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(According to current plan, I’ll be giving a capsule version of this report sometime this mid-to-late-afternoon, but I want also to have it available here.)
This continues the story I began last night with a post on whether those Occupy Irvine protesters who remain in the park overnight are likely to face legal consequences. Link: http://www.orangejuiceblog.com/2011/10/will-irvines-occupiers-face-legal-consequences/. To summarize that article: (1) I don’t know what legal consequences people may face and I don’t think that the police have yet decided on it, (2) I’ve outlined the important role that non-violence on the part of occupying protesters would be expected to play in warding off at least the worst possible consequences, and (3) I’ve pointed out that what is in the worst interest of protesters individually (being harmed by police) is in the best interests of the movement collectively, something that colors the views of both police and protesters. I now want to continue by reviewing some of the discussions that I and others have had with the police this week. A third post will address what people can do to help to defuse, and perhaps even resolve, the situation. (Hint: if you know Irvine Mayor Sukhee Kang or Mayor Pro-Tem Beth Krom, you may want to dig out their contact information.)
Irvine Chief of Police Dave Maggard, Jr., Irvine Police Cruiser, Irvine City Manager Sean Joyce
My story begins here: after I had successfully volunteered with Occupy OC-Irvine’s Legal and Civic Liaison Committees, I went to the Democratic Party annual Truman Dinner fundraiser on Tuesday night. (Note: I do not, in any way, speak for the Democratic Party, either of Orange County or otherwise.) I think that this is the first time I’ve demonstrated outside of a dinner that I then attended, but as you’ll note from Vern’s post on the event, my sign was both pro-Democratic Party and pro-Occupy; essentially I want Democrats to win (rather than expect or demand) Occupy/99% support. Before the dinner I met and “liaised with” a Police Detective who seemed to be managing security for the Governor’s visit. On the way out of the dinner I spotted Mayor Sukhee Kang and spoke to him briefly about the impending Occupation, the fact of which appeared to be new to him, and gave him my contact information.
I called Irvine City Hall on Thursday in hopes of setting up a meeting with Mayor Kang, only to be told that he was out of town. I then called the Irvine Police Department and was referred to a Sergeant for Special Events, (whom I’ll call “Sarge,” because what Police Sergeant doesn’t like being called “Sarge”? True, I’m getting this impression from TV, but still. If he’d prefer to be named here, he can let me know.)
Sarge and I had a long and cordial conversation; my recollections of it are below, which he might of course dispute (and which I will correct when wrong.) I promised him confidentiality on a couple of points and I will honor that.
First Conversation
Sarge told me that, among other things, he had given a member of the committee a special events permit the previous Friday, but that it had not been turned in. (Some discussion with my fellow Liaisons quickly turned up the problem: the 18-page document began by informing the applicant that it may be required to be insured for $1,000,000, a policy for which might be in excess of Occupy Irvine’s extremely modest budget.) It would not be possible to have one processed the next day because the City Hall is closed on alternate Fridays, including yesterday. I told him that my understanding was that the event would proceed even without such a permit and that I had no realistic chance of convincing people to change that even if I wanted to.
Sarge complained that he has had to deal with four different people about this event — now six, including me and another lawyer new to the project — which has made communication more difficult. I’m sure that this is frustrating, but it also points to the differences between Occupy Irvine and the usual sort of street fair or bike race or convention or outdoor Ultimate Fighting Match that he might be asked to oversee — the sort of “special event” that might reasonably be expected to have a finalized date and program 30-60 days before it is to occur.
Neither he nor I had reliable information about what was to happen when or where, except that there would be a pre-rally on Friday, a rally and march on Saturday, and then some sort of occupation near Irvine City Hall beginning Saturday night and lasting indefinitely. I did not (and still do not) know how many people would be coming; we’re not selling tickets. Neither of us was clear on what the “Financial District” is, but it seemed to be somewhere between Harvard and Von Karmen streets. (Irvine’s marketers may benefit from the prospect that after this weekend there will be a location to match that name — a good thing for a commercial hub such as Irvine.) He and I had both had some speculation about what would happen that would later turn out to be incorrect or irrelevant.
(Now begins the part that addresses the consequences of an occupation.)
