Washblog

TACOMA PMR PRETRIAL HEARING LEAVES ISSUES UNRESOLVED
By Mark Jensen

* Judge questions City of Tacoma's prosecution and schedules another hearing as citizens arrested for upholding the rule of law appear in court *

United for Peace of Pierce County (WA)
June 8, 2007

http://www.ufppc.org/content/view/6280/

TACOMA, Washington -- Attorneys sparred vigorously Friday as the City of Tacoma continued to press charges against twenty-one antiwar demonstrators involved in the port militarization resistance (PMR) protests last March at the Port of Tacoma.  

At one point, when Charles Lee, representing the City of Tacoma, offered to remind attorney Lawrence A. Hildes of Bellingham why his clients were arrested, Hildes responded heatedly.  "I know what they were arrested for," Hildes said.  "They were arrested for participating in a peaceful demonstration that the police did not like."  

Tacoma Municipal Court Judge Pro Tem Karl D. Haugh granted the city's request to proceed separately against four different groups of defendants, according to the charges they face.  But felony charges against one defendant, Caitlin Esworthy of Olympia, were dismissed, and Judge Haugh's dismissal was, over the objections of City of Tacoma attorneys, "with prejudice," meaning that these charges cannot be brought again at some future time.  

PRETRIAL HEARING SET FOR JULY 18

As was the case two weeks ago, discovery issues bedeviled the prosecution and prevented the judge from setting a trial date.  Instead, Judge Haugh accepted speedy trial waivers from all defendants and scheduled another pretrial hearing for 1:30 p.m. on Wednesday, July 18.

The cases differ in their circumstances, but all involve protesters who participated in ten days of demonstrations in March against the use of the publicly-owned Port of Tacoma to ship equipment for the U.S. Army's 4th Stryker Brigade, 2nd Infantry Division, ordered to deploy from Fort Lewis to Iraq to bolster U.S. occupation forces there.

VIDEO DISCOVERY

Much of Friday's hearing was taken up by sparring over the City's failure to produce police video of demonstrators.  On May 23, Judge Haugh had ordered the City of Tacoma to turn over police video of demonstrators, but none has yet been received by defense counsel.  Instead, they were given copies of YouTube videos.

"I ordered that the [police] video be turned over.  Why wouldn't he turn that over?" the judge asked Mr. Lee, referring to a Tacoma police officer.  "I don't know," Lee replied.  

"He is a Tacoma police officer -- an agent of the city?" Judge Haugh asked, incredulously.  "I'm going to issue a show cause order that they shall deliver the video by Monday by close of business.  The defendants have a right to review it if it exists."  

When Hildes and defense attorney Legrand Jones of Olympia argued that the failure to obey the previous order constituted grounds for dismissal of the case, Judge Haugh said:  "I'm going to take your motion under advisement."  He rejected Lee's contention that it was enough for the City to turn over all video that it intends to use in prosecuting the case.  

"We're still entitled to it," attorney Hildes said, regardless of whether the prosecution intends to use it or not.  The judge concurred:  "I think they are."

"RULES OF ENGAGEMENT"

There was also lively sparring over so-called "rules of engagement" that protesters were arrested for violating, but that have still not been articulated by the City of Tacoma.  Defendants maintain that they have a constitutional right to carry bags and backpacks into a protest area, and that the order by police not to do so was unlawful.

At one point, the city attorney tried to maintain that the expression "rules of engagement" referred to standard operating procedures for making arrests.  But Hildes rebutted this contention by reading directly from police reports.  One report said:  "I advised [the protesters] of the rules of engagement."  Another report said a defendant "was arrested for violating the rules of engagement."

Hildes pointed out that the police's use of the term "rules of engagement" is itself disturbing, since it suggests that police regard the site of a peaceful civil protest, the right to which is guaranteed by the United States Constitution, as a war zone.

During this exchange, Lee said he might ask that Hildes be recused from the case, since he was present at one of the arrests -- a statement that Hildes said he considered "a threat."

DOES RCW 46.61.015 EVEN APPLY?

A third legal issue that may determine the outcome of some of the cases was raised by Judge Haugh:  the applicability of the statute under which a number of the defendants have been charged.  RCW 46.61.015, "Obedience to police officers, flaggers, or fire fighters," states:  "(1) No person shall willfully fail or refuse to comply with any lawful order or direction of any duly authorized flagger or any police officer or fire fighter invested by law with authority to direct, control, or regulate traffic.  (2) A violation of this section is a misdemeanor."  

