Tacoma municipal court proceedings better than an operetta: Tacoma 23 and attorneys defend the right to dissent

author : Mark Jensen topic : Port Militarization Resistance | Port of Tacoma

by Mark Jensen

tacoma, washington -- I arrived late at the arraignment of the "Tacoma 23" on Thursday afternoon, Mar. 15, but I was in luck. There was one seat left in the completely packed courtroom. I squeezed in next to Matt Batcheldor, a reporter from the Olympian, the only mainstream media journalist there.

I was one of about fifty who came to see the City of Tacoma dispose of charges against 23 protesters arrested on Sunday afternoon, Mar. 11, 2007. They were to be charged Thursday for acts of civil disobedience protesting the use of the publicly-owned Port of Tacoma for the purpose of shipping the vehicles of the US Army's 4th Stryker Brigade, 2nd Infantry Division, to Iraq. The defendants, part of the Port Militarization Resistance movement (PMR), hold that the Iraq war and occupation are illegal, and therefore public facilities should not be used to support them.

The Stryker vehicles and the Port of Tacoma are only two strands in Western Washington's deep entanglement in the Iraq war. PMR is raising consciousness about the complicity of our communities in actions we know are wrong, but that most are doing nothing about.

Looking around, I noticed that on my left was Dennis Dutton, a Tibetan Buddhist monk from Port Townsend. While fifteen people had been arrested on Sunday for clambering over a police barricade with a "Citizen's Injunction to Halt Shipment of Military Equipment to Iraq," Dutton had been one of eight to be arrested a few minutes earlier for violating an arbitrary police ban on backpacks, bags, and purses. Dutton told me that with him there in the courtroom was the same bag that he had been arrested for carrying on Sunday. In fact, I was sitting right next to it, and my coat was touching it. It was red and orange, made of hand-woven cloth. In it was, among other things, a copy of the Dhammapada, where one can read: "For hate is not conquered by hate: hate is conquered by love. This is a law eternal."

I had arrived in the courtroom just in time. Commissioner Dennis Ball was beginning proceedings. He named fourteen people against whom the City of Tacoma had elected to bring no charges: Amanda Askea, Samuel Edwards, Molly Gibbs, Patricia Imani, Linda Jansen, TJ Johnson (the Olympia city councilman who is the highest-profile member of the Tacoma 23), Rosie Math, Sandy Mayes, Andrea Robbins, Dylan Snyder, Christopher Stegman, and Brooke Stepp.

The judge told these defendants there was no need for them to enter a plea. Attorney Lawrence Hildes of Bellingham spoke up for them anyway. He said he believed that all the arrests had been unfounded, that they had been abused by police, and that the charges against them should be expunged from the record. Attorney Legrand Jones of Olympia also spoke, complaining about the chilling effect of police actions on the freedom of speech of those who had been arrested. Then those who were not being charged filed to the front of the court to take care of paperwork.

Ball said that no charges would be brought, either, against Margo Newman, arrested Saturday night for refusing to allow police to search her vehicle without a search warrant near where the Stryker vehicles were being loaded. Newman had, Hildes said, "effectively been arrested for saying you need a search warrant." He said his client had been thrown around and brutalized by police both at the scene and later, in jail.

At about a quarter to three, the judge began to arraign the remaining defendants. His actions mystified and baffled all present. What the City of Tacoma did was this: All eight defendants who had refused to obey the ban on bags, purses, and backpacks were charged with "failure to obey a flagman," a misdemeanor. Three of the fifteen protestors who climbed over a police barrier with a copy of the Citizen's Injunction were also charged with the same offense.

Why did these three merit prosecution and the twelve others did not? No one knows. On Friday, Tacoma assistant city attorney Jean Hayes said that they were not charged because of "insufficient information," but court officials would not comment. Said TJ Johnson: "If they have insufficient information to charge the others, what is the sufficient information they have for those they are charging? I find the whole thing continues to be bizarre" (Matt Batcheldor, "Charges Still Possible in Johnson's Arrest," Olympian, Mar. 17, 2007).

As the session wore on, proceedings in windowless, gray-walled Tacoma Municipal Court began to remind me of an operetta by Gilbert and Sullivan. The main characters were three: big, bearded Lawrence (Larry) Hildes, the attorney representing most of those charged, who would be a baritone were I writing the score, but who in fact was a tenor; the mild-mannered Commissioner Ball, whom I might cast as a countertenor, though he was another tenor, too; and a grumpy black-haired prosecutor for the City of Tacoma, who sat hunched morosely over a table piled high with documents. He never once looked back at the filled-to-capacity courtroom. He seemed indifferent to the presence of the public, whose authority he represented. I never glimpsed his face. He, too was a tenor. But he didn't seem to have his heart in his role. His voice lacked projection. No one ever did learn his name; he later refused to tell the press who he was, according to Matt Batcheldor of the Olympian.

The defendants were the most important people there, but in the arraignment they played minor roles. One by one they were summoned to stand before the court. Commissioner Ball would ask the the prosecutor to read the charges. Attorney Hildes would inveigh against them. Then the judge, oblivious, would intone: "I'll find probable cause, and order PR [personal recognizance] release on condition of law-abiding behavior."

