OPD Arrest Occupy Protesters for 'Self-Lynching'
January 14, 2012
Susie Cagle / East Bay Express & Yael Chanoff / Bay Guardian
In California, Oakland police harass Occupy protesters by invoking a provocatively named law that doesn't mean what you think it means. Police have arrested some protesters on the charge of attempted "self-lynching." These controversial arrests have raised fundamental civil liberties concerns.
OPD Arrests Protesters for 'Lynching'
Susie Cagle / East Bay Express
OAKLAND (January 11, 2012) -- When Tiffany Tran was arrested at Frank Ogawa Plaza in a police action that swept up eleven other Oakland occupiers on December 30, she didn't know what she'd be charged with. After many hours in a stifling paddy wagon and a trip to Santa Rita Jail in Dublin, she still wasn't told, until she spoke with friends on the outside.
"And then I found out -- lynching," Tran said.
Specifically, 405(a) of the California penal code: Lynching. A felony, punishable by up to four years in prison.
Alex Brown, an African-American occupier, also was arrested under the lynching charge.
Brown and Tran, however, did not lynch in the traditional sense. They were arrested under a 1933 California law in which lynching is defined as "The taking by means of a riot of any person from the lawful custody of any peace officer." That riot is defined as two or more people unlawfully assembling in order to disturb the peace with or with the threat of violence.
"I think it's kind of a quirk that the California Legislature decided to name the statute by that term," Linda Lye, an American Civil Liberties Union lawyer in San Francisco, said of lynching.
Statutes against the rescuing of people from lawful custody are common. California penal code 455o: Any person who rescues or attempts to rescue any prisoner from any officer or person having him in lawful custody is punishable by up to one year in jail. Oakland police "could invoke the curiously named lynching statute, or they could invoke this other law," Lye said.
Lynching is a felony offense in all of the US, but only a handful of states still prosecute under their outdated lynching laws, which were originally aimed at preventing racist crowds from overtaking police attempting arrests of black people, and enacting their own version of vigilante murderous justice.
Some of these laws are very specific in their definition of lynching as "Any act of violence inflicted by a mob upon the body of another person which results in the death of the person." Many specify premeditation to the act as well.
Others are very broad. In 2010, South Carolina, where lynching was defined as any act of violence by two or more people against one, clarified its law in an attempt to stop what state representatives called its prosecutorial "misuse and abuse" and to remove the inflammatory "lynching" from the name.
The December 30 lynching arrests at Occupy Oakland were only the latest in a history of the law as applied to political protesters. In 1986, as a UC San Diego student protester was being arrested, a crowd gathered, chanting and shoving, until police released the protester. One student in the crowd was charged with lynching, though the charge was later dropped. In 1999, some of the eleven anti-fur protesters who locked down a San Francisco Neiman Marcus were charged with lynching; their charges were later dropped.
That same year, the definition of "lynching" was broadened in the First District Court of Appeal's decision in People v. Anthony J.: "We conclude that a person who takes part in a riot leading to his escape from custody can be convicted of his own lynching."
Further, this definition came to include alleged attempts at lynching, as well. This is what happened to Gabe Meyers in 2005, when he was arrested at an anti-G8 protest in San Francisco and allegedly cried, "Help me" while being choked by his arresting officer. Meyers' charges were dropped in 2006.
The lynching charge was included in a list of potential charges for Oakland police to level against protesters they arrested in operation memos circulated before the October 25 raid on the Occupy Oakland camp at Frank Ogawa Plaza. But the charge was later described in a city statement as "attempting to free those arrested from police officers through force" as opposed to the provocative "lynching."
Tran did not attempt to free other occupiers, but yelled "help" during her arrest. "From what I can gather, that's what the lynching charge is for," she said.
"If someone says 'help,' then there's a question of how the statute on its face applies," said Lye. "I just literally don't understand why crying out is taking someone from custody."
Alameda County Deputy District Attorney Teresa Drenick said the cases remain "under investigation" and a decision "has not been made" as to whether Tran and Brown will face prosecution as attempted lynchers.
"The thing that's interesting and troubling to me is not so much that OPD has tried to invoke the curiously named statute, but that we're getting reports from Occupy protesters that they are being targeted for their First Amendment activity," said Lye. "And if in fact OPD is targeting occupiers for their First Amendment activity, then it has an obvious chilling effect."
Perhaps even more chilling than "lynching."
Obstructions of Justice
Yael Chanoff / San Francisco Bay Guardian
(January 13, 2012) -- The uneasy relationship between OccupyOakland and the Oakland Police Department has resulted in a troubling spate of controversial arrests recently.
At a press conference last month, Police Chief Howard Jordan stated, "The plaza area outside of City Hall is a public area. We do not have any legal right to remove you if you're standing there, at any time during the day, if you're exercising you're First Amendment rights. If you're not breaking the laws, we're not concerned about your presence."
But now, Oakland police have arrested dozens of people who were doing little more than "standing there, exercising their First Amendment rights" -- and one man even faces life in prison for it.
There have been 40 arrests in the last couple weeks, including two incidents at Frank Ogawa/Oscar Grant Plaza. In each episode, police say they were just doing their job, enforcing laws surrounding permit violations. But many supporters and lawyers associated with OccupyOakland say that police have created a targeted and discriminatory campaign to wipe out the movement.