I noted that it was unlikely that we could have everything entirely in order before Saturday even if we chose to do so and asked what the department’s intentions would be if that remained so. He said that they will enforce the City ordinances as directed. I asked him what the consequences would be if we could convince the City Council to direct the City Manager to allow things to proceed without consequences in the short term. He said that that might be helpful to us but that the I.P.D. couldn’t commit to any particular high or low level of law enforcement as things stand.
We reviewed some of the legal issues at hand. He said that the lawn areas in question are all City Parks and are closed from 10 p.m. to 6 a.m. He said that the Community Services Director can issue a permit for people to go beyond that time. I asked him about the relevant sections of the Irvine Municipal Code (“IMC”). He directed me to IMC Sec. 3-4-101, defining a “park”; to IMC Sec. 3-4-116, requiring a use permit for special events and prohibiting use of the parks for special events without one; IMC 3-4-127, setting park closure hours as 10 p.m. to 6 a.m., and additional sections such as 3-4-120, which prevents posting some signs. (Our Legal team has spent some quality time since then reviewing the Irvine Municipal Code and found much more of interest.)
What consequences could people who violated the “closed from 10-6” rule expect? Beyond possible warnings, they would be subject to a citation misdemeanor (like a speeding ticket) for, at a minimum, “presence in the park after hours.” (Presumably, there could be other charges, but he didn’t mention them. If anyone was ordered to leave the park and refused, they could be booked. (“Resisting arrest” has been used in other cities where applicable.) He couldn’t promise that either the citations or arrests would or would not happen.
I asked him about cooperation and forbearance at least in the short term, while we got our understanding of the process together. He said that having information about what we’re doing ahead of time would make that much more likely. As this is my most convenient way to communicate with him, here’s what the occupy-oc website says:
OCCUPY OC BEGINS SATURDAY AT 10 AM IN THE IRVINE FINANCIAL DISTRICT
1 Civic Center Plaza, Irvine, CA
(Von Karmen, Main and MacArthur)
Initial speakers will include both UCI Professors & Disenfranchised Citizens.
THE OPEN MIC, IS, IN FACT, FOR YOUR VOICE.. . .
DO NOT BRING: Aerosol Spray Paint / Weapons of Any Kind
An agenda (from which I’m excising people’s names) has now been distributed as well:
OOC AGENDA for Saturday, October 15th
9:30 AM to 10:00 AM – Music – Folk singer
10:00 AM to 10:05 AM – Brief Welcome
10:05 AM to 10:10 AM – Audio recording: Keith Olbermann Reading Occupy Wall St Declaration
10:10 AM to 10:20 AM – Motivational Speaker
10:20 AM to 10:30 AM – Testimonials
10:30 AM to 10:35 AM – Music: Imagine
10:35 AM to 10:40 AM – Safety Message
10:40 AM to 10:45 AM – March Set-up/Formation
10:45 AM to 12:00 PM Gather and March to Alton, Jamboree, Barranca.
(Then reverse route back to the Civic Center)
12:00 PM to 1:30 PM – Music
1:30 PM to 5:00 PM – Speakers (possible Open Mike)
5:00 PM to 7:30 PM – Open Mike
7:30 PM – General Assembly meeting
Sarge said that the I.P.D. had two basic concerns (which he updated in the e-mail to me, which I’ve circulated):
- Where would we be, where would our stuff be, and would we have a permit?
- How do we plan to avoid blocking the right of way? (This just means not blocking the streets and ensuring that we leave a reasonable portion of the sidewalk open through which people not involved in the rally can pass.)
Post-conversation
It became clear that I would not be able to speak to the Mayor or other Council Members on Thursday. With the City Hall scheduled to be closed on Friday, I decided to try to speak to the City Manager, Sean Joyce, who would make decisions about city policies in the absence of more specific direction from elected officials. I spoke to his extremely competent secretary, who told me that he was in a meeting but that I should receive a response from him later that day. Not long before 6:00, I did receive a response — but not from Mr. Joyce. Sarge called.
Second conversation
I had believed, for reasons that I’ll later express in my third article on this subject, that the City of Irvine should be willing to suffer the benign overnight presence of Occupy Irvine for a couple of nights until I and others could devote our full attention to it, at a time when Councilmembers might be more available, on Monday. The social order will not unravel from people staying in a park after 10 p.m. for a couple of weekend nights; we are finally getting the apparatus in place where we can bring the political decision makes into the discussion and decide what sort of public image Irvine wants to project. Acting precipitously would also, frankly, cost the City of Irvine a fair amount of money — money that could possibly be spared if negotiations took place on Monday about how to reach a reasonable compromise. (This is what has happened, for example, in Los Angeles, which I suspect is glad to have avoided the public embarrassment that Boston and New York have suffered.)
