Patricia Nell Warren

More on Civil Disobedience: The Need for Informed Consent

Filed By Patricia Nell Warren | June 02, 2009 10:30 AM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: ACT UP protests, DNC protests, nonviolent protest, peaceful protest, Prop 8 protests, RNC protests, U.S. Patriot Act

The first case of a protester being persecuted that I personally witnessed was that of a gay student activist that I met during my tenure as a commissioner in Los Angeles Unified School District. I'll call him Chase. I knew his family as well.

Chase was 17 at the time, a bright and charismatic young man who was passionate about politics and causes. In 1996, he was arrested for the first time during protests at Cal State Northridge when KKK figure David Duke spoke there. Because Chase was a minor, he was jailed in the nearby juvenile facility at Sylmar and his name wasn't mentioned in the news stories. To his shock and dismay, Chase found that he would be tried as an adult and charged with two felonies -- assaulting a police officer and assaulting the officer's horse.

A felony conviction would have cast a dark shadow over the rest of his life -- long years in adult prison, difficulty finding a career or job afterwards, possible loss of his voting rights.

Fortunately, Chase's family and friends plunged in to support him. The family was able to get his case switched to juvenile court. The felony charges were dismissed; he wound up with a year of probation. As far as I know, it was Chase's first and last street protest.

He told me that he'd expected to get a slap on the wrist if he was arrested. And he felt bitter towards the activists that he'd demonstrated with, saying that the leaders had done little to prepare beginners like himself for the reality of today's anti-protest climate.

"They'd been around the block...they knew the score," he told me. "Why didn't they tell us?"

Post-9/11 Dangers

Witnessing Chase's personal drama opened my eyes to see where U.S. government has been going with its stealthy effort to criminalize public dissent by peaceful and nonviolent Americans. Sad to say, Democrats as well as Republicans have been complicit in this persecution of protest -- a fact that I hope is troubling President Obama's mind.

After 9/11, a growing anti-protest atmosphere went explosive as legislators passed the U.S. Patriot Act and its state versions. Now prosecutors can characterize any peaceful protester as a "domestic terrorist," using felony charges rather than the misdemeanors or citations that were more "traditional" for civil disobedience. The more, the merrier -- prosecutors try to stack up as many felony charges as possible. In this way, convictions would take an offender out of the activist arena for many years, if not for life. Often police aren't above perjuring themselves when they assert that an individual "assaulted" them or "resisted arrest" or was otherwise "violent."

Last week, after I published my Bilerico piece on civil disobedience, it was odd to find myself called a "fearmonger," complete with allegations that I am scaring people away from street protest.

It's true that demonstrations have been -- and will continue to be -- a powerful tool for demanding change. And I have the utmost respect for same-sex marriage leaders who jumped onto the streets in recent days. Some of them are friends of mine. In her comment on my posting, Kate Kendell said that protesters were not "unprepared for the consequences." She added, "There was extensive training, explaining not only the 'how' of true civil disobedience, but also the 'what' to expect when arrested. Lawyers were lined up in advance and the full ramifications explained."

We do have protest-based organizations like National Lawyers Guild, Soulforce and ACT UP, who have a lot of experience dealing with prosecution. Their counsel will hopefully continue to be sought.

But I'm still see an ongoing need for detailed reporting on this subject. Why? Because -- in spite of whatever conscientious educating is being done -- many LGBT people still have a limited awareness of what law enforcement is up to. Which means that some protest detainees are going to experience the same dreadful surprise that my friend Chase did.

In my opinion, today's street protest is only for those who feel strongly and passionately that they have nothing to lose -- and who have been fully informed on just how their lives could be damaged if they're prosecuted.

The Total Prosecution Package

Today's prosecution can start off with a high bail (meaning you stay in jail for weeks or months if you or your family or your organization can't pay it). Bails can go to a half million dollars, even higher. Yet for a low-income person, even a lower bail can be disaster. And, in today's economic climate, one bail could wreak economic disaster on a person's life.

