Miami Activist Defense's response to the criminalization of dissent

Miami Activist Defense's response to the criminalization of dissent
Steckley L. Lee
March 2004

In an effort to secure the rights of individuals to protest the Free Trade Area of the Americas (FTAA) Ministerial Meeting in Miami last November, a handful of activists, National Lawyers Guild law students, legal workers, attorneys, and legal collective members joined together during the fall of 2003 to form the legal collective that has come to be known as Miami Activist Defense (MAD). The mission of this eclectic group: to provide legal support to activists during the November protests against the FTAA and to use the courts to wage battle against the increasing criminalization of dissent. While on the streets in Miami, MAD provided legal training to activists, coordinated legal observers, staffed a phone bank during the actions, kept track of arrests, helped facilitate jail solidarity, and negotiated with police in an attempt to protect the right to protest. Post action, MAD's role has transformed into working with Miami Public Defenders and Pro Bono private attorneys to provide legal support in the courtroom for activists facing criminal charges, strategizing and finding video footage to combat these charges, and protecting constitutional rights through civil litigation.

The criminalization of dissent
The violent attack on civil liberties that took place in Miami did not surprise many dissenters. Activists of all ideologies and ages have come under increasingly harsh scrutiny and harassment for engaging in Constitutionally protected free speech activities since the September 11th attacks against American economic and military power. Examples of this repression, reported by Matthew Rothschild in February 2004 issue of The Progressive, include:

September 27, 2002 - In Phoenix, AZ, a crowd of 1,500 people gathered across the street from the Civic Center in Phoenix to protest a fundraiser for two republican candidates were charged by police officers on foot and on horseback for no apparent reason. Many individuals were arrested, including an attorney who was sent flying to the ground after being hit with a horse's flank.

January 22, 2003 - When President Bush came to St. Louis, a man was arrested for holding a sign saying "Instead of war Invest in People," while the woman standing beside him holding a sign saying, "We love You President Bush" was permitted to remain free.

April 7, 2003 - At the Port of Oakland, CA, more than 500 people gathered peacefully to protest two shipping companies that were involved in the Iraq War. In response to this peaceful gathering, the police opened fire on the crowd using an array of less than lethal weapons including rubber bullets, wooden pellets, and tear gas. 39 injuries were reported, many occurring as demonstrators attempted to flee.

May 16, 2003 - During the Monsanto and the World Agricultural Forum (WAF) in St. Louis, a van full of environmental activists driving back from the Regional Chamber and Growth Association meeting where they had given a pitch about how biotech hurt local farmers, were stopped by two police cars. The activists were searched and Sarah Bantz, who was scheduled to deliver three speeches at the Biodevastation Conference organized in response to the WAF, was arrested and held for 10 hours on drug charges for the possession of Vitamin C tablets. As a result she was unable to give any of her speeches.

On the same day nine members of the Flying Rutabaga Bicycle Circus who were peddling their way to the protests, were stopped by a police paddy wagon with its lights on. They were told to leave their bikes and then were arrested for operating their bicycles without a license. The group was detained for 6 or 7 hours during which all of their journals containing phone and email lists and details about where they going and where they were going to stay were confiscated and never returned.

More recent examples of the crackdown on dissent include:

February 4, 2004 - In Des Moines, Iowa, the FBI Joint Terrorism Task Force issued a subpoena asking Drake University to produce all records relating to a November 15, 2003 antiwar conference at Drake University called "Stop the Occupation! Bring the Iowa Guard Home!" The conference was sponsored by the Drake Chapter of the National Lawyers Guild and was followed the next day by a demonstration at the Iowa National Guard Headquarters in Johnston, at which 12 protestors were arrested on misdemeanor charges. The subpoena asked Drake University for all records relating to the November 15th conference, as well as information about leaders of the Drake University chapter of the National Lawyers Guild and the location of Guild offices and any annual reports since 2002. In addition, it asked for "all records of Drake University campus security reflecting any observations made of the November 15, 2003 meeting, including any records of persons in charge or control of the meeting, and any records of attendees of the meeting." In response the National Lawyers Guild issued a Motion to Quash the subpoena and on February 10, 2004 the U.S. Attorney announced that it withdrew the subpoena and lifted the gag order that had been placed on the university. No reasons were given for why the subpoena had been issued in the first place.

February 9, 2004 - In Austin, TX, two Army officers came to the University of Texas Law School seeking information about a conference that had been held on February 4, 2004. The agents requested a roster of attendees and sought to interview the organizers of the event. The conference was entitled, "Islam and the Law: The Question of Sexism?" and was co-sponsored by the U.T. student chapter of the National Lawyers Guild and other progressive organizations at the university. Military personnel in plain clothes also attended the conference. NLG student vice-president Maunica Sthanki, a law student at U.T. noted that, "The conference itself was extremely secular, apolitical and was an attempt to educate people about Islam, as well as engage in an academic debate on issues of women's rights in the Muslim world." She said, "It is particularly frightening that the Army sent investigators to an institution of higher learning. This raises disturbing issues of information sharing between the Army and civilian authorities such as the F.B.I."

