Are Stay-Away Orders Against Occupy Oakland Protesters Constitutional?

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In an attempt to punish and deter Occupy Oakland protesters, the Alameda County District Attorney’s Office has employed the use of stay-away orders on at least fourteen protesters after the January 28 move-in marches and the subsequent mass arrest of 408 protesters, including journalists. But those stay-away orders are now being challenged in the courts on the grounds that they violate the constitutional rights of protesters, particularly those who have not yet been convicted of any crimes.

OMalley
  • O'Malley
In laying out her justification for the stay-away orders, Alameda County District Attorney Nancy O’Malley says the First Amendment rights of protesters need to be safeguarded, but then singles out some some Occupy Oakland protesters, calling them “militant, anti-government, anti-police, and anarchists” and dangerous to the “community fabric of Oakland,” even though they have not been yet convicted of wrongdoing. The ACLU, however, argues that O’Malley is engaging in “viewpoint discrimination” and that the stay-away orders violate “constitutional guarantees of equal protection.” The ACLU contends that government regulation of speech should be content neutral — and not based on affiliation to the Occupy movement.

The ACLU has already filed a lawsuit on behalf of Scott Campbell, the videographer who was shot by an Oakland Police officer with a rubber bullet while filming the events of the morning of Nov. 3, 2011. And the civil rights group has filed a habeas corpus writ on behalf of four Occupy Oakland participants arrested during the January 28 marches. The writ argues that the government has failed to show how the stay-away orders serve any government interest, particularly since the protesters in question have not actually been convicted of any crimes.

So what are the stay-away orders? They bar specific protesters from Frank Ogawa Plaza in a radius that is either 100 yards (Frank Ogawa Plaza proper) or 300 yards (as far as 12th Street to south and 17th Street to north), though where that radius starts is up to interpretation. The protesters are not allowed to enter Oakland City Hall or attend any public meetings. If violated, said protesters risk having to serve up to six months in jail.

However, the four participants who are the focus of the writ and are subject to the stay-away orders weren’t arrested near the plaza. Joanne Warwick, an attorney, was arrested on 9th Street near Laney College during the January 28 afternoon march on suspicion of "willfully and maliciously blocking a street or public sidewalk" and resisting arrest. It was the first time she had ever been arrested, according to the writ.

Chloe Watlington was arrested on suspicion of vandalism at the Marriott Hotel on Broadway at 10th Street, and for suspicion of obstructing a police officer at Broadway and 14th Street. After being charged with three misdemeanors and being released without bail, she was slapped with a 300-yard-stay-away order from the plaza, according to the writ.

Mario Casillas, who was arrested on suspicion of assaulting a police officer on 12th and Oak Streets, was given a 100-yard stay-order because, according to the writ, the prosecution argued that “other demonstrators went there after Mr. Casillas was in custody.” The charges against him “forfeited his right to peaceably gather and demonstrate and exercise his First Amendment privilege.” Finally, Michael Lubin was arrested on suspicion of assaulting two police officers at two different locations: 12th Street and Jackson, and 19th Street and Rashida Muhammad Street.

To put that in context, the two male protesters charged with felonies are only barred from being 100 yards within the plaza, while two female protesters, charged with misdemeanors, are barred from being within 300 yards.

The US Supreme Court has addressed the issue of court orders imposed on demonstrators who have engaged in disruptive behavior, including cases where assaults occurred. The cases involved protests outside of abortion clinics with people who had a long history of illegal and disruptive behavior, according to the writ. Despite this, the Supreme Court found that in cases involving restrictions on demonstrators returning to the site of a protest, extra caution must be given and standard “time, place, and manner” restrictions were “not sufficiently rigorous” in making sure that a court orders does not “burden no more speech than necessary to serve a significant government interest.” The ACLU contends that the orders, as a result, unduly restrict a person’s constitutional rights — even if they have engaged in prior illegal or disruptive behavior.

Another key point in the writ is that the DA’s Office tacked on the stay-away orders as a precondition for being released on bail or on a person’s own recognizance (no bail required). The ACLU argues that in a case of a doctor who allegedly sexually exploited his patients, he had to give up his medical license as a condition of being released on bail. The courts found, however, that this stipulation violated his constitutional right to due process. The ACLU contends that this same right exist for the four protesters.

Finally, O’Malley’s op-ed piece in the San Francisco Chronicle, the ACLU argues, proves that she has targeted individuals based on their political affiliation and ideology, which is unconstitutional. Such protections are established in the Equal Protection Clause, and it is main reason why government can only regulate speech if the guidelines are content neutral.

Correction: The original version of this post misstated the charges for which Joanne Warwick was arrested.

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