Arrestees kept on buses for hours, forced to urinate self, deprived of water, medical aid or legal assistance...
By Ernest A. Canning on 12/2/2011, 1:39pm PT  

Guest blogged by Ernest A. Canning with Brad Friedman

[Article now UPDATED at bottom with new information on the LAPD release of detainees.]

Much of the good will and plaudits earned by Los Angeles Mayor Antonio Villaraigosa and LAPD Chief Charlie Beck for their "minimal use of force" tactics employed to clear OccupyLA demonstrators from City Hall Park earlier this week has been quickly squandered in the hours and days since. The BRAD BLOG has learned that hundreds of peaceful arrestees were kept in often deplorable conditions in the hours following their apprehension.

According to new interviews with some of the arrestees following their release, men and women alike were held without charges for hours on end, forced to urinate in their seats on a holding bus while handcuffed, cut off from attorneys, medical supplies, and drinking water, and locked away with punitively high bails while being deprived of both humane and Constitutional rights.

At this hour, almost three full days after their arrest at the OccupyLA encampment in front of Los Angeles City Hall, more than 200 of the peaceful demonstrators detained by LAPD in the evening on Tuesday and early morning hours on Wednesday --- many of them who were not even participating in the Occupation --- are still being held in jail pending $5,000 bail for their misdemeanor detentions, as detailed by radio station KPCC. Approximately fifty people have been released, some after posting bail, others for medical reasons.

KPCC went on to report that on Thursday, only 19 of those people had yet to be charged. The City Attorney's office said that, depending on the charge, some would face bail as high as $20,000.

This morning, Los Angeles Times reported that most of the 19 who were allowed to appear in L.A. County Superior Court Thursday were released without bail, but on the "condition that they not return to the City Hall area, where the protesters had camped." The Times went on to note that most of those still held without being charged have no criminal record...

Harsh treatment of arrestees, rights withheld

Amongst those who did post a $5,000 bail was Mike Prysner, a 28 year old Iraq war vet and a member of the ANSWER coalition, who disputes the positive narrative advanced by Villaraigosa and Beck and reported by many in the media (including The BRAD BLOG) on Wednesday morning.

Prysner claims he "witnessed many people being beaten by police batons," according to KPPC. Yesterday, The BRAD BLOG highlighted two videos showing apparently inappropriate treatment of photojournalists on Tuesday night/Wednesday morning. One video shows an LAPD officer identified as "Escamilla" pointing a weapon directly at a peaceful citizen videographer. Another shows several officers roughly handling and cuffing a photojournalist at the OccupyLA site.

A citizen journalist and live video-streamer who prefers to be known only as "Freedom" (Brad Friedman interviewed her on KPFK/Pacifica Radio on Wednesday afternoon) has begun documenting the stories of released detainees on her UStream page.

Stories of arrestees being shot with rubber bullets, held hours on end on buses without medical care or without being allowed to urinate or drink water --- many of whom were not even inside of the City Hall Park at the time of their arrests --- are documented.

In one of "Freedom's" interviews with three young woman after their release from custody finally last night, the girls describe how they were told by police that they'd be arrested if they were on the streets on the night of November 29th, but would not be if they remained on the sidewalk. Many were then pulled off the sidewalk into the streets and arrested, according to the women.

They describe how they were shackled with plastic cords for nearly eight hours on a bus as they were driven from station to station without being booked. Chilled by a continuously running air-conditioning system, they were subjected to loud music, relentlessly played to keep them from being able to communicate with officers or each other as their hands turned blue. They were deprived medical support for conditions such as asthma.

They say they were never read their Miranda Rights.

"One of the girls asked the [Deputy] Sheriffs can we use the bathroom and he said 'Well, we can't take you there, so you might have to piss on yourself.'"

The young ladies continue to explain what happened next: "At that point they had already stopped for a rest break for themselves. And we said 'Please, can we have some water? Please, can you make it so that we can go to the bathroom...And they laughed and said, 'What about us? We're in overtime at this point.'"

