Occupy Boulder: Attorneys use Fourth Amendment to defend protesters

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Of all the constitutional freedoms cited in defense of the Occupy movement, the First Amendment is staked most territorially. But in Occupy Boulder, attorneys defending protesters arrested for illegal camping are using the Fourth Amendment in a push to dismiss evidence gathered when police officers opened tents to look inside. The action should be discounted as unreasonable search and seizure without a warrant, they say.

If they are successful, head attorney David Harrison expects that the camping violation charges will be immediately dismissed for at least some of the six cases that went before Boulder municipal judge Linda Cooke on Monday. "Considering that what's illegal is sleeping in the tents, if the court suppresses the officer's observation of what she said was sleeping, then they really don't have any evidence of a criminal violation," he says.

Each of the six arrestees has been charged with illegal camping, an offense that carries a maximum penalty of a $1,000 fine and up to ninety days in prison. Although their arrest situations vary widely, police officers unzipped or entered tents to look inside in a few incidents.

According to Boulder city ordinances, it is acceptable to erect a tent on public property but not to sleep inside of it. But according to past interpretations of Colorado law, a tent has been established as a property similar to a house, making it fair game for the Fourth Amendment's claims against unreasonable search and seizure.

"The first thing we did was read what the police officers wrote about the case -- very brief statements on the back of the ticket," Harrison says. "On at least a few of them, an officer mentioned she had lifted a flap to see inside the tent. But it's the same level of expectation of privacy as you have in your house. An officer can no more open the door of your tent than they can open the door of your house."

The city attorney has filed a written response to Occupy Boulder's legal team, asserting that the protestors had no reasonable expectation to privacy at the movement's home on the courthouse lawn. This comes with the argument that, even if they did guarantee privacy, the evidence was in plain view -- an exception to the city's need to otherwise provide a warrant.

In another case, however, one officer moved aside a flap to see inside, while another tent's mesh wall made searching unnecessary.

The group's pro-bono legal team also includes Boulder lawyers James Christoph, Bob Miller, Harold Fielden, John Pineau, Lindasue Smollen and Ann England, who have split the cases to focus on individual clients. Currently, all of the arrestees are set to face jury trials on February 9, which gives Cooke until then to pronounce a written ruling on the lawyers' motions to dismiss evidence in light of Fourth Amendment concerns.

In the meantime, they have also filed motions to dismiss based on First Amendment considerations in a handful of the cases. Harrison, who has handled more than sixty illegal camping cases in Boulder across two and a half years, says 78 percent of the instances he has dealt with have been dismissed. Given the complicated nature of the ordinance, he expects the same in Occupy Boulder's case as well.

"Frankly, I'd be surprised if anybody was convicted of this," he says.

Although the defense's strategies shine an interesting light on protest freedoms in Boulder, the results won't do much to influence similar strategies in Denver. The main reason is a vast difference in ordinances. Although Boulder's recent park curfew ordinance matches its larger neighbor's, Denver's anti-structure and anti-encumbrance laws make it illegal to even set up a tent on public property or sidewalks, much less sleep inside of it.

Regardless, Judd Golden, chairman of the Boulder County chapter of the ACLU, says the real point has been missed here. His branch's stance is to firmly urge the City of Boulder to accommodate any protest against the government in search of a redress of grievances. He believes this original message is being lost.

"That sounds like law enforcement is using technicalities here and trying to snoop around and find out if people are there," Golden says. "They know these people are part of Occupy Boulder.... The actual point is that this is substantial First Amendment protest against issues in the government. I'm a lawyer and I understand that you have to argue those issues, but our main goal is to get the city to recognize that this is what our constitutional structure is all about."

For a Q&A with Golden about this issue, click through to the next page. Westword:What is the Boulder County ACLU's position on how the city has handled these arrests?

Golden: I don't think the people in Boulder county government or law enforcement are inherently antagonistic to the spirit of any group that might choose to assemble to protest against the government for a redress of grievances. They are not bad people. But what they have failed to do is find a way to accommodate this behavior rather than simply saying, "We have to apply the law neutrally, and it doesn't matter if you are protesting or homeless or camping for fun."

Governments need to be flexible. They need to be understanding and accommodating and not just do everything on a content-neutral supposedly nondiscriminatory basis. The Boulder County ACLU is most critical of the city and government for not being accommodating of this 1st Amendment protest.

Westword: In what ways do you suggest the city accommodates the protest?

Golden: Governments around the nation have found ways to accommodate people who protest for this reason. That's happened in marches with groups they strongly disagree with, like the KKK. Some jurisdictions have indeed found a way to accommodate their own Occupy protests. There is a way to do that. I'm not going to suggest how they should do it, but there is a way, and they need to find it. We understand the technicalities of maintaining order and cleanliness in our city parks, but there are times when you have to yield. You have to accommodate certain behaviors because that is a higher purpose.

It's also quite clear that, despite their attempts to say they're just enforcing this for everyone, the clear intent of the park curfew is not to try to stop people playing Frisbee at night. They're not trying to stop people walking home at night who want to sit down and chat in the park. They have a specific targeted group of people, and that's not how laws should be crafted. It should be general application when there is a general problem, not a wink-and-nod thing that targets a specific group of people.

Westword: Is there any credence to the worry that, if Boulder accommodates its Occupy protest, Occupy Denver will join in large numbers?

Golden: The bigger picture is that, indeed, these kinds of things come and go. The strength and interests of those who engage in this kind of activity ebbs and flows. That's always going to be the case. The question is: Should the government understand that kind of behavior or simply crack down in it? We're seeing too much of the City of Boulder just trying to do the second through both direct and indirect means. Government is not doing a bad thing by maintaining order and cleanliness in public streets. That's a positive thing, and most people expect that. I don't think we can worry about numbers and that kind of thing, just about freedoms.

But as a practical matter, these people are engaging in historic behavior. These are the kinds of things that have shaped the very character of this nation. Protests against the government are turning points, and government needs to understand that even if they are the object of the protest, they swore an oath to uphold the Constitution.

More from our Occupy Denver archive: "Occupy Denver: Restraining order bans Shelby's owner from Occupy Boulder site."

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