that process is already far advanced in the United States. Before September 11th, 2001, the number of FBI agents stood at 27,000; the Drug Enforcement Agency (DEA) stood at 10,000; the Bureau of Alcohol, Tobacco, and Firearms at 4,000; the Secret Service at 6,000; the Border Patrol at 10,000; the Customs Service at 12,000; and the Immigration and Naturalization Service at 34,000. That's a "federal police force" that numbers more than 103,000.

That number is currently being expanded to a figure approaching a HALF-MILLION – a FEDERAL POLICE FORCE THAT IS INCREASINGLY BEING ORIENTED TOWARDS TRACKING DOWN INDIVIDUALS AND GROUPS THAT THE GOVERNMENT HAS DEEMED INIMICAL TO ITS "NEW WORLD ORDER" DREAMS. Moreover, in this connection the Justice Department has said that it really doesn't care what is motivating these groups and individuals: It could be "political, RELIGIOUS, racial, environmental, or special interest" - and that's a quote.

In the world of fiction, the agents of the FBI are a group of cerebral, calculating "do-gooders" whose sole job is to protect American citizens from criminals, mass murderers and mad scientists; they protect the rights of pacifists, scholars, and young radicals to have their say alongside business leaders, politicians and men and women of wealth.

The real fact of the matter is, however, the FBI has another more hidden job, and one that is much more vital to the smooth functioning of elite power in the country than is its more mundane job of catching criminals: and that is to spy on, attack and, if necessary, destroy the groups and individuals that don't "toe the party line" that's been established by America's elite. Specifically, the FBI has been authorized to "EXPOSE, DISRUPT, MISDIRECT, DISCREDIT, or otherwise NEUTRALIZE" the activities of those who oppose the elites.

Whether most people are willing to admit it or not, what this amounts to is the creation of something this nation has never before allowed - A POLICE FORCE CHARGED WITH WHAT IS REALLY A POLITICAL MISSION.

It's a political mission that will eventually be turned against all those who oppose the union of the church with the American New World Order System – a mission that will no doubt have what Heidi Boghosian of the National Lawyer's Guild calls a CHILLING EFFECT on those who take a stand for Christ.

-- Antipas

_____________________________________

In this context, the term "chilling effect" refers to government actions that instill fear of engaging in free speech activities. Usually the fear is that police will repress demonstration activities or that the law will treat speech and assembly activities as criminal. As a result, the numbers of individuals who will participate in protected activities and the vigor with which those activities will be exercised are limited.

Constraints on speech are incompatible with a democracy. The Guild's experiences and documentation at mass demonstrations clearly indicate that domestic anti-terrorism laws and policies and aggressive police practices have had a chilling effect on First Amendment protected speech. Would-be protesters or communities frequently targeted by the police, some of whom might be thinking about publicly exercising their First Amendment rights for the first time, may decide that it is not worth the risk of encountering police violence and possible arrest. Policies and practices that interfere with, and have a chilling effect on, the exercise of free speech include the following:

  • Falsely labeling protest rhetoric and political hyperbole as "true threats" to justify aggressive policing and prosecution. "True threat" is a legal standard that provides police with the presumptive justification they need to conduct surveillance, execute search warrants on organizing spaces, and charge individuals with serious offenses such as conspiracy to riot. Police portray activists as either "peaceful" or "violent." Those deemed violent are characterized as security threats that trigger aggressive police and prosecutorial response.

  • Using grand juries to harass political activists by imprisoning them, without specific criminal charges, for noncooperation with government investigations. This practice reached began during the Nixon administration, and prosecutors continue to abuse the power of coercive detention to punish protesters. Twenty-two year-old Carrie Feldman sat in jail for four months, refusing to cooperate with a grand jury investigation seeking information about a break-in at an animal testing facility that occurred when she was 15 years old and that she has stated she was not involved in.

  • Prosecuting leaders and those providing support to activists, often before or during events. Over-prosecution of perceived leaders occurred at the 2000 Republican National Convention in Philadelphia where prosecutors set an unprecedented $1 million bail for an organizer. At the 2009 G-20 Summit prosecutors charged a well-known activist with terrorism-related charges for "Tweeting" about police activities to other protesters.

  • Labeling, and stigmatizing, activists as "domestic terrorists." The broad language of the USA PATRIOT Act and a rash of local and federal anti-terrorism legislation including the Animal Enterprise Terrorism Act use this term, and prosecutors have begun charging protesters under these laws. Several animal welfare advocates were sentenced to prison for running a website that posted information about protest activities around the country.

  • False statements by police, and laws prohibiting the photographing of police. Independent media has documented incidents revealing how some police officers have falsely reported events to shift blame from police officers to activists. In New York, police actually altered a videotape that showed officers arresting an individual who was not participating in protests. Laws in 12 states forbid the photographing of police on duty, making it a crime to document police misconduct.

  • Preemptive actions by police in the absence of illegal activity, including the entrapment, arrest and detention of large groups of innocent people, often for days, until protests are over.

  • Repression based on "evidence" fabricated by the police. Since the 1999 WTO protests in Seattle, police in D.C. and St. Paul have told the media, with much fanfare, that they found Molotov cocktails and buckets of urine at organizing spaces—high-profile claims that have been disproved or retracted but that perpetuate demonization of protesters.

  • Police-initiated violence and abusive use of less-lethal munitions against civilians, often in violation, or absence, of departmental policies on use of such weapons. The misuse of less-lethal munitions and other forms of police-initiated violence have been verified and criticized by several after-event independent review boards.

  • Negative media coverage, fostered by the police, continues to portray activists as prone to violence and mayhem, reinforcing law enforcement's distinction between "good" and "bad" protesters used to justify excessive security measures and unnecessary displays and use of force.

These trends and practices are informed in part by the Department of Justice's enactment of domestic terrorism laws following the attacks of September 11, 2001, and the 2002 and subsequent repeated relaxations of the 1976 Attorney General's guidelines on FBI surveillance, allowing spying on and infiltration of political groups and meetings. With passage of the USA PATRIOT Act in 2001, those who criticize the government or maintain ties with international political movements may find themselves under investigation for domestic terrorism. As has been widely documented, the term "terrorism" is defined so broadly in the Act that anyone who engages in traditional forms of nonviolent protest and civil disobedience may fall prey to its chilling embrace.

