Occupy San Diego-Protester Rights And Police Tactics

CAVANAUGH: Occupy San Diego says it plans to bring in at the points once again at the down civic. Astronomers demonstrate new definitive evidence of a new black hole. This is KPBS Midday Edition. I'm Maureen Cavanaugh. It's Monday, November†28th. Our top story on Midday Edition, occupy San Diego says it's willing to risk another confrontation with San Diego police. This morning, Los Angeles police cleared their city hall of occupy protestors, and of course we're all aware of the pepper sprayed police actions against Wall Street protestors in Oakland and Irvine. Most Americans are aware of their rights to join in a protest march. But what are our rights when protests dot the country and stretch out for weeks? Joining me to discuss the rights of occupy protestors and the concerns of police are my guests, David Blair-Loy. He is legal director with the ACLU of San Diego and imperial counties. And David, welcome. BLAIR-LOY: Thank you, Maureen. CAVANAUGH: Norm Stamper is also joining us, former Seattle police chief and former assistant police chief of San Diego. Welcome STAMPER: Thank you. CAVANAUGH: And if our listeners would like to join the conversation, you can give us a call at 1-888-895-5727. Let's start out, David, with this idea that occupy San Diego is putting up tents again at civic center even though they have been told it's a violation of a city ordinance. If you were advising occupy San Diego, what kind of response should they expect from authorities? BLAIR-LOY: The San Diego police department has been relatively moderate compared to some other police departments. Less open to occupy protests than others. I suspect the San Diego police department will probably not tolerate camping in the plaza much longer. Whether it should do so is a different question. I'm aware of various municipal code provisions that tend to prohibit camping in the plaza. It's a question whether those should be amended or strictly enforced when first amendment issues are at stake. And there's no doubt that part of the message of the occupy movement is to occupy, by definition. That may not give them an unlimited first amendment right to take over public space permanently, but I'm not sure it's the right thing for the city to categorically prohibit this kind of protest by camping or occupying. CAVANAUGH: Now, occupy San Diego has filed for a temporary restraining order against the city, claiming police are violating their free speech rights. Is that on the basis of what you were just saying? That they should be able to put up tents and to stay in the civic center? BLAIR-LOY: The occupy case I've seen is about a particular municipal code provision that prohibits placing structures or items on publicity property of the that's a Supreme Court case from 1984 called Clark against community for creative nonviolence, and that was a case about camping in Lafayette park across from the White House. And the Court said it would assume that the camping is symbolic conduct or expressive conduct subject to reasonable time, place, and manner limitations. The Lafayette park is different from the civic center plaza or other public spaces. It's not a 1-size-fits-all rule. The Supreme Court said the national park service was within its rights to prohibit overnight camping as long as it allowed other forms of speech and protest. Whether that rule extends categorically to the civic center Plaza or other public area system not certain. Cases depend on their facts. And this is a different time and place. CAVANAUGH: Now, David, we have heard somewhere between 108, 112 people already arrested in occupy San Diego. Do you know what those charges have been? BLAIR-LOY: As far as I know there were charges either for violating the underlying municipal code or for obstructing police in the case of making arrests for the municipal code violation. I haven't seen the citations. Maybe resisting arrest. I'm not aware of any felony charges or any violent charges. The usual type of civil disobedience type charges. CAVANAUGH: Here's the question. You said they can't occupy the civic center permanently. So how long can protestors? Do we know how long occupiers can occupy, whether it's a park in New York or it's a civic center here in San Diego? BLAIR-LOY: Well, I should have said to clarify, I don't think that any group can exclusively and permanently occupy a given public space. That's not to say some form of permanent protest could not be allowed. The first amendment standard is -- and this assumes, by the way, that any restriction on speech-related conduct is neutral as to content and is not based on suppressing speech because of its message. Assuming content neutrality, the case law standard is reasonable time, place, and manner regulations. And so it's difficult to put an exact number on what is reasonable. It has to take into account a number of factors. One is the ability of other people to use the space. One is the effects of the conduct, and what impact does it have on the space, on other people. So a lot depends on the circumstances. CAVANAUGH: And it sounds to me like free speech rights get a little bit more complicated as time goes on. Is that a fair statement? BLAIR-LOY: I'm not sure I would say it that way. What I would say is that there is speech, there is speech-related conduct. There is the message, the occupy messages. Say, for example, Wall Street has bought out both political parties. That's one message. And you can say that. You can put that