ON MONDAY, APRIL 2, in a packed Multnomah County courtroom, Occupy Portland's ongoing legal spectacle took another surprise turn: As part of a flurry of motions, countermotions, and constitutional claims, two lawyers for Occupy are now asking that the Portland Police Bureau fork over any and all information its officers have gathered on the protest movement—including any details about covert surveillance.
The request by attorneys Richard McBreen and Leland Berger marks the latest twist in what's been an intense chess match between Occupy's legal braintrust and the Multnomah County District Attorney's Office. That battle started when Judge Cheryl Albrecht this winter granted full trial privileges to some 20 Occupy protesters (a number that has since ballooned) whose cases otherwise would have been fast-tracked through the judicial process ["Occupy the DA's Office," News, Feb 16].
"A lot of what we are trying to do here is see if there is relevant evidence for a later trial or to serve as the basis for any constitutional challenges," says McBreen.
McBreen and Berger want emails, internal memos, and any video the police have of last fall's evictions from Lownsdale, Chapman, and Jamison Squares. The lawyers also want police to disclose any information about undercover cops working the protests. Brian Lowney, representing the DA's office, told the court he had no knowledge of any covert action taken by the police. (To which at least one occupier responded under his breath, "Bullshit.")
As of press time on Tuesday, April 3, Albrecht hadn't ruled on the request for police files. On Monday, she said she would decide later in the week.
In February, following a motion filed by attorney Bear Wilner-Nugent, Albrecht decided that occupiers arrested and charged with serious misdemeanors were entitled to court-provided attorneys and jury trials. This was a big deal, lawyers for Occupy say. The DA's office was reducing those charges to "violations," and although violations carry a lighter penalty, they are decided only by judges and are easier for the prosecution to prove.
Occupy lawyers, however, are insisting on full-on trials because they hope to make it more troublesome for cops to use arrests to control protests. "It could have pretty wide ramifications," Wilner-Nugent says about Albrecht's decision. "But so far other judges haven't decided to follow Judge Albrecht." But Albrecht has the majority of Occupy cases, about 70 out of 120 still active, and the DA has taken notice.
In March, the office dropped most of the serious misdemeanor charges. Occupy defendants were charged instead with analogous traffic violations, which are not entitled to publicly funded counsel or jury trials. This, Occupy lawyers say, was an attempt to circumvent the February ruling. Jeff Howes, the senior deputy district attorney who oversees misdemeanors for the DA's office, refutes this claim.
"What we did for Occupy, we did long before Occupy with other cases. We aren't trying to get around anything," says Howes.
In one seemingly odd motion, lawyers are asking that the dropped misdemeanors be reinstated. Another motion, filed by McBreen, contends the DA has no authority to prosecute traffic violations, and asks that the cases be dismissed outright.
"So we are in this interesting place where if Albrecht rules on one motion, our clients get their rights back, and if she rules on mine, then the cases will be dismissed," McBreen says.
Lawyers for Occupy are also crafting a series of constitutional arguments. Pete Castleberry represents a woman evicted from Chapman Square whose misdemeanor case wasn't dropped. "With Jamison Square it's obvious why people were evicted," says Castleberry. "The police cited an existing curfew, and went in when the curfew went into effect. But in Chapman and Lownsdale, their reasons aren't obvious. Those parks don't have curfews." Castleberry hopes new information from the police will help his argument.
"If the record shows that this group of individuals [Occupy] was specifically being targeted for their expressive activity, then that's a huge problem under the First Amendment and Oregon law," he says.
Castleberry also says there's a strong legal argument that occupying itself should be protected as free speech. "When the expressive content of someone's speech is so inextricably bound up with conduct that presents some really interesting issues under the law. I mean Occupy was about occupying the seat of power, that was their expressive content."
Albrecht is expected to hear constitutional arguments on April 30. The judge is also expected to hear arguments on Occupy getting its day in court. But Occupy lawyers say, don't count on it. The judge's docket is full of Occupy cases and they are not convinced there will be enough time to hear everything.