These practices are directly related to mischaracterizations of, and reliance on, what police call an "anarchist" threat level used to justify vast security expenditures and violent policing at National Special Security Events and other protests. Along with increased security comes a higher "threat" awareness and sensitivity, and the subsequent improper training of line officers to meet free speech activities with excessive force and unlawful practices.

Falsely Labeling Protest Rhetoric
and Political Hyperbole

Protesters' calls to "crash the convention" or "shut down the convention" are political rhetoric and are not direct calls for the commission of crimes. Despite a body of Supreme Court decisions holding that hyperbolic political speech is protected by the First Amendment, and law enforcement's own awareness that there is no threat posed, police continue to justify vast intelligence initiatives based on such protected speech. The [2008] Report of the Republican National Convention Public Safety Planning and Implementation Review Commission explains that "The Welcoming Committee's stated goal was to shut down the RNC using a variety of violent methods."

It cites a document titled "A Call to Action," communicated to activists around the country and the slogan "Swarm, Seize, Stay" as evidence of intent to engage in violence. Commenting on the nature of such campaign slogans, Guild president and Alabama civil rights attorney David Gespass said: "The fact that a public call is made seems a clear indication that violent activity is not being planned." When activists widely issue such calls as part of their regular pre-event organizing, the FBI and others use these statements to justify their intelligence-gathering operations. Since 2002, when guidelines governing domestic spying were loosened, this has been easier to do.

It is clear that the FBI's goal is not only to gather intelligence, but also to send a message of intimidationin the FBI's own words, to instill "paranoia" among politically-active individuals that they may be the subject of surveillance. After the guidelines were loosened, an internal FBI newsletter encouraged agents to step up interviews with antiwar activists "for plenty of reasons, chief of which it will enhance the paranoia endemic in such circles and will further serve to get the point across that there is an FBI agent behind every mailbox."

Legislation Aimed at Outspoken Advocates

It is thus not surprising that the FBI would single out outspoken activists for especially harsh treatment, and that specific federal legislation targeting those activists would ensue. The media, sometimes in response to rhetorical speech and slogans, regularly portrays animal rights and environmental activists as dangerous. In 2004, several separate FBI investigations into the animal rights and environmental movements were combined into one large, coordinated investigation called Operation Backfire. The launch of Operation Backfire marked a renewed effort to curtail the activities of animal rights and environmental activists, and it was accompanied by a concerted public relations campaign to portray these activists as violent terrorists. Shortly after Operation Backfire began, the FBI claimed that "The No. 1 domestic terrorism threat is the eco-terrorism, animal-rights movement."

INDICTMENTS UNDER AEPA AND AETA

As of late 2010 there have been two indictments under AETA. In early 2009, four activists were arrested as terrorists as a result of their participation in protests against University of California animal research programs. In the second case, two activists were arrested in connection with the release of hundreds of mink from Utah fur farms. The alleged criminal activity in both situations was not violent and did not rise to generally accepted concepts of "terrorism." This suggests that AETA is being used to repress the animal rights movement, which has been successful in drawing public attention to the mistreatment of animals, thereby threatening corporations that profit from these activities.

The earlier law, AEPA, had been used twice: once against two activists who released animals from fur farms in Wisconsin and once against the "SHAC7" (Stop Huntingdon Animal Cruelty). In the SHAC7 case, the charge was not that they committed acts in violation of AEPA, but that by running a website they worked in conjunction with others who did commit such acts.

Federal prosecutors who bring these cases have recently been arguing for "terrorism enhancements." Enacted in 1995, the terrorism enhancement allows judges to increase sentences by up to 20 years if a crime is (a) targeted at influencing the government and (b) found on a list 55 specific "terrorist" acts provided by Congress. The enhancement can be applied more broadly, however, because Federal Sentencing Guidelines used by judges allow it to be applied even for a planned act that was not carried out, so long as it "involved, or was intended to promote, a federal crime of terrorism."

As a result of this increased attention, members of these movements are now subject to heightened levels of law enforcement surveillance and harassment. Activists are contacted at their homes and jobs, and their friends and family members are reporting intimidation from both local police and FBI agents. Corporate sponsored laws such as the Animal Enterprise Protection Act (AEPA) and the Animal Enterprise Terrorism Act (AETA) have created harsh punishments, some for traditionally protected First Amendment activities. If convicted, animal rights and environmental activists can face more severe punishments than other activists, including "terrorism enhancements" that extend prison sentences, and imprisonment in "Communication Management Units," which block most contact with the outside world.

Attaching Ominous Meanings to Ordinary Objects

An examination of evidence gathered by the FBI also makes clear that just as the bureau inflates the meaning of rhetorical activist language, it also attaches new and criminal meaning to ordinary objects. On November 23, 2003, news broke of a classified FBI memorandum dated October 15, 2003, sent to more than 15,000 local law-enforcement organizations days before antiwar demonstrations were held in Washington, D.C. and San Francisco, encouraging police to report potentially unlawful activities of protesters to the FBI Joint Terrorism Task Force. Examples of "criminal" activity cited were using tape recorders and video cameras, and wearing sunglasses or scarves as protection from pepper spray. The memo revealed that the FBI had collected detailed information on the lawful tactics, training, and organization of antiwar demonstrators. It also contained information on the legal activities of political activists including how some demonstrators prepared for protests and used the Internet to raise funds for legal defense.

Using Grand Juries for Information Gathering

Guild members have documented how grand jury activities and investigations have, for decades, targeted political dissenters and so-called "anti-American" movements.

