Thursday, March 15, 2018

Free Screening March 30 at U of M Law School

Tennessee Association of Criminal Defense Lawyers will launch their “As a Matter of Law” series and commemorate MLK50 by screening the Memphis-made documentary Who Will Watch the Watchers? March 30.

“As a Matter of Law: Who Will Watch the Watchers? Screening and Discussion with Filmmaker Gary Moore” will begin at 6 p.m. at the University of Memphis Cecil C. Humphreys School of Law, 1 North Front Street, in the Wade Auditorium.

Who Will Watch the Watchers? tracks the struggles of citizens who were arrested for filming police, then sought justice at City Hall in an election year. The film covers 21st Century hot topics such as citizen videos of police shootings, Black Lives Matter, the police-community divide and the condition of the First Amendment in the Trump era.  The feature-length documentary presents something of a case study in grass roots organizing as citizens sought to bring back the Civilian Law Enforcement Review Board (CLERB).

The screening is free of charge and open to the public. It is sponsored by Tennessee Association of Criminal Defense Lawyers, Project Mass Incarceration and the Black Law Students Association.

“TACDL is starting a series of presentations called ‘As a Matter of Law,’ which will focus on specifics of defending criminal matters, examining issues that might arise in that process, and we want this film to serve as the subject of the first presentation,” said David “Hawk” Allen, president of the Tennessee Association of Criminal Defense Lawyers, Memphis Law Chapter.

Who Will Watch the Watchers? world-premiered in Los Angeles last fall at the Justice on Trial Film Festival.

The film follows the Memphis United coalition, which fought for police accountability and the revival of the Civilian Law Enforcement Review Board in 2015 and which rode a roller coaster of emotional ups and downs in their campaign. A Memphis police officer shot and killed unarmed back-seat passenger Darrius Stewart in the middle of the movement, and organizers and others were targeted in 2017 in a “black list” of persons who were required to be escorted at City Hall.

Paul Garner, organizing director at the Mid-South Peace and Justice Center, led the movement after being arrested for attempting to film police outside Manna House homeless refuge Oct. 21, 2013. Four days later citizens filmed police arresting two persons and breaking up a Trolley Night hip-hop cypher on South Main Street.

In addition to dealing with First Amendment issues, the film relates the Fourth Amendment and the landmark Supreme Court case out of Memphis, Tennessee vs. Garner, in how law enforcement officers may or may not use force to stop fleeing suspects.

Freedom Rider Rip Patton narrates the film trailer and the opening and closing sequences of the film.

Moore Media & Entertainment also produced the comedy short, “The Suburban Itch,” and is producing a documentary on the removal of Confederate statues in Memphis and other cities.

Link to film trailer:

Link to film poster sized for Internet:

Link to Memphis Flyer story:

Wednesday, February 28, 2018

Judge Says Valero Defendants 'Low Priority' Next to Murderers, Rapists and Robbers

Katherine Hanson, Olivia Ramirez and Erick Barnett wait for the wheels of justice to turn in Memphis

Judge Bobby Carter signaled that he would like to see prosecutors settle Class C misdemeanor cases against four environmental activists, calling the cases a “low priority…next to my whole jail full of murderers, rapists, and robbers.”

Nonetheless, the remaining defendants from a dramatic action opposing the Diamond Oil Pipeline on MLK Day in 2017 did not get heard today -- even though it was the seventh court appearance for four of seven persons who had chained themselves together through concrete-filled barrels to defend water over oil.

The Shelby County Criminal Court Division III judge also decided not to entertain various motions from defense attorneys as that could influence any possible negotiations about a settlement, he said.  

The four were scheduled to go on trial beginning Jan. 22; however, after spending two days waiting around 201 Poplar, on Jan. 23 Carter bumped the trial date to April 30, citing an “in-custody aggravated rape” case that he deemed more important to be heard.

At that time Carter also set Feb. 28 as a motion hearing date and required the four defendants – one from Missouri, two from Oklahoma and one from Memphis – to return to court. Carter today indicated he had thought better of hearing any motions, particularly about jury instructions, until the time of the trial and after he had heard the proof and arguments put on by prosecutors and defense counsel.

“Here’s the thing,” Carter told the four defense attorneys. “It’s clear your clients have an absolute right to a jury trial. As far as they are concerned it’s a very serious, very weighty matter. But in proper perspective, next to my whole jail full of murderers, rapists, robberies and things that I have to get gone, it’s going to be a lower priority in scheduling.

“I don’t mean to diminish the seriousness of it as to each of them,” Carter continued. “These are matters that they are entitled to full and fair consideration, and we will do that -- if we have to.”

