@Enest A. Canning,

This article shines a light on the real facts of the unprovoked attack on innocent OCCUPY OAKLAND demonstrators. Thanks Ernest.

I have a question though.
If "The federal consent decree-mandated OPD Training Manual states that because chemical agents "can produce serious injuries or even deaths," chemicals can be used for crowd control "only if other techniques, such as encirclement and multiple simultaneous arrest...have failed or will not accomplish the policing goal as determined by the Incident Commander." was followed.; then why was tear gas used in the early morning attack on the OCCUPY OAKLAND camp by OPD, when the demonstrators were asleep?

You should have put more emphasis on that being unlawful also. That begs an investigation and lawsuits against the city and OPD.

Best,

Ralph

I forgot to add...OCCUPY EVERYWHERE!

The Sergeant declared a non-violent assembly unlawful.

Under California law, An unlawful assembly occurs when two or more people assemble together (to commit a crime/ [or] to do a lawful act in a violent manner). When two or more people assemble to do a lawful act in a violent manner, the assembly is not unlawful unless violence actually occurs or there is a clear and present danger that violence will occur immediately.

California Penal Code section 407 defines an "unlawful assembly" as two or more people assembled together "to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner." The Supreme Court has held that "the proscriptions of sections 407 and 408 on assemblies to do a lawful act must be limited to assemblies which are violent or which pose a clear and present danger of imminent violence." (In re Brown (1973) 9 Cal.3d 612, 623 [108 Cal.Rptr. 465, 510 P.2d 1017]; see Collins v. Jordan (1996) 110 F.3d 1363, 1371.) Because the assembly must in fact be violent or pose an immediate threat of violence, an assembly that is "boisterous or tumultuous" does not establish a violation of the statute.

So it was an unlawful order for the crowd to disperse. Thus the resulting use of chemical weapons, rubber bullets, and flashbang grenades was assault and excessive force, and it is the police who were there are guilty of rioting....

A riot occurs when two or more people, acting together and without legal authority, disturb the public peace by using force or violence or by threatening to use force or violence with the immediate ability to carry out those threats.

They should also throw in charges for...

Unreasonable force

Excessive force: In making arrests, maintaining order, and defending life, law enforcement officers are allowed to use whatever force is "reasonably" necessary. The breadth and scope of the use of force is vast—from just the physical presence of the officer…to the use of deadly force. Violations of federal law occur when it can be shown that the force used was willfully "unreasonable" or "excessive."

Failure to keep the public from harm....

The public counts on its law enforcement officials to protect local communities. If it’s shown that an official willfully failed to keep an individual from harm, that official could be in violation of the color of law statute.

Title 18, U.S.C., Section 241 Conspiracy Against Rights

This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same).

Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years, or for life, or may be sentenced to death.

Title 18, U.S.C., Section 242 Deprivation of Rights Under Color of Law

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

References

http://www.justia.com/cr...s/calcrim/2600/2686.html
http://www.fbi.gov/about...civilrights/color_of_law
http://www.fbi.gov/about...eral-statutes#section241
http://www.fbi.gov/about...eral-statutes#section242

Ralph: I appreciate your thoughtful and perfectly valid question.

However, this article, already quite lengthy, focused specifically on the evening events at 14th & Broadway.

We have not reviewed relevant footage or analyzed extensive witness accounts of the early morning roust of the encampment.

As you can see, Brad and I spent a great deal of time garnering the evidence so that we could present it in a way that readers can reach an appropriate conclusion about the evening confrontation at 14th & Broadway.

I don't think it appropriate for me to express an opinion on the earlier event as I lack sufficient information for doing so.

I should also note that any person can present a case to the Grand Jury in their community and the grand jury can issue an indictment without the District Attorney pressing charges.

Investigation of Complaints and Accusations

The grand jury also is likely to receive a number of citizen complaints, many of which involve operations of county or city agencies or special districts.

Whether the complaint is civil or criminal, rules of secrecy apply, and during the course of its investigation, the grand jury may not divulge the subject or methods of inquiry.

The subject of the investigation and the methods of inquiry are only revealed when the final report is published...

