Felonious Hopscotch; Petition Launched; ArtWalk Blames Occupy; and More


First, sign this petition!

girl playing hopscotch, with rubber bullet wounds

"Won't someone please aim at the children? Wait, that came out wrong."

A lot is happening right now in relation to the July 12 Downtown LA ArtWalk Police Action. I’m just going to present this as series of bulletins (with a little analysis because I can’t help myself.) Others, please add more material as you find it in comments. I have to work today so I can’t do the full review of what’s been published that I’d prefer — but I like the fact that we’re getting people strongly presenting various perspectives here, which to me justifies the need for an independent investigation.  (Note: “felonious hopscotch” in the title should not be taken literally, but when people are shot in the face with beanbags as a result of protesting arrests for chalking, I’m claiming the right to some poetic license.)

(1) A story you should read: In an online publication called “LA Activist,” Dan Bluemel presents one of the better-seeming articles I’ve seen on the events of July 12 and their aftermath.  (This was sent to me by someone who is involved in protest activities by not a fan of the revolutionary potential of chalking; some will disagree with aspects of it but it seems even-handed and to be based on actual reporting.)  Here’s an excerpt:

The LAPD arrested 17 people related to the civil disobedience and uprising. It is certain that at least eight were for chalking, the first arrest occurring within 15 minutes of leaving Pershing Square, the protesters’ starting point.

The arrests witnessed by LA Activist were for chalking sidewalks; however, private property had also been marked with chalk during the uprising. It is not discernible if occupiers engaged in the vandalism or if it were done by the numerous people who were given chalk by occupiers. Although they participated in the uprising, occupiers made up only a fraction of the hundreds of people who joined the protest.

Occupier Karo Szymanska spent part of the protest playing hopscotch with children. She assumed, she said, they would be safe within the family-friendly and artistic ethos of ArtWalk.

“I was really shocked that it escalated to this degree,” she said. “There was one woman who was chalking and she got grabbed and slammed onto the sidewalk, face first, [by police].”

Police shot at least two people with beanbag rounds fired from shotguns, although it is not clear why, as those moments were not marked by any violence on the part of demonstrators.

The highlighting is mine; I’ll get back to it in the analysis below.

(2) A petition has been launched through change.org by Occupier Todd Downing calling for an independent investigation into police actions of July 12, as suggested here yesterday.  (Todd, if that story prompted you to do it, thanks!)  Here’s the text:

On July 12, 2012 LAPD used excessive force on the citizens of Los Angeles creating an unsafe environment and violating the civil rights of the citizens they are sworn to protect resulting in a tactical alert being issued for the downtown area. LAPD has for weeks been arresting individuals for using chalk on public sidewalks in violation of settle law. MACKINNEY v. NIELSEN No. 94-15438.

We encourage all citizens who were endangered, injured, suffered property damage, or were arrested to file a formal complaint with the LAPD at: http://www.lapdonline.org/home/content_basic_view/37673.

On July 12, 2012 LAPD made at least seven more such arrests before deploying at least an additional 140 officers in riot gear in the downtown area further escalating tensions with the citizens enjoying LA’s monthly Art Walk. Commanders on the ground then ordered officers to fire on citizens with rubber bullets, bean bags, and tear gas without warning and without issuing orders to disperse or declaring an unlawful assembly causing injury to many Angelenos. Eventually arresting 20 in a situation the commanders on the ground they created.

The LAPD has violated the civil rights of its citizens and put lives and property in jeopardy. We call for an independent investigation in to LAPD’s actions the night of July 12,2012. LAPD escalated a peaceful event jeopardizing lives and property. That LAPD did not follow their own policy on use of force. LAPD had no grounds for their actions.

[link to laist.com article]

LAPD cannot be allowed to violate the civil rights of the citizens they are sworn to protect when it suits them and commanders on the ground cannot be allowed to antagonize citizens through civil right violations threatening public safety and private property not to mention the great cost in taxpayer money to mount such a large police action due the great childhood pastime of using chalk on public space.

