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The Unwanted Touch
In law school, I forget if it’s in Torts or Criminal Law in both, students may learn that simply lightly touching another person, if in a way that an idealized “reasonable person” would not think is permissible, is battery. That’s right — battery. Reach out and chastely (but unreasonably) pat someone’s shoulder lightly and it is battery. Under civil law, you may have to pay them damages — which may well be non-existent for a light shoulder pat. Under criminal law, though, you don’t have to have damages; the damage is to the social order, which is why you can be prosecuted for it. After all — it’s battery! And battery is unacceptable, no matter what the consequences.
There is something wise in not requiring actual damages for criminal prosecution — but also something dangerous. Picking up a folding chair and bashing it over someone’s head, like something out of professional wrestling, is also “battery.” Clubbing the knee of a fellow competitor at the U.S. Ice Skating Championships — and yes, young readers, it did happen! — is “battery.” And so, when a public official or a news organization (say, an affiliate of the Los Angeles Times) uses the word “battery” to describe a light shoulder pat — let’s just say that some the benefits of good communication are lost.
This story isn’t about battery, though — it’s about “vandalism.” And I personally, I’m afraid, made the story worse.
I Receive a Disturbing Call and Spring into Action
I am, for those who are new to my writings, the Senior Civic Liaison for Occupy Orange County. (The “Senior” part of that title I just made up, but no one has yet told me to cut it out.) Occupy OC’s Traveling Encampment, which serves to take the message of Occupy — basically, “hey, corporations are working through government to rip you off and favor the very wealthy, and you can do something about it” — to the citizens of various parts of OC, has recently moved from near my home in Fullerton to way the heck out there in Huntington Beach. A Civic Liaison whom I helped to train in Fullerton, Mike Anderson, is taking the lead along with several others whom I won’t name in dealing with that gathering (which we hope will soon be an actual “encampment” with tents and a generator and a solar-powered tiki torch and everything.) Mike called me on Thursday morning with bad news: two or three Occupiers have apparently committed acts of vandalism against a bank in Huntington Beach. I spring into action.
The first thing I do is to sound an alert for Occupy members on Facebook, in the course of which (whether Mike had or conveyed information or I just misheard or misremembered it) I get several facts wrong. First, they haven’t yet been arrested, just caught on video by a surveillance camera. Second, I misidentify the Bank, leading OC Weekly to infer from the fact that I mentioned Bank of America and the police mentioned Chase Bank that there must be a veritable crime spree going on! (I’ve since corrected this. It was just one bank.) Third, I post to a Facebook group that I believe to be “closed” to the public, when it is in fact was mistakenly left “open” to the public, making it a bad place to discuss internal matters. (Luckily, the discussion record shows that I and other Occupiers dealt with the situation quickly and responsibly — with few exceptions who got enormous flak from the rest of us.) Fourth, I took the word “vandalism” provided by police, though perhaps technically correct, at face value.
What can I say? I was in a hurry.
Some Background as to How Occupiers Think about Violence
This call came in the context of a local, regional, national, and international discussion within the Occupy movement about “diversity of tactics” – that linked article gives a great background on the dispute, by the way, for anyone who is truly interested — which for some people means the legitimacy of a resort to means that are not “non-violent.” I phrase that as a double negative because most “not non-violent” actions are not ones that you, Dear Reader, would be likely to consider violent. I’m not talking about shootouts or slugfests with the police. We have a phrase in Occupy for people who favor that sort of thing — and that phrase is “not in Occupy.” We just don’t do that sort of thing. We know who has more firepower, we know how the American public would react, and most of us have real hesitation about what we would do after a violent revolution anyway. (You know how it goes — put in Danton, soon find yourself with Robespierre, and end up with Napoleon.) So, no, we’re not Tea Party-like gun-toters. You can tell because if we showed up armed like Tea Party people to our events, we’d be shot to death. There is an important lesson in there about politics.
“Violence,” within Occupy movement discussions usually refers to “property destruction” — even that is a misleading term. ”Property destruction” may be taken to mean arson or sabotage of public systems — and, again, I don’t even hear discussion of that. Some people favor things like breaking windows — something that would clearly qualify as vandalism — or spray-painting graffiti. Most of us, especially in Orange County, do not. Doing that changes the subject of conversation to our actual criticisms of corporate-dominated governance to the subject of whether we should be allowed to break windows. Frankly, we’re on less firm moral ground there, so many of us think: why bother?
Violence in Orange County — or, Rather, the Lack of It
“Diversity of tactics” in Orange County has a different meaning that you’ll see in the article linked above. Here, the disagreement is mostly over civil disobedience — and there is mutual respect between the camps. Should people be able to trespass on abandoned property, refuse police orders to disperse, chain themselves to objects, protest (even loudly) where they’re not wanted, etc.? Look — our non-violent forebears, from Jesus (who, by the way, also vandalized the money-changers’ operation in the temple) to Gandhi to King to Mandela to Aung San Suu Kyi — have all engaged in civil disobedience. The question — for them and for us — is how effective it will be in a given situation.