VIGIL TURNS VIOLENT
About 100 protesters were present at a permitted vigil on Dec. 30. An OccupyOakland participant had been issued a permit for a teepee and one table, but police showed up at noon to explain that they were in violation of that permit, claiming people were sleeping, eating, bringing in trash cans, and storing belongings in the teepee
Protesters say they were cleaning up the plaza when police started making arrests; police say they refused to comply. But both parties say that the scene turned violent.
"Who instigates the violence? I don't know," Matt Perry, a movement supporter, told us. "A cop tells you to back up and you don't back up, he's gonna use his baton on you."
But many of the arrests and citations had nothing to do with assault. Carly says she was arrested for "having a yoga mat under her arm." She was later charged with obstruction of justice. In an even more puzzling case, 23-year-old Tiffany Tran was arrested and charged with "lynching."
"The taking by means of a riot of any person from the lawful custody of any peace officer is a lynching," reads California Penal Code 405a, a felony charge punishable by two to four years in prison.
The law attempts to prevent white mobs from forcibly taking African Americans from police custody to kill them, but police have a history of using it against protesters, stating that anyone trying to stop an arrest is guilty of lynching.
Tran says she was held in a pitch-dark police van for seven hours before she was booked at Santa Rita Jail, where she was held in 22-hour daily lockdown due to overcrowding. She was held for four days without being told why.
On the fourth day, she was finally arraigned, but prosecutors opted not to file charges and she was released. But Tran said the tactic left her uneasy because prosecutors said charges could still be filed until the statute of limitations expires in a year. As she told us, "Now I feel I can't go out and express myself as I should be able to."
ON THE GROUND
When I arrived at 10pm on Jan. 4 to investigate the situation at the vigil, the scene was calm. About 40 people sat and talked, a few worked on computers.
"Some of the people here were arrested mainly for contempt of cop, or being against the government. And then charges of lynching or obstruction of justice were brought after the fact to substantiate an unlawful arrest, to allow the wheels of so-called justice to turn a few more times," Svend La Rose, an ordained minister and member of OccupyOakland's tactical action committee, said of the Dec. 30 arrests.
Suddenly, the cry of "riot police!" rang out.
Police cars had pulled up on 14th street, and a line of police exited. In unison, they started advancing, brandishing batons. Many who were at the scene grabbed their possessions and fled. Most just backed away as the cops advanced. A handful stood in front of the teepee, and were arrested on the spot.
Twelve were arrested, including La Rose. Also arrested was Adam Katz, a photographer from the media committee who was documenting events. Katz said that police told him to back up, and when he complied and backed up "probably 50-60 feet," he was still arrested.
"I took one picture and I was told to back up," he said. "I repeatedly asked 'Back up to where?' as an army of police pushed me out of the plaza. They said, 'Back up behind the line.' I kept saying, 'What line? I don't see a line.'"
Then there's Chris, another occupier arrested Jan. 4. According to Katz and other witnesses, Chris had already left the plaza and gone across the street when he was arrested for somehow delaying the police who were trying to clear the plaza.
On Jan. 7, OccupyOakland held an "anti-repression march," claiming that recent arrests are an overt attempt to repress the movement. The National Lawyers Guild issued a statement demanding an end to the "ongoing violence, harassment, and unconstitutional arrests of Occupy Oakland protesters."
"There is evidence that would go to show that they were targeting people based on First Amendment activity, and not for illegal activity," said attorney Mike Flynn, president of the NLG-SF. "Police charged into the plaza and grabbed whoever they could, and also targeted selective people who withdrew and didn't even linger there."
But OPD spokesperson Johnna Watson told us these arrests were perfectly legal. "The law allows us to use our discretion," she said.
A person's history with the movement is factored into this discretion. Many of those Perry deems "regulars" are, according to the police, "repeat offenders." As Watson said, "There may be knowledge of a past history, like a repeat offender. If an officer has knowledge that a crime is occurring, has occurred, or is about to occur, we have the right to issue a citation or arrest. If we have someone constantly continuing to break the law, we may not issue a citation."
In other words, involvement with this political movement can get people arrested who might otherwise not be.
"That police have escalated their attacks on people is pretty disturbing. It looks like they really think they can drive this movement out of Oakland with violence and repression," said Dan Siegel, a former legal advisor to Mayor Jean Quan who resigned over her handling of OccupyOakland.
Siegel is now representing Marcel Johnson, aka Khali, one of the several protesters arrested Dec. 30, who faces life in prison. A homeless man who became an OccupyOakland regular, Khali was arrested when he tried to hold on to his blanket, which police wanted to throw away, saying that it was unpermitted property.
While in jail, he was charged with felony assault on a police officer, his third strike. A protester called Black Angel who knows Khali said he was transformed by the movement. "He came here and found a family," he said. "He was like, I'm going to protect this. It gave me some sense of myself."
But now, Siegel said, "He faces life in prison because of his status of being poor, homeless, and with mental health issues."
Juries may decide whether OccupyOakland defendants are guilty, but Siegel said the arrests aren't just: "You still have to ask yourself, why are the police doing this when we have 100 unsolved murders in Oakland?"
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