‘People Have the Right to Take to the Streets’ - CounterSpin interview with Mara Verheyden-Hilliard on inauguration protests

Janine Jackson interviewed Mara Verheyden-Hilliard about the arrests at the inauguration protests for the January 27, 2017, episode of CounterSpin. This is a lightly edited transcript. | MP3 Link

Janine Jackson: A spontaneously organized rally in opposition to Trump’s proposed travel ban for people from Muslim-majority countries packed Washington Square Park here in New York January 25, just days after millions took part in women’s marches around the country, those coming the day after thousands demonstrated at Trump’s inauguration. As this administration proceeds, more and more people are feeling driven to show resistance in some visible way, including taking part in street protests, which makes the treatment of protesters by law enforcement and the courts—always critical—a front-burner concern.

What should we learn, then, from the mass arrest of protesters and journalists at the inauguration, and the decision to bring felony riot charges against them? Mara Verheyden-Hilliard is an activist and attorney. She’s co-founder and executive director of the Partnership for Civil Justice Fund. She joins us now by phone from Washington, DC. Welcome to CounterSpin, Mara Verheyden-Hilliard.

Mara Verheyden-Hilliard: Thank for you having me.

JJ: The January 20 arrests were sort of a footnote in much media coverage of the inauguration. I wonder, can you fill us in on what went on there, and what concerns you about those arrests?

MVH: The January 20 protests against Trump’s inauguration were very significant, and the media coverage itself was very interesting. Because there were two significant demonstrations that were occurring, and the media only, of course, wanted to cover the demonstration where there were windows broken and other property damage.

But there was also a mass demonstration directly along the parade route at the Navy Memorial, where there were tens of thousands of people, both there and stuck outside of checkpoints, trying to get in to be up against the parade route. And it was a very significant, very large demonstration that greeted Donald Trump in his first appearance as president, coming down along the Pennsylvania Avenue parade route.

Now, there were also, at the same time, demonstrations occurring away from the parade route, and also people who couldn’t get in through the checkpoints began marching to try and peacefully demonstrate, because they couldn’t even get inside. So those demonstrations ended up with mass arrests and collective punishment—use of pepper spray and other less-lethal munitions. And we’re very concerned, and currently performing an investigation at the Partnership for Civil Justice Fund, into unconstitutional and illegal actions of the District’s Metropolitan Police Department.

We brought litigation, a series of lawsuits over a period of about 15 years, including two major class actions representing more than a thousand people who had been falsely arrested. The District ended up having to pay out more than $25 million in damages to protesters who had been brutalized, who had been falsely arrested, who had been tied up in stress and duress positions after false arrests for some 24 hours or more.

And, significantly, there were major changes in the law of policing of the District of Columbia. Those changes came under what’s called the First Amendment Rights and Police Standards Act, and when one goes through those requirements, it would appear that the interim chief of police, Peter Newsham, is in violation, in stark violation, of not just the obvious obligations under the Constitution, but these very clearly delineated requirements on policing.

JJ: And some of those had to do with whether police needed to make a call for folks to disperse before they started arresting people, and that sort of thing. But what I’m also thinking about is the sweeping up, which you sort of touched on, and that’s why DC had to pay out that money after 2002. And it seems like it happened again, where there are folks who are breaking the law by breaking a window or something, and then the folks just kind of near them are being arrested and are being charged with felony riot. It seems like it’s almost proximity that people are being charged with.

MVH: That’s in fact correct, and that’s what appears to be what’s happening here. Now, the police, by the Constitution and by the particularities that were detailed in these laws that we have sought as equitable relief from these class action lawsuits, when the police are dealing with a crowd of people engaged in First Amendment activity, if there is some section of that crowd that they are observing are committing acts of violence or property destruction, or if the police are asserting that the crowd is what’s called “substantially infected with violence,” there are circumstances under which they can act against the group as a group.

But it’s limited in terms of what they can do. They could use police lines to temporarily control a group, if they are asserting that within that group are people that they’ve identified as having committed criminal acts, and then they’re dealing with those individuals. It does not mean that when the police have criminal actions occurring, like property destruction or damage, that then they can turn to everyone else in proximity, and based on association, which is truly First Amendment political association, arrest everybody else. And that appears to be what they’ve done, and also they were using chemical munitions against just huge swaths of people.