I still think that the City’s letting things slide for a couple of days would be a good idea. I no longer have any confidence that it will happen, though I do retain hope that it will.
My second conversation with Sarge was still cordial but a but more tense. The City’s position is that Occupy Irvine has already been warned not to camp in the park overnight, which is the only action being contemplated that would spur needing a permit.
Here’s the critical section: He said that Irvine will facilitate Occupy Irvine’s lawful actions regarding protest, in whatever manner possible, but that city and state laws will have to be obeyed. They hope and expect that everyone will obey the law. If that does not happen, that would create a fluid situation in which they will decide on appropriate actions to take. He notes that plenty of protests occur in Irvine while obeying all the laws, which is what the Irvine Police Department requests and expects.
I promised to convey that message to those considering staying overnight; now I have.
Sarge and I briefly discussed the common rationales for unlawful civil disobedience. (I’m for it in principle as a legitimate tactic; he’s agin’ it. No surprises there.) We agreed that the respective positions taken by I.P.D. and Occupy Irvine creates the potential for conflict. I.P.D. will “cross that bridge when they come to it” (my words, not his); no particular level of response to violation of these laws had as yet been authorized.
I get the sense that my call to speak to City Manager Joyce may have roiled the city government to some extent. He says that the decision to not to issue a facilities use permit and not to allow overnight camping was made by higher levels of City management. City management would not issue a permit for overnight camping either before Saturday night or on Monday, as it stands. For Occupy Irvine to submit a completed use permit at this point would thus not affect the city’s actions regarding this weekend.
The City Government has the prerogative to, at some point in the future, decide to grant a permit or to withhold enforcement of the law. That will not happen before the Occupation begins; we are to speak to Sarge as our official contact. I have offered to make myself available for further discussions through Monday should they be sought.
Sarge provided a list of general guidelines to a fellow member of the Legal Committee yesterday morning; these have been transmitted to the relevant Occupy Irvine committees. I hope (and presume) that I don’t create problems for Sarge by saying that both I and the lawyer who met with him on Friday found him entirely professional. If the city decides to enforce the park closure law and things go bad this weekend, that will be useful, because “the worst that could happen” in that case is pretty seriously bad.
So, the question was: “would an Occupation go forward?”
Thursday Night Meeting with Occupy Irvine organizers
Of COURSE it will go forward. (I don’t make these decisions; I just report them.) As I told Sarge, as a latecomer to the event I had no ability to steer events and no ability to pull an emergency brake. These events take on a momentum of their own. No one who is thinking about staying overnight on the park grass should do so without recognizing that they could be cited and/or arrested. (Whether sleeping on the sidewalk around the park is acceptable for those who don’t want to be arrested is as yet unclear; I don’t know if people would take that option even if it were available, though. I see my primary role as keeping people informed about what the City says.)
So I went to an organizers’ meeting on Thursday — and people are willing to face the danger of arrest (and worse.) The group includes a number of people who have been involved in other “Occupy” events — Los Angeles, primarily, but I think I also heard mention of San Diego, San Francisco, even New York — and the dangers of an Occupation are not new to them. The sense I got is that people will respect the choice of others not to engage in civil disobedience — I won’t say “unlawful” here because that’s a determination for a court to make — if they choose; but that, as their personal decision, many people are committed to pressing their interests without delay.
This is a recipe for conflict. The only guarantee that I can make is that any action by the Irvine Police Department will cost the City of Irvine money — not to mention, possibly, prestige. My hope is that we will be able to negotiate on Monday, but I am not optimistic. The political and legal terrain may have changed considerably between now and then.
The basic message of the Occupy movement is that the days of “business as usual” are over — that the stratification of places like Orange County into being a playground for the privileged serviced by the economically desperate will no longer be tolerated in silence. Protesters want to get this message out. An overambitious police response would probably help them do so. Nevertheless, my aim is to avoid it, to make sure that the only people who might get arrested are the people engaging in more than mere low-level civil disobedience overnight in a public park, rather than people who are likely not only to deserve, but to have, public sympathy for standing up against the excesses of the wealthy and powerful. I hope that the Irvine Police Department comes to the same conclusion.< What can people do to help address this crisis? That’s the subject of my next post, out in the next hour or two.