"At one point, some of us were very close to just going to the bathroom in our pants, which is obviously very humiliating. One girl finally got --- her face was so red and she was so embarrassed --- she said, 'I'm just going to have to go, and I don't know what to do, because I can't take my pants down, and I don't want to pee in my pants. And so all together we surrounded her, because there were men in front of us and behind us. So we surrounded her with our backs to her, and helped her pee."

"We helped her pull her pants down slowly," one of the women explained while in tears.

"We've all agreed to not say which one of us it was, but she went to the bathroom...she just peed on the plastic bench....And then, we all helped her pull her pants up."

Another one of the women adds, "And then the cop came and, what'd he say? --- Something like 'How did that make you feel?' Laughing."

After finally being allowed to leave the bus, some eight hours later, one of the ladies explained that an officer said to them, while laughing, "Didn't you guys have fun? Wasn't it a fun ride?"

The girls say they were arrested at one a.m. on the morning of the 30th, and "ended up being processed at 5pm" the following evening after more than 12 hours.

Another released arrestee, Kevin Recinos, interviewed by "Freedom", explained that "When I was in jail, it took for one guy, he asked for water, it took 9 hours for him to get a cup of water. ... They weren't even letting people go to the bathroom sometimes...They were really treating us like animals."

$5,000 bail for misdemeanor arrests of peaceful demonstrators

Frank Mateljan, a spokesman for the City Attorney's office claims the $5,000 bail set for hundreds of detainees is consistent with the bail schedule of the L.A. County Superior Court. National Lawyers Guild attorney Carol Sobel, however, notes that, pursuant to Penal Code §853.6, the LAPD was required to immediately release most of the detainees with a written notice to appear.

Sobel also complained to the Los Angeles Times that arrested protesters had been denied access to counsel "because of staffing problems and the large influx of inmates."

While $5,000 bail is knowingly out of reach for many of the unemployed demonstrators, Chief Deputy City Attorney William Carter upped the ante, suggesting he would look for ways to make some of them pay for "damaging the park," according to the L.A. Times article.

Carter's more significant concern, however, may turn out to be the cost in civil damages the City of Los Angeles, its Mayor, and Police Chief may ultimately have to pay for violating Section 853.6 of the CA Penal Code and the First and Fourth Amendment rights of the arrested protesters.

Did $5,000 bail violate state law & U.S. Constitution?

Collins vs. Jordan (1996) entailed a landmark decision by the U.S. Ninth Circuit Court of Appeal that has a direct bearing on many of the events we've recently covered at The BRAD BLOG pertaining to interactions between police and Occupy Wall Street demonstrators in California and elsewhere around the country.

The complaint, in Collins, alleged that, in the wake of the Rodney King riots in Los Angeles, San Francisco's Mayor Frank Jordan and its Chief of Police Richard Hongisto "decided to ban all demonstrations, peaceful and otherwise, effective May 1, 1992." The decision amounted to a declaration that a peaceful assembly was unlawful, and was followed by mass arrests and detention.

The first part of the 9th Circuit's decision in Collins is directly relevant to the question of whether the Oakland PD violated both state law and the U.S. Constitution when it declared a peaceful gathering at 14th & Broadway on the evening of Oct. 25 to be an "unlawful assembly." That declaration led to an unprovoked assault by the Oakland PD's multi-agency task force, which unleashed a barrage of tear gas, flash grenades, and other "less-lethal" weaponry on a peaceful and defenseless crowd. The assault by police in Oakland that night resulted in a critical skull fracture to U.S. Marine veteran Scott Olsen, who is now fighting to be rehabilitated from the brain damage he suffered that night.

In Collins, the appellate court made it clear that an order of the type declared in Oakland, declaring an "unlawful assembly," could not be lawfully made where there was neither violence nor the imminent threat of violence from those who had assembled. That declaration in the streets of Oakland was different from the "unlawful assembly" declaration made in Los Angeles based on "time and place" of the demonstrations in the City Hall Park (re-dubbed "Solidarity Park" by the Occupiers.)

