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Police Response to Mehserle Protest Scrutinized

Riot police stand ready during protests in Oakland on July 8, 2010.
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Riot police stand ready during protests in Oakland on July 8, 2010.
Protesters arrested without a chance to disperse say officers overstepped

As anger over the death of East Oakland's Derrick Jones escalates, prompting more protests, the organizers arrested during a march in response to Johannes Mehserle’s sentencing a week earlier are still upset over what they saw as an excessive police response. Mehserle, a former BART police officer convicted of fatally shooting Oscar Grant, who was unarmed, in early 2009, was sentenced on Nov. 5 to two years in prison with credit for time served.

During the demonstration that followed, about 150 protesters — more than during any of the previous protests related to Oscar Grant's death — were arrested, prompting anger from activists and civil rights attorneys who say police trapped protesters and never issued a warning to disperse before beginning to make arrests. 

As the community continues to organize around the death of Jones, who was shot and killed by two Oakland police officers after a pursuit Monday night, at least one lesson from the Grant protest seems clear: if a demonstration involves vandalism and property damage, police will shut it down.

“They said their plan was to facilitate First Amendment activity for people who wanted to express themselves about the sentence,” said Rachel Jackson of the New Years Movement for Justice, who was arrested with the crowd. “They lied. To end having 152 people surrounded and penned in on all sides by a massive military mobilization was outrageous.”

Were police acting within their rights?

Not surprisingly, police say yes, and activists and many lawyers say no.

Under California Penal Code Section 409, once police have declared a protest an unlawful assembly and ordered protesters to disperse, they may arrest those who refuse. But under Section 408 of the code, police are not required to issue a dispersal notice. If an assembly has been deemed unlawful and declared a crime scene, anyone who occupies that crime scene is guilty of a misdemeanor and can be arrested.

“There were some rocks being thrown at police, there was a car being broken out. It was a decision made for it to be declared a crime scene,” said Oakland police spokesman Jeff Thomason. “When the protesters started going eastbound, that was contrary to what we had discussed. It was imperative we act as quickly as possible so we can try to minimize damage to businesses and cars.”

Although only a handful in the crowd were charged in connection with the vandalism, Thomason said the department decided to arrest the entire crowd because they couldn’t identify all of the individuals responsible for the damage. He also said the decision was informed by past experiences.

“If you look at the last couple of protests that have gone bad, the protesters would start running to another street and start causing damage,” he said. “We wanted to end it as quickly as possible.”

While police say they were permitted by law to make the arrests, some civil rights attorneys and activists say the decision was excessive, especially considering promises by police to help facilitate freedom of expression and the department’s own crowd-control policy, which was written after police reacted violently to an anti-war protest at the Port of Oakland in 2003.

Last week, police followed many tenets of the policy, including facilitating the unpermitted protest by blocking traffic to allow the group to pass. Officers also refused to engage verbally with protesters, maintaining a silent but strong presence even as the permitted demonstration in Frank H. Ogawa Plaza came to a close.

But attorneys say police did not adhere to the entire policy.

The policy, which affords police full discretion, encourages officers to “recognize that all members of a crowd of demonstrators are not the same,” and to “seek to minimize the risk that force and arrests may be directed at innocent persons.”

“The police should be dealing with the violent people, the people who are breaking laws,” said Michael Risher, an attorney for the ACLU of Northern California, one of the groups that helped craft the policy. “Guilt by association is not enough.”

Some organizers supported the acts of vandalism during the protest and were loath to describe the behavior as violent. But most in the crowd did not damage property and frequently voiced their opposition to those who did. Protesters said they began to veer into residential neighborhoods because of police, who blocked the march at 10th Avenue, prompting some in the crowd to tear down a fence and cut through Peralta Park.

They were eventually met at about 7 p.m. by a thick wall of police on Sixth Avenue, and captured between police lines on 17th and 18th streets.

Protesters had mixed reactions. Some ran into backyards, warning others that the police had tear gas. One man flung a garbage can that landed mere feet from police. Some tried, hoarsely, to continue chanting.

After a brief period of chaos and a half hour of waiting between police lines, many protesters began to heckle officers, but others stood aloof, puzzled about how or when they would be allowed to leave. The Bay Area chapter of the National Lawyers Guild said one of its monitors was arrested with the crowd.

“There has been a lot of media attention on a few incidents of property damage Friday night,” wrote Executive Director Carlos Villarreal in a news release from the Guild, which monitored the activities of the night and called police actions “wasteful.” Villarreal said police reactions on Nov. 5 mirrored those on July 8, when protesters took to the streets in Oakland after Johannes Mehserle was convicted of involuntary manslaughter. In both cases, he wrote, “the police action actually focused on shutting down the lawful political demonstration.”

Despite the closure of the Fruitvale BART station Thursday and blocking of major streets, police did not make any arrests during the march and protest in response to Jones’ death.

Jackson, the organizer, said her group is planning responses to the Nov. 5 arrests. A hearing at the Wiley W. Manuel Courthouse in Oakland is scheduled for two days in early December.

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