Meanwhile, the rally — which is LAWFUL — begins five minutes after this essay is published. I look forward to seeing readers there. We are in for an interesting weekend.
Note: I don’t know why the photo being used in the “rotation” above includes the picture of the Police Chief for Irvine Valley College rather than the picture of the Police Chief for Irvine (which I substituted into the composite), but I am trying to get the problem solved. The correct photo that was to be used is the one in the diary text. My apologies to the IVC police chief for featuring him there; to my knowledge he has nothing to do with any decisions that are to be made.
“I called Irvine City Hall on Thursday in hopes of setting up a meeting with Mayor Kang, only to be told that he was out of town.”
That was your first mistake. Getting your hopes up for a minority puppet of Boss Agran and Emperor Bren. Sukhee does what benefits Sukhee. Next time, bring some Benjamins and maybe you’ll get his attention.
Since you are including the “disenfranchised” in your rally, do you mind if I bring some of my Ojibwe, Lakota Sioux and other bands of Plains Indians and give us a chance at the mike? Or is it only the puppet minorities (or as we opponents of the Bellecourt reign of error like to call them “hang around the fort Indians”) that are allowed to speak. Remember, it’s the government that you revere that squashed our “occupation” 28 years ago in South Dakota and left my people to become dependent on your “charity” at the barrel of a gun.
And now, the “spiral of life” prophecy has come true. Now you scream of being exploited and disenfranchised by the powerful. Funny how that works, eh Kemo Sabe?
There were a couple speakers who appeared Native American … I didn’t catch their names. Shoulda been here Guy. You coulda finally met Dan C as well, who showed up mainly to belittle the protest, sneer at Theo Hirsch, and yell at me about Pedroza and his judment against this blog. He actually asked for you.
Bring whomever you’d like. I’m not on the Speakers Committee, but I think that Vern is, so you have an in.
I’m not going to engage the rest; I have a rally to attend.
Greg Diamond wrote:
> Sarge told me that, among other things, he had given a member of the committee
> a special events permit the previous Friday, but that it had not been turned
> in. (Some discussion with my fellow Liaisons quickly turned up the problem:
> the 18-page document began by informing the applicant that it may be required
> to be insured for $1,000,000, a policy for which might be in excess of Occupy Irvine’s
> extremely modest budget.) It would not be possible to have one processed the
> next day because the City Hall is closed on alternate Fridays, including
> yesterday. I told him that my understanding was that the event would proceed
> even without such a permit and that I had no realistic chance of convincing
> people to change that even if I wanted to.
I’m sure you are fully aware by now that the federal courts have long since ruled it is a violation of the First Amendment for any municipality to require organizers of a protest, demonstration, picket, or march to obtain a $1,000,000 insurance policy before they hold their action?
In regards to the park and sidewalk surrounding the Irvine Civic Center, it’s public fora. The organizers of the Occupy Orange County event didn’t need a permit to hold the action, other than perhaps permission to use amplified sound given its close proximity to residences and traffic.
So if you think the Irvine Police were being extremely generous by not demanding that a permit be obtained before the action took place, guess again. I’m sure the City Attorney advised them there is well-established body of constitutional law that prohibits them from doing that.
No permit was needed for the protest from 6 a.m. to 10 p.m. The city’s position was that a permit was needed to stay in the “park” (aka “lawn”) between 10 p.m. and 6 a.m.
The “million-dollar policy” may or may not be one of the aspects of the permit application that did not apply to us. As I was told that submitting a permit on Friday would have been pointless anyway, though, it hardly matters. And, as I’ll describe, events have now overtaken that concern for the most part.
Greg Diamond wrote:
> No permit was needed for the protest from 6 a.m. to 10 p.m.
> The city’s position was that a permit was needed to stay in
> the “park” (aka “lawn”) between 10 p.m. and 6 a.m.
Depending on the circumstances, a municipality does have the power to regulate “time, place, and manner” of a protest, demonstration, picket, or march. Given that the Irvine Civic Center is in close proximity to a residential neighborhood, the city can regulate things like sound.
I’m not saying that I agree with the city’s position on this matter. But people identifying themselves as residents who live nearby are posting complaints about “noise” on the Occupy OC Facebook page. So I’m sure there is some pressure on the city to do something about the protesters.
