So over the last few weeks, I have seen more and more Occupy DC protesters being brought in to DC Superior Court, arrested for this and that. DC has a system where most people charged with misdemeanors will be released on personal recognizance – allowed to go home as long as they check in with pretrial services, and follow any other orders the judge feels necessary. These orders are put in place at the time of arraignment.
All of the Occupy DC folks I saw come in have been ordered to stay away from the place where they were arrested, either McPherson Square or Freedom Plaza. I had not seen any of the defense attorneys object to this “stay away” order. It occurred to me that the stay away is an underhanded attempt by police and prosecution to stifle the protest – to deprive the movement of its leaders (if you accept that’s who the police target), or even of followers. If everyone has to stay away from the site of the protest, there is no protest.
I was in arraignment court last week watching a couple more Occupy DC protesters ordered to stay away from Freedom Plaza and McPherson Square. One of the people charged was being defended by a friend, a fellow criminal defense lawyer taking appointed cases. I asked her why not object to the stay away on first amendment grounds? Her client didn’t seem to have a problem with the order, and her first order of business was just getting the client released from lockup. That’s understandable. First things first – get out of lockup.
Anyway, then came my client – who really wanted me to object to this stay away for him. I objected to the stay away order on first amendment grounds: my client was arrested during a protest, while he was engaging in political speech, and the stay away would interfere with his freedom of association. The judge overruled – said that the stay away was there to allow for a “cooling off period”. My client is a real protester – he really believes in standing up for his first amendment rights.
I have since filed a motion to amend the release conditions – I am frankly more than a little surprised that there don’t seem to be any first amendment cases addressing this situation. I will admit that I am not a first amendment expert – did not take that class in law school. I am really going to have to grow to defend this client well. And that is why I am singing this client’s praises – this is what I got into this business for – an opportunity to grow. In the meantime, I am accepting any and all First Amendment pointers especially in the realm of protests and alleged “threats” and “attempted threats”.