on a sign, you can say it through a loud speaker. You can put up a tent and occupy as a symbolic protest. Each of those forms of speech has different forms of impact on the community. The first amendment is based on the core principle that the mere statement of the message merely saying the words is absolutely protected. If I build a tent as part of my message, and I sleep in that tent and occupy the plaza, that's symbolic conduct in addition to my speech. And that does have an impact on the community, on that public space. And my right to engage in that symbolic act, that conduct, which is related to my message, has to be balanced against the rights of the public, and other people to use that space. Because, after all, it is public space that belong to the public as a whole. That being said, one of the functions of public space is to give people a forum to express their message through pure speech or speech related conduct CAVANAUGH: I see. Okay. So that's the dilemma we find ourselves in when we're speaking about the occupy protest movement. Let me bring in Norm stamper, as I said, former Seattle police chief. You spent 28 jeers here with the SDPD before you were chief of the Seattle police department, and of course that was made notable by the world trade organization riots in 1999. Protestors were teargassed and pepper sprayed and hit with rubber bullets during that event. Do you see any connection between the police response then and the one we're seeing across the country now? STAMPER: Well, I think we learned an awful lot from the experience in 1999. And some of those messages have been applied, and others have not. As I look at the occupy movement around the country, and I look particularly at the footage of police tactics, I would agree with what David has said. The San Diego police department has responded in a more moderate, if not quite a bit more moderate way than was the case at UC Davis and Berkeley and certainly in Oakland as well. But I think the one thing that stands out for me is the use of chemical agents when they're not necessary. Pepper spray, for example, was invented and developed as a nonlethal alternative to lethal force. It is used for the protection of a police officer or the protection of another citizen. By that I mean properly used. And it's very, very clear that those chemical agents, including teargas have been used in my judgment improperly. CAVANAUGH: Let me expand on that. And let me allow you to expand on that, if I may. I think many people have been shocked by images of police using pepper spray on peaceful demonstrators, people who are just linking arms or some people who are already in police detention. Why is it that you think in some areas of the country police are reacting in this way? STAMPER: Well, two things to keep in mind about police officers and about the culture of policing. One is that police officers are by definition action-oriented. They are intended by our society and with respect to the internal expectations to be problem solvers, to take care of problems. And they're also hard-wired to not back down. And so one of the problems would be these sort of mutual impulses on the part of the police to take action and to not back down. But fundamentally, the occupy movement has put the politicians, the local politicians, whether that's a mayor or a president of a university system or the chancellor of a campus into the driver's seat when it comes to the politics of tactics. Our mayor in Seattle, for example, apologized to a woman who was pepper sprayed and apologized for all of those who were nonviolent and not threatening who got a dose of that highly irritating and painful substance. So I think what really does have to happen is that police executives and political executives have got to find a way to communicate with the demonstrators, and appreciating the fact that occupy is essentially a leaderless proposition, find a way to chant on the tactics so that the occupy forces get the kind of mileage that they're looking for. Disclaimer here. I happen to be a very strong supporter of the occupy movement. I believe in its purpose. But I do believe that there has to come a time when the police and the protestors put their heads together and say how do we provide this opportunity for you, using your free speech rights, to communicate that message and at the same time insure for the health and safety for the broader community as well as those people who might otherwise be the victims of police excesses when things get out of hand? CAVANAUGH: I'd like your reaction to what norm was just saying there. BLAIR-LOY: I agree very much with what he's saying. I would add that quite apart from the inherent benefit and inherent body of respecting free speech rights, respecting the right to protest and assemble peacefully, balancing that against the rights of the public. It all -- the approach that norm is describing would also have the very significant benefit of saving lots of money for the city and local governments because the more cooperation and collaboration you have, are the less police presence and overtime will be needed. And police overtime costs a lot of money. CAVANAUGH: The San Diego police let us know that they're totaling up what it costs to look after the occupy San Diego protests in $2.4†million, I think is the amount of money. But that's in overtime and some people came back I know on our website and basically said that's because of the way the police have decided to go about this. BLAIR-LOY: Absolutely. The police were free to make their staffing and tactical decisions in a different way. They staffed the Civic Center plaza with a large number of officers. There are to my rough count, at least a dozen officers in and about the plaza at any given time. That's a dozen officers that could be patrolling the streets elsewhere. I'm not -- the police chief doesn't share his staffing decisions with me. Perhaps norm can speak to this in more detail with the benefit of his experience, but it seems to me from the outside looking in that the threat to the public of the occupy movement is not that high. At worst it's perhaps an inconvenience for some people CAVANAUGH: Well, let me say this, norm, there are some who say there are groups within the occupy group, anarchist groups and so forth, that do want to provoke confrontations with the police. What is a police department supposed to do with that? STAMPER: Well, first of all, I think it's important that everyone recognize that there are forces within any political movement who want to capitalize on the mass of numbers, on the emotional content of the message that's being delivered. And yes, their purpose by definition, an an,ist's purpose, is to disrupt and to do so without clearly defined rules or announcements as to the rules of engagement, that sort of thing. And so certainly saw that during the battle of Seattle. We had an,ists who occupied a vacant building near our west precinct and used that as kind of their headquarters for their hit-and-run tactics throughout the week. So we all need to recognize that there are going to be people who are attempting to exploit the situation. I would offer this observation. I don't know whether David and I disagree on this, but I do believe that the more officers you have who can be mobilized and visible, whatever affect that can have on some demonstrators, the less likely it is that there will be a need for watons or chemical agents. In Seattle, we had 50,000 antiglobalization demonstrators taking to the streets of our city in 1999. We had 900 cops police a couple hundred borrowed from other agencies to deal with that. We were completely overwhelmed. And what the result was that we relied on those tools that you described earlier in the report. CAVANAUGH: Right. And your response, David? BLAIR-LOY: San Diego and Seattle are very different situations. I didn't get a head count exactly of how many people were in the Civic Center plaza. I walked through one time, and it looked to be no more than a couple hundred. Extremely peaceful, extremely quiet. Nobody throws rocks or bottles. Now, I'm not saying people couldn't do that. I'm not saying people might not have done that. I think the police response, and this is a corner stone of the law of policing. And I think norm would agree. The use of force must be proportional and reasonable in response to the situation, and it has to be tailored to the situation so that if you have a largely peaceful protest with a few potential possible bad actors, then those persons can be properly addressed with a proportionate use of force starting at the minimum and going up the continuum. One problem, and I -- I'd be interested in norm's thoughts on this, I think this is a problem with the culture of policing generally in my experience. Things like chemical agents like pepper spray, like tasers, teargas, they start -- they're promoted as an alternative to lethal force. In other words, in a police officer had to shoot somebody in that horrible situation, this is an alternative so you don't have to shoot and kill somebody. But what I've seen happen, and I understand others have studied and documented, is that these chemical agents and electrical weapons inevitably slide down the use of force continuum, and they substitute for -- instead of substituting for lethal force, they substitute for nonlethal force. So instead of a police officer, and I'm not saying all officers do this, but I've seen it happen, I tried a case like this last year, they use a taser instead. Putting their hands on somebody when there's no evidence that the person's at all a threat CAVANAUGH: I'd love to pursue that line of conversation, but we're almost out of time. And I do want to ask you, David, on Friday, occupiers staged a flash mob at Walmart stores to tell shoppers about the alleged abuses of Walmart and urge them to shop somewhere else. What rights do protestors have in those situations? BLAIR-LOY: Peaceful protest, peaceful assembly, peaceful dialogue is protected by the constitution. California has certain free speech rights on private property, but the basic principles is peaceful dialogue, even if it's verbally provocative, if it's not physically confrontational or obstructing access, then our position that is or should be protected by law. CAVANAUGH: There were just a group of people, maybe about a dozen people, who were just speaking together in sort of that mic chant that the occupiers have, and there is actually a link on our website to that experience. And they didn't have any problem with Walmart. They were just -- they just did that, and then they left. That's what they should expected in if that happens again? BLAIR-LOY: I think that should be right. I think that should be protected. I can't speak for what Walmart might do on any given property and what their property rights are in any given state. But as far as I'm concerned, that should be protected. CAVANAUGH: We have a link to the ACLU's know your rights pamphlet on our website. That's KPBS.org.