Arrests raise legal questions

The arrest of 17 protesters Wednesday poses a series of legal questions that may play out in local courts in coming months, lawyers said Thursday. Especially: Can the protesters be convicted of trespassing in one of the city’s most public places – Riverfront Park – during Independence Day festivities?

Aaron Caplan, a staff attorney for the American Civil Liberties Union of Washington State, said trespassing is usually a charge used for private property. Although it is possible to trespass on public property, in most cases police would have to prove they complied with the protesters’ due process, following all rules that govern the use of the park and applying them fairly.

“If it’s just a police officer deciding who gets to remain, who gets to stay, that’s a due process problem,” said Caplan, who added he didn’t know any of the specifics of the Riverfront Park case. “There are not a lot of cases about orders to leave a park.”

The protesters are also charged with failure to disperse, which presents another legal question because other people in the area were not told to leave.

“Usually with an order to disperse, you close down the park, everybody leaves … to cool down the whole situation,” Caplan said. Telling just the protesters to leave sets up a situation of the police picking and choosing, he said.

City Attorney Jim Craven said the city trespassing ordinance has a key phrase that says trespassing can occur if a person “remains unlawfully” in a place, which would apply to the protesters if they refused an order to disperse. Although that ordinance talks about the “premises of another,” that can be public property as well as private, Craven said.

Rules and regulations governing conduct in the park are set by the Park Board, Craven said. There may also be provisions that govern area activities in the lease obtained by Clear Channel Communications, which had planned some entertainment on a stage near the protesters.

Although he hasn’t studied all of those rules that might come into play with these arrests, “I’ve got to believe there’s a bunch of them,” Craven said. “We’ll be looking at all of these things.”

The city has a pending case involving a protest in a public place, said Breann Beggs, of the Center for Justice. It concerns a protest in a National Guard recruiting office, but the underlying issue is the same, he said: “In a public space, can they just tell you to leave?”

Beggs said he didn’t know anything about the specifics of Wednesday’s arrests and didn’t know if the center will be involved in the case. The group’s main interest right now is “for free speech venues to be open.”

Cases involving protests and the arrest of demonstrators have gone all the way to the state and U.S. Supreme Courts.

“If it were black and white, we wouldn’t have all these cases,” Craven said.