The Law of Occupation

How Protesting Became a Crime in New York City

Here’s how the New York State’s penal code defines disorderly conduct:

A person is guilty of disorderly conduct when, with intent to cause
public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof:

1. He engages in fighting or in violent, tumultuous or threatening
behavior; or
2. He makes unreasonable noise; or
3. In a public place, he uses abusive or obscene language, or makes an
obscene gesture; or
4. Without lawful authority, he disturbs any lawful assembly or
meeting of persons; or
5. He obstructs vehicular or pedestrian traffic; or
6. He congregates with other persons in a public place and refuses to
comply with a lawful order of the police to disperse; or
7. He creates a hazardous or physically offensive condition by any act
which serves no legitimate purpose.

Here’s what has precipitated the vast majority of the Occupation-related disorderly conduct arrests in New York City:

Using a megaphone, writing on the sidewalk with chalk, marching in the street (and Brooklyn Bridge), standing in line at a bank to close an account (a financial boycott, in essence) and occupying a park after its closing. These are all peaceful forms of political expression. To the police, however, they are all disorderly conduct.

More.  And another take on the decade of police militarization and tactical changes which have resulted in wide grounds for arrest of those participating in Occupations.

UC Davis Pepper Spray Photo Draws Parodies

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Power of Silent Protest. Right out of Billy Jack.

[Suggestion: Start bottom video for soundtrack, then start top video. Powerful.]

After an hours-long impasse in the aftermath of her order to have university police pepper spray students, UC Davis Chancellor Linda Katehi leaves an administration building accompanied by her husband Spyros Tseregounis and campus minister Kristin Stoneking as a line of students sit silently along the path to her car.  Eerily reminiscent of the moving closing scene of Tom Laughlin great 1970’s independent counter-culture film “Billy Jack” which features Coven’s theme song “One Tin Soldier Rides Away.”

The circumstances are reversed as in the film it is the hero, Billy Jack, who is respected by the silence.

Go ahead and hate your neighbor; go ahead and cheat a friend.
Do it in the name of heaven; you can justify it in the end.
There won’t be any trumpets blowin’ come the judgment day
On the bloody morning after, one tin soldier rides away.

Email from UC Davis Chancellor Linda Katehi about Occupy Police Action and Pepper Spray

Text of November 18th email from UC Davis Chancellor Linda P. B. Katehi explaining rationale for police action and notorious pepper spray deployment against campus occupiers.  As is the case with many other city and campus overseers (mayors, presidents, etc.), Chancellor Katehi cites the high cost of insuring the safety of occupancy encampments as necessitating their removal.  UC Davis Police Chief Annette Spicuzza also said it would not be safe or sustainable for demonstrators to camp in the quad.  Mayor Bloomberg cited similar safety concerns earlier this week for the eviction of Occupy Wall Street participants from Zuccotti Park in Liberty Square, Manhattan.

Subject: Message from the Chancellor about today’s events on campus

To UC Davis Campus Community,

I am writing to tell you about events that occurred Friday afternoon at UC Davis relating to a group of protestors who chose to set up an encampment on the quad Thursday as part of a week of peaceful demonstrations on our campus that coincided with many other occupy movements at universities throughout the country.

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Close Quarters Pepper Spray Becomes an Open and Notorious Tactic of Police Departments

When USLaw.com brought to the World’s attention the first deployment of pepper spray against Occupy Wall Street participants on September 24th, the use was quick, covert, and swept under the rug by the New York Police Department.  Nearly two months later the weapon has become a preferred tactic of police departments nationwide. Yesterday, the a University of California police department, under the direction of University Chancellor Linda P.B. Katehi, deployed personal spray canisters openly, notoriously, and directly at close quarters on over two dozen passive demonstrators in full view of hundreds.  Many observers noted how John Pike, the police lieutenant seen in the photo above, used the weapon in as casual a manner as one might spray their lawn.

UC Davis English Professor Nathan Brown describes the deployment and resulting injuries:

Police used batons to try to push the students apart. Those they could separate, they arrested, kneeling on their bodies and pushing their heads into the ground. Those they could not separate, they pepper-sprayed directly in the face, holding these students as they did so. When students covered their eyes with their clothing, police forced open their mouths and pepper-sprayed down their throats. Several of these students were hospitalized. Others are seriously injured. One of them, forty-five minutes after being pepper-sprayed down his throat, was still coughing up blood.

Videos of the incident shared by Youtube users maroony07 and terrydatiger.

While traditionally pepper spray was only authorized for use by most police forces on resisting subjects and/or to thwart imminent  harm, mounting evidence suggests Close Quarter Pepper Spray Deployment (CQPSD) has become a deliberate and favored tactic of police departments seeking to arrest passive demonstrators and intimidate would-be demonstrators.

Could Past Rulings on Sleep Speech Keep Occupiers in Zuccotti Park?

While it is unclear if the Jennifer Waller and the other litigants who attempted to restrain NYC Mayor Michael Bloomberg’s eviction of occupiers from Liberty Square will continue to press their case and/or appeal Judge Michael Stallman’s decision to vest control of Zuccotti Park to Brookfield Office Properties, various cases testing whether sleeping can be considered speech, including a 2000 ruling by Judge Kimba Wood, provides one of many grounds on which to do so.  As explained by Andy Humm, a former member of the City Commission on Human Rights:

In that case, the Civil Liberties Union sued the city on behalf of tenant activist  seeking to sleep in Carl Schurz next to Gracie Mansion before the Rent Guidelines Board meeting on rent increases. They hoped to dramatize how excessive rent hikes lead to homelessness.

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Kick Barrier, Face Kicked

#OWS Demonstrator bloodied in arrest stemming from New York City’s metal barriers(*) penning Brookfield Office Properties’ Privately Owned Public Space in Zuccotti Park at Liberty Square.

* Analysis of law related to metal barriers to be posted shortly by USLaw.com.

And so it begins….

Tim Barker, a Minnesota native who has been occupying Zuccotti Park for the last month, was denied entry with his guitar.

Just hours after being granted leave to make it’s own rules,  Brookfield Properties  wasted no time changing the nature of the private space that was pledged to public use, establishing prohibitions against musical instruments and an assortment of other items that are typically used in the city’s parks.

Presumably the prohibition of musical instruments is the result of Brookfield’s desire to eliminate music being performed and/or loud sounds being generated in the Liberty Square.  An alternative means of achieving those ends would be to place prohibitions on certain behaviors— the performing of music and/or generation of sound above a particular decibel level.  Resorting to prohibiting certain possessions instead of prohibiting particular behaviors is a shortcut that is sure to raise controversy.

Bigger picture, is the ban on musical instruments a reasonable time, place, and manner restriction on park users’ first amendment freedom of expression?