Calling themselves water protectors and representing Arkansas Rising, the defendants were objecting to the Diamond Oil Pipeline, which is to carry light sweet crude 440 miles from Cushing, Oklahoma, to the Valero Refinery on the banks of the Mississippi River in Memphis.
Olivia Ramirez: Defending Earth and water
Photo by Hive Swarm Media

The defendants were initially charged with obstructing a highway or other passageway; disorderly conduct, and criminal trespass. Disorderly and trespass charges were dropped last year.  

The “obstructing a highway or passageway” charge is often used by police along with “disorderly conduct” against political protesters or persons who film police. 

Prosecutors in October proposed a settlement “offer” that each of them would pay $6,000, calling it restitution or repayment of the city’s decision to massively deploy police and fire equipment and personnel. Last month, that amount dropped to $650 each, but defendants have maintained they are not guilty and do not want to pay money simply to make the charges go away. Three other defendants last year had paid costs and pleaded out to stop the court appearances and uncertainty over the outcome.  

Five other persons were arrested while walking or standing on the sidewalks outside Valero, and those cases were dismissed last year. The five included Missouri resident Rachel Gay, an independent journalist who was filming the events of the day, and Paul Garner, a Memphis resident who is organizing director of the Mid-South Peace and Justice Center and who was recording police on his cell phone that day as an observer. 

Counting their initial appearance after they were arrested on Jan. 16, 2017, yesterday’s appearance was the seventh trek to Shelby County courts in connection with the Class C misdemeanor, which is the lowest possible criminal charge and which rarely goes to trial. The other court dates in 2017 were Feb. 15; May 2; October 5, and November 2.

Should there be a jury trial, however, defense attorneys believe it could take three days. That’s not only time from the lives of the defendants and the attorneys, who are all working pro bono, but of court personnel and Shelby County citizens to serve as jurors. Further, it clogs the pipeline with cases that Judge Carter clearly does not believe he has time to hear.

Defense attorneys expect prosecutors will argue that defendants did not have a right to be there because they did not have a permit.

The defense argument is essentially the First Amendment.

“Because this is such a low level offense, it never goes to trial,” said defense attorney Josie Holland. “It usually settles out. Either the state gets tired of trying to prosecute it, or the person who is facing the charge decides to pay a fine and go on with their lives.  There’s not a lot of case law or precedent about obstruction of a highway or passageway.

“No one has challenged the constitutionality of it on its face.”

That is, until now, in Memphis.

Links to our previous stories on these cases:

"DA Pushes Misdemeanor Defendant-Protesters toward Jury Trial in Memphis"

“Valero Cases Dwindle as Judges Cite First Amendment”
“Cops Bust a Journalist, Chase One into the Bushes on MLK Day 2017”

Friday, November 24, 2017

Chipping Away at the First Amendment in Memphis, USA

“No single encroachment upon liberty, considered alone, ever seems worthy of great effort to destroy. Ultimately, the established precedents justify the greater invasion, and the aggregate of these tyrannies become unbearable. Then comes the revolution…”

Free Speech for Radicals: Seven Essays  
--Theodore Albert Schroeder

When the First Amendment is conquered and handed over to der Trump or such a future embodiment, it will not have happened with advance notice, parades in the street, or Blue Angels flyovers. It will be death by a thousand cuts. 

This is what we are witnessing in America, especially since Sept. 11, 2001, and now primed for acceleration in the Trump era. 

The City of Memphis is not exempt.

A recently proposed replacement of the current “Parades and Public Assembles” ordinance, Chapter 12-52, has drawn attention, partly because it has been pitched as less than how it reads. 

Link to newly proposed ordinance:

Link to existing ordinance which would be replaced:

“This only applies to parades and races,” City Council member and ordinance sponsor Reid Hedgepeth told the City of Memphis Public Safety Committee on Tuesday when only committee members Worth Morgan, Hedgepeth and Mativius Jones were in attendance. The ordinance passed unanimously out of committee and will begin its three-reading trek through the larger City Council on Dec. 5.  

Hedgepeth said citizens had complained to him about 3K and 5K races screwing up traffic in neighborhoods. One family complained that streets were so blocked that their child missed his Saturday morning sports event. Thus, the new ordinance requires that parade and race organizers apply with the city no less than 90 days before their proposed events and that they must give notice to affected neighbors, receive negative feedback and pay the police department for its costs. 

People unable to make it to a soccer match because of marathon runners in the streets might not be the only ones affected by this revised law, which is headed, “Parades, Races and Public Assemblies.”  Those desiring to partake in “public assemblies” are also required to make sure it’s OK with the neighbors, pay police for costs and get permits for any public gatherings. 

