Wednesday, May 3, 2017

Valero Cases Dwindle as Judges Cite First Amendment Rights

Seema Rasoul high-fives attorney Jason Ballenger upon learning her case was dismissed 
-- Moore Media Images
Shelby County General Sessions Court judges yesterday dismissed two cases and expressed sympathy for protesters' First Amendment rights before sending four cases on to the grand jury from the Valero Refinery MLK Day action Jan. 16, 2017.

"This is a tough one," said Judge Ronald Lucchesi at a preliminary hearing on the charge of obstructing a highway or passageway against Erick Conner of Oklahoma.  "I sympathize with the protesters.  Our constitution gives them a right to protest. But, it has to be done within the law.

"The state has met their burden of proof," Lucchesi said. "But, it would not be too far afield for me to say they had not met their burden of proof."

At preliminary hearings of seven defendants spread among four courtrooms, prosecutors sought to establish there was probable cause for the arrests.  Despite sympathetic comments from Lucchesi (Division 12) and Division 7 Judge William Bill Anderson, they and Division 13 Judge Louis Montesi Jr. sent Conner's and three other cases on to the grand jury, which must decide to indict or not.

Defending the Earth: Olivia Ramirez of Osage tribe and (below)
Erick Conner of Muscogee tribe in Oklahoma --Moore Media Images

Conner, Olivia Ramirez of Oklahoma, Katherine Hanson of Missouri and Spencer Kaaz of Memphis were chained through 55-gallon drums filled with concrete to protest the 440-mile Diamond Pipeline, which will transport domestic sweet crude from Cushing, OK, to the Valery Energy refinery on the banks of the Mississippi River.

Those are the only four cases remaining of the original 12 persons arrested by Memphis police on the Dr. Martin Luther King Jr. holiday.


Charges of obstructing a highway or passageway against independent journalist Rachel Gay of Missouri and Seema Rasoul of Memphis were dismissed without costs.  Gay, representing Hive Swarm News & Media, was shooting video and standing on the sidewalk along Mallory Avenue, which police had shut down and thus was not trafficked by the usual stream of tanker trucks. Rasoul also was standing on the sidewalk, but she was not recording and not bound to a barrel.

Gay's charge was dismissed, said attorney Michael Working,  based on "media shield laws," which are supported by the First Amendment.

Clay Ayers of Memphis was one of five remaining defendants of seven who had chained themselves to each other through pipes in the concrete-filled barrels, and he pleaded guilty to the Class C misdemeanor charge of obstructing a highway or passageway to put the matter behind him, Working said.  Case disposition went down as one day of "time served" credit, and Ayers will pay $272 in costs and be done with the matter.

"This is a minor charge, like jaywalking," said Working.

Working's firm is representing the Valero defendants pro bono, or for no fees.

Jessica Reznicek, Clay Ayers at Valero Refinery
--Hive Swarm Media Photo
Working and lawyers Jason Ballenger and Seth Segraves had asked police to produce footage from body-worn cameras.  Police have not provided any footage, Working said, but they are not required to at this stage of the cases.  However, police have internally reviewed footage from a few officers who were wearing cameras.


"This is the first case of using body cam footage to vindicate defendants," said Working, who surmised that what police saw supported some defendants' cases. "So, it's not just an interesting environmental case.  It's an interesting legal case."

Those who were bound to the barrels -- calling themselves water protecters and representing environmental activists Arkansas Rising -- were initially charged with disorderly conduct, obstructing a highway or passageway and criminal trespass, all Class C misdemeanors.  Prosecutors dismissed the disorderly and trespassing charges and only the obstructing a highway or passageway charges remained for Tuesday's preliminary hearings.

Tankers lined up while MPD shut down access to Valero
--Moore Media Images
Working explained that prosecutors had a problem with charging both trespassing on private property and obstructing a public space like a sidewalk -- it's either but can't be both, he said.  Prosecutors thus chose to drop the trespassing charge and go with obstructing the sidewalk.

Valero terminal operator Raymond Radach was trotted around among four courtrooms to testify against defendants.


Radach acknowledged, however, that tanker trucks had room to come and go around the protesters, who were positioned in the entry and exit driveways of the refinery on Mallory Avenue.   He said the decision to shut down Mallory Avenue and cut off all truck traffic was made jointly by MPD and Valero management.  Police also shut down exit 9 on I-55, which left truckers backed up for several hours waiting to get filled with gasoline or diesel fuel at the Valero pumping station.