"Have you read the preamble to that statute?" the judge asked the city attorney.  "I would appreciate a briefing on the applicability of that statute.  I don't think I'm letting the cat out of the bag when I say that this may be an issue.  I look forward to that briefing.  I don't think that I'm the first person to think of that.  I'm troubled by it."

The preamble, RCW 46.61.005, states that "[t]he provisions of this chapter relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except:  (1) Where a different place is specifically referred to in a given section."  Many of the defendants were arrested while walking on sidewalks, and another when there was no vehicle nearby.

WHY THE PMR CASES ARE IMPORTANT

Passions are running high in the PMR cases because they involve issues of national importance.  The PMR movement is an effort on the part of U.S. citizens to rein in a government that has, in the opinion of many, run amok.  The May 22 capitulation of Democrats in Congress in voting continued funding for the Iraq occupation heightens the significance of the Tacoma PMR case.  U.S. Marine Cpl. Adam Kokesh of Iraq Veterans against the War said on Memorial Day that "our democracy has failed." (http://www.ufppc.org/content/view/6239/)  Activists like Cindy Sheehan (http://www.ufppc.org/content/view/6233/) and scholars like Andrew Bacevich (http://www.ufppc.org/content/view/6226/) have recently made similar statements.

While the Tacoma PMR cases differ in their circumstances, all involve protesters who objected to the use of the publicly-owned Port of Tacoma to ship vehicles and other equipment to a military venture that they view as illegal and that has lost its political legitimacy.

The protests at the Port of Tacoma continued on a daily basis until the USNS Soderman sailed out of Commencement Bay.  The soldiers of the 4/2 brigade followed their equipment to Iraq in April.  At least ten of them have since lost their lives there.

IRAQ IS COLLAPSING

The escalation of which the unit's deployment was a part has failed to stem the worsening in Iraq, now in a state of civil war.  According to a recent report (http://www.ufppc.org/content/view/6184/) from Chatham House, the power of the central government in Iraq has all but collapsed.  The "Iraqi government" is in fact only one of many "state-like actors" in a country where power has devolved to localities.  Meanwhile, Iraqi citizens are fleeing in droves.  In mid-April, the United Nations high commissioner for refugees estimated the number of Iraqis who have left Iraq at two million (Nir Rosen, "The Flight from Iraq," New York Times Magazine, May 13, 2007, p. 33).  As many as one million may have died so far in the post-March 2003 violence.

The growing disaster in Iraq, and the failure of the U.S. Congress to end an illegal, immoral, and disastrous occupation, have compelled citizens around the country to seek alternative means of influencing events.  Port militarization resistance activists argue that under the Nuremberg Principles citizens have a right and even a duty to act to oppose a government that spurns international law and its own laws.

TACOMA POLICE DEFENDED CRIMES OF THE STATE INSTEAD OF THE RIGHTS OF CITIZENS

Protesters at the Port of Tacoma were peaceful, but the Tacoma Police Department organized a massive, militarized response in March.  Although the Tacoma City Council on Dec. 16, 2003, passed a strong resolution defending the Bill of Rights, the city activated its "Disorder Response Team" and also called in hundreds of police from surrounding communities, as well as from the Pierce County Sheriff's Offfice.  This militarized force was deployed in full riot gear, as if its purpose was to intimidate demonstrators and chill dissent.  On more than one occasion police unleashed tear gas, rubber bullets, and other riot control weapons on peaceful demonstrators, without provocation.

Some of those in court Friday filed complaints against the Tacoma Police Department for these actions.  Legal charges were filed afterwards, leading some to accuse to the City of unfair retaliation.

Defendants present in court Friday included Jeff Berryhill, Leah Coakley, Wally Cuddeford, Dennis Dutton (Karma Tenzing Wangchuk), Patrick Edelbacher, Caitlin Esworthy, Liz Rivera Goldstein, Wes Hamilton, Thomas McCarthy, Phan Nguyen, Gloria Norton (Sasha Crow), Peter Ryan, Fiona Thompson, Jody Tiller, and Karen Weill.  Charles Bevis, S. Cohen, Somerset Fetter, Jesus Lopez, Matt Reiss, and Jesse Schulze are also defendants in the case, but did not appear on Friday.  In addition to Charles Lee, the City of Tacoma was represented by attorney Pedro Chou.  

--Mark Jensen is a member of United for Peace of Pierce County (WA) and of the faculty of Pacific Lutheran University.