Thus far, “Occupy Spokane” has been all about free speech and not about tense confrontations with the City and its tarnished police force. So how’d that happen?
By Tim Connor
It says something about the national breadth of the “occupy” movement that within days after a commando team of activists outfoxed New York police to set up camp in Manhattan’s Zuccotti Park, Spokane’s large contingent of “occupy” protestors were making national news as an example of the loose-knit campaign’s surprising geographic reach.
Story lines have diverged from there in terms of what the movement is about. In Spokane, as with the seminal “Occupy Wall Street” uprising in Manhattan, much of the focus has been on national banks as objects and symbols of greed, corruption and overbearing political influence.
An Occupy Spokane march in early November.
A signature of the “Occupy” movement is the holding of ground, in literal and symbolic terms. In New York, Los Angeles, Philadelphia, Oakland, Seattle, University of California, Davis, and other places the clashes between protestors and police moving to clear occupied public spaces have been dramatic; sometimes ugly. Thus far, though, Spokane has not joined the list of cities where evictions of protestors from public spaces have resulted in injuries and arrests. If that’s not a full-blown surprise, there were at least good reasons to be concerned about violent confrontations as the movement took root and grew in Spokane. Exhibit 1, from recent memory, is the fiasco that occurred in Riverfront Park on July 4, 2007, when Spokane police wound up in a melée with protestors who, ironically, were mainly there to protest police violence.
To date, the City has moved forcibly only once and that was when police removed tents from one of the “Occupy Spokane” downtown locations at the end of September. Since that time, there have been no reports of police intervention. Conspicuously, there have been no arrests. If that sounds like a success story, it is. And part of what’s intriguing about the absence of a flaming conflict is that when events neared a potential flash point late last month, the City seems to have realized that it was not on solid ground, legally, to intervene to shut down the protests.
“You know what’s remarkable? There are no tear gas cans and no pepper spray being used in the streets in Spokane. When you think about it, that’s no small feat.”--Spokane attorney Breean Beggs
The City’s legal vulnerability is mapped out in a Center for Justice analysis of the ordinances and regulations the City had indicated it could use to quell or disband the protests.
A summary of that analysis was conveyed on November 21st as tensions escalated between protestors and City officials over the “Occupy Spokane” presence in a north Spokane park. The analysis was conveyed in a letter CFJ attorney Bonne Beavers and former CFJ lead attorney Breean Beggs sent to the City’s Park Board. As Beavers and Beggs put it, there are “longstanding deficiencies” in the City’s existing legal toolbox.
“We don’t currently represent any specific individuals or entities,” the two wrote, “but offer this letter as a potential road map for how the City can, and indeed must, accommodate recent peaceful long term protests” given federal and state constitutional free speech protections.
The gist of what Beavers and Beggs conveyed is that ordinances and rules the City has used, and may be tempted to use in the future, do not afford speakers, marchers and protestors enough legal elbow room under the federal First Amendment and Article I of Washington’s Constitution.
To make their point, the two reminded City officials of the lawsuit the Center filed in 2006 on behalf of Inland Northwest Pride, the non-profit group that organizes Spokane’s annual gay pride celebration. In that instance, the City tried to condition a parade permit on a $4,000-plus fee. The Center and INWP argued that this was an unconstitutional “prior restraint” on the organization’s free speech rights. In order to resolve that lawsuit, Beavers and Beggs pointed out, the City agreed to “update its assembly/parade ordinance to insure that its permit process did not interfere with protected free expression rights.”
Whether the Beavers/Beggs letter was effective in resolving the late November impasse depends upon whom you ask.
When reached earlier this week, City Parks Director Leroy Eadie insisted their message played no role in the announcement the City made two days later (November 23rd) about an “understanding” reached with “Occupy Spokane representatives.”
The announcement was sent out to the media in the form of a press release entitled: Franklin Park Transient Permit Not Extended. The headline was misleading. Eadie now clearly acknowledges that—coincidentally or not—the salient outcome of the “understanding” is that it eliminated any requirement to apply for the transient shelter permits that Beavers/Beggs insist are so constitutionally problematic in the context of Occupy Spokane’s activities.
Eadie is clearly on a bit of a hot seat given the political polarization surrounding “Occupy Spokane.” Suffice to say, not everybody on the receiving end of the protestors’ free speech activities is applauding. Eadie and the Parks Department have been getting lots of complaints about “Occupy Spokane” from citizens. Based on the tenor and content of the calls, Eadie says, most complaints are coming from people who have political or ideological objections to the “Occupy” message.
Eadie insists that the politics of the demonstrators, and those who object to them, are having no bearing on his and the City’s decision-making. He says his message to “Occupy Spokane” is still pretty simple: “don’t put is in a position where we have to cite you for a violation of park rules” including rules regarding public safety and sanitation.
The City has already determined that permits for camping don’t apply, Eadie said, so long as people are not sleeping or residing in the tents.
As to the issue of the transient shelter permits, legally the question comes down to whether a shelter is just a shelter, or whether it is an extension and/or an integral piece of an exercise in political speech. For example, in 1986 a federal district court judge agreed with a student organization at the University of Virginia that the erection of “shanties” as part of an anti-apartheid protest was protected speech, though subject to reasonable regulation by the university.