Example: Last November, during the post-election Prop 8 protests, two young men were arrested outside the L.A. Mormon Temple and found themselves facing bail of $20,000 each. They had to go in debt to pay it -- and their lawyer costs as well.

"I have no idea what the future holds except a lot of expenses," said one.

Prosecution can include being held for days without being charged, as happened to some LGBT arrestees during the 2004 Republican National Convention in Philadelphia. "Being held" can also include being denied access to medication, if you're in treatment. The package can even include a gag order by the court, so you can't talk to the media about your case. Meanwhile, there can be police brutality -- whether on the street or later, behind bars. Philly detainees reported sexual abuse, beatings, being hogtied in handcuffs, and threats of rape.

With the government having so many ways to hamstring protesters, there's a crying need for "informed consent." In a clinical trial, "informed consent" means that nobody is expected to take a new drug into their bodies without being told beforehand what all the possible known side effects could be. By the same token, some of us -- those whose health or finances or other circumstances are more vulnerable -- should be able to make an informed choice to engage in less risky activism, like lobbying legislators or circulating petitions.

After all, we are still at the beginnings of a nationwide movement to get same-sex marriage legalized everywhere. Last week's demonstrations went off pretty peaceably, with some arrests but demonstrators mostly feeling that they'd had a happy and productive experience. But this is a volatile issue, with more demonstrations continuing to happen, and a March on Washington being talked about. A lot of people on both sides are very worked up emotionally and convinced that they have nothing to lose.

So down the road, anything can happen -- even in a march that is permitted, to protesters who are 100 percent dignified and peaceful at the start. Especially in red states and red cities where the local fundies have juice with law enforcement and local prosecutors.

Some Protesters Really Do Get Convicted

A few people who reacted negatively to my article are so convinced that protesting is safe, that they question whether arrestees are ever actually convicted and serve time.

"Prove it to me," one said. "Cite me some cases."

Their disbelief can mostly be blamed on major media (and sometimes gay media as well). At first, the public usually hears screaming headlines that "hundreds of people were arrested in such-and-such a demonstration." Often most of the charges turn out to have no basis, and are dismissed, or reduced to a citation. But most of the major media go along with government's attitude that protesters are "lawbreakers" and deserve no sympathy. So, when it comes to follow-up on the trials, convictions and sentencing for the remaining detainees, this is usually done only by civil-rights-minded independent media that many people don't read.

So -- for example -- most Americans never heard that the 2004 mass arrests during the Republican convention in New York City resulted in convictions for 1 out of every 10 of the 1806 people arrested.

Another example: Over the last 18 years, few Americans learned that activists who demonstrated against the School of the Americas paid a heavy price for their ongoing efforts to shine a light on U.S. military torture and other brutality habits in other countries. By now, 226 of them have served prison sentences of up to two years each, for nonviolent civil disobedience. Yet their activism helped pave the way for the current outrages over torture at Guantanamo.

Even the disabled are fair game. In 1999 in Austin, Texas, 15 disabled people -- most of them in wheelchairs -- were arrested while protesting Gov. George's Bush's unfriendly position on a hot-button issue -- the forcing of disabled people into institutions, rather than allowing them to live on independently in their communities. According to ADAPT (the national org for disabled activism), Bush's security force spilled the protesters from their wheelchairs in order to handcuff them. Nine were convicted for the heinous crime of blocking the entrance to the Governor's mansion. Ironically, when the "Bush Nine" showed up at the Austin jail to do their time, they were sent away because the jail had no wheelchair access.

Beyond convictions, today's LGBT marriage protesters will have to hope that they don't get treated as roughly as hundreds of gay New Yorkers were during the unpermitted 1998 funeral march touched off by Matthew Shepard's murder. This was one of New York City's darker days, with NYPD out of control and beating demonstrators. Today, it is even possible to convict someone of the "crime" of "illegal free speech." This was the recent verdict on the 34 people protesting torture at Guantanamo, who were arrested last year while peacefully demonstrating right outside the U.S. Supreme Court. They each did up to 15 days in jail.