Prosecutors argued that the protesters' actions led to police deciding to shut down all traffic on Mallory. Ballenger argued that the statute required prosecutors to show there was an "unreasonable inconvenience" caused by the protesters.  

"There is a reason why the statute doesn't just say an inconvenience," Ballenger said.  "They have freedom to assemble and to protest.  The statute has to be interpreted narrowly.

"It may be bad PR for Valero," Ballenger said, "but that's not an unreasonable inconvenience.  The tanker trucks on the street were empty.  There was no hazard.  It was Valero and MPD who decided to stop the trucks."

Deputies with zip tie handcuffs Feb. 15, 2017
--Moore Media Images
The courthouse atmosphere was less tense than the defendants' previous appearance date Feb. 15, 2017, when more than 30 Shelby County deputies and tactical officers formed a phalanx at the foot of elevators outside general sessions courtrooms.  The sheriff's department apparently was reacting to a Facebook post by Arkansas Rising which called for "court solidarity" with the defendants and urged sympathetic persons to show up and provide moral support.  

Having whittled down the charges, prosecutors also appeared less fervent than in mid-February when it seemed as though they were pressing to make an example of the Valero defendants. For instance, prosecutors in February had continued cases against Gay and Rasoul, although such charges as against them are usually dismissed before reaching the preliminary hearing stage.  

About 15 friends and family and supporters, some wearing Arkansas Rising T-shirts, showed up in solidarity with the defendants.  Defendants Conner, Ramirez, Gay and Hanson had traveled overnight from respectively Oklahoma and Missouri for the court date.  

Of the original 12 persons arrested, cases against all five who were not in barrels have been dismissed -- this included  journalist Gay and live-streaming observer Paul Garner.  Of the seven chained into barrels, Ruby Montoya and Jessica Reznicek of Iowa pleaded out upon being released from Shelby County jail and paid fees and costs.

While defendants told their lawyers how much they appreciated the pro bono legal help, there was a mutual admiration component from the attorneys, who have conviction about defense of the First Amendment.

"You are doing a public service," Working told them.  


Conner, who traces ancestors to the Muscogee tribe, and Ramirez of the Osage tribe, were attired in traditional Native American garb and effects.  Their heritage gives them a special incentive to defend the Earth and water, they said.

While Memphis residents have heard much this year about black lists, A-Lists and BOLOs against political activists, courthouse sources say the sheriff's department no longer keeps a BOLO (be on the lookout) list for those entering the Shelby County Justice Center at 201 Poplar.  Formerly, persons on such lists were required to be escorted by officials when entering the building.

San-Antonio-based Valero Energy Corporation (VLO) is an international oil refining and marketing corporation with a $28.9-billion market cap.  Having acquired refiner and retailer Diamond Shamrock in 2001, Valero is a 50% partner in Diamond Pipeline LLC along with Houston-based Plains All American Pipeline (PAA). Among 15 refineries in the U.S., Canada and the UK, Valero last year averaged 2.85 million barrels a day throughput across all its units.  

The company beat earnings forecasts at its April 25 Q1 report and closed trading today at $64.90. Profit for 2016 totaled $2.3 billion. 

We contacted several New York- and Chicago-based financial analysts who follow Valero to ask their opinions on the value Valero will derive from the pipeline and to comment on any societal impact.  They all declined or refused to talk to us.  (Was it something we said?)

However, analysts have factored in efficiencies the company will gain from the Diamond Pipeline, which will free up Valero's existing Memphis pipeline for other transmissions. At a cost estimated at $900 million, the 20-inch pipeline is expected to be completed later this year.  It will transport 200,000 barrels of light sweet crude daily to the Memphis refinery.  

Here is a link to the pipeline route:

Who Will Watch the Watchers? is a Memphis-made documentary that tracks the struggles of citizens who were arrested for filming police, then sought justice at City Hall in an election year.  While following that story in real time, the film also examines the increasing ways we view police in action; citizen oversight of police; police-community tensions; Black Lives Matter, and the condition of the First and Fourth Amendments in the Trump era.  

Film trailer:

Film YouTube channel:

Film website:


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