§ 919(c) of the Penal Code requires the grand jury to inquire into the willful or corrupt misconduct in office of public officers of every description within the county. Where misconduct is found, the grand jury may file an accusation leading to a trial. If the official is convicted, the person is thereby removed from office. Very few of these accusations are filed. Frequently, if there is misconduct in office, it is of a criminal nature, and an indictment rather than an accusation would be issued. It is also possible that an official would resign rather than face an accusation. The grand jury may file an accusatory pleading against a corporation doing business in its county of jurisdiction (Penal Code § 892). In a report published by the California Grand Jurors Association, misconduct in office could include any of the following:

Nonfeasance:

1) The failure to act where duty requires an act; or

2) Neglect or refusal, without sufficient cause or excuse, to do that which is the officer's legal duty to do, whether willfully or through malice; or

3) Willful neglect of duty

Misfeasance:

1) The improper or doing of an act that a person might lawfully do; or

2) The performance of a duty or act that one ought to do or has a right to do, but in manner such as to infringe upon the rights of others.

Malfeasance:

1) The performance of an act that is positively unlawful or wrong; or

2) The performance of a wrongful act that the person has no legal right to do.

I think this situation would qualify and you can bypass the blue wall that tends to protect police officers...

FYI the sailor, referred to in your article, is Joshua Sheppard. He stated in an interview with Amy Goodman on DemocracyNow! that it was "peaceful...it descended into chaos quickly...with the escalation of force, the tremendous use of force by the OPD and assisting agencies".

You can't have a more credible eyewitness than this brave sailor.

http://www.democracynow.org/

Hey Ralph, You beat me to it! Yes, lets ask the 2 veterans standing between the protestors and police if there was anything throw at the police before the police chose to use excessive force as their first step in dispersing a LEGAL assembly of the people.
And thanks Brad and Ernest for debunking the ever prevalent propaganda. I hope you can track down the gal on O'Donnell's show for clarification, and he will be forth coming with the clarification. But wouldn't it be nice if he did that himself?

Re Bill Larsen @3 & 5:

Thanks so much for the excellent points and authorities. I've added a link to both comments in the update.

Ralph @6 & Ancient @7. Greatly appreciate the link to the heroic Josh Shepherd's appearance on Democracy Now.

As you might suspect, Brad and I have been quite busy tracking down the details as to precisely what took place. Had we known of his name or the DN appearance, we would have included it when we first published this piece.

I've now included it in an update.

Within the the agonizing time it takes to DISPROVE FALSE MEDIA LINE and the time it takes to prove THE TRUTH; I pray for grace for all that stand between.

Excellent piece, well done.

Props to Ralph @ 6 for his hat tip to the squid. Being a retired squid myself, that one kinda put a lump in my throat seeing his picture...

What do you expect from Oinkland?

Brad, I can sum up the relevance of whether or not the protesters "provoked" the police with one simple excerpt from the policy manual.

Page 16
Section F

2 ... Direct Fired SIM may never be used indiscriminately against a crowd or group of persons even if some members of the crowd or group are violent or disruptive.

a. Direct Fired SIM may be used against a specific individual who is engaging in conduct
that poses an immediate threat of loss of life or serious bodily injury to himself or herself,
officers, or the general public or who is engaging in substantial destruction of property
which creates an imminent risk to the lives or safety of other persons. In such
instances, Direct Fired SIM shall be used only when other means of arrest are unsafe and
when the individual can be targeted without endangering other crowd members or
bystanders."

In other words, even if there were a few random people who lobbed bottles of water, small rocks or paint at the riot-gear-protected police officers, they are not allowed to retaliate against the crowd by the means they employed.

Period.

Also, the Oakland Police Officers' Association wrote an obnoxious letter to the general public and posted it on their website.

I posted a reply on mine.

An Open Letter To The Oakland Police Officers' Association.

> Ontario Province Police

Their name is “Ontario Provincial Police.” They are colloquially called “the O-P-P.”

