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Arch City Defender Thomas Harvey, left, talks with National Lawyers Guild member Nadia Kayyali after a meeting at Greater St. Mark Family Church on Tuesday.  The guild, led by Dan Gregor, came to Ferguson to train local lawyers how to be legal observers. Photo by: KAREN ELSHOUT
Arch City Defender Thomas Harvey, left, talks with National Lawyers Guild member Nadia Kayyali after a meeting at Greater St. Mark Family Church on Tuesday. The guild, led by Dan Gregor, came to Ferguson to train local lawyers how to be legal observers. Photo by: KAREN ELSHOUT

Legal observers keep an eye on rights as protest rules shift

It’s a steamy and mosquito-ridden evening, but Dan Gregor of the National Lawyers Guild opts to conduct legal observer training for the Ferguson protests outside.

Prospective and current volunteers stand in knots outside a school building next to Greater St. Mark Family Church in North St. Louis County. The building, which is nominally air-conditioned, is the only “support” space that’s safe and within walking distance of the protests, Gregor says. Other protest support groups also are using it as a base, and sorting out who can be in which room at what time is a headache Gregor, the interim executive director of the guild, would rather avoid.

Gregor, wearing glasses and a five o’clock shadow, says his training will take about half an hour at 8 p.m. on this Tuesday evening. Nadia Kayyali, a member of the guild’s San Francisco chapter board who wears the red hair on her partially shaved head in a ponytail, hesitates.

“Twenty minutes to half an hour,” she says.

Depending on who’s giving it, legal observer training can last a full eight-hour day, Gregor says, but there’s urgency in Ferguson, where protests have persisted since Ferguson police Officer Darren Wilson fatally shot unarmed teenager Michael Brown on Aug. 9. The protests are punctuated by occasional violence and looting. Police have employed crowd control methods such as tear gas that Gregor says are questionable.

“We need people to document what is going on out here,” says Gregor, who is based in New York.

The eyes of the world may be on Ferguson, but what the world is recording may not help in court. Observers who document police interactions with protesters, including arrests, can be valuable to plaintiffs in civil rights violations lawsuits and protesters facing criminal charges.

It’s helpful at trial to have a video a witness can testify about, Brendan Roediger, a Saint Louis University law professor, says later in a phone interview. Roediger also volunteers to represent arrested protesters and has four cases resulting from the Ferguson protests.

“If it’s something found on Twitter, it’s a lot less useful than to have a video where someone can actually explain where they were and what was happening,” says Roediger, who is also a member of the National Lawyers Guild.

The guild is a human rights organization, and its observers, often volunteers, are tracking interactions between police and protesters. They include lawyers and law students and people without a legal background.

The officers of the Missouri State Highway Patrol, which has been leading policing of the protests, are working “to protect the public, while at the same time preserving citizens’ rights to express their anger peacefully,” Gov. Jay Nixon said. In addition to calling in the Missouri National Guard to protect a command center, Nixon imposed a curfew that lasted only over the Aug. 16 weekend. 

A curfew can be appropriate if it’s used to protect the public and not out of a desire to suppress speech, Roediger says. But the feeling “on the ground” was that it was being used to suppress speech because people were forced to go home, he says.

In an earlier interview, Gregor rattled off police responses to the Ferguson protests, including the use of tear gas and rubber bullets and rough handling during arrests, that he said interfered with rights to assemble, protest and petition the government to redress grievances.

True, protesters are not allowed to break the law or block traffic, Gregor said, but the response has been out of proportion to some offenses. “We shouldn’t be shot at for jaywalking.”

Human rights organizations also have kept an eye on the shifting rules, including a rule requiring protesters to keep moving unless they are in a designated protest zone and restrictions on where journalists can go. Protesters also must stay off the streets. Under federal caselaw, cities and states can prevent obstructions in the interest of road safety.

Since the shooting of Brown, the American Civil Liberties Union of Missouri sued in U.S. District Court in St. Louis over two of those restrictions, with a 50 percent success rate so far. A lawsuit over allowing journalists and others to record police ended with a settlement saying that it would be allowed as long as it didn’t interfere with the ability of police to perform their duties or threaten other people’s safety or activities.

The ACLU lost a skirmish on the rule requiring protesters to keep moving when Chief U.S. District Judge Catherine Perry turned down a request for a temporary restraining order Aug. 18.