The case of 20 year-old Carrie Feldman provides an example of how the government seeks out political activists to conduct a wide-ranging investigation. Feldman and her former boyfriend, Scott DeMuth, 22, were subpoenaed before a federal grand jury in Davenport, Iowa on November 17, 2009 in an attempt to obtain information related to animal rights activism concerning a break-in at the University of Iowa Spence Laboratories. Feldman was only 15 years old at the time of the break-in and has stated that she had no knowledge of who participated in it. Members of the Animal Liberation Front released a video of themselves breaking into the lab, freeing hundreds of rats and mice, and damaging property valued at $450,000. The government claims that she may have ties to domestic terrorism groups. NLG members Jordan Kushner and Michael Deutsch represent Feldman and DeMuth, respectively.

Both Feldman and DeMuth refused to testify before the grand jury despite offers of immunity and were found in civil contempt by District Judge John Jarvey, who had them taken into custody immediately. Feldman was held for four months for her refusal to testify. Shortly thereafter, the grand jury indicted DeMuth, who maintains his innocence, for conspiracy under the Animal Enterprise Terrorism Act. He was allowed to post bail and return to the Twin Cities while Feldman was jailed without being charged.

The Minnesota Chapter of the National Lawyers Guild supported Feldman and DeMuth's refusal to assist in the government's prosecution of alleged vandalism charged as terrorism. The indictment of Scott Demuth illustrates the continued use of the grand jury process to punish those who exercise their Fifth Amendment right against self-incrimination. The use of this procedure to subvert a constitutional right sends a message of intimidation to other activists.

The misuse of grand juries is not new, and reached its height during the Nixon administration and continues at this heightened level today. From 1970-1973, over 100 grand juries in 84 cities subpoenaed over 1,000 activists. At that time, prosecutor Guy Lee Goodwin became a "traveling prosecutor" in a quest to prosecute "revolutionary terrorists" of the anti-Vietnam War movement. He oversaw the convening of grand jury investigations and returned over 400 indictments from around the country. A fellow federal attorney lodged a complaint against him for abusing the grand jury system; Vietnam Veterans Against the War filed a $1.8 million lawsuit against him.

The National Lawyers Guild has long opposed the use of civil contempt as punishment in wide-ranging investigations. Civil contempt is used as a method of coercion—persons are held in jail until the end of the grand jury's term, up to 18 months, or fined, in order to coerce their compliance. If a witness does not comply, the witness may argue that, since the incarceration is not succeeding in coercion, it has become punitive and the witness should be released on due process grounds. Criminal contempt, on the other hand, invokes a punitive sanction of incarceration with a definite sentence for disobeying a court order. Sentences of six months or more may be imposed after a jury trial.

Stigmatizing Activists as "Terrorists"

Labeling, stigmatizing and isolating groups of individuals based purely on their First Amendment protected political beliefs and associations has profound and negative consequences to both activists and free speech as a whole. The labeling of a group of individuals as "subversive," as was done in the 1950s to suspected Communists, or as "domestic terrorists," as was done by the George W. Bush and Obama administrations, is often a justification for such tactics as issuing subpoenas, conducting surreptitious surveillance, or intimidating activists and pressuring them into informing on others.

Labeling, especially when accompanied by mainstream media coverage to reinforce government demonization, unfairly vilifies social justice activists. If charges are filed against those who are labeled, especially those labeled as terrorists, the current sociopolitical climate may play upon common fears and preclude the possibility of a fair and just trial. The use of fear-based techniques against those who dare speak out against government policies runs counter to the central tenets of democracy. Most telling, however, these techniques reveal a government terribly afraid of upholding its own Constitution.

Once convicted, political activists should not expect standard prison treatment. Andrew Stepanian, a member of the SHAC7, spent several months of his prison sentence in a Communication Management Unit (CMU). CMUs were established during the Bush administration, endorsed by the Obama administration, and designate a self-contained group within a facility that severely restricts, manages and monitors all communication of inmates in the unit. Many of those placed in CMUs are Muslims whom the government has targeted in high profile political cases, yet who have no disciplinary records and were not convicted of any "terrorism" offense. Non-Muslim political activists are also being selectively punished and warehoused in CMUs. On June 4, 2007, environmental rights activist Daniel McGowan was sentenced to seven years in prison on charges of arson. After serving the first ten months of his sentence at a low security facility, he was transferred to a CMU at United States Penitentiary (USP) Marion, Illinois.

Above: Long a staple of police efforts to control crowds, mounted units patrolled the streets at the 2009 Pittsburgh G-20 Summit. Photo by Paige Cram. Below : Police suited in full riot gear were an intimidating presence at the 2009 Pittsburgh G-20 protests. Photo by Mike Lee.

Asked what, if any, parallels he sees between historic tactics to punish activist leaders and placement of activists in the CMU, McGowan draws a connection between the age-old tactic of punishing activists and the recent placement of activists in CMUs:

"Many of the tactics of the COINTELPRO era—assassinations, planting of agents provocateurs, "bad-jacketing" of activists, harassment arrests and indictments, media disinformation campaigns—are harsher, but isolating activists in political units is certainly along the same continuum of punishment. By no means is the CMU a new idea; both the federal and state prison systems have had political prisons or units. These include: USP Marion's control unit, the High Security Unit (HSU) that held female political prisoners in Lexington, Kentucky, the SMU or Special Management Unit that runs a "gang rehabilitation" program at Lewisburg USP and the 400+ person ADMAX (Supermax) prison in Florence, Colorado.

"The CMU is different in the sense that: a) unlike the Supermax, SMU or control units, there do not exist any codified rules for CMUs. You can be sent to one at the whim of a Bureau of Prisons staff member. There are no hearings, no due process and no effective "step-down" program for leaving, b) most people are not in the CMU for an identifiable act, rules violation or incident. They were sent here based on the nature of their case and the potential that at one point, they may become a communication problem. It's scary and sounds a little like the Holly- wood film "Minority Report," in which people are arrested before they commit a crime. The intent of the CMU—to monitor and restrict communications to an abnormal and severe degree, not based on any actual behavior—seems to be unprecedented."

