By all indications, Daniel Gross was singled out. What remains unclear is how long they’d been watching him.
Gross, an organizer of the first ever Starbucks workers union, was arrested on Saturday, August 28, during a heavily policed march outside the café where he works. To be more precise, Gross was seized by a police captain after the peaceful sidewalk march concluded, just as he was about to thank everyone and say goodbye. Out of the crowd of approximately 200, only one other person was arrested—Anthony Polanco, another union organizer.
“It’s interesting to consider the possibility that these were targeted events,” Gross said, choosing his words carefully. “A legal observer came up to me later in the week at St. Mark’s Church, after I was released, and said, ‘I was at the march, and from the outset the captain who later ordered your arrest had his eye on you. He said [to some officers], “Keep your eye on that one. If he steps one foot off the curb, collar him.” ‘ ”
Unlike most of those arrested during the Republican National Convention, Gross has his own lawyer, and he’s pleading not guilty to charges of disorderly conduct and resisting arrest. His attorney, Leonard Weinglass, has championed activists since he became famous for defending Tom Hayden in the Chicago Seven trial. Gross hopes his case will challenge the constitutionality of applying misdemeanor statutes to political speech and assembly.
“We want to take a principled stance against the criminalization of dissent in general,” Gross says. “And also, I’d like to avoid being caged up in jail.”
One thousand, eight hundred twenty-one arrests—more than during any political convention in our nation’s history. Yet the widely reported figure is a measure not of the strength of the protest movement, but of the very real chill on activists like Daniel Gross and, indeed, anyone who voices an unpopular belief in public. The actions that became grounds for arrest during that highly charged week included walking down the sidewalk during a march, riding a bicycle virtually anywhere in the city, and in the case of those arrested inside Madison Square Garden, expressing an opinion different from those around you.
For bicycle riders, the climate continues; the 1,000-strong Critical Mass ride on Friday, an event usually tolerated by and even escorted by the police, instead led to nine arrests and the seizure of 40 bicycles, their locks sawed through.
In the coming weeks, as activists have their days in court, these dangerous precedents will be on trial as well.
The vast majority of those arrested during the convention were rounded up before any identifiable offense was committed. “There was a smell of preemption” to many of the NYPD’s actions during the week, said Donna Lieberman of the NYCLU. She said police acted “in many cases appropriately,” giving half a million people the opportunity to march peacefully on Sunday, August 29. Nevertheless, both the Civil Liberties Union and the National Lawyers Guild are actively preparing for civil litigation over what they call indiscriminate arrests, lengthy detentions, and perhaps the conditions under which people were held. “Hundreds of people were caught up in the sweeps with orange netting for doing nothing wrong,” Lieberman said. “The police used a bait-and-switch operation in a couple of instances to arrest about 300 people each time.”
Christy Pardew, communications coordinator for the School of the Americas Watch, was ensnared that way. On the afternoon of August 31, her group was marching two abreast on the sidewalk, without a permit, toward Madison Square Garden, where around 50 of the 500 or so marchers planned to lie down in the street in a staged die-in. Before they could carry out their civil disobedience, Pardew and over 300 others were surrounded and arrested half a block from ground zero, their march hardly begun. “I think the police were quelling dissent, quieting voices of demonstrators so that things didn’t get covered,” she said. “A lot of people felt the arrests were really unfair.”
The NYCLU and the National Lawyers Guild are also concerned with how people were held—in pens on the filthy floor of Pier 57 and in the basement of 100 Centre Street for a total of 30 to 60 hours, in what some defense lawyers called “illegal preventive detention.” Although the legal efforts to speed their release included a writ of habeas corpus, a post-midnight State Supreme Court judge’s order, and a $1,000-per-head fine for contempt of court levied by another judge the next day, ultimately those who were detained were at the mercy of the system for those two days of their lives. It remains to be seen whether they will receive any redress. The city has been granted a stay on a contempt-of-court hearing, originally scheduled for September 27. Now the fines will not be argued until November 23.
Now that the arraignments have begun, many have arrived in court to find their charges inflated, with bicyclists often seeing charges of “parading without a permit,” or perhaps with a count of “obstructing governmental administration.” OGA in the second degree, a mystifying charge to many of those arrested, is a class-A misdemeanor, which basically means getting in the way of a working cop. “When you see a charge of OGA, it’s the type of offense that gives rise to some suspicion about the validity of the arrest,” said Earl Ward, an attorney who is a former member of New York’s Civilian Complaint Review Board. “Years ago, the police used to have a saying that you take the person down the ROAD: Resisting, Obstructing, Assault, Disorderly conduct. OGA is much more serious than disorderly conduct; it could lead to a conviction on someone’s record.”