Larry Hildes, the attorney, who in 2003 argued and won the case of Graves v. City of Coeur d'Alene, 339 F.3d. 828 (9th Cir. 2003), on precisely the question of the right to have backpacks at protests, had the best lines. Here are some of his remarks:

Defending Leah Coakley of Tacoma: "It is reasonable to bring medical supplies to a protest when police are firing rubber bullets, concussion grenades, and tear gas. It is absurd to release her on condition of lawful behavior, because she was arrested for lawful behavior. She does not know what constitutes lawful behavior in the eyes of this court."

Defending Dennis Dutton of Port Townsend: "Mr. Dutton is required to have his bag for religious reasons. There is no crime that has been committed. If the police are allowed to behave in this way, my client will be required to choose between his First Amendment rights and his Fourth Amendment rights. We ask dismissal, and we ask that police be admonished to desist from enforcing any such order."

Defending Patrick Edelbacher of Tacoma: "Medical supplies are reasonable and necessary. There is no law stating: 'Thou shalt not have a backpack.' There is no obligation to obey an unlawful order. Case law specifically prohibits this sort of behavior on the part of police."

Defending Liz Rivera Goldstein of Port Townsend, arrested for carrying a backpack that contained a white teddy bear: "The items my client carried were not dangerous or harmful. Under Graves v. City of Coeur d'Alene, she has the right to carry them. I speak as the attorney who argued and won this case. The Ninth Circuit has said you can't do that. There is an immense and intentional chilling in this case because the police did not like this demonstration. It is not the job of the police to dislike a demonstration. Is she breaking the law now?" Ms. Goldstein extended her arms dramatically, holding up the white teddy bear in her left hand -- he was holding his arms out, too, as if in alarm -- and the copy of Graves v. City of Coeur d'Alene in her right. "At any time she could be arrested!" (Laughter in the courtroom.)

Defending Gloria Norton of Seattle, better known as Sasha Crow: "Like all the persons charged, this person was doing nothing illegal. There was no fencing. [The prosecutor had referred to "fencing."] It was a police barricade. The goal was to push the demonstration as far away as possible because they did not like the demonstration. We ask that the police be admonished to obey the law." (About this time, I noticed that Commissioner Ball was not even listening to Attorney Hildes. Instead, he shuffled through papers, reading here and there, exhibiting an attitude of indifference to the legal and constitutional points being raised.)

Defending Charles Bevis of St. Paul, Minnesota: "We note that the prosecutor is not even sure what object Mr. Bevis was carrying. There is no reasonable basis here. Graves [v. City of Coeur d'Alene] said this is an illegal arrest. There is no probable cause. This violates my client's Fourteenth Amendment right to due process. It is inherently chilling. I ask that this case be dismissed."

Defending Matthew Reiss of Olympia: "You cannot arrest someone for possessing the Constitution or referring to the Constitution. If the court allows this arrest, it is saying to the police: 'Do whatever you like.' It is precisely what the Framers were trying to prevent. These cases in general are a mockery of the defendants, and a mockery of the citizens of Tacoma who are obliged to pay for this prosecution."

Defending Jody Tiller of Olympia, who was carrying two books in her bag: "Same objection. My client was arrested for possessing books. The last regime to outlaw books fell in 1945. I ask the court not to repeat those mistakes. The demonstration at the Port of Tacoma was moved further and further back. It casts a veil of shame on the City of Tacoma to bring this case. If you can't carry books at a demonstration, what can you do? The police order was arbitrary and capricious."

Hildes also made remarks in defense of Somerset Fetter. Fetter, Wes Hamilton, and Sasha Crow were the three who crossed the police barricade with the Citizen's Injunction and were charged.

There were two defendants who spoke on their own behalf, even though they were cautioned that it could be dangerous to do so. Wes Hamilton of Olympia said: "I wanted to say that I have no contempt of this court. I simply believe that given unconscionable behavior by the government, citizens should have a free speech right to protest it."

Phan Nguyen of Olympia also spoke on his own behalf. On Sunday, Nguyen had been the first to cross the police's backpack line. He said then: "We're here to assert our right to protest. All I have in my pack is the United States Constitution." Alluding to the case of Lt. Ehren Watada, the commissioned Army officer who refuses to deploy to Iraq on the grounds that the war is illegal, he had added: "Just as we feel that soldiers should disobey unlawful orders, so I refuse to obey illegal orders."

On Thursday, in court, Phan Nguyen said: "I believe the order given to me by the police was arbitrary and illegal, just as it would be arbitrary and illegal to prohibit someone from exercising their free speech while wearing a left shoe, for example. I ask the court not to find probable cause, because this would create a ridiculous precedent."

Commissioner Ball was unmoved. He set April 24 as a pretrial date for the group.

After the arraignment, all joined on the courthouse steps, where Jim Robbins of United for Peace of Pierce County took their picture.

Mark Jensen is a member of United for Peace of Pierce County (WA), and of the faculty of Pacific Lutheran University.