The Bureau of Prisons' (BOP) rationale that CMUs are designed for security purposes appears disingenuous, because most of the men there have low security scores. McGowan says that almost none of the inmates in the unit have any disciplinary violations, even after many years of incarceration. He notes that if they were security problems, they would receive incident reports, their scores would be raised, and they would be sent to higher security prisons. He says that, "A former staff member here once admitted to me that it wasn't our behavior in prison that concerned them but the theory that we could influence events on the outside. If I had received incident reports or presented management issues, there would at least be an argument for keeping me in a CMU for some amount of time. However, like most men, my record is clear."

Asked if he thought the government was sending a message of intimidation to other activists by placing him in this new highly isolated unit, McGowan replied:

"The Department of Justice, via its penal arm, the Bureau of Prisons, is sending a crystal-clear message to activists around the United States: if you come to prison for a political offense, you too, may end up at the CMU for an indeterminate amount of time, perhaps the entire sentence. The BOP has not been random in whom they have chosen to send to the CMU. The first was animal rights activist Andrew Stepanian, who spent the last six months of his sentence at the Marion CMU. Two years ago, I was sent here and recently a cooperating codefendant of mine has been at the other CMU—at FCI Terre Haute. By choosing Andrew and me, they made sure that news of the CMU's existence would spread fast through the environmental and animal rights movements. Since both of us have active and hearty support from friends, family and community, that is precisely what happened. It acts as a warning—any attempt to exercise your First Amendment rights and you will be sent to the CMU."

The government has failed to define criteria for sending people to a CMU, making evident that it is for political purposes; it cannot be for security purposes given that the BOP already has the capacity to monitor mail, telephone calls and visits in real time and still allow contact visits. That it chooses to do otherwise is a measure of the underlying punitive nature of these units.

False Police Reporting as Captured
by Independent Visual Documentation

Instances of police lying about events have come to light over the past several years, often due to photographic or videotaped documentation taken by observers. In New York, Police Officer Patrick Pogan was tried for lying about knocking Christopher Long off his bicycle during a Critical Mass ride—a political event usually held on the last Friday of every month in over 300 cities around the world—in Times Square on July 25, 2008. The event was captured on videotape by a tourist and posted on YouTube, where it was viewed over two million times. Pogan, a 24-year-old rookie only 11 days out of the police academy, resigned from the force. He falsely reported that Long had steered into him and knocked him down even though the video showed him heading directly toward Long and pushing him off his bicycle. The officer was found not guilty of assault and harassment charges.

Pogan testified that he unintentionally confused the sequence of events when describing them to a supervisor and prosecutors. Long was charged with attempted assault and other offenses. The charges were later dropped, and the city settled with him for $65,000 in a civil lawsuit. Jurors convicted Pogan of offering a false instrument for filing and another false-statement charge, both related to a court complaint he signed. He was acquitted of some similar charges stemming from a separate arrest report on the incident.

Had a tourist not videotaped this incident, Christopher Long would likely have been convicted of assaulting a police officer. Over the years, thousands of activists and non-activist individuals have not been as fortunate as to be videotaped when they have been subjected to unlawful police conduct. Yet in 12 states it is illegal to videotape police officers while on duty. The laws are tenuously based on wiretapping and surveillance statutes that require all parties to consent to a recording in order for it to be lawful. Given that police officers do not consent, the photographer is subject to arrest. Even though most of the states with such a law do include an exception for recording in public places, where there is no expectation of privacy, courts are generally not recognizing the exception. The extent to which police misrepresent evidence became clear after the 2004 Republican National Convention in New York. The independent group I-Witness Video recorded over 150 videotapes of protests and collected and stored tapes made by others. They shared the tapes with the New York City Chapter of the National

Lawyers Guild whose members had provided scores of Legal Observers during the protests and subsequently defended protesters who had been arrested. I-Witness discovered a discrepancy between their coverage of several events and police testimony describing that same sequence of events. It noticed that the police narrative did not match the behavior of Dennis Kyne, the first of the 1,806 protesters arrested during the convention to have his case brought to trial. The videotape proved that the officer had perjured himself and also exonerated Kyne. The District Attorney dropped the case the next day.

Video Tampering

In another finding, crucial scenes were excised from the police copy of a tape. The I-Witness tape showed an individual, Alexander Dunlop, who was arrested while riding his bicycle to pick up sushi from a restaurant, peacefully submitting to arrest. The police tape panned to a shot of a stop sign, flashing back to an image of Dunlop standing with other arrestees a few moments later. An image of the officer who detained Dunlop was also missing from the police tape, blurring the identity of those responsible for Dunlop's arrest. All charges against Dunlop were dismissed.

The discovery of the police-doctored videotape reflected poorly on the New York Police Department. It is perhaps not surprising that four years after the 2004 RNC, the City of New York served I-Witness Video and the National Lawyers Guild with subpoenas directing the groups to turn over videotapes and related information from the RNC protests. I-Witness responded with a motion calling the city's requests overbroad, and asked the judge to quash the subpoenas, accusing the City of planning to use the tapes for intelligence-gathering purposes.

According to a New York Times article, Peter Farrell, senior counsel for the New York City Law Department, said that the city would not be asking for the videotapes if they were not being sued by over 600 plaintiffs. According to Farrell, the city needed material to defend claims that the police engaged in the practice of sweeping demonstrators from the streets. As described in the "Courtroom Successes" section of thisreport, the Guild successfully quashed its subpoenas.

Preemptive Actions Against Protesters
by Police to Disrupt Free Speech and Assembly

Preemptive punishment of those wishing to exercise their First Amendment rights at protests takes several forms, including:

  • establishing screening checkpoints,

  • creating "free-speech zones,"

  • conducting mass false arrests and detentions,

  • employing "pop-up lines,"

  • using dangerous rush tactics with police on motorcycle, bicycle, and horseback,

  • using "less lethal" weapons.

Other tactics include closing streets and public sidewalks to people who are not carrying event-approved identification, and stationing police with video cameras on rooftops and deploying officers to photograph and film people in the area, including people who are not attempting to enter restricted zones.