The Miami Model
In response to the protest against the FTAA Ministerial Meetings during the week of November 16-22, 2003 the city of Miami spent nearly $24 million of local and federal monies to violently attack demonstrators and shut down the FTAA protests. All totaled 283 people were reported to have been arrested during the week and tagged as FTAA protestors. About a dozen arrests and many detentions occurred before the protests began. The crime: walking while looking like a protestor. Some people who were detained did not know what the FTAA was or that protests against it were about to take place; they did, however, wear baggy black clothes and a back pack while walking around downtown Miami and were thus assumed to be FTAA related troublemakers.

When demonstrations took place on November 20th and 21st over 40 law enforcement agencies collaborated to essentially wage war on anyone who happened to be standing in downtown Miami when the Miami police department used an unconstitutional city ordinance to declare gatherings unlawful assemblies. In an impressive show of military force, police from various jurisdictions dressed in an array of body armor and riot gear lined the streets of downtown Miami to surround peaceful protestors. Behind the lines of riot cops, were flanks of officers in marked and unmarked police cars. Roving throughout the city were Police Chief John Timoney's famously abusive bicycle police. Also present were undercover police dressed as "anarchists," police on motorcycles, Federal Marshals, state troopers from across Florida, and members of the department of homeland security.

The armor and weapons worn by many officers created an almost fashion show of the latest in toys available to anyone wishing to quell dissent. Riot uniforms in fashionable shades of black, olive, gray, and khaki were accessoried with taser shields, taser guns, batons, tear gas, beanbag projectiles, concussion grenades, and automatic weapons loaded with rubber bullets, pepper spray bullets, and wooden bullets. This fashion show quickly turned into a horror show when officers apparently gave orders to disperse to groups of peaceful demonstrators, declaring the constitutionally protected gathering an unlawful assembly, but then flanking the area so that routes to leave were nearly impossible to find. As the majority of protestors tried desperately to escape, officers aimed shots at their heads, sprayed pepper spray directly in their faces, beat their backs and heads with their batons, and tasered arms, legs, testicles, and breasts. The peaceful display of people marching, chanting, and dancing in solidarity for global justice was quickly hijacked by the law enforcement agencies and turned into a shameful display of the blatant disrespect the city of Miami and various law enforcement agencies have for the constitutional rights and bodily integrity of individuals whose voices and ideas they do not agree with. These tactics were used on both November 20th and 21st, first to stop the protests against the FTAA and then to stop a solidarity vigil outside the jail were people arrested on the 20th were being held.

After the protests were stopped, the South Florida Sun-Sentinel reported that Police Chief John Timoney said that officers acted with restraint and professionalism, giving protestors ample verbal warnings before using any force. National Lawyers Guild Legal observers, union members, lawyers, activists, and members of the press who became the innocent victims of this so-called restraint and professionalism told a different story. On December 11, 2003, Miami-Dade County Circuit Court Judge Richard V. Margolius spoke from the bench condemning the police misconduct that occurred during the FTAA protests in November 2003.

Below are quotes from the court transcript of Judge Margolius:

"How many police officers have been charged by the State Attorney so far for what happened out there during the FTAA? ... None? Pretty sad commentary. At least from what I saw. I happened to have been out there - I probably would have been arrested myself if it had not been for a police officer who recognized me. ...I saw no less than twenty felonies committed by police officers. ...Pretty disgraceful what I saw with my own eyes."

"A disgrace for this community."

What is happening now?
MAD, in collaboration with the Miami Public Defenders office, and a handful of dedicated pro bono attorneys, is working full time to fight the criminal charges of the 231 people who were formally charged during the week of November 20th. Thus far, 50 cases have been dismissed or withdrawn by the prosecution (40 misdemeanor and 10 felony cases), 1 case has been acquitted, 90 cases remain open, and 81 pleas resulting in no criminal charge have been taken by people tired of dealing with the Miami justice system.

MAD, in collaboration with attorneys from the National Lawyers Guild, has also begun to address these civil liberty abuses through civil litigation. On February 4, 2004, MAD and the NLG attorneys filed a civil lawsuit in federal court to challenge the controversial ordinance passed by Miami City Commission days prior to the FTAA. The ordinance made a public gathering of more than seven people unlawful if assembled for more than one-half hour outside a structure for a "common purpose." The City of Miami's permit scheme for expressive activity in public areas is unlawful in that it imposes the requirement of a permit, but contains no standards to guide the decision of whether and under what conditions a permit will be issued. This gives public officials unbridled discretion and invites decisions based on content. Miami's requirement of a permit to demonstrate on sidewalks and streets unlawfully restricts spontaneous speech. The Miami ordinances also unlawfully restrict speech by requiring proof of insurance before issuing a permit and making the applicant assume liability not only for the permit holder, but also for city employees such as the police. The ordinance was used to chill First Amendment activities during mass demonstrations against the FTAA. The lawsuit also attacked two other Miami ordinances regulating demonstrations on public streets and sidewalks as unconstitutional restrictions on First Amendment rights.

