Under pressure from business after a large May Day demonstration, in which dozens of new cars and bank windows were smashed, Oakland’s new mayor, Libby Schaaf, has instituted a ban on nighttime street marches, which has outraged the Oakland activist community. The mayor’s directive violates a federal court order and has escalated ongoing tension between police and protesters - while doing nothing to address the serious issues of state-sponsored racism, extrajudicial killings and police impunity, targets of the growing movement.
Banning protests doesn’t work as a way to stop property damage or squelch popular anger. Across the Bay, San Francisco tried it in response to vandalism during protests over the 1992 acquittals of the Los Angeles police officers who beat Rodney King. The resulting National Lawyers Guild (NLG) lawsuit cost the city $1 million and led to a Ninth Circuit decision recognizing that First Amendment activity may not be banned simply because prior similar activity involved property damage. As the court put it, the constitutional way for police to deal with “unlawful conduct that may be intertwined with First Amendment activity is to punish it after it occurs, rather than to prevent the First Amendment activity from occurring in order to obviate the possible unlawful conduct.”
The San Francisco Police Department learned its lesson, such that over the last 10 years, San Francisco has paid zero in protest-related police misconduct settlements - while Oakland has paid more than $10 million. In 2003, already under a federal consent decree for police abuses and corruption, the Oakland Police Department (OPD) responded to an antiwar demonstration at the Port of Oakland by shooting protesters and longshoremen alike with “less lethal” munitions. The NLG and ACLU sued, and worked with OPD to draft a comprehensive Crowd Control Policy that spells out when police may stop a demonstration and how.
But OPD repeatedly violated this policy when Oaklanders took to the streets after the killing of Oscar Grant and during the Occupy movement, arresting scores of demonstrators who were without an opportunity to disperse, and shooting dangerous munitions at them. During an Occupy demonstration, an OPD officer shot young Marines veteran Scott Olsen in the head with a lead-filled “bean bag,” shattering his skull and permanently destroying part of his brain. As Olsen lay on the pavement critically injured and bleeding from the head, another officer lobbed an explosive teargas grenade into the midst of the good Samaritans who were rushing to Olsen’s aid. At another demonstration a week later, an officer beat a man so badly that his spleen was ruptured.
The NLG sued again to enforce the Port settlement agreement. In 2013, we reached another settlement strengthening OPD’s Crowd Control Policy, a federal court order agreed on by the City of Oakland. The policy seeks to minimize confrontation between police and protesters, giving the police a rational framework to protect people and property, while upholding the right to demonstrate and avoiding civil rights violations and further liability. The mere failure to obtain a permit is not a basis to stop a march and make arrests under OPD’s policy. Commanders are given factors to consider in determining whether a street march presents a serious enough issue to warrant making mass arrests, which often tie up traffic for much longer than a moving march.
After continued concerted effort by the NLG, and as OPD sought to get out from under its 13-year-old federal consent decree, OPD’s protest practices were markedly improving in the months prior to the mayor’s misguided intervention. This dramatic policy shift began on May 21, at a peaceful march intended to bring attention to police killing of Black women. Pursuant to its Crowd Control Policy, OPD has routinely facilitated street marches. Starting with the May 21 #SayHerName march, the police prevented demonstrators from walking in the street after dark, despite the fact that there was no hint of property destruction or unlawful activity of any kind.
The repression continued when demonstrators came out to break the “protest curfew” the following Saturday and Sunday nights, in similarly well-organized and peaceful fashion. Although the marches were allowed to proceed briefly before dark, during the time the police did allow demonstrators to march, they interfered by making continual, repeated, obnoxiously patronizing amplified announcements at such high volume as to be deafening. The police followed the march so closely as to force marchers at the back to walk very quickly or run to avoid being pushed and/or arrested for walking too slowly.
On each of the three evenings so far, at a certain point OPD stopped the march with lines of officers and ordered demonstrators to turn around. On Saturday, the protesters’ police liaison had communicated to police that the activists would nonviolently defy an order to get off the street. The police blocked the march from going forward and then declared an unlawful assembly when marchers first linked arms and tried to walk forward, and then sat down in the street. Explosive chemical agent grenades were deployed, and the officers pushed and shoved the women who were at the front of the march and could not move back due to the crowd behind them. This is exactly the type of police-created unlawful assembly and unnecessary physical confrontation that inevitably leads to illegal arrests and injuries, and which the OPD Crowd Control Policy is designed to prevent.
Mayor Schaaf’s directive has shattered any bit of good will that may have been developing between Oakland protesters and police, while doing nothing to actually address the concerns of business owners. Preventing demonstrators from marching and forcing them onto the sidewalk will lead to more broken windows, not fewer.
Most importantly, it is telling that Mayor Schaaf reserves her ire for broken windows, while not showing the same concern about police killings and abuse of people of color, or the trampling of the First Amendment. Those political gains that have been made by Black people and other oppressed groups in this country have come about (at least in part) through unruly demonstrations.
Banning protest may seem a quick fix, but is not worth the cost to the taxpayers or the cost to democracy. And it won’t work. As long as the police are allowed to function as an occupying force in poor neighborhoods and communities of color and take lives with impunity, and local governments repress those who speak out in response, we can be sure resistance will continue to grow.
On June 1, the NLG and ACLU met with Mayor Schaaf, Police Chief Sean Whent, and other City officials but were unable to reach a resolution on the new nighttime protest policy. Another meeting will take place on June 9, to include the court appointed monitor, Robert Warshaw, who has broad powers over OPD. However, the parties may be headed to federal court to enforce the Crowd Control Policy and settlement agreement.
Meanwhile, even the head of the Oakland Police Officers’ Association, Sgt. Barry Donelan, has said that the mayor’s directive “makes no sense” to the exhausted officers being forced to carry out her orders. Donelan told the Oakland Tribune that cops would rather be arresting murderers and solving crimes than arresting nonviolent demonstrators, and were “as frustrated as the protesters and business owners with this continued debacle.”