Preventive punishment is illegal: in Collins v. Jordan, a case brought by Guild attorney Rachel Lederman, the Ninth Circuit reaffirmed that First Amendment activity may not be banned merely because similar activity resulted in instances of violence in the past: "The courts have held that the proper response to potential and actual violence is for the government to ensure an adequate police presence and to arrest those who actually engage in such conduct rather than to suppress legitimate First Amendment conduct as a prophylactic measure."

Guild National Vice President Dan Spalding noted that at the 2008 RNC, "We saw preemptive raids before the protests even started. And police officers taking out items used for organizing, taking out printed literature, banners, large puppets, in the name of national security, but nothing dangerous was found in these houses."

Pretextual Searches and Raids of Organizing Spaces

Sometimes local police will show up at a building where activists are known to be staying or meeting with a building inspector to either:

  • conduct a warrantless search of the premises under the guise of an administrative search; or

  • find a housing violation as pretext to close down the premises.

The Supreme Court has held that administrative searches such as fire and building inspections may not be used a pretext for a criminal investigation.

Absent legitimate exigent circumstances, government agents may not enter a building without a judicial warrant. Supreme Court cases "make it very clear that an administrative search may not be converted into an instrument which serves the very different needs of law enforcement officials.

If it could, then all of the protections traditionally afforded against intrusions by the police would evaporate, to be replaced by the much weaker barriers erected between citizens and other government agencies."

Content-Based Exercise of Discretion in Denying
Permits for Marches and Mass Assemblies

Historians note that rulings denying the right to march hold symbolic weight. The act of marching has had psychological and emotional power over the past 200 years, power that does not exist with stationary forms of protest. "The simple act of moving forward in a group, made up of diverse contingents, has a visceral force that energizes not only participants but observers."

4,000 additional officers were hired from other jurisdictions, including Baltimore, Chicago and New York City, to police the Pittsburgh G-20 Summit. The cost to train and accommodate these extra officers was over $12 million. Photo by Evan Hirsche.

Permit schemes must be content-neutral regulations authorizing reasonable "time, place and manner" regulations (such as traffic-control considerations) to prevent licensing officials from discriminating against groups or speakers with whom officials disagree. Written ordinances or regulations by which local police departments issue permits for street parades or large demonstrations should contain specific and narrowly defined standards, as well as a clearly explained process by which permits are granted, such as the expected size of the gathering that may require increased police security measures. Unwritten policies directing officials to deny permits based on applicants' dress, for example, constitute unconstitutional viewpoint discrimination.

Paying for Permits and Liability Insurance

The requirement that liability insurance be taken out by demonstrators before a permit is granted is another way that authorities make it costly or difficult to secure permits for constitutionally protected events. Often these liability-insurance provisions are unconstitutional because they allow government discretion to impose financial burdens based on the content of the speech. In many instances there is no way the sponsoring groups can afford the thousands of dollars for such insurance. The City of Los Angeles has been barred from charging liability insurance or any department service charges for parades or other demonstrations. This was a result of litigation brought by the National Lawyers Guild before the Democratic National Convention in 2000.

Free-Speech Zones

So-called "free speech" zones, also referred to as secure zones or protest zones, are areas established by law enforcement for protesters to stand in. They are often fenced off and at some distance from the event being protested. A lawsuit brought before the 2000 Democratic National Convention in Los Angeles resulted in an injunction striking down a secure zone of more than eight million square feet around the convention site, striking down the City's parade-permit ordinance, and striking down the City's park-permit regulations. Following the Court's issuance of a preliminary injunction, the City stipulated to a permanent injunction. The Los Angeles chapter of the National Lawyers Guild was a plaintiff in SEIU v. City of Los Angeles, with Guild lawyers as counsel. The court granted the injunction, finding that "the sidewalks and streets contained within the designated 'secure zone'…are traditional public forum for the exercise of First Amendment rights."

This "secure" protest zone, established in Point State Park during the 2009 G-20 Summit, was located the length of a football field away from where the speakers took the stage. Photo by Paige Cram.

Checkpoints

Police checkpoints, also called screening checkpoints, are a relatively unprecedented security measure at mass assemblies in which all bags are subject to search at a designated checkpoint. The government deployed checkpoints at the Inaugural Parade in Washington, D.C. beginning in 2001 at the George W. Bush inauguration and has used them at subsequent inaugurals. In litigation by the Partnership for Civil Justice Fund the use of these checkpoints has been shown to block demonstrators' access to protest along the parade route based on their political beliefs; to create bottlenecks that slow down the process of getting to the protest site for hours or halt access altogether; and to create a mechanism for confiscation of signs on the spurious claim by law enforcement that they may be used as weapons, while police simultaneously let in camera tripods, folding chairs and umbrellas.

A line of police with nightsticks confronts a group of peaceful protesters at the 2009 G-20 Summit in Pittsburgh, blocking their path. Photo by Jenna Piasecki.

Pop-Up Lines

Pop-up lines are rapidly deployed lines of police officers that block the movement of protesters, misdirecting them and splitting up groups, and/or detaining and arresting the protesters.

Police lines can alter the flow of a march or literally trap people and prevent them from moving along or leaving the march. When police surround a group of people in this fashion, mass arrests often follow.

Containment Pens, Trap
and Detain/Trap and Arrest

Another way in which police repress mass demonstrations is by conducting mass false arrests so that segments of demonstrators are literally removed from the streets, sidewalks and parkland and put in detention.

Police may also erect containment "pens" out of wood or metal barriers at demonstrations as a means of coralling protesters within a narrowly confined area with no freedom to move about. This tactic, which also provides the false visual impression that the assembly is somehow criminal or dangerous, is frequently seen in New York City.

Containment pens can be dangerous, as they tend to heighten anxiety in crowds when people are unable to move normally. Those with disabilities, medical needs and small children are especially at risk of harm. Furthermore, pens interfere with the right to free expression; they make it difficult for individuals to move freely and interact with whomever they want.

