The problem is you don't know what was happening before the video starts. In this case, like 3 years before, when a similar arrest lead to a court case. You see, when I heard that dancing was forbidden, I wanted to see the law. I'd write it out here, but its seldom that simple. The relevant code in question is 36 C.F.R. § 7.96(g)(1)(i) - but dance or dancing doesn't appear there. We'll get back to that - for now, I want to share the back story as given in :
Oberwetter v. Hilliard, 680 F. Supp. 2d 152 - Dist. Court, Dist. of Columbia 2010
Mary Brooke Oberwetter and seventeen of her friends gathered in the interior of the Jefferson Memorial on the eve of Jefferson's birthday to "celebrate and honor Thomas Jefferson, his ideals, and his political legacy, on the occasion of his birth." They did so with expressive dance—"the dancers danced for the most part by themselves, in place, each listening to his or her music on headphones" because such activity expressed "the individualist spirit for which Jefferson is known."
Oberwetter and her friends began dancing "at approximately five minutes to midnight, April 13, 2008. Shortly thereafter Oberwetter alleges Officer Hilliard of the United States Park Police "approached Plaintiff while she was silently dancing in place, listening to music through earbud[] [headphones]. Defendant Hilliard pushed Plaintiff, and then left. Moments later, Defendant Hilliard returned to Plaintiff, who was still quietly dancing, and ordered her to leave." She offers that she "removed an earbud so that she could speak with Defendant Hilliard," asking why Officer Hilliard "was ordering her to leave, and what law she was violating." According to Oberwetter, however, "Defendant Hilliard refused to answer, insisting only that Plaintiff stop dancing and leave the Jefferson Memorial."
Oberwetter "agreed to stop dancing and leave the Jefferson Memorial if Defendant Hilliard would only provide a lawful reason why she needed to do so."
Stop and reread that last sentence and realize, it is important that the police know and can tell you what you might be arrested for - otherwise how can you know to avoid it? The question "what is dancing" may sound like baiting, but it is a relevant definition when personal liberty is involved. You can probably guess what happened next.
She alleges that Hilliard would not do so, "and instead arrested Plaintiff." Although Oberwetter contends that "at all times [she was] peaceful and did not resist Defendant Hilliard or any other officer in any way," she states that Hilliard "used more force than was necessary to effect his arrest of Plaintiff, ripping apart her earbud, shoving her against a pillar, and violently twisting her arm."
When I first read the account, I thought that the Plaintiff was overselling it, its an important distinction below.
After Oberwetter's arrest, a Park Police officer advised her that she would be charged with "disturbing the peace," and issued her a citation for "Interfering with an Agency Function" in violation of 36 C.F.R. § 2.32(a)(1)-(2). She "was held for approximately five hours before being released." "Several days" later, "Park Police officers arrived at Plaintiff's house and gave her two citations issued by Defendant Hilliard: an apparently superceding citation for `Interfering with an Agency Function,' . . . and an additional citation for `Demonstrating Without a Permit,' in violation of 36 C.F.R. § 7.96(g)(3)(ii)(C)." . At her court appearance, the court found "that the prosecution was not properly before the Court and advised Defendant Hilliard that if he wished to proceed, he would have to properly prepare the matter for hearing." The Park Service has taken no further action on this matter.
This last paragraph is a bit startling, amended citations days later, the state unprepared at the preliminary hearing and no follow up charges. That was good for Oberwetter, but why arrest her in the first place if the DA won't/can't press charges?
We are back to what law she was meant to have violated. 36 C.F.R. § 7.96 - here are the four relevant items the court reviews:
1) Groups of more than twenty-five people can demonstrate only pursuant to a properly issued permit.
2) Demonstrations involving fewer than twenty-six individuals may be held without a permit "provided that the other conditions required for the issuance of a permit are met."
3) Prohibits permits for demonstrations at the Jefferson Memorial.
4) Except for the official annual commemorative Jefferson birthday celebration.
Based on the above four items, is it clear that Oberwetter was in violation of the law? Is it at least unclear enough to need explanation, from say, the arresting officer?
When I read those four clauses, it seems to me since in #2, a permit is not required, number #3 doesn't apply to less than 25 people. And even if that's wrong, it was 11:55, the day before TJ's birthday, what about birthday immunity (#4)?