There are, more or less, third major Occupy groups in OC (plus a number of others that don’t meet regularly): Occupy Santa Ana, what I call the Traveling Encampment, and what I’ll call the Anti-Campers. Occupy Santa Ana believes in active civil disobedience; the Traveling Encampment doesn’t. And we get along just fine. If you want to engage in civil disobedience, go hang out with Occupy Santa Ana; if you don’t — at least barring extreme circumstances of repression of First Amendment rights — hang out with the encampment. If you decide to do something different once day, go to the other one. If Santa Ana has something going that needs help from the encampment, or vice-versa, they send out the request. If another Occupation in the region has something going on, as recently happened with an Occupy LA action, people from either or both groups may go there and do whatever people there do. Meanwhile, the third group — people who don’t think that there should be a permanent encampment or civil disobedience, but that we should still have marches and events to promote the Occupy message — do their own thing, and all of us sometimes mix in our message boards.
This is such a good system that I wish that we could claim that we came up with it intentionally, but it just sort of evolved. The relevant rules, in effect, are these:
- don’t engage in property damage in Orange County, period;
- if you want to engage in civil disobedience, stick with Santa Ana;
- if you don’t want civil disobedience but do want an encampment for purposes of outreach and esprit d’corps (and at this point out of sheer interest in extending our world record for largest continuous engagement in Occupy encampment), be part of the Traveling Encampment;
- if you just want to spread the message without the above, do your own thing as “Occupy 2.0″-style non-campers.
This division of labor makes sense. Santa Ana is “urban” Orange County — as well as being the centrally located “dumping ground” that the rest of the city uses for the homeless. People will react differently to civil disobedience there than elsewhere. If you live in most of Santa Ana, you’ve already decided that you’re not all that interested in the domestic Newport Beach, Anaheim Hills, or Coto de Caza experience.
For most of the rest of Orange County, civil disobedience is alienating. You can do it where people live, but they will tend to freak out, distance themselves, call the cops, and hide their children. Simply engaging in lawful protest is enough to rock their world. Suburban Orange County — commonly referred to as “Orange County” — has learned to shrug off most single-day protests as just eccentrics being themselves; what is different about the Traveling Encampment is that it persists for weeks and so becomes a point of continued irritation, titillation, and interest. Because it is lawful, it brings out lots of people in support of the Occupiers who in the process learn that others around them share the same interests and perspectives. It is, in a fanciful way, like a 1930 speakeasy, a 1950s jazz club, a 1970s gay bar, a 1990s poetry slam — a place where people who think about themselves and the world differently can meet to act on that understanding — in this case, to foster appropriate change.
Except for this: you don’t have to go to downtown LA (or Santa Ana) for it. This traveling carnival will come to your town!
Now, someday, we recognize — and it could be this month or next in Huntington Beach — a city will decide that it will not put up with the traveling carnival for its residents and the Traveling Encampment may turn to civil disobedience as the best of bad options. What I and others are trying to do is to forestall that day.
Then Came the “Vandalism”
Enough background. On Tuesday morning, eleven campers were cited for “unlawful lodging,” a form of civil disobedience proscribed by state law, the applicability of which the attorney writing this finds questionable. At any rate, that afternoon, two Occupiers went to a Chase bank and vandalized it. Or, at least, they “vandalized” it. The way the word came to us Civil Liaisons from the police, though, it did not seem to have scare quotes. We expected that it was broken glass, tarry or caustic substances, and stink bombs.
This, we began to repeat (and really haven’t stopped saying since), is not “the Orange County way.” It’s not how we’ve been able to cobble together over five months of continuous occupation — meaning 24/7 public protest in chosen areas either with or without a physical encampment — without even a minute off.
On the boards, people (including me, though I was not the most extreme) flipped out. This was going to sully our movement — and the headlines (such as “Police seek charges against vandalism suspects: Man and woman who defaced Chase bank are believed to be connected to Occupy movement.”) bore out this concern. We lambasted them for going off on their own and doing this, especially without group authorization. One person, a self-described pain in the ass who had been ridden out of various other occupations in the region, defended the concept of property destruction as non-violent, stating that “I don’t care, at all, about the law. So the part of what they are doing being “criminal” doesn’t factor into my decision making process.” This received an aggressively negative reception, especially because we had already decided these issues and no interloper had the right to come into our group and decree otherwise. It was one of our more interesting days.
The Huntington Beach Police Chief’s statement of Friday came across as temperate in his response:
“My personal belief is they have the right to express their political agenda, but don’t have the right to engage in criminal conduct. It’s our intentions to aggressively enforce violations of the law. If somebody holds up a sign that had a political or personal agenda and they go out and break the law, we’re going to deal with the violation of the law. They’re still entitled to their opinion, but we’re not going to allow them to break the law to get their message across.”
Putting aside the legitimate exercise of police discretion (one of the most important tools in any law enforcement officer’s kit), this is pretty a fair statement. The police exist largely to enforce the law. If they don’t overreact to acts of civil disobedience with pepper-spray and the like, and if they don’t selectively target or punish political protesters based on what they have to say, then we can coexist with this. A well-planned act of civil disobedience (like George Clooney’s recent arrest for protesting at the Sudanese embassy), often stage-managed in cooperation with the police, doesn’t have to lead to recrimination or even a loss of mutual respect. We could live with that.