Rush Tactic, Flanking, and
Using Vehicles as Weapons

The rush tactic involves police officers, usually on horseback, motorcycles, or bicycles, charging and assaulting a group of demonstrators. At the FTAA demonstrations in Miami on the morning of November 15, 2003, police used their bicycles to form a circle and entrap a group of about 50 people for approximately two hours. When demonstrators asked whether they were being detained, the police said no. When demonstrators asked whether they were then free to leave, they were told they were not. This entrapment prevented the group from joining a large, nonviolent march through downtown Miami. When the group finally received permission to move, the police walked their bikes in lines on all sides of the group in a tactic known as "flanking." The police used their bicycles as weapons against pedestrian demonstrators to push them off the sidewalk and into the street. After an hour of herding the demonstrators in this fashion, the police formed a line in front of them with their bicycles and proceeded to shoot them with Tasers. About five people were arrested, and many more were Tasered. One demonstrator was arrested after being knocked to the ground when a police officer rammed his bicycle into the demonstrator's back.

On April 12, 2003 at the first major protest against the war in Iraq after the "fall of Baghdad," the police in Washington, D.C. used motorcycles and bicycles to flank demonstrators and drove into pedestrians with the vehicles as the protesters peacefully marched along a permitted route. The police carried out multiple attacks against the 30,000 strong demonstration including using the "rush tactic" in which police charged assembled demonstrators, attacking them and disrupting the march. Litigation by the Partnership for Civil Justice Fund secured $100,000 for each of two plaintiffs who sued the Metropolitan Police Department (MPD) for injuries and ended its use of the "rush tactic."

On April 7, 2003, in Oakland antiwar demonstrations, the Oakland Police Department used vehicles as weapons. They ran into several people with their motorcycles as they herded the crowd down a series of egressless roads for over an hour, firing barrages at their backs. According to Guild member Dan Spalding, "[t]he police also used bean-bag rounds and wooden bullets to chase protesters into moving traffic. This is a case of the police using civilians' vehicles as weapons against protesters." The Guild and the ACLU filed a lawsuit against the City of Oakland on behalf of several demonstrators, dockworkers, and videographers who were literally run over by police rush tactics in this especially violent attack by police.

Unprecedented and Unconstitutional Bails

The Eighth Amendment to the U.S. Constitution provides that bail shall not be excessive. The purpose of bail is to allow an arrested individual to be free unless and until he or she has been convicted. Theoretically the amount of bail should not exceed what is reasonably necessary to ensure that the individual will appear in court. Standard bail schedules specify bail amounts for common offenses, but judges ultimately set bail. Judges frequently set extremely high bail in the case of certain offenses, such as rape, in order to ensure that the defendant remains in detention until the trial has concluded.

It is unconstitutional, however, to set bail high based on the fact that someone may be a "leader," especially when that person has been charged with a nonviolent misdemeanor, lives in the jurisdiction, and is not a flight risk. It is unclear why someone would have bail set based not upon what he or she is charged with but upon other, uncharged activities.

Over-prosecution of protesters, especially those whom the government labels "ringleaders," was especially evident at the Republican National Convention (RNC) in Philadelphia on August 1, 2000. An unprecedented $1 million bail was set for two demonstrators whom police identified as ringleaders. John Sellers, director of the California-based Ruckus Society, and Terrence McGuckin of the Philadelphia Direct Action Group were arrested on misdemeanor charges and received disproportionately high—in fact, record-setting—bails of $1 million and $500,000, respectively. Sellers was charged with aggravated assault on a police officer—a charge that was later dropped—and eight other charges, including obstruction of a highway, failure to disperse, obstruction of justice, and conspiracy to commit all of the above, for a total of 14 counts.

Punishment Based on Evidence Fabricated By Police

The Report of the Republican National Convention Public Safety Planning and Implementation Review Commission says that searches at the 2008 RNC found several items to support an aggressive police response, including Molotov cocktails, buckets of urine, knives, chains, piping and similar items.

However, as is detailed later in this report, former NLG president Bruce Nestor disputes police claims that they seized Molotov cocktails and urine from an organizing space: "The raids again claim to be looking for such items as Molotov cocktails and devices to block traffic. Many common household items were seized, items that you would find in anybody's home to which police ascribed evil intent. Claims that they found urine were absolutely fabricated, as were claims of any sort of liquids being found to throw at police officers."

Police in the Twin Cities obtained arrest warrants based on statements made by confidential informants who infiltrated and attended political meetings for a year prior to the RNC. Their statements were used to support probable cause by alleging that, among other things, members of the group sought to kidnap delegates to the RNC, assault police officers with firebombs and explosives, and sabotage airports in St. Paul. There has been no corroboration of these allegations other than the claims of the informants.

Metal barricades were erected in downtown Pittsburgh during the 2009 G-20 Summit. These barricades surrounded the convention center in which G-20 leaders convened and ensured a tightly- controlled cityscape in the central business district. Photo by Paige Cram.

The Guild has documented police fabrication of finding Molotov cocktails and pepper spray in activists' spaces as far back as 2000. In April 2000, when police raided activists' convergence space at the World Bank and International Monetary Fund protests in Washington, D.C., Charles Ramsey, the police chief, and Terrance Gainer, the former executive assistant chief, told the media that activists were making homemade pepper spray and Molotov cocktails. On April 15, 2000, the Associated Press quoted Gainer as saying that police had seized what appeared to be a Molotov cocktail: a container with a rag and what appeared to be a wick in it. This was false information intended to disparage peaceful protesters and justify police repression.

The chief was later quoted on the television program The News with Brian Williams, speaking about the alleged homemade pepper spray on April 27, 2000. Litigation by the Partnership for Civil Justice revealed that there were no Molotov cocktails nor was there pepper spray at the Convergence center. There were materials for making papier mache puppets and materials for making gazpacho soup in the kitchen area. Neither allegation was substantiated in the Fire/EMS records on the materials seized at the convergence center, or in the Washington, D.C. Metropolitan Police Department and Fire/EMS witness testimony.

Also in 2000, at the RNC in Philadelphia, police acted on a tip and raided a warehouse where individuals were making puppets, signs and banners. Police chief John Timoney announced that the occupants had C4 explosives and balloons filled with hydrochloric acid. Over 70 people were arrested; First Amendment protected materials were seized, and the warehouse was shut down.

