Lawyers’ Guild Hosts Forum on Nonviolent Resistance

Panel Offers Three Points of View: Participant, Attorney and Observer

by MARK GABRISH CONLAN

Copyright © 2011 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

PHOTOS, top to bottom: Alex Landon, Zakiya Khabir, Rachel Scoma

The San Diego chapter of the National Lawyers’ Guild (NLG) hosted a forum February 23 at the Thomas Jefferson School of Law downtown that offered three perspectives on nonviolent resistance and civil disobedience. Veteran civil rights attorney Alex Landon discussed the legal perspective, recent law school graduate Rachel Scoma of Canvass for a Cause talked about the much-misunderstood role of “legal observers” — and Zakiya Khabir of the San Diego Alliance for Marriage Equality (S.A.M.E.) and the International Socialist Organization (ISO) talked about what it’s like to participate in a civil disobedience action, get arrested and face an uncertain future over the potential legal consequences.

Landon began his presentation by offering a definition of civil disobedience: “not following the law in peaceful protest against the law or an issue.” Though the two names that immediately come to most people’s minds as exemplars of civil disobedience are Mahatma Gandhi and Martin Luther King, Jr., Landon pointed out that there’s actually a much longer tradition of nonviolent resistance both in the U.S. and elsewhere. One example he cited was the Boston Tea Party of 1773, which he joked had “been given a bad name” by the Right-wingers who have organized today’s “tea party” groups, but which qualified as civil disobedience: “The people were protesting an unjust tax and did something technically illegal.”

Another movement that used tactics of nonviolent resistance was the fight for women’s suffrage, both in the U.S. and Britain, Landon said. It was a protest against “the idea that all ‘men’ were equal but women were not included and didn’t get the right to vote,” he explained. “Women protested and went to jail, and those were examples of civil disobedience.” Landon also cited Henry David Thoreau’s 1848 Essay on Civil Disobedience — which may have been the first use of the term — in which he explained why he was willing to go to jail rather than pay a tax the U.S. had levied to support the 1846-48 war against Mexico and to tighten enforcement of the laws against fugitive slaves.

Landon then discussed Gandhi, King and the use of civil disobedience in the U.S. in the 1960’s to protest against racial discrimination and the Viet Nam War. More recently, he said, “In San Diego a group of students and community activists didn’t like the English-only laws and the people trying to rewrite the 14th Amendment so a person born in the U.S. to parents who are here illegally wouldn’t be a U.S. citizen. The students blocked La Jolla Village Drive, and some of them were arrested.” He also cited a demonstration at the headquarters of a health insurance company in which protesters and law enforcement officers cooperated so customers who had business in the office could get in, and “everything was O.K. until a security guard wanted to file a complaint.”

According to Landon, the purpose of civil disobedience is “to bring about a change in a law or a government policy. There is a tension in this country between the First Amendment and an individual or individuals who in effect wind up breaking a law by expressing themselves or assembling.” He talked about the legal ramifications and the possible charges public protesters may face when they do civil disobedience, including California Criminal Code sections 415, “disturbing the peace,” a misdemeanor; 602, the anti-trespassing law; and 594, “malicious mischief,” which usually is a law against vandalism but can also be used against nonviolent protesters. Landon said the “malicious mischief” law is one attorneys call a “wobbler” because prosecutors can use it either as a misdemeanor or a felony.

Other more serious laws that can be used against nonviolent resisters, Landon explained, include Penal Code sections 148, “willfully resisting, obstructing or delaying an officer in the lawful performance of their duties,” and 243, “battery on an officer,” which is a way of bumping up the charges from a misdemeanor like 148 to a felony. He also discussed the wide discretion law enforcement officers have in deciding how to charge anyone they arrest, including people engaging in civil disobedience: they can do nothing, they can “cite and release” as an alternative to jail, they can take the person into custody, and once the arrest is made they can “pass on the arrest report to the prosecutor” — which in San Diego is either the city attorney, if the charge is a misdemeanor; or the county district attorney, if it’s a felony.