The second part of Collins has a direct bearing to the response to OccupyLA by the Mayor and LAPD in Los Angeles. The plaintiffs alleged in the Collins case that Mayor Jordan "violated their Fourth Amendment rights by ordering them held in the Santa Rita Jail for up to 55 hours, rather than citing and releasing them pursuant to California Penal Code § 853.6."

Officials are entitled to "qualified immunity" in such cases where the official could have reasonably believed that he/she was not violating a Constitutional or statutory right.

The 9th Circuit, however, not only upheld the district court's rejection of Jordan's "qualified immunity" motion on the grounds that the detentions, in violation of Section 853.6, violated the Fourth Amendment of the U.S. Constitution, but agreed with the district court that the violation of Section 853.6 gave rise to an inference that "the detentions were intended to prevent" the demonstrators from "engaging in further First Amendment activity."

Here, the condition for release without bail sought by the City Attorney's office --- that protesters vow not to return to the area of the former encampment, despite the Mayor's proud declaration that he would leave the steps of City Hall open as a "free speech area" during most hours of the day --- reflects an unconstitutional infringement on their right to conduct future protests on the public property at City Hall. [See, Best Friends Animal Society vs. Macerich Westside Pavilion Property (March 2, 2011)]

Why destroy good will?

Unlike numerous other cities where the genuine democratic movement that is Occupy Wall Street has been met with the tyranny of a militarized police state, the relationship between OccupyLA and the City of Los Angeles had been quite amicable for the most part in the two months prior to this week.

At the outset, the Los Angeles City Council filed an extraordinary Resolution in support of the L.A. "occupiers" and of the larger "Occupy Wall Street" movement as a whole.

On one rainy and cold morning in the first days of the Occupation, Mayor Villaraigosa supplied the OccupyLA encampment with ponchos. On Thanksgiving, just days before the raid at the encampment, the LAPD gave stuffed turkeys to the demonstrators.

As late as the early morning hours of Nov. 30, after the park had been cleared of demonstrators without the use of pepper spray, tear gas, or other massive shows of force, the Mayor and the Police Chief were congratulating one another for their "minimal use of force" and "constitutional policing."

Why spoil the excellent community relations developed over the last two months? Minimal force is appropriately followed by the humane handling of arrestees, full respect of legal and Constitutional rights, and minimal court entanglements between the city and those demonstrators who engaged in non-violent civil disobedience in support of their cause.

For those who agree, there is the ANSWER Coalition article, at which one can link to a letter to the Mayor calling for the immediate release of the arrested demonstrators.

For those who would like to help with bail and other costs associated with the current needs of the demonstrators, a donation page has been created here.

* * *

UPDATE 9:30pm PT: According to CBS, 187 protesters "were released without bail late Friday" without being charged. They are eligible for a pre-filing diversion program which would permit them to avoid a criminal record by completing a 90 educational program, at a cost of $375 to $400, "given by American Justice Associates focused on the balance between public rights and individual free speech rights."

The release suggests belated compliance with Penal Code § 853.6, but begs the question as to why the 187 were held for so long under a City Attorney-concocted $5,000 bail.

The late release of the 187 suggests that the present circumstance is legally indistinguishable from what occurred in the Collins case as described above.

Also, according to the latest article from KPCC, while the City Attorney had sought to prevent those charged from returning to the City Hall lawn as a condition of their release, "the court apparently denied that request." This account conflicts with the account contained in this morning's edition of Los Angeles Times (cited in our article above), which suggested the court had granted the City Attorney's request, as well as the CBS report linked above tonight, headlined "City Attorney Seeks To Ban Occupy Arrestees From City Hall."

That report says, "In some cases judges had already rejected the recommendation," suggesting that condition could still be applied to some of the arrestees at the request of the City Attorney, who sounds like the one who could, indeed, use a course "on the balance between public rights and individual free speech rights."

* * *

Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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Article Categories: California, Rights And Freedoms, U.S. Constitution, Accountability, Los Angeles, Occupy Wall Street, Oakland, Policing