Besides the issue of amplified sound, there really isn’t much that Irvine Police can do to prevent people from demonstrating at the park and sidewalk surrounding the Civic Center during the day. But when it comes to the hours of 10 p.m. and 6 a.m., that’s a completely different ballgame.
I’m aware of that, Duane. What I’d like to know is: did the City actually receive any complaint? Was the noise level actually above that permitted by City ordinance?
This could easily be the equivalent of a “sneak behind the house and when your partner asks permission to enter say ‘sure!'” means of entry to a house for a warrantless search, as I expect you’ll agree.
Greg Diamond wrote:
> I’m aware of that, Duane. What I’d like to know is: did the City
> actually receive any complaint? Was the noise level actually
> above that permitted by City ordinance?
I don’t know any specific details. There are just a few persons identifying themselves as local residents who have posted negative comments about the demonstration on the Occupy OC Facebook page. Some of them claim to be disturbed by cars honking and sound being generated by the protesters.
> This could easily be the equivalent of a “sneak behind the
> house and when your partner asks permission to enter
> say ‘sure!’” means of entry to a house for a warrantless search,
> as I expect you’ll agree.
But given that the Irvine Civic Center is in close proximity to a residential neighborhood, there is no doubt that cranky people have called the city to complain. I’ve been involved in organizing protests myself, and know how political these things become when they take place near private residences.
A couple of years ago, I was involved in an impromptu night-time action in front of the headquarters of the Garden Grove Police Department. We were protesting the fact that people had gotten arrested at an earlier demonstration that had taken place against Jim Gilchrist, founder of the “Minuteman Project.”
Sometime after 10 p.m., one of the cops came out of the building and told us we either had to quiet down or face citation for making too much noise. He said they had received a complaint from a resident about sound. The Garden Grove Police Department is located by streets lined with rows of homes.
The Garden Grove Police didn’t stop us from doing what we were doing. They just told us to stop making so much noise because of the time. Given that nobody wanted to be cited, we complied. Another reason we did so was out of respect for the local residents. It was, after all, after 10 p.m. People need to sleep.
It’s not the fault of the organizers of the Occupy OC protest that Irvine Civic Center is in close proximity to a residential neighborhood. They have every right to use the public fora. But unfortunately, the city will use every complaint they get from nearby residents to make life as miserable as possible for them.
You know, if they allowed the overnight occupiers to sleep in their tents rather than do the walking around on the sidewalk all night vampire thing, THERE WOULD BE A LOT LESS HONKING CARS. They should think about that.
“I’m sure you are fully aware by now that the federal courts have long since ruled it is a violation of the First Amendment for any municipality to require organizers of a protest, demonstration, picket, or march to obtain a $1,000,000 insurance policy before they hold their action?”……… Hmmmm
Only if you retain an attorney.
Stanley Fiala wrote:
> Only if you retain an attorney.
Although you don’t need an attorney, a city will sometimes try to discourage people from organizing a protest, demonstration, picket, or march by claiming that a $1,000,000 insurance policy is needed.
Your point is well taken Duane.
However, you need an attorney who has a knowledge of the law and is capable to do a legal research so you can present your memorandum of points and authorities to the city.
You do not have such attorney.
Stanley Fiala wrote:
> Your point is well taken Duane.
> However, you need an attorney who has a knowledge of the law
> and is capable to do a legal research so you can present your
> memorandum of points and authorities to the city.
>
> You do not have such attorney.
I actually do know quite a few attorneys, by the way. If I need their services, all I have to do is pick up the phone. But I haven’t needed to speak with any of them as of lately. I’ve really not been involved in organizing any protests, demonstrations, pickets, or marches during the past few years. Besides, if you know what your legal rights are, you can call a city’s bluff without one. It’s true: knowledge is power.
In 2004, I arrived early at a Santa Ana City Council meeting and noticed they hadn’t made any time for public comments in their printed council agenda. So I approached the City Clerk and asked her why the agenda didn’t include time for public comments, warning this was a violation of the Brown Act. I hinted that I’d file a complaint with the OC District Attorney if they don’t include public comments.
She hurriedly approached the City Attorney and then later came back to me stating that public comments would be allowed. I don’t know what the OC District Attorney would have done, but the printed council agenda was all he needed to nail them for violating the Brown Act because public comments weren’t scheduled anywhere in it. I still have a copy of that agenda in my personal files. I kept it as a “souvenir.”