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As I’ve written (to jeers from many of my Occupy colleagues), I don’t think that Occupy should try to make defending the First Amendment right to protest its main cause. We have other fish to fry.
However — given its actions on July 12, the LAPD has pretty much forced our hand, at least in part. The police story of the evening’s clash with people out on the street does not add up.
Occupy (and its allies, which may now include those bystanders arrested that night) have a choice in how to respond. One is to escalate the civil disobedience — rock the chalk. That’s my guess as to what happens next. I think that it would just lead to more arrests and increasingly repressive tactics without garnering social support — but (1) I’ve misjudged things before and (2) what I think about it at this point won’t stop it anyway.
There’s a second response, which can be as well or instead, which I do favor:
We should call for an independent investigation into LAPD actions at the 7/12 ArtWalk.
That does not mean accepting a “sweep things under the rug” investigations. The investigating commission should be included representatives from Occupy, the National Lawyers Guild, and local law school professors dealing with areas such as First Amendment rights, police procedure, and police misconduct. Police and local government and federal government and whatever else officials should of course be part of the investigation as well.
Why take this extreme measure? Here’s a few reasons:
(1) We don’t know at this moment whether the LAPD recognizes a right to chalk on public sidewalks or other ground surfaces.
A right to chalk messages as part of a protest could be argued to be inherent in the First Amendment itself. I have my doubts about that. What I am more confident of is this: the police have no proper power to discriminate among chalked messages on the basis of content or viewpoint.
That was the conclusion of a Florida court that considered a First Amendment challenge to an arrest for chalking. If a city allows chalking on sidewalks at all — yep, even for hopscotch — then it has to allow chalking for reasons of protest. It can offer reasonable restrictions on time, place, and manner, but those restrictions should be made very clear and can’t be calculated to suppress political speech.
I’m pretty confident that LA has allowed chalking in the past and is not about to ban chalking altogether. It is vulnerable to the same sort of suit that occurred in Florida.
(2) The LAPD has given reason for suspicion that it is being used as a proving ground for extreme tactics in suppressing protest.
Last night, our commenter “Double Eye” slipped me a link to a story that gives one pause: a reminder that since the initial break-up of Occupy LA, the LAPD has training with the military to facilitate its operation in urban environments.
Joint military training exercises will be held evenings in downtown Los Angeles through Thursday, according to the Los Angeles Police Department.
The LAPD will be providing support for the exercises, which will also be held in other portions of the greater Los Angeles area, police said.
The exercises are closed to the public, police said.
The exercises are designed to ensure the military’s ability to operate in urban environments, prepare forces for upcoming overseas deployments, and meet mandatory training certification requirements, police said.
Some people may conclude from this that the apparently disproportionate reaction of the LAPD to the ArtWalk crowd was a way of testing out some of these approaches. At this point, I don’t come to that conclusion — but I certainly do want to see it investigated the reaction on July 12 was so disproportionate that it raises concerns about what the hell they were thinking.
(3) We need to establish the facts as to exactly what happened on July 12.
The story that reached the public is apparently roughly this: a crowd got out of control at ArtWalk and started throwing rocks and/or bottles at police, who broke up the crowd and arrested people, including firing rubber bullets to disperse the crowd. Except for the rubber bullets part — are they really supposed to be an early option nowadays, and if so, why? — this doesn’t seem that out of line. If you throw things at cops without provocation — with provocation, too, but especially without — you should not be surprised if they arrest you treat you roughly. If that’s all that happened, the independent investigation I’ve called for will be pretty simple.
That’s not what I expect to happen, though.
Here’s the story as I understand it from Occupiers: pissed off at the recent arrest of an Occupy activist for chalking (or maybe the police would say it was for something else, I don’t know), they handed out chalk to people attended ArtWalk in LA and encouraged them to try out some street art. One woman, probably not expecting that she was committed aggravated chalk assault on a sidewalk, delightedly started doing so. The police arrested her forcefully. It was at that point that ArtWalk patrons — mostly or entirely not Occupiers — reacted badly to police (although my Occupy sources deny that anything was thrown at them. I’ve pointed out that they wouldn’t necessarily have seen it, but I agree that an isolated event should not have lead to a full-scale fusillade of rubber bullets.) This led to what they classify as a police riot against unsuspecting ArtWalk patrons who hadn’t even come to protest.