It’s hard for protesters to know what’s illegal at any given moment, Roediger says. If their civil rights are violated, it may take years to get recourse in court.

“The immediate sense is, if the police are stopping you from doing something, you don’t have the right to do it,” Roediger says.

Observe, document, record

The ACLU tends to tackle “broader impact litigation” on those kinds of issues, Gregor said. The NLG lawyers take more of a front-line role.

That role is a limited one.

“You observe, document, record,” Gregor tells the half-dozen people gathered for his lecture in the hot dusk.

Gregor cautions against getting involved in the protests, peacekeeping or any other role while wearing neon lime-green hats emblazoned with “National Lawyers Guild Legal Observer.”

Wearers of the green hats also must refrain from posting on social media or elsewhere while on duty. And they need to be restrained in another way.

“Never run, ever. When they start seeing legal run, people panic.” – Dan Gregor, National Lawyers Guild, on being a legal observer

“Never run, ever,” Gregor says. “When they start seeing legal run, people panic.”

He suggests instead “walking expeditiously” or, if a full-on sprint is needed to evade tear gas or other dangers, taking off the hat.

Listening are Joseph Welch, NLG member and a solo criminal defense attorney in St. Louis, and Maggie Ellinger-Locke, the St. Louis chapter president and an associate at O’Fallon, Missouri, general practice firm Ellinger & Associates. Locke says the St. Louis chapter restarted during the Occupy protests after a hiatus.

Of the trainees, only Welch opts to start observing tonight. Per observer protocol that encourages observers to team up with others, he pairs up with third-year DePaul University law student Max Suchan.

The observers gear up with the hats, plus goggles and masks to fend off the effects of tear gas, and write a “jail support” hotline number on their arms with Sharpie markers. Community activist group Missourians Organizing for Reform and Empowerment is operating the hotline. In addition to documenting arrests, observers also try to get the number to arrestees and find out their names so they can track them in jail.

Arrest is a risk for the observers themselves, and they need to assess how much risk they’re willing to take, Gregor says.

The protest site is more than a mile from the church. The observers walk west on Chambers Road to West Florissant Avenue, a section of which police have blocked to automobile traffic. Gregor points out the water-filled ditch parallel to the sidewalk along West Florissant where he took cover during tear-gassing on an earlier night.

In the approximately six-block-long protest area west of the apartment complex where Brown was shot, legal observer Alex Graff makes a beeline for Gregor and Kayyali’s lime-green hats. Graff, a St. Louis activist, has been patrolling since the afternoon.

“I’m so glad to see you,” she says.

Two men wearing “Young Black Males Support Network” T-shirts ask Gregor when tension is likely to escalate.

“It’s different every night when it’s gotten f—d up,” Gregor tells them.

The observers walk south. Kayyali photographs soldiers or police in protective vests and boots standing in front of armored vehicles in a shadowy area in the back of a parking lot.

Highway patrol Capt. Ron Johnson the previous day had said the new rule that protesters cannot stand and congregate would protect community members from criminal elements trying to hide in their midst and cause trouble, according to a report in The Huffington Post.

The ACLU lost its bid for a temporary restraining order on the rule after Missouri Attorney General Chris Koster said there also would be protest zones established for people who didn’t want to walk, ACLU of Eastern Missouri Legal Director Tony Rothert told MSNBC on Tuesday.

The rule can be used to suppress free speech, Roediger says.  

“If you force people to go around like zombies or go to a closed-down Ford dealership parking lot,” a designated protest area, Roediger says, “people are going to say, ‘Aw, this isn’t worth it anymore.’”

All night long

Protesters have their own response to the rule Tuesday night: Among other chants, they call out: “We young! We strong! We marching all night long!” They circle in a route that would be appropriate for the rubber-tired blue train — made for giving children rides — that’s winding its way through parking lots. 

Lots in front of businesses are filled with milling crowds including reporters and observers. NLG observers spot another of the signs of the court skirmish over the no-standing-still rule: A lighted highway sign, of the type typically used to announced traffic problems or estimated travel times, says “APPROVE ASSEMBLY AREA.”

Kayyali takes a picture.

The train pulls through the parking lot behind her, with a man seated in the middle holding his hands up in the “Don’t shoot!” protest gesture adopted since Brown’s death. Music plays from the train, and “War!” by Edwin Starr starts up just as Gregor and Kayyali spot police making an arrest on the other side of the street.