(3) Downtown LA Art Walk’s Executive Director condemns Occupy for having “disrupted” event

I don’t have this press release in text form, but I did take a screenshot.  Here’s what they have to say:

I am not endorsing this view, nor presenting it as gospel truth — but it’s out there and it shouldn’t be a surprise to anyone.  People in favor of Occupy’s actions have to deal with the opposition they are getting from officials with Art Walk, whose “brand” has been tarnished (and possible future participation may be reduced) as a result of Thursday night’s actions.  Occupy has been protesting the Central City Association (“CCA”), a powerful lobbying group in the downtown area, and Downtown LA Art Walk presumably would like to stay on the right side of CCA.  For more on CCA, please read Bluemel’s laactivist.com article linked in point (1) above.  Our own Double Eye may have some thoughts on how the artist — especially the small commercial artist — community is dealing with this development.

(4) My analysis — bottom line, we absolutely do need an investigation.  Occupiers who were on the scene are now claiming that “hundreds” of riot police were there.  I can’t vouch for that, but if it’s true — or even if the real number is only half of that — it does raise serious questions about LAPD priorities.  (Note the contrast with my “stealing signs” article from this past week, where the general reaction to law-breaking seems to be a collective yawn.)  We need to get the timeline down, figure out why the aggressive initial arrest of the woman for chalking (which by many accounts seems to be what set off the crowd) was seen to be necessary, etc.  My suspicion is that we’re going to find out that there is plenty of blame to go around — but that some blame is worse than other blame.

     (a) The blindness of Occupy LA proponents:  I think that a lawsuit would — and at this point I’m tempted to say “will” — show that the city has not enforced any law against sidewalk chalking that might exist equally against all who want to express themselves that way.  The case of Occupy participants probably just got a lot better after the events of July 12th.  But I do have some criticisms, some practical, some ethical, and some political.

First, people have to stop confusing what’s reasonable with what’s legal.  Many people in Occupy present reasoning such as this: “chalk washes off, therefore it’s not defacing property, therefore we should be able to chalk on sidewalks.”  That’s reasonable — but it’s not the law.  The City can enact “time, place, and manner” restrictions on free speech.  What they can’t do is to distinguish between acceptable and unacceptable speech based on its content — or, even worse, it’s viewpoint.  It’s lawful for the city to issue a policy saying that no one can exercise what would otherwise be protected free speech in a designated area at a designated time if it applies that rule equally to everyone.  (This is what the Florida lawsuit on chalking was about: they were picking and choosing.)

A city might have various reasonable bases for such restrictions: they don’t want to allow chalking because they don’t want Nazis to be able to draw a big swastika (and again, they can’t discriminate against them on the basis of viewpoint); they may not want to attract a crowd in various areas because it creates traffic control problems or a reasonable likelihood of injury or property damage; etc.  They can do this pursuant to a policy — but the policy already has to exist.  (What the police can’t do is discriminate by viewpoint on the spot.)  So the fact that chalking is legal if not prohibited across the board does not mean that it’s always legal everyplace one wants to chalk.  It may be, for example, that a sidewalk is fair game but a publicly owned plaza is not.  (And, by the way, saying that chalking isn’t a problem because it washes off is simply not your call to make.  The city has to pay people to wash it off — especially if, under a policy allowing chalking, it was a big swastika or a racist cartoon.  Your thinking that something is “reasonable” isn’t the final word.)

If protesters think that a restrictive city policy is illegal, they have the right to challenge it.  As in Florida, this may mean that they go to court and they try to win a case.  That, so far as I’ve been able to tell, is what has been going on with the arrests for chalking — the legality of which will probably depend on whether the city prohibits all chalking (even hopscotch) — at least in some areas at some times for justifiable reasons.  I believe that the city’s arrests have been wrong and that the city will pay for them in court.

But note that this procedure above involves the activists themselves challenging it.  That’s not what happened here.  Instead, the Occupy protesters, thinking that chalking is legal but knowing that the LAPD apparently disagrees, enticed onlookers who didn’t know that the LAPD was apparently going nuts about chalking to engage in this apparently benign activity — and then the onlookers, innocent Art Walk patrons — were the ones who got arrested for it.