One thing the police can’t legally do, Landon said, is “prior restraint” — shutting down a legal protest on the ground that the protesters may do something illegal. The courts, he said, have consistently ruled that law enforcement can’t do this because they have no way of knowing in advance whether the protesters will stay within the law or break it in an act of civil disobedience. He mentioned that protesters can file for a writ of mandate (mandamus) to force the police to allow a protest and “try to prevent individuals from violating people’s civil rights.” Landon also cited Title 42 of the U.S. Civil Rights Act, a remedy protesters can use, either in federal or state court, after the fact to penalize law enforcement officials who take actions that violate the people’s right to protest.

Finally, Landon talked about the “balance” and said that the political climate in San Diego for protesters improved when an assistant police chief named Norm Stamper started educating a succession of chiefs, from Bill Kolender on, about “community policing” — meaning that the force is “our police and should be responsible to we, the people. Certain people who have tried to assist in protecting First Amendment freedoms have worked with the police to make sure there is no prior restraint, misdemeanors won’t be escalated to felonies, and people will be given citations and released immediately rather than being taken to jail. There are attempts to get law enforcement to understand that these people are trying to express opposition to a particular law or policy, and perhaps there’s a way to handle this in a responsible way.”

On the Front Lines: Zakiya Khabir

Zakiya Khabir had been a community activist in San Diego for more than five years when on August 19, 2010 she and eight other members of S.A.M.E. were arrested at the San Diego County Administrative Center (CAC) for staging a civil disobedience action at the office of the San Diego County Clerk. The action came about from the roller-coaster history of marriage equality for same-sex couples in California since May 15, 2008, when the California Supreme Court ruled that the state constitution’s guarantee of equal protection required county clerks to issue marriage licenses to opposite-sex and same-sex couples equally. But the state’s voters reversed that decision in November when, by a four-point margin, they passed Proposition 8, writing into the state constitution a legal definition of marriage as only between one man and one woman.

On May 26, 2009 the California Supreme Court ruled that the voters had the right to enact this constitutional amendment and Proposition 8 would stand. The next day, S.A.M.E. members Michael Anderson and his partner, Brian Baumgardner, showed up at the San Diego County Clerk’s office and demanded a marriage license. When they were refused, they and up to 70 people sat in at the office and said they wouldn’t leave. They chanted slogans and talked to each other and to journalists about why they were there and why marriage equality was important to them. In the end, only one protester was taken into custody — and he was released almost immediately and never charged. The others were allowed to leave unmolested when the building closed for the day.

But authorities handled the protesters last August quite differently. That action was sparked by a federal district judge’s ruling that Proposition 8 violated the U.S. Constitution — and the almost immediate decision by the U.S. Court of Appeals for the Ninth Circuit to “stay” the ruling until they could consider it, meaning that Proposition 8 remained in effect indefinitely and same-sex couples still couldn’t get married in California. Once again, S.A.M.E. planned a civil disobedience action in which Anderson and Baumgardner would approach the clerk’s office and demand a marriage license. Another couple, Tony and Tyler Dylan-Hyde, had the same idea, and since Tyler is an attorney he became the legal spokesperson for the protest.

“This time, they wouldn’t even let us in the office,” Khabir recalled. “When it was clear they wouldn’t budge, we sat in the hallway. We were chanting really loud, and then they started arresting people. We were trained to make the police say that we were under arrest” — a reference to the law that police can’t just stop and detain people; if you ask an officer who stops you if you are under arrest, s/he has the legal obligation to answer yes or no, and if the officer says no, you are free to leave. Khabir said she and the other S.A.M.E. members wanted to make clear to all the participants — including ones who, like the Dylan-Hydes, hadn’t been part of the planning but had heard about the action via Facebook — that “we were not going to resist arrest.”

In picking the site for their action, S.A.M.E. had entered a jurisdictional twilight zone. Ordinarily, a civil disobedience action in the city of San Diego is handled by the San Diego Police Department. But since the CAC is County property, it’s under the jurisdiction of the County Sheriff’s Department, an agency with a reputation for being harder on protesters than the city police. After three protesters were taken into custody, Khabir said, “the sheriff’s deputies all disappeared and came back with 50 people in riot gear for the remaining six people, and they told the media people to be on the other side. I was never so glad to see so many cameras.”

