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Blessed are the noise makers

To the informal band of lawyers who expect to be busy during the DNC, protest is a thing to be treasured

Who will speak for those who speak a little too loudly or become unruly at the Democratic National Convention?

There are the obvious advocates – the civil rights lawyer, the criminal defense attorney, and the law professor who runs a civil rights clinic. But the most active role so far has oddly been played by a real estate litigator who ended up with the job essentially by default: No one else seemed to want it.

For these four and others, the action will be outside the convention hall, as they work to ensure that the proud American traditions of assembly, dissent and nose-thumbing at authority are protected. They’ve already had some practice – a spring training, if you will – thanks to the local offshoot of the Occupy movement, which set up a protest camp on the lawn of the old city hall in the fall of 2011.

In January, the city responded by passing a new anti-camping ordinance that it used to evict the Occupiers. That muscular response to the protests gave the lawyers to chance to test some legal strategies, get an early feel for the kinds of obstacles protesters will face, and figure out the smartest ways to deal with a decidedly unusual kind of client.

Parties debate potties

Ken Davies, who is sometimes referred to in the press as “Occupy Charlotte’s lawyer,” is not a civil rights attorney by trade. His practice focuses on real estate law and litigation, but he became acquainted with Occupy Charlotte when an internal dispute arose that Davies helped iron out. After that, Davies helped the group organize and put together a litigation team to advocate on behalf of the group’s civil liberties, starting with an unexpectedly urgent matter.

“The first order of business was port-a-johns,” Davies said. “We thought that wouldn’t be too hard to accomplish, so we got in touch with the city attorney and eventually the police attorney and we had these big meetings. You would have thought we were negotiating something incredibly serious.”

The port-a-john summit never produced an agreement, something Davies pins on the city’s hostility to the movement from the outset. But Davies and other attorneys were able to help the group with further needs, like setting up a bank account and tax ID number to process donations that were streaming in. Working with a group that prides itself on being a leaderless organization presented challenges, but they devised an effective system where some Occupiers were chosen as liaisons to meet attorneys and then report back to the group’s “general assembly,” which Davies said worked surprisingly well.

When the city proposed two new ordinances—the anti-camping rule and one that allows the city manager to declare extraordinary events during which people would not be allowed to carry certain potentially dangerous items—Davies became involved in trying to shape those. The city offered few concessions and denied a request for a sunset clause for the rules for after the DNC. Davies filed suit to seek an injunction against the anti-camping ordinance.

“As I looked around, no one else was really available to do it, so I’m the one who filed the lawsuit to try to challenge that on [state] constitutional grounds. Believe me, I looked around and said, ‘Somebody help me with this,’ ” Davies said. “As lawyers, we all kind of have a professional idealism about protecting people’s rights. When no one else  stepped up to the plate, I sort of took the plunge.”

The North Carolina chapter of the American Civil Liberties Union stepped in to help Davies behind the scenes. In Mecklenburg County court, the protestors were only able to win a minor concession—that an information tent could remain on the city hall lawn. Worried that an appeal could set an unfavorable precedent, they decided not to appeal the decision.

But while that fight came to an end, Chris Brook, legal director for the ACLU-NC, said the organization would be an active presence during the DNC representing the rights of protestors.

“We’re going to be down in Charlotte during the DNC. We’re going to be working with coordinating attorneys down there to make sure First Amendment rights are respected. I think there will be opportunities for a lot of that kind of work,” Brook said.

In particular, Brook said the ACLU had concerns about the extraordinary events ordinance, and new rules that preclude carrying backpacks into such an event with the intent to conceal a weapon.

“We have a great deal of concerns about that. It sounds like a police officer would be allowed to search your backpack for any reason,” Brook said. “How does a police officer know that you’re trying to conceal weapons? So we think that has some real Fourth Amendment concerns. I think folks who are planning these events have to find a way to accommodate both the First Amendment and Fourth Amendment rights that protestors should not have to bargain for.”

Bright green hats

As with many events across the world where civil rights are at issue, legal observers will be on hand to observe and report any police conduct that may infringe on protestors’ rights. The most prominent legal observer program is a project of the National Lawyers Guild, whose observers are known for their bright green fluorescent hats.

Students from Charlotte School of Law, one of the few schools in the country to sponsor its own civil rights clinic, will be among the observers. They’ve had practice. Students from the clinic served as observers during the eviction of the Occupy camp and provided litigation support in the lawsuit against the anti-camping ordinance.

Jason Huber, the clinic’s director, says that the DNC is providing his students with valuable legal experiences while also providing a service to the community.

“It’s a fantastic opportunity. We’re going to have people on the ground every day at the DNC blogging, and we hope to be on the floor of the convention reporting. In terms of whatever develops during the DNC in terms of protest activity, we’ll continue to wait and see what happens and how the police handle it,” Huber said.

Jake Sussman, a criminal defense attorney who was part of the group of attorneys who had advised the Occupiers, expects that there will be a lot of police activity to observe during the DNC and a substantial number of arrests. Recently, he’s been providing legal advice to people who want to avoid falling into that second category.

“I’ve been contacted by groups who have an interest in being present around the DNC and want to understand what some of these ordinances and restrictions mean in practical terms. So to the best that I can anticipate or forecast for them that if you do A you may run afoul of this ordinance, but if you do B you should be able to protest or be present without risk or arrest, I’ve done a lot of that, and I expect I’ll do a lot more as we approach September.”

Sussman said it remains to be seen how many of those arrests will be purposeful on the side of those getting arrested.

“There are going to be a another set of people who want to test those rules and test those boundaries, and people who participate in that really do a service to the rest of us because sometimes our government really does pass laws that are overly broad or restrictive,” he said. “My job is to make sure that their rights are protected. To some people a loud, noisy few days is a sign of success.”

 

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