Earlier this year, seven of the protesters who demonstrated against Blackwater private contractors' atrocities in Iraq found themselves being tried and convicted in a secret trial.

Extra-Shocking Cases

The Vieques protest case reveals that even legislators who have a legitimate grievance can be put through the conviction meatgrinder.

In 2001, Congressman Luis Gutierrez (D - IL) and several others joined with Puerto Rican protesters over U.S. Navy bombing practice on the island of Vieques. Demonstrations had been going on for years -- Puerto Ricans wanted the bombing stopped. Gutierrez had a personal interest because his parents lived on Vieques. He wound up being beaten and stomped by Navy police. Federal authorities sent a strong anti-protest message as they jailed not only Gutierrez, but Robert F. Kennedy, Jr., Rev. Al Sharpton and his wife, and 176 other protesters, including several other legislators from Puerto Rico and the mainland. Sentences ranged from 40 days to 6 months. The government threatened 10-year sentences for anyone who did a repeat demonstration.

As a result, a handful of outraged Congresspeople went to the Justice Department and demanded an investigation. The Attorney General did nothing. Later the Hispanic Caucus in Congress defiantly held a hearing, where witnesses described for the record how Navy security beat Luis Gutierrez. But in the end the whole sorry episode got swept under the rug. Like most protest prosecutions, Vieques got little major-media coverage -- though many of the principals were well-known figures.

The final irony: our government later decided to abandon its use of the Vieques bombing range.

Closer to home, AIDS activists have often paid the heavy price of being convicted. Probably the most shocking case was that of ACT UP Philadelphia organizer Kate Sorenson. After her arrest during the 2000 Republican National Convention in Philadelphia, the justice system attempted to nail Sorenson with a $1 million bail, 10 felony charges and 10 misdemeanors. She was held for 10 days before being charged and released. If convicted, she could have gone to prison for 20 years. But after an 8-month court battle, the felony charges and most of the misdemeanor charges were thrown out. A jury convicted Sorenson of one misdemeanor, namely criminal mischief (talking on her cell phone). With her lawyer pointing out that "mischief" had not been proven with any evidence, Sorenson appealed the conviction.

But Sorenson is only one of many AIDS-related convictions. In January 2005, after three months of trial, 20 AIDS activists were convicted of "criminal trespass" for entering the 2004 Bush-Cheney campaign headquarters and demanding more Republication support on AIDS issues. Eight of them did 30 days in jail...for trespassing.

Indeed, ACT UP has such a history of harsh prosecution that they are now very careful about where and how they protest, and they train their members intensively beforehand.

What the Future Holds

Under the shield of the U.S. Patriot Act, the FBI is presently busy monitoring the activities of activist organizations. That includes LGBT groups.

In 2008, during the run-up to the Republican National Convention in St. Paul, FBI undercover work was focusing on gay activists as well as anti-war and environmental groups. According to confidential FBI reports obtained by the Des Moines Register the FBI was spying on LGBT groups. The Register reported a gay-related item in the document, saying: "A white man in his 20s who had recently moved to Iowa from Mississippi was also profiled by the FBI informant. 'He is planning on attending the RNC and participating with the 'Queer Block' and 'Bash Back,' which are groups affiliated with the lesbian, bi-sexual, gay and transgender movement. Several hundred people associated with these two groups plan on doing their own thing and blocking an unknown (intersection),' the document said."

I don't doubt that the FBI has added LGBT marriage-equality groups to their surveillance list. Ironically, it will cost the feds millions of dollars that they don't have, to prosecute same-sex marriage protests.

Meanwhile, right-wingers will probably claim that our national campaign of LGBT pro-marriage marches is "terrorist" in nature -- that we even endanger national security and merit prosecution under the U.S. Patriot Act. Accusations of our "terrorism" were already launched last year by the Mormon Church, after its role in passing Prop 8 was revealed and several temples were targeted by protests.