Later, police admitted that neither C4 explosives nor acid were found on the premises. NLG members Paul Hetznecker and Lawrence Krasner filed a federal lawsuit one year later alleging that the demonstrators were subjected to preventive detention and malicious prosecution.

Activist Kris Hermes, who has written extensively on the 2000 RNC, explained that the RNC host committee purchased an insurance policy covering a range of civil rights violations, and its high-powered law firm went on the offensive in defending the city. "The firm was aggressive in seeking/subpoenaing information, such as hard drives, email correspondence, and organizational membership lists. The city also deposed a great number of activists and their relatives, including the attorneys on the legal team, accusing them of conspiring with the activists to shut down the city." The fact that an insurance policy was required is perhaps the strongest proof that the city fully anticipated violating demonstrators' rights.

An unintentional leak was covered by the Philadelphia Daily News, which revealed the amount of the puppet warehouse lawsuit settlement to be $72,000, much less than comparable First Amendment settlements. As part of the agreement, none of the award went to the plaintiffs. Instead, the plaintiffs chose two organizations (within certain parameters set by the city) to donate the money to: Spiral Q Puppet Theater and Books Through Bars. News reports frequently rely on the police version of accounts and do not conduct independent research. After the World Trade Organization protests, the New York Times erroneously reported that Seattle protesters had thrown Molotov cocktails, excrement and rocks at police and delegates. The Times later ran a retraction saying that no objects had been thrown.

After the 2004 RNC the New York Times wrote incorrectly that "five years ago in Seattle…there was widespread arson." It ran a front-page summary contrasting the RNC with the Seattle protests when "window-smashing and marauding through the streets during a trade summit meeting gave rise to fears that any large political gathering would dissolve into lawlessness and anarchy." Writer Rebecca Solnit sent several letters to the editor pointing out the errors in these accounts which finally resulted in a correction on October 30, 2004 noting that the paper had "referred incorrectly to the violent demonstrations of December 1999 at the World Trade Organization meeting in Seattle, which the New York authorities cited as a cautionary lesson. Although numerous small fires were set in dumpsters in Seattle, there were no reports of widespread arson." As Solnit observed: "while retracting the single charge of widespread arson, the so-called correction perpetuates the myth of violence."

Police-Initiated Violence and
Abuse of Less-Lethal Munitions

Police violence against protesters is now routine in the United States. In addition to the inappropriateness of using weapons against persons engaged in free speech activities, the use of less-lethal weapons against civilians is inadvisable for several reasons. No standards exist, even within the Department of Justice, for how these weapons should be used. Severe injuries and even fatalities have occurred by use against civilians in crowd situations.

This dynamic has been acknowledged by the District of Columbia Report on the Investigation of the Metropolitan Police Department's Policy and Practice in Handling Demonstrations in the District of Columbia, and by an independent review commission investigating police actions at the FTAA demonstrations in Miami.

The use of excessive force by police violates state and federal law and also international human rights law as established by treaties to which the U.S. is a party. Once ratified, treaties are the supreme law of the land and are binding on all levels of government. Excessive police force is prohibited by the International Covenant on Civil and Political Rights (ICCPR), ratified by the U.S. in 1992. Similar protections exist in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the U.S. ratified in 1994.

The presence of legions of police in body armor and engaging in paramilitary tactics obviously has an intimidating effect on the public. It suggests that protest activity is criminal and creates an atmosphere of police violence. Such tactics can frighten protesters and are also designed to limit the number of demonstrators, directly attacking the right of people to protest. Further, they encourage aggressive behavior among police officers. In the United States, collective punishment of protesters includes the deployment of so-called "less lethal" weapons into crowds or at specific individuals within a crowd. These include impact weapons, chemical agents, conducted energy devices, and sound weapons. The regularity and uniformity of these police responses, including the millions of dollars spent in legal damages, suggests that the government deems them a necessary cost of stifling opposition.

Police officers, nightsticks in hand and metal face-shields in place, await potential confrontation with protesters at the 2009 Pittsburgh G-20 Summit. Photo by Mike Lee.

In addition, displaying less-lethal munitions at mass assemblies creates unnecessary tension between police and protesters. In testimony before the District of Columbia City Council's Committee on the Judiciary, Robert Klotz (the deputy chief of police of the special operations and traffic division) noted that police departments' duty to protect protesters' rights has been supplanted by their efforts to manage civil disturbances. Klotz cautioned police against an excessive show of force at demonstrations, which results in police overreaction to protesters. In its final report, the Committee on the Judiciary noted that Mr. Klotz's observation was supported by the shift in titles of the manual defining the MPD's policy on handling mass demonstrations. In 1978 the manual was titled the MPD Handbook for the Management of Mass Demonstrations. In 2003, it was renamed the MPD Standard Operating Procedures for Mass Demonstrations, Response to Civil Disturbances & Prisoner Processing. The new title affirms the regularity and routine manner in which police engage in mass arrests and detentions during mass demonstrations.

Lack of planning and lack of police training about the lethal effects of "less-lethal" weapons is reason enough not to use them. The independent Stern Commission, appointed to investigate the killing of Victoria Snelgrove by the Boston Police Department in October 2004, found that confusion and disagreement existed within the police department about how and when the weapons should be deployed. It also found such that confusion existed on who was authorized to fire them, what would happen if someone was actually hit, and what policies governed their use.

On April 7, 2003, in what the U.N. Commission on Human Rights later condemned as unjustified use of force, Oakland police broke up a nonviolent antiwar picket at the Oakland docks using an arsenal of less lethal weapons, including large wooden bullets, "sting ball" grenades filled with rubber bullets and tear gas, and shot-filled bean-bag projectiles. The Oakland Police Department fired directly at people's heads and upper bodies, despite the warning printed prominently on each wooden bullet shell casing: "Do not fire directly at persons as serious injury or death may result." The police used lethal force when none was justified as demonstrators were merely attempting to follow police orders. Three people suffered broken bones, and one woman had such a severe crush injury to her leg that she had to receive a large skin graft.