This is the primary concern that Beavers and Beggs raised in their letter. Specifically, the two warned that if the City denied permits or acted to remove tents and similar structures under its Transient Shelter Ordinance it could quickly be facing an expensive lawsuit that it would lose.
“It does not appear,” they wrote, “that when passing the transient shelter ordinance the City considered the possibility of using tents to display political messages or as symbols of an oppressive political/economic system that forces people out of their homes into tents.”
They also underscored what, in Washington state, is an important legal fact—as potent at the federal First Amendment is in protecting freedom of speech, the state constitution places even more of a burden on government to show that regulations affecting speech do not amount to prior restraint on speech.
Because the transient shelter ordinance and the park rules do not recognize the use of tents for purposes other than alternative shelter (e.g. a means for displaying political signs and as a symbol for the occupy movement) they will be struck down as overly broad and in violation of the constitution.—Bonne Beavers & Breean Beggs.
Early in its existence, “Occupy Spokane” erected a large warming tent on City library property at the south end of the Monroe Street Bridge. According to Eadie, the City issued a 14-day transient shelter permit for that structure.
The issue of the downtown warming tent was resolved when “Occupy Spokane” decided, for reasons unrelated to the City’s permit, to withdraw from the site. The controversy then shifted to the issue of the tents planned for Franklin Park. There, an “Occupy Spokane” organizer applied for, and received, a transient shelter permit. The difference was that because the Franklin Park protest would be on park property, and not public library property, the duration of the new permit was not two weeks, but six days, at most.
Beavers and Beggs sent their letter to the Park Board as the clock on the new permit was winding down. Everybody involved knew the transient shelter permit for Franklin Park would expire at 12:01 a.m., November 25th, the day after Thanksgiving.
When “Occupy Spokane” organizers asked if they could reapply for a permit under a different name, Eadie and the City politely declined. They simply weren’t going to wink their way around the permit rules.
Beavers and Beggs were not alone in arguing that the impasse was, at best, unnecessary. This was also the view of some of the “Occupy Spokane” activists, including Lindsey Schromen-Wawrin, a 32 year-old Gonzaga Law School student who helped organize a team of legal advisors.
Ever since police dismantled tents at the West Riverside Avenue protest site near the Spokane Club and Federal Buiding in September, says Schromen-Wawrin, there had been discussion among the loosely-knit “Occupy Spokane” activists about the constitutionality of the City’s requirement for the time-limited transient shelter permits. By mid-October, he says, he and others were telling City officials that the Transient Shelter Ordinance could not be legally enforced against “Occupy Spokane.” Their argument was really no different than the one Beavers and Beggs would later carve out: that the shelters at issue are inherently part of the demonstrators’ protests against foreclosures and symbolize the fate of people who’ve lost their homes.
Schromen-Wawrin makes clear that, overall, he’s been very impressed by the constructive attitude that Eadie and other City officials (including police officials) have taken toward “Occupy Spokane.” He has special praise for Jonathan Mallahan, the Director of the City’s Neighborhood Services and Code Enforcement office whom he credits as an energetic liaison and problem-solver.
Still, Schromen-Wawrin says, for weeks City officials didn’t show any signs of budging on their position that a permit was needed for the tents that “Occupy Spokane” wanted to assemble as part of their protests on public property.
“Their hope was that we’d find private property,” to continue to stage the protest, he says.
One irony is that Schromen-Wawrin says he thinks “Occupy Spokane” would have been just fine applying for and receiving a transient shelter permits, so long as the ordinance and the permits had an exception for free speech activities. “But it [the ordinance] doesn’t have an exception,” he said, which is also one of the points that Beavers and Beggs make in their letter.
Schromen-Wawrin differs with the Parks Director on the effect of the letter from Beavers and Beggs.
“I have trouble seeing how that letter [from Beavers & Beggs] didn’t add a whole other element to our discussions,” Schromen-Wawrin said with a dry chuckle. “I feel like the meeting after the letter arrived was completely different than any meeting we had on this issue before the letter was delivered.”
In any event, the result was the same.
On November 23rd, Eadie and the City came to the conclusion that, so long as “Occupy Spokane” made diligent efforts to comply with park rules the City would not interfere. Eadie and the City had simply reached the conclusion, based on “Occupy Spokane’s” clear emphasis on speech, that the City’s existing ordinances just weren’t applicable, so long as people weren’t living in the tents. No permit would be required.
“We’ve been meeting with them since day one,” Eadie explained. “And we’re always trying to find ways, together, to avoid conflict.”
The collaboration, Eadie noted, extends even to small details such as moving the tents periodically to avoid harm to the grass in the park, an agreement not to use tent stakes, and an agreement to arrange for and use portable toilets.
“So far, this group has been pretty good,” Eadie said. “They’ve focused on their message.”
“Early on we had discussions to say, ‘let’s figure out who we are protesting against,’” says Schromen-Wawrin. “And it’s not the police, and it’s not the city. When you look at what has happened here [with the effects of the economic collapse on government budgets], the city is getting screwed just as much as the rest of us.”
“You know what’s remarkable?” Beggs said, as he reflected upon the convergence of “Occupy Spokane” and the City’s recent problems with law enforcement. “There are no tear gas cans and no pepper spray being used in the streets in Spokane. When you think about it, that’s no small feat.”
—CFJ
Note: This article was edited on December 29th to correct an error in the date of a City decision.
