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Lynching is a felony offense in all of the US, but only a handful of states still prosecute under their outdated lynching laws, which were originally aimed at preventing racist crowds from overtaking police attempting arrests of black people, and enacting their own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."