Khabir said it seemed like the sheriff’s deputies “were doing exercises, the whole mass arrest thing,” since they brought two empty full-sized buses to take nine people into custody. Also, rather than being taken to a jail and then booked, as would be standard practice for the city police, the protesters were taken down to the basement of the building, where “they have a whole processing facility” — and, she said, “it was kind of hard to remain silent in the face of authority people who were acting friendly.” Eventually the protesters were separated by gender and put on buses, with the women taken to the Las Colinas jail for women while the men were taken to the county jail downtown. “If you’re risking arrest,” Khabir said, “do it with a lot of people of your own gender, because they kept us together and the solidarity was helpful.”

One aspect of the action that worked, Khabir said, was that “we got a lot of media coverage, which was good for our movement.” But it’s also been frustrating because “we expected the laws to change.” (Indeed, Tyler Dylan-Hyde had written a legal memo which he hoped would persuade the county clerk to issue him and his partner a marriage license despite the appeals court’s stay. The clerk and his officials didn’t bother to read it.) “People expressed their outrage and it’s still taking a long time,” Khabir said, pointing out that despite their promise to resolve the case quickly, the appeals court ended up delaying it further by referring it back to the California Supreme Court for a ruling on whether the proponents of Proposition 8 have “standing” — legal-speak for the right to sue — given that the state government refused to defend the proposition in court.

“We have got pro bono lawyers [i.e., ones who are donating their services], one for each of us,” Khabir said of herself and her eight fellow arrestees. “We’re calling ourselves the ‘Equality Nine,’ much to my chagrin. Our position is to fight the charges against us to the maximum extent possible. We started a petition campaign and had a lot of fundraisers to raise a lot of money. We’re hoping to help people out financially, including people without jobs who got arrested that day.”

What particularly disturbs Khabir and the other members of the Equality Nine is that right now they’re in legal limbo — the county prosecutors have neither filed cases against them nor dismissed the charges. Khabir said she thinks the reason they haven’t been charged is that the overall case against Proposition 8 is itself in legal limbo. On the same day as the NLG event in San Diego, the attorneys who filed the lawsuit against Proposition 8 in federal court, Theodore Olson and David Boies, made a motion with the appeals court to have the stay lifted, and earlier that week U.S. Attorney General Eric Holder announced that the Justice Department would no longer defend the constitutionality of the 1996 Defense of Marriage Act, which allows states who don’t recognize same-sex marriages to refuse to recognize such marriages from states who do, and also bars married same-sex couples from any federal benefits offered to legally married people.

Be that as it may, Khabir noted that a group of immigrant-rights supporters crashed a baseball game at Petco Park downtown and unfurled a banner attacking Arizona’s anti-immigrant law, SB 1070, a week after S.A.M.E.’s action at the County Administrative Center. “They’ve already had their cases resolved and have done the community service they were sentenced to,” Khabir said — while the Equality Nine are still waiting to see what the authorities will do to them.

Looking On: The Legal Observers

In some ways, Rachel Scoma’s presentation was the most interesting of the three, since she focused on the odd role of so-called “legal observers,” people who attend a civil disobedience action to see what’s going on and document any abuses of protesters by the police and other authorities. Though she graduated from law school a few months ago and is nervously waiting for the results of her State Bar examination — which provoked a few empathetic groans from members of her audience, most of whom were past or present Thomas Jefferson School of Law students — Scoma explained that “legal observers don’t need special legal training, just training.” What they’re there to do, she said, is “watch the police — not the protesters, which is sometimes hard because the protesters are a lot more interesting.”

The purpose of legal observers is to look at the police response to a protest and document it in any way available — notebooks, voice recorders, cameras, videos — and, if there is any police misconduct, to testify about it in any trial involving the protesters. Because they’re going to be testifying, if necessary, as neutral parties, Scoma explained, legal observers can’t do anything that suggests participation in the protest: they can’t cheer the speakers, join in the chants or carry signs — even though it’s their sympathy with the protesters’ cause that put them there in the first place.

“If you’re an observer, you have to do everything in your power not to be arrested, including complying with all police department orders,” Scoma said. “Your job is to document police actions, not argue with them. Law is made in the courts, not in the streets.” She said that observers can offer the police the bare minimum of cooperation — “comply as little as possible, not as much as possible,” she said — but must remember that “we are there for the protesters, not ourselves. Don’t use any violence, verbal or physical, towards the police. Don’t carry alcohol or drugs or weapons on you. Don’t wear anything incendiary like anti-war slogans or profanity on your T-shirt. Maybe dust off your old suit and put it on. Work in pairs whenever possible.”