Good story. One criticism for Ms. Martin, however. Given the anti-OWS spin and propaganda, we must make every effort to ensure our documentation is pristine. She has two gaps (including five minutes at a critical time) in her recording. While there may be perfectly innocent reasons for this, the value of her video is significantly diminished (not entirely, of course) because of this. Such gaps are easy targets for those seeking to ignore everything else that is recorded, so I'm very sorry to learn about those gaps.

To all who continue to document OWS and the responses, I urge you to make every effort to avoid such things in the future. I would go further and suggest that perhaps mini-seminars be held at various encampments for those interested. Emphasize a few key points over and over: The camera must not go off or be turned off, sound must remain on (very important if the camera gets knocked around), and no gaps or "edit points" (a subtle term appearing above that flashes neon warning signs to those burned on the ACORN/O'Keefe nonsense). Remember, we must uphold the highest standards we can.

LMK @14. Let's be fair.

Ms. Martin's is the only unedited video that runs at length. The others appear to be compilations of videos shot by multiple cameras.

Also, while it is easy for you or I to sit back and say she could have done this or that, it is altogether different when someone is both trying to document a volatile situation and is caught in the midst of a frightening situation, face-to-face with heavily armed law enforcement personnel in riot gear who have just threatened to gas her.

It is quite understandable that she shut the camera down briefly while moving out of the way. Also, I'm having difficulty understanding where you come up with the "five minutes" to explain the edit point. And, the video is running again, sans violence, briefly before the first explosion.

That said, I think your suggestions for mini-seminars an excellent one. I think it important that OWS make it a point to have dozens of cameras, strategically placed at all large demonstrations so that they can begin filming the moment there is a prospect for confrontation.

It would also be quite helpful that OWS conduct seminars on peaceful, non-violent civil disobedience. No matter what level of force is applied by law enforcement, those participating in OWS can never retaliate. To do so is to surrender the movement's moral superiority.

Hamranhansenhansen @13.

Thanks. I've corrected the body of the text accordingly.

Parts of my neighborhood were trashed last night by some of the people marching. I know I'm supposed to continue supporting and encouraging these people (I marched with them at one point), but I'm actually feeling bummed about all the damage and the work ahead to remove graffiti, repair windows, and repaint. More small businesses are going to be spurred to leave downtown Oakland. It reminds me of the days when people would come in and trash Jack London Square every weekend. Eventually businesses just give up and take their jobs with them.

A linguistic quibble, which I post because the wrong word makes me stop and stare and thus interrupts the flow of the narrative: Beware words that look and sound similar but mean entirely different things. Disburse (same root as bursar) means pay. Disperse means scatter. Disbursing might happen in the future if demonstrators are successful in suing the police, but dispersing is what was happening during the demonstration. Your keeping the distinctions straight will let the rest of us keep our minds on the substance of your excellent post.

Thanks, CK! Noted and corrected above!

Not a quibble, CambridgeKnitter. The correct word is "disperse." Not sure where we included the typo, "disburse," so if you can give me a hint, I'll correct it.

Thanks.

Re #15: You're right about my mistake on a missing five minutes, I misread. Still concerned about "edit points", though. To follow up on the subject of training OWS occupiers to document these events, I would add (1) raw (uncut and without interruption) video is best and (2) work on a "buddy system". If one reporter or person with a camera is confronted or harassed, have a second person there to record it.

The nonviolence part cannot be emphasized enough. I am also critical of closing the port right now. That is the sort of action that should be saved for later, if necessary. I am concerned that some bad influence, provocateurs and COINTEL are at work in the Oakland OWS.

LMK -

In regard your concern about "edit points" in various OWS videos, you are absolutely right to keep an eye out for such things (and it's one of the reasons we noted it in our story above). However, the event in question went on for hours on end, until dawn's early light. It is likely impossible for any citizen videographer to keep the camera rolling ad nauseum, lest they run out of "tape" or battery before something noteworthy occurs.

Best such folks can do in such an event, where there is no specified end point, is roll as much as they can, when they can, at stuff they believe likely noteworthy, and hope to capture the stuff that is. Many of these folks, btw, are simply recording on their cell phone video when something occurs. And as battery charging is a precious commodity in the Occupy situations (and "hard drive" space on cell phones at any time is similarly finite), it's unreasonable to ask them to keep rolling at all times.

