Volunteer lawyers step up for activists

WASHINGTON – As copycat Occupy Wall Street encampments around the country confront the legal tangles that come with a nationwide sit-in-style protest, a growing army of First Amendment-loving lawyers is shepherding the demonstrators through the legal system at no charge.

Growing numbers of protesters are being arrested for trespassing, failure to disperse and disobeying a lawful order, as cities conclude that individual rights to free speech and assembly do not include the right to camp on public property.

The resulting legal skirmishes have spurred the largest mobilization of pro bono protest attorneys since the anti-war movement of the 1960s and ’70s.

“It’s probably bigger than the anti-war movement, because there are so many simultaneous demonstrations. I’ve never seen anything like it,” said Carol Sobel, co-chair of the Mass Defense Committee of the National Lawyers Guild.

Some of the volunteer lawyers draft and file motions, or simply monitor the protests as legal observers. Some advise the activists on how to negotiate with city leaders. Others show up in court – usually on short notice – to represent jailed protesters at their initial court appearances.

Last week, police tried to disperse Occupy Los Angeles protesters who put up tents at a street corner along the motorcade route of President Barack Obama, who was in town for fundraisers. After an observer called Sobel, she told the group to stay put, arguing that they were being singled out for unfair treatment since the street wasn’t being shut down, no businesses were asked to close and other pedestrians weren’t being searched or removed.

“They stood their ground, the president came and went and there was no problem. But there’s always that constant pushback,” Sobel said. “That’s why the lawyers are so critical, because they can give information to the protesters and vigorously arm them with the law. And the law’s on their side.”

Many of the volunteers are members of the guild, a liberal group that has defended the First Amendment rights of thousands of protesters and controversial figures since 1937.

However, attorneys with no guild affiliation or history of protest involvement are also helping in the estimated 200 U.S. cities where “occupy” protests have sprung up to oppose economic inequality and corporate greed.

Criminal defense attorney Daphne Pattison Silverman, of Houston, was watching a television interview with a guild lawyer for the Wall Street protesters when she decided she wanted to help.

“I just felt completely energized and I could just tell this was an organization that was worth looking into,” she said.

In addition to starting a local guild chapter in Houston, Silverman has recruited 10 lawyers to assist the Occupy Houston protesters.

A former attorney in the Navy’s Judge Advocate General’s Corps, Silverman chafes at any perceived contradiction involving her past military service and her work on behalf of government protesters.

“To me, the same oath I took in the military to support and defend the Constitution is the same oath I take as a criminal lawyer, and now as a budding First Amendment lawyer,” she said.

With Silverman’s counsel, Occupy Houston demonstrators negotiated an agreement with city leaders that allows them to use sleeping bags – but not tents – during overnight stays on public property. In Cincinnati, attorney Jennifer Kinsley needs a computer spreadsheet to keep track of the estimated 200 Occupy Cincinnati protesters she’s representing pro bono. On Monday, she filed not-guilty pleas for more than 40 who were charged with criminal trespassing.

Since Oct. 9, Kinsley said, Cincinnati police have issued more than 270 criminal citations to the protesters – mainly for being in a city park after hours.

“Cincinnati has a very storied history of trampling on people’s rights and there is much, much work for me in this town,” she said

In a federal civil rights lawsuit filed a week ago, Kinsley and fellow volunteer attorney J. Robert Linneman argued that a city park board rule that closes parks from 10 p.m. to 6 a.m. is unconstitutional.

Kinsley’s lawsuit argues that the First Amendment right to free assembly doesn’t “turn off” at a certain time. Local governments can place restrictions on those rights, but they have to meet a constitutional test, Kinsley said.

But Peter Scheer, director of the First Amendment Coalition in San Raphael, Calif., said he thinks the lawsuit faces an uphill battle.

“It’s hard to find in the history of the First Amendment anything that speaks to camping out as an aspect of assembly,” Scheer said. “In other words, you really can’t win a lawsuit on the basis of defective (permit-granting) procedures if perfect procedures would still not let you do what you wish to do.”

Kinsley isn’t deterred.

“What if we had shut the civil rights movement off after three days?” she asked. “Would we have had the Civil Rights Act? Would we have had Martin Luther King Jr.? Would we have had progress? No.”