Mary contends as much in her case:
She asserts, the regulation does not purport to limit the conduct of any individual visiting the Jefferson Memorial. Oberwetter is correct as a semantic matter: no provision of section 7.96 explicitly regulates an individual's conduct.
So the court agrees that as-written, the statute does not regulate individual conduct - but the court decides there is "a more sensible reading" - see if you can follow it:
Section 7.96 allows groups of more than twenty-five people to demonstrate only pursuant to a properly issued permit. And section 7.96 prohibits permits for demonstrations at the Jefferson Memorial. If demonstrations must occur with a permit, and permits may not be issued for demonstrations at the Jefferson Memorial, then it follows that individuals may not demonstrate at the Jefferson Memorial. By this syllogism section 7.96 regulates individual conduct. Accepting Oberwetter's interpretation of section 7.96, on the other hand, would produce the anomalous result of wholly prohibiting certain conduct, but providing no means of enforcing that prohibition. The Court is unwilling to interpret the regulation in such a way when both its plain language and its obvious intent support a more sensible reading.
Okay....
Moving on, here is another section of the case, dealing with the "dancing".
Taking another tack in her threshold challenge, Oberwetter contends that even if the regulations could apply to her conduct, she did not "demonstrate" within the meaning of section 7.96(g)(1)(i). Under the regulation, the term "demonstration" includes
demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers. This term does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers.
36 C.F.R. § 7.96(g)(1)(i). To celebrate Jefferson's birthday, Oberwetter "danced for the most part by [herself], in place, . . . listening to . . . her music on headphones." Compl. ¶ 13.
Does that description of "demonstration" strike you as extremely broad? I mean, in a vigil, aren't you just standing there? Get ready, it's about to be interpreted even more broadly:
Oberwetter herself admits that she wished to express an opinion through her dancing: she danced "to celebrate and honor Thomas Jefferson, his ideals, and his political legacy, on the occasion of his birth." Second, her dancing—especially when done as part of a large group— has the effect or propensity to draw a crowd or onlookers. The Court finds it no stretch to conclude that such activity would pique the curiosity of a passer-by. It certainly is foreseeable to expect visitors to stop and observe a group of expressive dancers at a national memorial.
Now remember, this is happening 5 minutes to midnight. When the court decides if dancing is a "like form of conduct" they use time honored "roughly similar" standard:
The Court need not parse whether Oberwetter's conduct falls closer to picketing or to a vigil; that it is "roughly similar" to such conduct is sufficient to bring it within section 7.96(g)(1)(i)'s definition of "demonstration.
And it goes on like this:
That such conduct may result in a crowd or onlookers is but one example of how the conduct could undermine "an atmosphere of calm, tranquility, and reverence," a result that need not be tolerated before it is prevented.
"calm, tranquility and reverence" is the desired/intended/appropriate atmosphere at the JT memorial? I'm glad the court cleared that up. Mary and her friends dancing silently by themselves at near midnight, so potent a threat as to be preempted.
Her claims of excessive force are dismissed with the gem:
An officer will be found to have used excessive force only "if the force used was so excessive that no reasonable officer could have believed in the lawfulness of his actions."
Doesn't this seem like a standard that increases as officer initiated violence increases?
"If a law is unjust, a man is not only right to disobey it, he is obligated to do so." -Thomas Jefferson
"Is it at least unclear enough to need explanation, from say, the arresting officer?"
ReplyDeleteI think that was a key point in both incidents. There needs to be some explanation as to laws that are being broken, even if they are silly laws (and, it seems, they are).
That's an awfully long stretch of an already far-reaching law.
I was happy to watch the (semi)-happy ending.
Notes:
ReplyDelete1) 5 minutes to midnight a bunch of people at a national memorial are dancing with earbuds and initially unresponsive to a cop. That would just set off all sorts of alarms in any cops head. Having worked in both military and private security, people acting like that after dark, especially when most people are asleep, are trouble 99% of the time. If they were interested in doing what they were doing without interruption, they should have let someone know so the cop didn't happen upon them unprepared. In daylight this would have been an entirely different situation. Expecting a cop used to dealing with all sorts of strange behavior to act any differently is wishful thinking.
2) Declining to prosecute doesn't imply there was no crime. It's more often the prosecution realizing there's little to gain, that the lesson was already learned and no harm resulted, or (most likely) that their resources could be better used on more serious offenders.