Just a thought, FWIW. They can only do what they can do. And I'm ever grateful they have been able to do as much as they have with so very little to work with, frankly!

lmk @21:

I am also critical of closing the port right now. That is the sort of action that should be saved for later, if necessary.

I respectfully disagree.

OWS is a mass withdrawal of consent to the status quo. The goal is not to simply persuade the powerful to "reform" the existing system. The goal is a radical transformation from a system that is democratic in name only; a system entailing impunity for the criminal oligarchs at the top and in which money rules, to a genuine egalitarian democracy where the only valid standard for "leadership" is a commitment to the 99%.

We are at the early stages of a second American revolution --- hopefully a peaceful, non-violent revolution, but a revolution nonetheless.

Transformation from our autocratic, corporate security state to genuine egalitarian democracy will not be accomplished by simply camping out in public parks or marching or holding signs.

General strikes are an extraordinarily effective means of non-violent, civil disobedience. So are boycotts. (Recall the Montgomery bus boycott). So too is a fundamental change in how we elect, as well as whom we elect, for OWS will not become the democracy it seeks until it occupies the legislative and executive branches of government.

The problem is that the general strike must be tied to a specific demand, e.g. the resignation or termination of the interim Chief of Police or the mayor.

@katie b

I am very sympathetic to your concerns as I think the OWS should be too. Unfortunately, I think it is not so much the peaceful aasembly that causes the biggest problems but the riot by cops. The reason they were initially peacefully assembly in the streets was their encampment was removed I an early am raided with tear gas (pre-dawn is when thugish unprofessional coos like to do it because thats when people are most sleepy, guaranteed to create confusion, difficulty in comlplying for those that want to avoid arrest, and mayhem, where as a day light action of mass arrest, one person at a time would cause far less disturbance) but even a bunch of people milling in the streets is disruptive but not nearly as offputting as a cop riot. That mayhem is what is on the news and leads customers to avoid the are.

Consider NY's OWS. For most of the businesses there it is a wash, some hurt some, most neutral or better due to crowds. The OWS has organized people to fix a bathroom sink that one business claimed was broken by a protester etc...but business goes on and OWS is actively working to minimize harm and work with local businesses. Beside some of the initial bad ass corralling and pepper spraying incidents by NYPD, it seems Bloomberg has asked the police to avoid all out vioent assaults. Even when the police cleared the bridge, they did not do by teat gas and flash bang grenades, but by arrestting people one at a time.

Also for another comparison, see how the long term occupying of the WI Capitol in response to Gov Walkers union busting bill. There the police acted with professionalism, with emphasis on safety of both the protesters and the citizens in the area. Again, the businesses in the are we're impacted, but overall it was neutral, with one pizza business making out like bandits (they donated much also).

So I think NY OWS and WI are just two examples how the protestors and cops can act in a way that lets the protesters make their political points (not become a reality TV show on protesters via thuggish cops) with a minimum impact on the area and businesses. No doubt there will be some collateral damage even with most peaceful aasemblies, but I would argue the vast majority of the bad impacts are in reactio to unprofessional overly aggressive police force and a few bad apples reacting to that in a violent or property damaging way.

I heard some of the Oakland OWS were cleaning up glass at a Wells Fargo branch and removing graffitti. I would suggest for concerned citizens like you and businesses in the area, should first insist to the mayor that the mayhem initiated by the cops is the biggest problem, biggest impact and without that, things for the business community and local residents would be much much better. Also I encourage you and local businesses to bring the issues you raised directly to the protesters in cooperative spirit, and see if they would be willing to engage in clean up efforts and in othe ways support and assist the every day ordinary businesses the area. While general strikes may be effective,(I'll leave that to another discussion) I'm assuming most of the protesters would rather not have their downtown turn into a ghost town with roving bands of cops chasing the most hardened protestors but would rahter have big numbers of ordinary citizens massing in huge peaceful assemblies, ala WI.... If the protester can make their political points AND still maintain the health of their local economy. You yourself could likely lead or at least forward a productive relationship with the protestersand also