POLICE ASCRIBE EVIL INTENT TO PROTECTED POLITICAL SPEECH

Although it is well documented that the violence in Seattle was the fault of the police, many police departments continue to justify the need for an escalated police response at mass demonstrations by citing the need to avoid another "Battle of Seattle."

According to the final report of the Seattle City Council's World Trade Organization Accountability Review Committee, what police described as massive violence by protesters was in fact an abdication of police and city leaders' responsibility during the planning process. The Review Committee report concluded that Seattle police chief Norman Stamper's "failure to provide leadership…placed the lives of police officers and citizens at risk and contributed to the violation of protesters' constitutional rights."

After the World Trade Organization protests, all host cities of political conventions have "developed intelligence into the anarchist groups" (i.e. infiltrated them) and crafted security plans to prevent the activists' goals of 'shutting down the convention.'" Before the 2008 Republican National Convention, the St. Paul Police Department justified the need for a massive police presence on intelligence reports that yielded information they claim posed a threat to the safety of St. Paul.

Such calls to "shut down the convention" are forms of protected political speech. Political speech includes rhetoric and hyperbole. The Supreme Court has recognized the importance of protecting political rhetoric in Bonds v. Floyd, 385 U.S. 116 (1966). Charged political rhetoric is "at the core of the First Amendment." NAACP v. Claiborne Hardware, 458 U.S. 886 (1982). Even when rhetoric contains phrases that could be construed as a threat to the president, the Court has evaluated the language in the broader context of robust debate. Watts v. United States, 394 U.S. 705 (1969).

In Cincinnati in 2001, officers fired bean-bag rounds into a crowd protesting the police shooting of Timothy Thomas, even though department procedure did not authorize the use of such weapons in a crowd situation. After the U.S. Justice Department brought litigation against the City of Cincinnati, the City agreed to prohibit the use of bean-bag shotguns and 430 millimeter foam rounds against crowds unless they could target a specific individual posing an immediate threat of imminent physical harm.

At the 2000 Democratic National Convention (DNC) in Los Angeles, NLG Legal Observer Dave Saldana was shot by a rubber bullet. He witnessed police trapping protesters under a freeway overpass with no escape route. He described the experience of being singled out:

"I was caught flat-footed, stunned and unable to move. That is, until I saw a police officer level his weapon directly at me. He didn't aim it at the ground in front of me, as LAPD Commander David Kalish told reporters they had. I stared straight down the barrel of a shotgun as it trained on me. In that instance, I turned to run, and was immediately hit in the back upper thigh. The impact was remarkably painful, like the force of a baseball bat condensed to an area the size of a dime. After the initial pain, my leg went numb, and I couldn't walk."

Saldana was not the only Legal Observer to be hit by a less-lethal projectile; Guild attorney Carol Sobel was hit below the eye with a rubber bullet. While Saldana and Sobel did not sustain permanent injuries, another person present at the 2000 DNC was not as fortunate. Melissa Schneider lost sight in one eye after she was hit by a rubber bullet. The City of Los Angeles settled her case for over $1 million.

Negative Media Coverage as
Cover for Police Violence

Media coverage continues to cast protesters in a negative light, especially before certain large events where protests are expected. The media plays a key role in escalating perceptions of violence and demonizing demonstrators. More often than not, news reports portray protesters as disruptive, deviant, and violent instigators—without any evidence—while ignoring or minimizing police violence and instigation. Such coverage began in Pittsburgh months before the G-20 Summit. The Associated Press on June 24, 2009 reported that past G-20 Summits attracted "thousands of sometimes violent demonstrators. The July 15, 2009 Post-Gazette pictured officer drills and focused on fears of "unlawful" and "violent" protest. Misleading news coverage has helped the public buy the official police line that protest poses a threat that necessitates a repressive or overwhelming police response.

A provocative story in the Pittsburgh City Paper on June 25, 2009 featured a photo of police in riot gear from a 2006 anti-war march. The caption says that "More of the same is expected at September's G-20 Summit." After describing how 40 law enforcement agencies used less-lethal weapons and other aggressive tactics at the Free Trade Area of the Americas protests in 2003, author Marty Levine posed the rhetorical question "Could that happen here?" While Levine includes the perspectives of several civil libertarians and protesters, the mention of possible security purchases for the event ramps up the sense of prospective confrontation.

Palpable throughout parts of Pittsburgh during the Summit was local residents' disdain of protesters, especially on the part of local merchants who told members of the National Lawyers Guild that they resented having to board up their store windows and close business because of "violent" protesters coming to town. Guild members watched as store-owners covered storefronts with plywood. One hardware store reportedly sold 5,000 sheets of plywood along with 3,000 two by fours and 2,000 pounds of dry wall cement.

The New York Post published a story about Elliot Madison, the Queens resident who was arrested for sending Twitter messages about police movements during the 2009 Pittsburgh G-20 Summit.

An independent review panel investigating the actions of the Miami-Dade Police Department and the Miami-Dade Corrections and Rehabilitation Department during the FTAA conference wrote that the media played a large role in shaping police treatment of protesters. The review panel wrote that "[m]edia coverage and police preparation emphasized 'anarchists, anarchists, anarchists' and this contributed to a police mindset to err, when in doubt, on the side of dramatic show of force to preempt violence rather than being subject to criticism for avoidable injury and destruction based on too reserved a presence of police force." The report found that police were trained to address massive civil disturbance because "intelligence indicated some groups might attempt to 'violently disrupt the FTAA conference and cause damage to both private and public property.'" The report of the review panel found, in fact, that "[t]here were no massive disturbances."

The Guild believes that the media relies too much on police information and fear tactics in its reporting and thus becomes complicit in the protester-vilification dynamic.

Police at the 2009 G-20 Summit protests in Pittsburgh fired rounds of bean-bag projectiles at protesters, often at close range. Above, police in Friendship Park hold bean bag projectile weapons. Photo by Paige Cram.

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God bless you all!

S.R. Shearer
Antipas Ministries

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