Occupy Irvine: State of Play, Sat. Oct. 15

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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 Police Chief, IPD cruiser, Irvine City Mgr,

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:

1 Civic Center Plaza, Irvine, CA
(Von Karmen, Main and MacArthur)
Initial speakers will include both UCI Professors & Disenfranchised Citizens.
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):

  1. Where would we be, where would our stuff be, and would we have a permit?
  2. 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.)


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.

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Deposed as Northern Vice Chair of DPOC in April 2014 (in violation of Roberts Rules) when his anti-corruption and pro-consumer work in Anaheim infuriated the Building Trades and Teamsters in spring 2014, who then worked with the lawless and power-mad DPOC Chair to eliminate his internal oversight. Expelled from DPOC in October 2018 (in violation of Roberts Rules) for having endorsed Spitzer over Rackauckas -- which needed to be done. None of his pre-putsch writings ever spoke for the Democratic Party at the local, county, state, national, or galactic level, nor do they now. One of his daughters co-owns a business offering campaign treasurer services to Democratic candidates and the odd independent. He is very proud of her. He doesn't directly profit from her work and it doesn't affect his coverage. (He does not always favor her clients, though she might hesitate to take one that he truly hated.) He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)