Scoma also described the preparation for legal observer work, which includes scoping out the location of a protest in advance. “Familiarize yourself with the area — how people go in and out, where the nearest police stations and hospitals are,” she said. “Learn the street names so you can take notes, and orient yourself to make sure you know which way is north, south, east, west. Make sure you have continuous information from the leaders of the protest.” She also said to “bring extra copies” of the official forms for reporting instances of police misconduct so you can fill them out then and there while the misconduct is happening before your eyes.

During the action, she said, “the first thing to have is something on you to identify yourself as a legal observer. Notebooks, lots of pens, a wristwatch — not your cell phone because that will be confiscated if you’re detained or taken into custody — and extra water. The best thing to use is a tape recorder because that’s the best evidence, but it also makes you a target for police officers. It’s easier to dictate what’s happening than to write it down. Bring extra film and batteries. Pretend you’re going on a Girl Scout trip. Video evidence has been successful in documenting police misconduct. It’s a good idea to drop off notes midway through an action so your whole day’s work isn’t confiscated by the police. Write down who, what, when, where and how.”

The information you should be looking for and recording, Scoma said, includes “badge numbers, names and descriptions of the cops, what department or company they’re from, [whether they’re] putting on gas masks, bringing in tanks or urban vehicles, giving an order to disperse. Get the names and contact information of witnesses because you’ll be the one in court and talking to the media. Try to get the cops to tell you which protesters were arrested. Don’t be biased; record what happens and always be truthful.”

Scoma also talked about the possible risks of being a legal observer. “Sometimes the cops are accommodating; but sometimes the cops single out the observers, as they did in Seattle in 1999,” she said. “Also, the more equipment you have, the bigger a target you are, so bring a notepad as well as a recorder or video camera. Practice judging distances in everyday life. The most important thing is to watch the cops. When the cops go off, things can happen very quickly.”

Asked during the question-and-answer period what justification the police can have in taking recorders and cameras away from protesters or observers, Landon said, “They may not be allowed to do it, but when you’re under their authority, sometimes you allow it to happen and then argue it later when you are in a position of authority. We have a Police Review Commission in San Diego, and the Sheriff’s Department has one too, which allows citizens to file complaints. The problem is people don’t do that. There’s something called a Pitchess motion which allows us in discovery [the phase of a case before the trial when each side has a right to the other’s evidence] to subpoena records of law enforcement officers to see if they’ve misbehaved before — but if people don’t complain there’s nothing in the pot for us to find.”

There was also a brief discussion about the activities of Canvass for a Cause, the group Scoma works with, which formed after the Target store chain was found to have given money to a political action committee in Minnesota, where it is headquartered, which in turn donated to an anti-Queer candidate for governor. Canvass for a Cause organized to leaflet in front of Target stores with information about the Queer community and the anti-Queer contributions made by the group to which Target donated. To do that, they had to invoke the authority of Pruneyard, a unanimous 1980 U.S. Supreme Court decision that held that, even though shopping malls are private property, because they allow and even encourage members of the public to come onto their property, they’re considered public property for purposes of allowing political free speech.

One audience member said she was with an organization that was picketing a Running Store outlet when the store’s manager came out and said they couldn’t be there without getting her permission first. Asked if the manager had the right to do that, Scoma said, “It’s debatable, and mostly based on how open it is to the public. The more they invite you in, and the more places there are to eat and sit, the likelier it is that Pruneyard applies. We’ll go to any store that doesn’t require a membership card to shop there.”

A man in the audience who has also worked with Canvass for a Cause added, “First, the store manager will ask you to leave and tell you they don’t allow solicitors. We don’t pay attention because that’s routine. Then they say they’ll call the police, and the police will generally negotiate and ask us to move. It goes back to the distinction of whether it’s a suggestion or a lawful order. Once they realize they’re not going to get rid of you, they will tell the store manager you have a right to be there.”

“There’s no question that we have a right to be on private property to express ourselves,” Landon summed up. He said that when business owners accuse protesters of blocking customers’ access to their business, he said protesters have a right to be there “as long as they’re walking at a normal pace” and not actually standing in the doorway or pushing people away.