In a hearing held on February 5, 2004, federal Judge Donald L. Graham said that, "If any judge looks at the law and looks at the ordinance, it appears as though the statute is not constitutional." Assistant City Attorney Warren Bittner conveyed in a response to this statement that the city intended to repeal the "Parade and Assembly Ordinance" and to amend its decades-old permit laws controlling free speech activity.

On February 27, 2004 Judge Graham made a ruling that put control of Miami's protest permit scheme with the federal courts until the city can correct the Constitutional problems in the language of the ordinance. The ruling declared that Miami "shall issue" permits to any who seek to engage in protest and requires the city to file any denials of the permit, so that a hearing can be held.

"The Graham ruling is a clear victory for those that wish to protest and exercise their First Amendment rights in Miami," said Robert Ross, an attorney working with MAD and the NLG and co-counsel on the federal lawsuit. "It means literally, for the first time in decades residents and groups in Miami will enjoy the full spectrum of the First Amendment's protections. Additionally, the February 27th ruling and the City's affirmation of its unconstitutional laws, throws into question dozens of FTAA protest cases currently proceeding through State Criminal Court."

On February 27, 2004, the Miami Herald reported that City Commissioner Tomas Regalado is moving to repeal the ordinance at the City Commission's next hearing on March 11, 2004. At this same hearing, the Commission will also discuss amending its unconstitutional permitting scheme.

"It is no coincidence that the City is now calling into question its protest regulations and how it used them during the FTAA demonstrations," stated Andrea Costello, co-counsel on the lawsuit and an attorney with Southern Legal Counsel. "The FTAA arrest forms clearly show that Miami and Miami-Dade Police used the 'Parade and Assembly' ordinance to unlawfully stop, search, and arrest people who were merely expressing their political views about a controversial trade agreement. The fact that the city passed the ordinance only days before the protests began further shows that it was really about targeting certain speech."

Where do we go from here?
MAD and the NLG are in the process of developing civil litigation to address the police brutality and unlawful arrests that occurred in Miami. One victory is not enough. As the examples of the criminalization of dissent mentioned earlier demonstrate, Miami does not stand alone in targeting certain types of speech. The federal government has not hesitated in the time since the attacks of September 11th to pass policies that target certain types of speech. These attacks are found both in the USA PATRIOT ACT and the policies of the Joint Terrorism Taskforce and the Department of Homeland Security. In past periods when our National security has been threatened, similar measures have been taken to curb dissent. The surveillance of civil rights activists, anti-war activist, feminist and labor organizers during the 50's and 60's is presently recognized as a shameful period of our history. Laws were passed during this period in the name of national security to set aside constitutional rights for a period of time. From the onset of the passing of these older laws, a period was named for how long they would have authority. Once the crisis had passed the laws were repealed and sometimes found to be unconstitutional.

This is not the case today. All of the laws that have been passed in the name of national security since September 11th have an indefinite lifespan. They will not sunset, nor are they written to become void when the crisis passes. In fact, law enforcement officials have increasingly used these policies over the last three years to curb dissent by increasing surveillance measures and the criminalization of activists who do not agree with the policies of the current Bush administration. As a result activists who might otherwise be working to address poverty, healthcare, education, the environment, housing, and various other issues, find themselves having to spend an increasing amount of time and resources fighting for the protection of the civil liberties that were once believed to be a given. Without these civil liberties the dissent required for social change in areas such as the environment, poverty, education, and war prevention is on its deathbed. Without civil liberties we have no recourse in the courts when the government abuses its power. Without civil liberties we have no path for challenging those in power or for grass roots social change. So, we must each stand up and walk together in peace and solidarity for these civil liberties.

Two opportunities will soon be upon us to make this movement. On March 20, 2004 millions of people will march in protest to the US Occupation in Iraq. Even if you are not opposed to this occupation, take this opportunity to stand up in opposition to the attack on our freedom as Americans. Hit the streets shouting that you will not allow the freedoms our military personnel are supposedly losing lives for abroad to be taken from us at home. Second, on November 2, 2004 we have a national election. The Bush regime will be fighting hard to steal the chance to have another 4 years during which it can wage war against our civil liberties at home. Your vote could change that, so use it. It may be a lesser of two evils, but one evil has not yet attacked our constitutional freedoms. So please vote. And please protest. Do it for yourself, do it for your health, and do it for your freedom.

(Special thanks to Kris Hermes for contributing information about MAD to this article.)