3)This occurred within federal jurisdiction, A smart judge is not going to issue any ruling that is going to restrict law enforcement in more serious circumstances.
Looking at the totality of the circumstances, these people acted extremely foolishly. I'm willing to bet they knew that they were going to run afoul of police and did it intentionally. There's no good reason for them doing it at the time of night when they did when cops are already looking for weirdos. If I was there, my first assumption would be that there was a case of public intoxication. It was the police officer's duty to investigate and know what was going on. Even if it was just her dancing, there were 17 of her friends there, and that's a lot of people for one patrol to handle, so a cautious cop is going to at least disperse that crowd given that time of night to avoid any further incidents.
The type of people that do this kind of thing are the first type to cry brutality over nothing without looking at their own actions. If you act the way they did at a federal monument in the capital at the time of night they did and expect no interaction with law enforcement, you're got to be delusional.
Also, you have to seriously consider the level of legal knowledge of the officers protecting those areas. They're not lawyers, they're not judges. They get enough info in training to know what they're supposed to do, how to do it legally, and how they're supposed to enforce certain codes. He didn't owe her any sort of explanation, he's the tip of the spear, not the shaft.
ReplyDeleteIf she had a problem with his order she should have left, done her homework, and then protested in accordance with the process provided for us in the constitution, but she didn't. And neither did the follow-up protestors. The Constitution does not give you free reign to act like a total ass, it gives you a specific course of action to follow in protest of law/regulation that has been well, well defined and narrowed out over time through stare decisis and law.
I just saw the follow-up video that was hosted by RT. Kokesh is apparently a host for them. That network is extraordinarily outrageous in their pro-Russian and quasi-Communist coverage of news. They're almost entirely a propaganda outlet that stirs controversy and features absolute conspiracy theorist nuts that would put Glenn Beck to shame. This suddenly makes a LOT more sense.
ReplyDeleteA small but admittedly controversial issue got blown entirely out of proportion by a TV host for a Russian TV outlet who wanted publicity and got it in spades.
Hi Rob, thanks for the comments. I agree with most of what you said, police do have a difficult job, that they must execute in ambiguous circumstances. People by in large, are jackasses and police find themselves herding said jackasses on a daily basis.
ReplyDeleteMy problem is that a jackass is not the same as a criminal – it might not even be jackass behavior, once you talk to the donkey
As a personal example, I walk a lot at night, through my neighborhood with headphones on, listening to music or lectures. I have, on occasion, been accosted by the Sheriff. Shines spot light, “what are you doing / where are you going”. I usually respond that I am out for a walk, but that it is really none of his business and I continue walking. If the policeman said that I needed to stop, take off the headphones and come talk to him, I would ask “why?”
If he then said that I would be arrested for not doing so, I would say “arrested for what?”
Is that me being difficult? Am I unreasonable for wanting to know why I would be arrested? I don’t think so, in fact, I think the cop is being unreasonable for 1) bothering me, 2) breaching the peace. He is threatening me with force, the universal response
“initially unresponsive” – then moments later Mary agreed to comply, only asking for a reason.
“more serious offenders” – do you see any harm in what they were doing?
“these people acted extremely foolishly” – I act the fool on a daily basis, but that’s not the same as breaking the law.
“consider the level of legal knowledge of the officers” – so the officers get a pass because the law is complicated, the citizen does not? One of these has the job of law enforcement, I’m not asking that they be lawyers or judges, I am asking that they at least know whatever law they are arresting a person for. The officer went home and did his homework and found out that he was WRONG. Even with an amended citation, the court had to: 1) ignore the fact that the law does not regulate individual conduct, 2) decide that dancing was enough like demonstrating to warrant an arrest.
It seems like another facet of government that will not tolerate criticism.
Even if the show is propaganda or pro-Russian, or quasi-communist – really who cares? If its propaganda, what is it espousing? That we are losing rights? I agree. That this guy and affiliates might be birthers, or truthers is worth noting, but really just poisoning the well.
The threat faced by letting people dance is pretty weak, if existent. The threat faced by overzealous police – for that I direct you to pretty much any of the founders and to a 2006 Cato study: Overkill: The Rise of Paramilitary Police Raids in America
http://www.cato.org/pub_display.php?pub_id=6476
You have inspired me to write a post on police in America and the jackasses they herd ;)