There is a requirement for particularized probable cause. If you are going to deprive somebody of their liberty, as a police officer, you have to have particularized probable cause that that person has committed a crime. It is not a crime to be in proximity to other people who break the law in conjunction with First Amendment activities. It is not a crime to be reporting on protests going on, even if portions of those protests become violent.

And that seems to be what Peter Newsham has done here. And I note that we sued him in his individual capacity after the mass arrests in Pershing Park in 2002, and the DC Circuit denied him qualified immunity, citing his basis for the mass arrests as “ludicrous.” And it would appear that he has not learned the lessons of 2002.

JJ: Right, and here he is, he’s now acting DC police chief, but possibly DC police chief. We can see that he’s going to be facing, very likely, many more protests and demonstrations on his watch, which makes this an important case to follow.

MVH: And, also, they are clearly overcharging people. They are engaging in trumped-up charges with these felony charges against people in proximity as well as journalists. One suspects that that is occurring, one, to force people to plead to lesser charges, in the hopes that then they can avoid the mass civil litigation that would ultimately result from this kind of false mass arrests. And also because it would appear they’re trying to escape certain requirements and responsibilities that they have under the law when they arrest people for misdemeanors in the context of First Amendment activity.

JJ: I see. Well, I understand the desire to distinguish between law-abiding protesters and those who vandalize, for example. But we see a lot of shorthand references to “violent” versus “nonviolent” protests. It seems worth saying that breaking a Starbucks window is different than hitting someone on the head with a brick—or a baton, for that matter. In this case, though, the DC police are almost acknowledging, aren’t they, that the people that they identified as having broken the law, they didn’t catch?

MVH: Right. In their charging papers, they are acknowledging that the people that broke the law, that form the basis for their actions against the larger group, are not the people that they then have arrested in the larger group. They even, in some of the charging papers, appear to be holding people who were arrested responsible for actions that occurred after they were in custody, which I don’t believe people have the, you know, time-travel capacity to be doing this. And it really shows the indiscriminate nature of the police arrests.

And there was a lot of violence that was occurring from the police, and the police need to be held responsible for that violence—the use of the batons, the use of chemical munitions against people.

And in the context of First Amendment protests, and as we enter this coming period, it is absolutely critical that there in fact be particularity, that there be a distinguishing, when the police are taking action against any group of people. They cannot take actions against groups of demonstrators because they are demonstrators. They are only within their authority to take actions against someone that has violated the law.

And I think here you have this very evident effort of the police to really roll back the significant achievements that have been made in the District of Columbia, and they’re doing it now in the age of Trump. They clearly feel that they have leeway to do so, and that’s why we’re seeking to hold them accountable. We’re opening investigation into this conduct, and we’re hearing from a lot of people as to what happened, and intend to take the next appropriate steps.

JJ: Let me just ask you, finally: I know even before the inauguration, you had to fight to be able to use public spaces for demonstrations. And we’re also hearing people talking about, maybe there could be a ban on public protests. I feel there are a lot of mixed messages people are getting about whether civil disobedience is permitted or not. Maybe it’s just worth underscoring what we can do, and what some would say we should be doing.

MVH: People have the right to take to the streets, to express themselves, to resist, when they feel that they’re faced with a government and with politicians and with policies that are rolling back their civil rights and their civil liberties. And that is, in fact, the only way that we’ve ever moved forward with progressive change in our society. There is clearly an effort by government authorities to try and stifle and push back and stonewall the ability of people to do that. The fact that we had to fight so hard for permitted demonstrations, for lawful permitted demonstrations, I think is extremely defining of the hostility towards First Amendment activities.

Now, the First Amendment obviously protects lawful, peaceable assembly. If people choose to risk arrest with civil disobedience, they also obviously may do so. But the fact is, the police cannot arrest other people for sharing similar political views of people who may break the law, and they can’t act against a group as a group. They have an obligation to act with particularity.

JJ: We’ve been speaking with Mara Verheyden-Hilliard of the Partnership for Civil Justice Fund. Find them online at justiceonline.org. Mara Verheyden-Hilliard, thank you very much for joining us today on CounterSpin.

MVH: It was a pleasure to be with you.

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