They dart across. Kayyali and a man from the crowd talk with a police officer outside an Ellisville police SUV while Gregor films. Gregor then steps up to hand the officer a card with the jail support number for the arrestee.

“Are you his family?” the officer asks.

Gregor explains that they are legal observers and the card could give the man information on where to call for help.

“If I give this to him, he’s just going to throw it away if he doesn’t know who you are,” the officer says, but he pockets the card.

A few yards away, Kayyali and Gregor meet Welch and Suchan and share information. Two people were arrested after a fight in the parking lot. Nobody got their names.

Gregor, who has been getting calls about police arriving at the church building, decides he and Kayyali will go back and check it out. On the way, he stops to record the arrests of a man and a woman in the parking lot of the Dellwood Market.

There are no police at the church and school building when Gregor and Kayyali arrive about 10:30 p.m. But Senior Pastor Tommie Pierson Sr. later said that when he arrived at about 10 the next morning, 40 to 50 police officers were surrounding the school and asked him to let them in. Pierson, who also is a state representative, did so.

“They brought a building inspector, who said we didn’t have an occupancy permit to be using that building,” Pierson says.

Pierson thought the church occupancy permit also covered the building but said he would get it taken care of. Meanwhile, he let the support groups use it again Wednesday night.

‘Thrown to the ground’

Back at the protests early Wednesday morning, tension heightened at about 12:30 a.m., Suchan says in a phone interview the next day.

The police told a crowd to keep moving, and a group of young residents and journalists decided to stop and start filming, Suchan says. Officers in riot gear would point out one person, then charge into the crowd and make an arrest.

“During one snatch, they threw a young black man to the ground,” Suchan says. “I started to ask, ‘What is your name?’ and I was also thrown to the ground.”

“They threw a young black man to the ground. I started to ask, ‘What is your name?’ and I was also thrown to the ground.” – Max Suchan, law school student and legal observer

News reports say police started arresting people after someone threw a bottle or bottles at them; Suchan says he didn’t see any bottles thrown.

The legal observer was arrested and eventually taken to the Buzz Westfall Justice Center in Clayton after waiting in hot police wagons for about an hour. The group in his wagon included two men with painfully tight zip ties and another man with visible swelling on his head, Suchan says.

St. Louis County police spokesman Officer Brian Schellman said Thursday that he didn’t have an immediate answer to a reporter’s questions about the alleged injuries. 

Suchan said he was told he was charged with disorderly conduct, but he was given no paperwork and was released at about 5:30 a.m. Suchan, a paralegal for the NLG in Chicago, missed his bus back to that city, but his employer is understanding, he says.

Suchan’s partner that night, Welch, was not arrested, Suchan says.

“He was able to film from the sidelines.” 

Litigation filed after Michael Brown shooting

National Bar Association v. City of Ferguson, 14SL-CC02787, St. Louis County Circuit Court: Alleged delayed action and failure to comply with Missouri Sunshine Law

American Civil Liberties Union of Missouri v. St. Louis County, 14SL-CC02743, St. Louis County Circuit Court: Alleged violation of Sunshine Law; ACLU received redacted copy of a police incident report after suing.

American Civil Liberties Union Of Missouri v. City of Ferguson, 14SL-CC02781,St. Louis County Circuit Court: Alleged violation of Sunshine Law. ACLU received redacted copy of a police incident report after suing.

 Mustafa Abdullah v. County of Saint Louis, Missouri, Ronald K. Replogle, Superintendent of the Missouri Highway Patrol, and John Does 1-5, 4:14-cv-01436, U.S. District Court in St. Louis: Free speech and due process rights allegedly violated when police threatened to arrest protesters and press who stayed for more than five seconds on sidewalks. A judge turned down a temporary restraining order request when Attorney General Chris Koster said there would be an “alternative speech zone,” ACLU of of Missouri Legal Director Tony Rothert told MSNBC.

Mustafa Hussein v. St. Louis County, Ferguson and Ronald Replogle, 4:14-CV-01410, U.S. District Court: Free speech and due process rights allegedly violated when media and public were told not to record police; resolved with agreement that media will be allowed to record if it doesn’t interfere with safety or police doing their jobs.

SOURCES: Court documents, press releases and news reports

—Heather Cole

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