Besides the hassle of a possible conviction, pleading not guilty means returning to court several times in the next few months. If you have a full-time job, legal aid probably won’t pay for your defense. Informed of this, the protesters who have appeared in court so far are generally accepting Adjournments in Contemplation of Dismissal, or ACDs. An ACD is no harm, no foul. Stay out of trouble for six months and the charge disappears. You don’t have to come back to court or pay a lawyer. The catch? An ACD may interfere with your ability to join or file a civil lawsuit; it precludes suing for malicious prosecution, for example.
For most of those arrested, be they anarchists or Chinese-food deliverymen, the story will end there. But not for everyone. Jamal Holiday, who turned 20 on September 1, is the lone RNC protester still in jail. An African American who lives in a West Harlem group home for foster-care kids, he is charged with second-degree assault in connection with an attack on a plainclothes police officer, William Sample Jr., who drove a scooter into a crowd at the peaceful Poor People’s March on Monday, August 30. According to eyewitnesses, Sample was repeatedly ramming his bike into the crowd until he was physically restrained by protesters and fell off. Videotape shows a young man punching and kicking Sample while he was on the ground.
Meanwhile, activists now savoring their freedom are thinking about new strategies for effective resistance. Kris Hermes demonstrated on the floor of Madison Square Garden with 10 other members of ACT UP to demand that Bush support debt relief in AIDS-racked developing nations. Four of them had been arrested earlier that week for blocking traffic while naked and painted with the slogan “Drop the debt.” “We try to equate the issue with the tactic involved,” said Hermes of ACT UP’s confrontational, attention-getting m.o.
Inside the convention hall, the group, who had obtained legit passes, began chanting and holding up signs during a speech by White House chief of staff Andrew Card. They were dragged away by the Secret Service. During the nationally televised melee, a white male Young Republican was videotaped kicking a young female Asian protester. The ACT UP members were charged with assault, disorderly conduct, and inciting a riot; only the disorderly charge remains.
Hermes coordinated legal aid for the 2000 RNC protests in Philadelphia, which helps him know what to expect this time. Out of 420 arrests there, only 3 percent resulted in convictions. Nine protesters are currently appealing, including Kate Sorensen, an organizer famously arrested in Philadelphia while talking on her cell phone and charged with being a “ringleader” of the protests. During the trial, it came out that the FBI had been following Sorensen since April 2000. Her 10 misdemeanor and 10 felony charges were eventually reduced to a single misdemeanor.
This time around, there are even fewer serious charges than there were in 2000, when 43 protesters were initially hit with felonies. The bad news for those arrested at this RNC is that the last three felony defendants in Philly finally finished their cases only in April 2004. The so-called Timoney Three were charged with assaulting then Philly police chief John Timoney, now chief in Miami. They were acquitted.
For Hermes, publicity work to keep cases like these in the news, as well as legal-defense strategies including civil suits, is just part of protecting protest now. “We need to think creatively in order to combat these tactics that have been repeated over and over at mass demos in the past few years,” Hermes says. “At nearly every one you see indiscriminate mass arrests—media, legal observers, people providing medical assistance, round ’em up. They send a message that it’s not OK to protest on our streets. A fiercer offensive attack against those types of tactics is what I think needs to happen. How you do that legally is where we need to go back to the drawing board.” Hermes suggests dispensing with permitted protests, for one thing, in favor of “free and spontaneous” assemblies.
Terra Lawson-Remer, of the ad hoc group Operation Sybil, agrees with the need for new strategies. She and her associates rappelled from the roof of the Plaza Hotel on Thursday, August 26, and dropped a giant banner reading TRUTH → / BUSH ←. They were apprehended by cops in climbing gear. “It was a personal risk, including the very real risk of getting arrested,” Lawson-Remer said of the daredevil plan. “It demonstrated that we were serious, that we cared enough about this that we were willing to risk our futures.”
But the risk was calculated. Lawson-Remer, herself a J.D.-Ph.D. student at NYU, wasted no time on a legal strategy for the group. “I recruited Gerald Lefcourt, Abbie Hoffman’s attorney, long before we did anything,” she said. “I got him on board before we had the climbers on board.” Lefcourt, past president of the National Association of Criminal Defense Lawyers, is another ’68 veteran who defended Hoffman in the Chicago Seven trial.
Because a police officer stepped through a skylight and scratched his leg while trying to reach them, the group now faces felony charges of assault and reckless endangerment. Lefcourt has said he plans to push for all charges to be dropped when the four appear in court on November 30. “I want to pass the bar,” says Lawson-Remer. “It’s not cool. We’d be facing like 20 years.”