I don’t condemn Occupy for this; I think that Karo Szymanska’s comment quoted above probably reflected the prevalent expectation: Occupy LA knew that LAPD maintained that chalking was illegal, but thought that the LAPD would not be so insane as to arrest a bunch of Art Walk patrons.  (It’s still hard to believe that that happened.)  But still, handing out chalk — as playful and cheeky and benign as it might have been — still did provoke the police response.  Occupiers say “but this was reasonable!”; police, citing the First Amendment analysis above, respond with “we have to treat everyone the same.”  (After all, if the police had looked the other way at the Art Walk patrons, it would have strengthened the case of the Occupy chalkers.  I think that both the police and the Occupiers understood this.)

Imagine that Occupiers had given out people pieces of chalk in plastic baggies stamped with this warning:


If Occupy LA had done that — and I don’t think that it did — then those choosing to chalk the sidewalk would have understood that they were engaging in civil disobedience.  They might have figured that it would be nuts for the police to arrest them — as I think it was — but at least they would not have been blindsided.

My rule for civil disobedience actions is that they should be voluntary.  (This, in fact, was the big problem with the arrest of Occupy Wall Street marchers who were diverted by police onto the Brooklyn Bridge last September and then arrested for marching on the Brooklyn Bridge.)  It’s impolite, unethical, and politically counterproductive to dragoon people into it.  (Occupy protesters may console themselves: “great, it will be a radicalizing experience for them!”  Don’t bet on it.  If those arrested know that Occupy LA people had reason to think that the police might arrest people for chalking, but didn’t inform them of that when they gave out the chalk, they’re going to be as pissed-off at Occupy LA as they are at the LAPD.)

For example, let’s imagine that the police had started arresting people for wearing tin-foil hats.  This would probably be unconstitutional — but if they’re doing it, they’re doing it, and so people wearing tin-foil hats would risk arrest.  Now imagine that the Ahmanson Theater had a great comedic play about conspiracy theories and that Occupy showed up as the play ended and handed out tin-foil hats to exiting patrons who thought that it was a great joke to put them on and who had no idea about the (illegal) police policy banning them — and they subsequently got beaten and arrested.

Is this Good Politics — or Bad Politics?  Again, some might think that it’s Good Politics because it spreads the news about the outrageous policy.  I think that it’s Bad Politics because it treats people shabbily.  Even though handing out chalk should have been a completely benign activity by any reasonable standard, it wasn’t in this case.  Occupy LA’s defense is that thinking that the LAPD would overreact so badly was completely unreasonable and therefore unforeseeable.  I don’t think it was that quite that unexpected — and that at a minimum people shouldn’t have been dragged into a possible protest unknowingly.

    (b) the LAPD — seriously, LAPD?  You seriously are slamming a woman to the ground for chalking, arresting at least seven others for chalking (and nine more for other offenses), and you expect not to have your collective ass handed to you in court?  I don’t know why Occupy is sticking in your craw so badly, but most of the apparent reasons are really bad ones — like willingness to help the homeless and essentially organize Skid Row.  You do not have to rise to the bait — you have discretion in enforcement, remember? — and the notion of wading into the Art Walk crowd and arresting people even if they had been from Occupy LA  was totally lame-brained.

One of the only things worse than that would be if you started shooting people with beanbags (I’ve been saying “rubber bullets,” following initial reports, but the article above now says that it’s beanbags) to disperse them — WHICH IS WHAT YOU THEN DID!  Yes, the clever Occupiers had gotten the better of you by blending into the Art Walk crowd — and so what?  If it was a “victory” for Occupy LA, it was a pretty minor one (and even cute — hopscotch, dammit!), and you could and should have let it go.  Why should you have let it go?  Because the Art Walk event was taking place there.  Do I really need to make this more clear?

I recognize — some Occupiers may not, but I do — that once you get things thrown at you (which the article suggests was NOT coming from the Occupy crowd, but from windows in the area — something that an investigation would illuminate), you are entitled to clear the area.  Yes, you’re entitled to — but you have options; one really good option in that situation would have been to withdraw.  Another really good option would have been not to escalate.  You made a molehill into a mountain there.