Yes, demonstrations are important for getting public attention to an issue. But let's not forget that protest isn't the only thing that gets laws changed. We actually change the laws by relentless pressure on legislators -- on making them realize that enlightened voters will eventually vomit up any public official who is stupid and callous about human-rights issues. So people who opt not to demonstrate can find plenty of important work to do.

Whatever the future holds -- if we don't tell our people exactly what they might be risking as they take to the streets with their placards, some of them will have the right to ask us later, "Why didn't you tell us?"

That was the question my friend Chase was asking when he found himself sitting in the Sylmar jail.

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diddlygrl | June 2, 2009 11:11 AM

"Power comes from the barrel of a gun.".

Mao Tse Tung said something like that, and it is true. The government has the guns, and it will never be afraid to use them. Some of those 'guns' are made of paper, in the form of laws that have been enacted, and tighter 'interpretation' of laws that are on the books. You can thank my generation in part for that, the Vietnam anti-war protests and movement scared the unholy hell out of the 'establishment' types, both in government and out.
You think the church types want people free to prtest? Not bloody likely since religion in any form is about controling the lives and minds of the people. Religion is now, and always has been about power. Power and control is what it is all about, and as long as the religion is helping the government with it's job, then the religion is free to spread it's poisons all it wants. Why do you think the government has been so hands off about various and sundry 'christian' cults, as long as they tow the "party line" so to speak,in regards to controling their folowers.

It was nothing about abused children that brought the law to the Branch Davidians door so many years ago. It was abbout the guns they were buying. Koresh made the mistake of acting on his tirades against the government, rather than just making it a straw man to rail at.

Freedom of religion has nothing to do with it at all. It is about the churches using their power to further the governments aims of controlling the population.

1984 has always been here, we are just starting to notice it finally.

John R. Selig | June 2, 2009 7:47 PM

How sad this well researched and written piece has had so few comments.

Our community is in a position where the Democrats control both Houses of Congress as well as the White House and until now at least have done nothing for the LGBT community in over 4 months since President Obama took office. Yes I know there are a bunch of pressing issues facing the country at the moment thanks to the mess that George W. Bush and the Republicans made out of things over the past 8 years.

The Democrats will at least listen to us and sympathize with our demands for equal rights (unlike the Bushies and the radical right. Still the Democrats need to be pushed into action by the LGBT community expressing its dissatisfaction with their inaction. We have waited long enough and we need to raise our voices. the squeaky wheel gets the grease and it is time to make some noise. I don't believe that our national government will take action just through the efforts of the national organizations. We need to build some heat on the grassroots level as well.

But we need to be both strategic in how we do so and prepared for the consequences of our actions.

Patricia's piece provides strong food for thought. I myself, having been strongly involved with and more recently the successful protest here in Dallas a week ago against the Prop 8 decision by the California Supreme Court, remain convinced that protests do focus attention on our fight and help to educate our neighbors while bringing a sense of urgency to elected officials. At the Dallas protest last Tuesday both Angela Hunt, Dallas City Council member, and Larry Duncan, a member of the Dallas County Schools Board of Trustees, attended the protest. Both of them are straight by the way.

Patricia's comments should be heeded by those planning protests.

I am surprised that this post has received so few comments.

a few above have lamented that this piece has received few comments. They have moved me to comment. Your post has profoundly disturbed me--I can't believe how far our country has strayed from the ideals of open, free speech for all. We shouldn't be restricting any speech, conservative, liberal, intelligent, vapid, gay, straight, whatever. That last sentence is pretty obvious, but the actions described above contradict those goals completely.

As to the lack of comments, I was so shell-shocked by your post that I felt unable to comment. | June 3, 2009 6:57 AM

Thank you, Patricia.

The misnamed "Patriot Act" really is diabolical.

If the Republicans had maintained control of the White House and the Congress, I truly feel it would only have been a matter of time until we were all dubbed, "Sexual Terrorists".

I am heartened by the Federal lawsuit filed by Olsen and Biose citing the Equal Protection Clause of the U. S. Constitution as the basis for granting Marriage Equality to same-sex couples.

Protests have had their role in our history, but that was all before 9/11.