Here are some of the differences between the existing ordinance and what is proposed, and the usurpations of the First Amendment, small and large, which could be used to block and make difficult future freedom of assembly in Memphis. 

Permit 25 Persons or Less
“Public Assembly” definition is changed from “a gathering of 25 persons or more” to “a gathering…” of no number specified. So, that means two or more?

Ask the Neighbors
Organizers of an event which involves movement of the group must post for seven consecutive days notification to “affected residents and businesses along said route” and file with the city its plan for such notification.  The new ordinance also would require the permits office to notify said residents and businesses. A condition of the permit considers whether MPD has received “written or verbal opposition from affected residents.”

Permit Filing Deadline
The ordinance for public assemblies is changed from 14 business days to 15 in advance of the event.

Spontaneous Events
Present ordinance waives the 14-day thing if an assembly is a “spontaneous event, occasioned by news or affairs coming into public knowledge within three days of such public assembly.” The proposed ordinance calls for seven days, so in this way it is less restrictive than the present law. 

For example, after the city first said it would deny a Feb. 1 assembly protesting Trump’s anti-Muslin immigration order, it changed course and tried to save face by saying the assembly was allowed under the “spontaneous” clause. Be that as it may, how is a political body put in place to adjudicate what is sudden news or not? 

Nonrefundable Permit Fee
The current fee is $25; the proposed ordinance states a fee of $___ left blank. Where “closure of public streets or diversion of the normal flow of vehicular traffic” is required, an additional nonrefundable fee of $100 – versus $50 currently – is required. 

Explain Your Lane
A new provision requires that the permit applicant submit a statement justifying the need to “occupy an entire rather than a portion of a pedestrian or vehicular right-of-way.”  

The Price of Protest
A provision of the current ordinance states the applicant must pay for any police protection deemed necessary by the police director. The newly proposed ordinance adds details about the applicant paying for police services. We do not know of any instances when this has been pushed by MPD in assemblies over injustice or public policy issues. 

However, language in both the present and proposed ordinances provides the police director with the leeway to deny a permit if the applicant does not pay for police to show up. The idea of policing an event which blocks or congests traffic should be just for that – directing traffic, not for policing free speech as we have seen.

One problem with all of this is the city’s paranoia over so-called “protests.” This has needlessly cost the city a lot of money as police have massively overreacted with personnel and even military equipment to such events as July and August 2016 protests outside Graceland; a protest of the Diamond Pipeline on MLK Day this year at the Valero Refinery, and an Aug. 19 protest of Confederate statues at UT Health Sciences Park, where a 9,500-pound bronze statue of Rebel General Nathan Bedford Forrest rides high. 

The city also pays when its practices get it sued as it now has legal fees and exposure for police turning away African-Americans who sought to attend the 2016 candlelight vigil at Elvis Presley’s former home.

Out of 28 persons arrested at those three locations, every case out of Graceland and UT Health Sciences Park has been dismissed, several when officers did not show up at preliminary hearings.  Five cases out of 12 persons arrested at Valero were dismissed, including one independent journalist, one observer recording police with a cell phone and three who were standing on the sidewalk. 

Those arrests were prompted by free speech and public assemblies which discomforted the status quo. One University of Tennessee officer who made two arrests at the Rebel statue wrote in his affidavit, “an unlawful protest was underway.”  City attorney Bruce McMullen later claimed no one was arrested for protesting but for violating the law.  What law was that if all cases were dismissed? 

Police Move in to Arrest Rebel Statue Opponents Aug. 19, 2017

In the case of four persons remaining from 12 originally arrested at the Valero Refinery on MLK Day, the Shelby County District Attorney asked them to pay $24,000 to compensate emergency services in order to have their cases dismissed. Such an offer – extortion? -- was “illegal,” according to defense attorney Michael Working, and the four are going to trial in January. 

The four “water protectors” were chained together through concrete-filled barrels in the Valero entrance and exit driveways.  The four did not take the DA’s “deal” to come up with $24K as a get-out-of-jail pass in October.  Those charged, by the way, are being prosecuted for a Class C misdemeanor, “obstructing a highway or passageway,” which along with disorderly conduct are go-to charges for police when no specific laws are being violated. It is rare that a Class C misdemeanor would go to trial, but the defendants are unwilling or unable to buy their way out of it, and the DA is apparently too set on making an example of people who would embarrass a multinational corporation about its preference for oil over water. 