I would suggest you may want to demand to the city govt that your local cops emulate approaches of more peaceful interactions with mass occupying type protests in other cities. Here in my home town, there is a occupy protest that has caused almost no distaste or aversions to downtown MPLS by general population because there has been no violent cop crack down. The cops have removed tents (without tear gas) and been somewhat obnoxious, but they have let protesters assemble, and have on occasion, when protesters took to the street and marched, say to the local FED reserve building, they did not corral them or mace or tear gas them, instead they provided effective, professional traffic control, ensuring the least amount of traffic disruption and the safety of the protestors. And the MPLS police at not the epitome of a professional force, they can be overly aggressive and thuggish, much more than St. Paul and some other cities I have lived in, but even MPLS police seem to able to avoid nasty unnecessary riots by cops.

Also, be aware that just in the last few years, because of way more video shot by crowds, that police routinely infiltrate the crowds and provoke violence. This may seem like an outlandish claim, but even the Canadian police who often get credit for being more professioanal than many of our city cops, were caught infiltrating a Toronto protest and inciting violence, jumping on cars etc, (they were identified by their matching, police issued boots and some other exterior clothing things and secret gestures they seem to adopt so they can knwomeach other, so the reguakr cops know who toavoid ebating and arresting etc) The article above shows evidence that Oakland PD is also doing this Palin clothes infiltration, although I don't know if there is any evidence they were inciting violenc. But becuase of this infiltration you can't even assume that the destruction of property and graffiti was even a few violent radical types.

Again a simple demand form the business community that the police not be infiltrating the crowd in plain clothes and that police be expressly told that any plain clothes cop found to be inciting violence and any giving that cop that order will be prosecuted to the full extent of the law. They will Lilly deny any such activity, so they publicly should have no resistance to such forceful promised enforcement against police acts they will claim never happen.

For the few roughnecks In the crowds that amy be choosing violence, or property destruction, again I would suggest local residence and businesses work with main groups of protestors that seem as concerned about this as you are. In WI they cleaned up mess left behind, as they do in NY, I'm sure same arrangement can be made with OAkland OWS.

Great points, Karen. To tie in with what Brad said about recording events, while I wasn't aware of the time scales in question (yes, battery power becomes an issue, eventually), I think OWS should work to coordinate recordings at every Occupy event. During slow times ("the wait") maybe only a few record. When things ramp up, more people should record. This system should include coordination of recordings, to make it easier to "hand off" recording duties during "the wait" without missing anything.

Based on what Karen said, recording could also help ID the police and provocateurs. Train citizens to recognize and record the telltale signs, like footwear and hand gestures. Remember also how the rightwing nuts claimed no slurs were used in DC because no one had a recording? I guarantee that at some point in OWS a critical fact regarding OWS will be in dispute, and recordings will help the OWS side.

To change subjects slightly, EC, it appears we agree and disagree about the strike. My point about saving strikes for later is because they should be used as levers when previous demands are not met. If I read you correctly, you seem to say the same thing: strikes are good for enforcing demands. Since I was not aware of any well-publicized demands by OWS in Oakland over the last few days, the strike seemed premature. Maybe I missed a demand that was made a few days earlier.

I also do not believe strikes that appear retaliatory ("police misbehaved, so we're shutting down the port") are as effective as something more along the lines of "we told Oakland to back off, they refused, so that's why we're on strike." Strikes are like trump cards that can also be used against the strikers (from a PR perspective). For those reasons, strikes should be used carefully and only for clear purposes. And also keep in mind that the PTB count on provoking reactions to smear the image of OWS. That is even more reason to resist reacting to events, and instead focus on a "demand, short wait, strike" model.

My question (really since 9/11) where the HELL are the lawyerts!!

Good question, Sophia. I've been hoping someone would answer, yet find nothing when I check back. I'd love to get involved, though I've seen nothing about any sort of coordination efforts among attorneys. On my own, I can't come up with anything beyond contacting the ACLU or the National Lawyers Guild.