However, ALL major gains of an equality nature have come first through the Judicial System, rather than through Legislative bodies.

Thanks again for your willingness to speak out on this important subject.

Thanks to all who commented. I have a whole file of court cases that I collected from the Web during Just Dissent's efforts to pass our freedom-for-civil-disobedience bill in California. Yes, Shocked, it's shocking to know that all this is going on behind the woodwork, so to speak...with so little media attention.

I've told the story of the Vieques protest in several articles, because it's one of the most bizarre and outrageous. Yet I rarely get any reaction to it. It's incredible how the feds managed to hush the whole thing up right in plain sight. Eight years later -- here we are as a nation, trying to have a discussion about the definition of "torture" for prisoners of war, when we have been perpetrating a certain level of abuse of our own citizens.

Intelligent article Patricia, thank you.

I can see how personal this makes it for many people. For those of us who were around during Stonewall, Milks' rise to politics, Anita Bryant, Coors Beer, we have made many strides. I always give second thoughts on protesting as I see more ways that can help.

Still, I don't see a single national voice to take the establishment on, 'how dare you' type attitude on not giving us 'equal rights under the law'. And the voice of 'how dare you' in I don't believe in what you believe in (religion). I/we have a right not to be abused by religion.

I wonder how Harvey Milk would respond to our lack of unity and fighting back. If Harvey was still alive, I doubt that Prop H8 would have passed.

Where is the outrage to similar anger over Dr. Tillers death but a terrorist group when out own community has been subjected to hate-mongering, torture and murder by the hate speeches by religious nut cases. Where is the justice? Where is our community in making this a loud cry of injustice in comparison?

Where is the rant to 'awaken, unite, demand and fight' for our rights?

Robert Ganshorn Robert Ganshorn | June 3, 2009 11:43 PM

I have said it to you before. Few comments does not mean no one reads you. Your piece is a powerhouse and a call to proper awareness of how our republic has drifted away from it's right to protest.

Unless you are a Washington Lobbyist...or haters of various stripe.

I think "shocked" above has stated it very well. Most Americans have no idea how their rights have been eroded. In ten years time Americans could easily have fewer rights than Chinese have right now and reporting media of anything not wanted will simply be "unplugged."

At the same 2004 Republican convention you reference I saw a woman make her way to the front in sight of Bush as he was delivering his acceptance speech and she unfolded a protest sign that television could not see as her back was to the camera. Security hustled her away and the live commentator said nothing,during or after the speech on NBC and we never learned her fate. her bravery was never acknowledged. Her cause remains unknown. Something to think about.

The marriage protests of last week were the exception to the rule. From what I heard police were on their best behavior.

I think this mostly has to do with the country's general movement to a place where anyone who engages in one of these protests is immediately labeled and DFH, and no one can have any sympathy for a DFH. Half the reason we're in Iraq right now is that no one in the media wanted to be the DFH in the run-up to the war.

Actually, some arrests were made during the marriage protests. We'll see what the result is -- if and how the arrestees are charged, and how they're treated while in custody.

As for DFH, the government's anti-protester bias isn't limited to liberals and leftists. The feds have issues with some right-wing groups too -- including anti-abortionists, tax protesters and state-sovereignty groups, to name a few. But the feds apparently believe that what's good for the goose is good for the gander. So some of the complex MO that has been evolved by the feds to deal with these groups have also been used against liberal and left-wing groups as well.

For instance, conspiracy prosecutions under RICO were originally used by the feds to prosecute anti-abortion extremists and to try hamstringing the anti-abortion movement. Liberals cheered...until the government started using RICO prosecutions against liberal groups as well. The RICO trend started well before 9/11 and the U.S. Patriot Act.

Religious groups that don't necessarily fall into the "right wing extremist" category can also get themselves prosecuted this way when they protest. In 2005, the Washington Post reported a protest in which 115 representatives of the Presbyterian, Methodist, Episcopalian and United Church of Christ Churches were arrested. They were protesting Bush's budget, which cut poverty programs and provided big tax cuts for the wealthy.