Valero Pipeline Opponent Olivia Ramirez Awaits Court Fate at 201 Poplar 
Does the DA’s move foreshadow that the city’s policy is shifting to charge citizens for police services in public assemblies which may involve political protests? 
The proposed ordinance also interjects City Council where its authority was not asserted before, such as to arbitrate opposition to a permit and to give “feedback” in denying an application.  

With this newly proposed ordinance on public assembly, its greater fees and requirements imposed on citizens, it appears the price of the First Amendment in Memphis is going up.

Broad Latitude for the Authorities
Regardless of how the permitting policies have been enforced in the past, will be in the future, or if the permit ordinance would discourage First Amendment practitioners from even trying, there is ample language in the law to allow for capricious denials and limitations based on political and other discretionary metrics. 

For instance, the police director has broad authority to revoke a permit “instantly” when an emergency elsewhere makes police unavailable for the public assembly if there would be an “adverse effect upon the welfare and safety of persons or property.” What makes an “emergency” and what affects “welfare and safety” are solely determined by the police chief.

Another for instance: Any person in a public assembly may not be engaged in disorderly conduct – but police can claim almost anything is “disorderly conduct” as a catch-all charge, much like “obstructing a highway or passageway.” Those are the two Class C misdemeanor charges typically put to citizens who are arrested for protesting – those charges usually are dismissed, but the effect of police moving in to make arrests is that the public assembly is stopped. 

How may these clauses be interpreted in the future?

This year some gatherings – such as the April 4 march down pedestrian-only Main Street in commemoration of the murder of Dr. Martin Luther King Jr. and the Silkies Hike for veterans' mental health April 22 through Overton Square to downtown– have obtained permits, and some events have not, such as the March 10 event organized by local indigenous Americans in support of Earth and water protections and opposing the Dakota Access Pipeline. 

Police Prepare to Arrest 'Water Protectors' at Valero Refinery on MLK Day
While police at the April marches accommodated a path through traffic, in the unpermitted but widely publicized March 10 event police rimmed the perimeter of City Hall, where the group had gathered after a short walk from Riverside Drive.  There was no traffic disruption. (The lights over the Hernando-DeSoto Bridge were turned off at about 8:30 that night, apparently a reflex of paranoia nurtured by the July 10, 2016, bridge shutdown by more than a thousand citizens who joined a nationwide outcry after police killings of unarmed men.) 

Nobody was arrested or challenged by police on March 10 because the organizer had not gotten a permit. This seems to be the preference of activists now, not to bother with a permit – the First Amendment is enough of a permit, right? – and police become aware of a planned event through social media. 

So, the city has not been clamping down hard on the permit law, but police have been showing up large for announced rallies which challenge institutions and multi-national corporations.

Funeral-Like Exemption
The newly proposed ordinance includes this provision, which does not appear in the existing law: 

“Funeral-like processions by vehicle or foot for the purposes of honoring the deceased, raising awareness of the deceased’s death, or celebrating the life of the deceased.”

Is this the golden loophole? The words under which social justice supporters can slip down streets and sidewalks? The “subsection B” which will cause every rally to have the stated commemoration of MLK or another deceased person? 

Lemonade Opportunity?
The initial flash of outrage from local First Amendment practitioners was backed by a history of distrust of local elected officials and police.  Probably most folks who read this proposed law were not familiar with the fine print in the current law and thus the whole thing was a fresh shock to behold. However, if it is indeed City Council's intent to only deal with 5K races, they can clean up and eliminate all language or "mistakes?" that smear the broad policies across public assemblies.

In fact, with an awakened awareness of how the city wishes to regulate public assemblies, is there an opportunity to make lemonade out of the sour taste by revising free speech out of the law? 

If City Council feels it must get into this, the whole ordinance should be examined. In fact, we have some proposals which are not specific to just permits but do involve public assemblies:

1—When officers make bad arrests, those officers should be written up and suspended without pay the number of days the defendant had to appear in court. A bad arrest is one wherein the defendant’s actions do not support the charge as we saw in several cases from the Rebel statue protest Aug. 19.  In other words, there was no good reason stated for the arrest.

2—When officers fail to appear for preliminary hearings, the same sanctions should apply.  A person who is charged is put through the wringer, has his or her mug shot plastered on TV and the Internet as a “suspect,” and misses time from life and work and is subject to attorney fees and court costs. This is in addition to the anxiety, embarrassment, humiliation or sense of fear that accrues to the citizen wrongly charged. 

3—All stipulations, fees, permits, requirements and langauge about “public assemblies” should be deleted. If someone is breaking an actual law, we already have that covered. 

We don’t need no stinkin’ permit to go outside and talk and walk. We already got one, aka, the First Amendment to the Constitution of the United States.