Your policy against chalking on the sidewalks is absurd and, I’m betting, undocumented.  Your choice to wade into an event of people who apparently thought they were acting legally and benignly and violently subdue one woman was practically assured to rile up the crowd against police abuse for all of the right reasons.  Shooting people with beanbags — let’s just say I look forward to an investigation identifying who was responsible for that call and seeing them try to justify it.

(c) people throwing projectiles at police — don’t do that.   Seriously, get a grip.  You are not going to make things better.  We have mechanisms in place for dealing with police who rough up innocent civilians — and those mechanisms work a lot better when the police can’t say that people were throwing bottles at their heads.  Not only could you hurt a police officer, but unless you’re Mariano Duncan you can hit (and maybe even kill) a civilian.  I’m going to presume that I don’t have to explain to you how extraordinarily stupid this is — justifiable only potentially in cases where before you start the police are wading through crowds chopping up people with chainsaws.  Instead, I want to talk to you about how cowardly it is.

The chances that the person throwing a projectile — which, if you don’t know, tends to amplify the police response to a situation — is the person who is going to pay the price for the projectile being thrown is relatively small.  When you’re above the melee throwing things from your window, as has been alleged some did, you’re not going to pay the price at all.  If you want to go “down to the demonstration to get your fair share of abuse,” as Mick Jagger put it, being upstairs doesn’t qualify.

(d) Downtown LA Art Walk — I understand that your blaming Occupy without any criticism of the LAPD makes a lot of sense given your situation.  I am sincerely sorry about the damage done here to your brand.  Nonetheless, aspects of your attack on Occupy for providing chalk probably inappropriate: giving out chalk to patrons may have been imprudent under the circumstances, but under most conditions (including that of a proportionate police response) it barely registers on the Richter Scale of disruptiveness.   Furthermore, ignoring the police response in your statement seems pathetic.  Worse, it seems unhip.

(e) the CCA — again, I can’t recommend strongly enough that people read especially the last section of the laactivist.com article linked above.  The police response is alleged to have to do with protests outside of the CCA’s building and the attempts to organize the homeless.  This event may not tip the scales towards your being blamed for calling these shots, but it’s a sizable bale of straw added onto the camel’s back.  If you think that you are going to win this conflict by escalating police response, that’s a pipe dream.  You’re on the map now.  If you think that you’ll be better off if LA becomes this year’s Oakland or Davis, you’re crazy.

By the way: Mayor Villaraigosa — if you still have thoughts of running for Governor, you will put strong efforts into bringing this to a stop through respectful negotiations following a full investigation.


(5) Back to Todd Downing’s petition — I signed it despite the fact that I disagree with (or am not sure about) parts of it.  You should sign it too.  Specifically:

  • I haven’t read the MacKinney decision and don’t know whether it’s controlling; having seen lots of law misquoted and misapplied by people on all sides, I can’t endorse the conclusion that it’s the controlling legal authority.  (I used to be much more willing to come to such easy conclusions about the law before attending law school.  They pretty much beat it out of you.)
  • I agree with Todd’s second paragraph.  I don’t know that the facts in the third paragraph are all correct, but here I have to trust Todd”s (apparently conscientious) research — and I think that there’s clearly enough to justify an investigation.
  • In the fourth paragraph, I don’t know that LAPD didn’t follow their own policy on use of force, although I suspect that that’s true.  (I’m more convinced that they didn’t follow prudent policy.)  I think that they may have had grounds to act, but not good enough grounds to justify the disproportionate response that occurred there.
  • I expect fumfering replies from the police that the LAPD response was not about “the great childhood pastime of using chalk on public space,” and the police will probably be right.  (I can certainly see why Todd couldn’t pass up that line, though.)  Be that as it may: even if it was using chalk to taunt and provoke the police, the response was inappropriate.  An investigation will, I expect, bear that out — so let’s see one.
  • And … none of my reservations above really matter all that much.  You can disagree with (or not be convinced by) the petition in some places and still, on balance, choose to sign it.

This may be another one of those posts that pisses off everyone on all sides, but I’m prepared for that.  Let the accusations of my simultaneous radicalism and anti-radicalism commence!

The bottom line is … sign the petition.

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. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)