That gives an entirely different sense of events. In that situation, we not only have the question of First Amendment rights, we have the questions of police priorities — really, LAPD, chalking??? — and of the proportionality of police response even if this was a priority or even if they were responding to things being thrown at them.
Maybe the LAPD can explain why this shouldn’t put a fear of appearing in a crowd in public — even an ArtWalk! — deep into the heart of every Los Angeles resident or visitor. They should have to explain. Depending on the facts, and the grounds on which they arrested the woman who chalked first, this could be one of the most bizarre police confrontations in memory. It would have a hugely chilling effect on public participation — at least in areas outside of where the 1% gather — and god help us if the LAPD ever tried this in one of the areas of their jurisdiction where people have a lot of guns.
We shouldn’t want a society where people get this sort of treatment. We need to find out what happened here and figure out how to keep it from happening again, in a way that protects our freedoms of speech and assembly.
This is not the fight that I’ve wanted Occupy to have — but if it’s the fight that the police want to have, then that’s where we’re headed. We should start with a proper and independent investigation. Mayor Villaraigosa and Chief Beck should announce one without delay.
I wanted to clarify something in my story of yesterday about chalking and anarchist tactics.
I got called out by several Occupiers, one who sent me a message leading to the conversation below. I’ve rewritten the comments to me, though each retains its central message; my responses are verbatim.
OOC: We are working very hard on a press release. We’ll have eyewitnesses and the timeline regarding when the people were injured and the shots were fired. Please allow us to do the press release factually without adding any opinion.
GD: Send me the press release and I’ll print it. I won’t editorialize there, but you know that comments sections take on lives of their own.
OOC: I will as soon as I receive it. I don’t understand how people can comment so extensively when they were not present at the time.
GD: Being there isn’t a guarantee of knowing the truth. Often there will be a disturbance in some small part of the crowd that most people there can’t see — and then the police respond by trying to shut down the whole rally. Even if someone somewhere threw a bottle or whatever, though, the police response was an overreaction.
OOC: That’s where you’re wrong. I was there; we were all together. There was only 10 people from Occupy LA; the rest were citizens and children. We were all mixed together. I read your blog and it is an absolutely outrageous misrepresentation of this situation that I saw as an eyewitness. The facts are incorrect. There was not, I repeat not, an anarchist group there at any time. They were all civilians. Nobody from OLA got arrested; all of the people who got arrested were citizens that were outraged when a woman got thrown violently to the ground and arrested for chalking. Please take that blog down; it is absolutely wrong.
I’m not taking it down, but I am going to clarify. I didn’t mean to convey that there was an anarchist group (Occupy or otherwise) there throwing things at police. I was discussing anarchist tactics, which include trying to provoke confrontation with and overreaction by police. One way to do this has been with chalking. I don’t think that these confrontations help us much; as I’ve said, I think that they turn our attention (and the public’s attention) away from our substantive “money and power” criticism and towards “right to protest” issues which I’m happy that, in Occupy Orange County, we were largely able to short-circuit.
I understand that people took my story yesterday to suggest that an anarchist group of provocateurs was present. So far as I know, that wasn’t true, and I didn’t mean to suggest otherwise. My reaction was to the clever tactic (and it was clever) of giving out chalk to people, in the prompt wake of Occupy arrests for chalking, to tweak the noses of the police over that arrest. I don’t think that I’d have done it because I don’t think that our fight is in any serious way about chalking and I don’t see much point in treading on the nerves of the police, who we wish would chill out.
That said — there is no way in the world, based on what we know, that I can see the extreme response of police (which seriously endangered innocent bystanders, take a look at that one guy shot just below the eye) could be justified.
If the police want to justify it, they should be invited to do so — at independent investigatory hearings. What should bring all Occupiers and fans of the First Amendment together right now is to demand such an investigation, with private or public hearings if and as needed, with a composition of the investigatory group sufficiently diverse as to prevent anything from being swept under the rug.
I didn’t want this fight, but the fight has begun, so let’s do it right.