On Friday, I spoke by phone with the City Attorney and City Manager, pledged that we were not interested in or accepting of vandalism, noted that the as-yet-campless Encampment had voted unanimously to condemn the vandalism, and set up a date for us to meet to discuss the charges and our future plans tomorrow (Tuesday the 20th.) I was satisfied overall, even forgetting for the moment that I hadn’t actually heard what the vandalism was.
One of the people who had engaged in the action came onto our Facebook page (by now closed) on Friday night.
“Look, you guys are making this way worse than it really is. _____ and I went to the Chase bank across from my house, we announced “Mic Check-This Bank-Is Ugly-Let’s make it pretty!” and threw “confetti” in the air, I ran outside as I proceeded to write on the window, with DRY ERASE MARKER, “Stop Illegal Foreclosures” as a form of protest against the chosen bank to protest against, which in what I’ve seen Occupy OC hasn’t taken any part of. Chase bank took my familys home 3 years ago just for the hell of it, and I felt that if Occupy OC isn’t going to do anything, then I might as well do something. It was in no way affiliated with Occupy other than the fact that it went accordingly with the 4-day bank protest, I am talking to the detective about it, and I will let you all know what happens. Other than that I would like you all to drop it and not accuse anyone of anything, for it was an autonomous action and in no way reflected on Occupy OC. I am not “Occupy OC” I am Occupy Everywhere, my fight is as always where I am, you do not need to babysit me, you in no way need to tell me what to do, and I would appreciate it if there is no rumors being spread throughout Occupy OC about what I nor anyone else has done as an autonomous action.
Confetti on the floor and dry-erase marker. That’s what the guy said. That’s about 30 minutes clean-up, maximum, for what is likely a minimum-wage janitorial employee. Damage of about, what — $5 in employee time? OK, double it — quadruple it! $20 of “damage” — readily and easy remedied with a broom, a dustpan, and a dry cloth.
It’s still wrong, in a way that the unwanted and unreasonable pat on the shoulder is wrong — but it is also real “vandalism” about to the same extent as that pat is “real battery.” The tort case would be laughed out of court. The criminal case — well, let’s just say that unless there’s more to the story than appears in this comments, it’s tenuous.
The damage is done, in that a fair swath of Huntington Beach now may think that we’re some sort of a violent criminal enterprise. It certainly serves the interest of the local reporter, out in a boondock assignment from the Los Angeles Times, to make it seem as if we’re scarier and more out of control than we are.
Another of the Civic Liaisons in Huntington Beach made pretty much this point in an e-mail to the reporter:
In regards to your recent article on the events at the Chase bank in HB being linked to members of the Occupy movement:
[While it] was correct that the actions were REJECTED by the OC Occupy movement, I’ve just been told that the “graffiti” was only easily removable dry-erase marker on a window saying “stop illegal foreclosures,” while the “trash” appears to have been glitter.
I think it’s more interesting for readers to know the specifics of what happened, and also it seems unnecessarily ominous and threatening to imply they “vandalized the bank with trash and graffiti” given what actually happened.
The reporter’s response?
Who are you? Are you an official member of OccupyOC?
And the trash and graffiti was a description given by the police. Does it matter if it was easily removable or where it was placed?
Yes, “trash” and “graffiti” — both words that may well be technically accurate — did come from the police. The words misled my friend Mike, they misled me, they may well have misled the reporter. But to really interesting statement is the question “does it matter if it was easily removable”?
(What do you think, Dear Reader? Is this the sort of detail you’d want to know?)
I still think that the people who pulled the prank in the bank were wrong to do so, somehow thinking that their actions would not reflect on the larger group, without the group’s permission or support. But at some point we have to get real: our concern about vandalism is largely one about property destruction, and confetti on the floor and dry-erase marker on the window aren’t that. We might also be concerned about protesters causing tremendous messes for property owners or the public to clean up, but this was not that either.
Occupy Orange County remains well-behaved — and bent on retaining our good behavior so as to better reach our population — and even our two renegades were about as well-behaved as renegades can be. We live in a world, though, where we can’t trust the government to retain perspective (at least in its public pronouncements) or the media to even care about a little thing as whether the “property damage” would be easily remedied, with zero cost of materials.
We Collect Such Stories
This story will go into our own toolkit for when we have our own discussions with the public — as an object lesson in maintain perspective so far as how our protest activities are portrayed. I think that we’ll come off looking pretty well — and that will in turn help us make the connections for people about how our social institutions are designed to protect the interests of the 1% against even the legitimate and benign protests of the 99%.
I will bet that within that same hour in Huntington Beach, some business was illegally and surreptitiously dumping toxic waste into the city’s sewers, which drain directly into the ocean. That’s not news, though — glitter and damp-wipe marker are. That’s our world.
We’re trying to reach people here in the zenith of suburbia, after all, with the message of how the system is stacked against them — and the message of how we are law-abiding in our protest against it. I think we came through this crisis with a good story to tell. We have lots of work to do in Orange County, but stories like the Terrible Bank Vandalism, when properly explained, will make it easier.