Mass Defense Committee Defends Mass Activists

By Jeff Feuer

In October, 2009, the Massachusetts Chapter was contacted by a coalition of student groups and environmental activist groups to provide legal advice, training and support for a series of pro – “clean energy” and anti – “climate change” actions and demonstrations that they were planning to hold throughout the remainder of 2009 on various Massachusetts college campuses and in Boston. The centerpiece of their actions were winter-time “sleepouts” at the colleges to focus attention on the need for the colleges to use clean sources of energy to provide electricity, and a month-long sleep and camp- out on the public grounds of the Boston Common as part of an massive and intensive campaign to get the Massachusetts legislature to pass a comprehensive bill mandating the use of “clean energy” in the state. Guild attorneys met with the student organizers of this campaign and provided a series of free comprehensive training sessions for students and activists on issues of active resistance and civil disobedience related to their environmental campaign. In addition, Guild attorneys trained a large number of students to serve as legal observers for the month-long overnight actions planned for the Boston Common, where mass arrests for trespassing and other possible criminal charges were anticipated.

Following these trainings, numerous sleepouts were held on dozens of college campuses throughout the state throughout October and November, 2009. In addition, several hundred students and environmental activists set up camp on the Boston Common near the State House to begin a month-long sleepout campaign during the freezing Boston winter, designed to influence the public and legislators to support a clean energy bill. As the Boston Common officially was closed from 11:00 p.m. to 7:00 a.m., the demonstrators were fully prepared to be arrested during their action. However, as has been the tradition for many years with political protests in Boston, the Boston Police showed remarkable restraint and tolerance for this demonstration. Instead of arresting the protestors and shutting down their camp, the police allowed the demonstration to continue for the entire month of November and into early December, 2009. On only five occasions during this period, did the police enter the protestors’ camp during the overnight hours that the Common was closed to the public, wake up the sleeping demonstrators, tell them they were trespassing, and offer them the opportunity to leave. When the demonstrators refused to do so, the police merely took down names and addresses and told them that they would receive a summons in the mail to attend a clerk-magistrate’s show cause hearing on whether a criminal complaint for trespassing should be issued against them. Remarkably, the police then left and allowed the sleepout to continue! Some of this “good behavior” by the Boston Police may be attributable to the mutual respect that Guild attorneys and legal observers have been able to develop with the police department over the past 20-25 years of political protests in the city. In total, more than 200 demonstrators had their names taken down by the police.

In December, demonstrators began receiving summonses to appear in court for their show cause hearings. Unfortunately, the hearings were all scheduled for a few days immediately preceding or following Christmas – a time when almost none of the demonstrators (the vast majority of whom were college students) would be in the Boston area. The demonstration organizers again contacted the Guild. As a result of a first round of negotiations between the Guild’s Mass Defense Committee, the Suffolk County District Attorney’s office and the Clerk-Magistrate of the Boston Municipal Court, the Guild was able to postpone all of the scheduled hearings until the first two weeks of February, 2010 or later. We were also able to convince the DA’s office and the court to reschedule hearings for students who were studying out of state and/or abroad until May, 2010 and September, 2010. Despite the logistical nightmare of trying to communicate with and coordinate the schedules of some 200 demonstrators and the eight volunteer Guild attorneys who were going to represent them pro bono at the show cause hearings, we were able to schedule approximately 170 hearings for the first two weeks of February, 2010.

There followed another round of negotiations between the Guild, the DA and the Clerk-Magistrate. The Guild was able to achieve a resolution that would conclude all of the cases without establishing any arrest or criminal record for any demonstrator who chose to accept the deal. The agreement was that, for any demonstrator who agreed to pay $50.00 in court costs for each summons that s/he received, the clerk-magistrate would deny the application for a criminal complaint and the matter would be fully concluded. Since no demonstrator had actually been arrested, there would be no arrest record. Since all of the applications for criminal complaints filed by the police department would be denied, there would be no criminal case file opened. In addition, since it was the long-standing policy of the Boston Municipal Court to destroy all documents relating to the denials of an application for a criminal complaint after a year, there would be no paperwork of any kind documenting any offense by any demonstrator. In addition each demonstrator would legally be able to answer “no” to any employment, financial aid, graduate school, bar, or other application that asked if he or she had ever been arrested or convicted of a crime. This was particularly important to the many students who were participating in their first major direct action campaign and who had never previously faced arrest or criminal charges. Moreover, the deal permitted the demonstrators to continue to engage in their political campaign and future direct action plans without the threat of a criminal case and/or possible bail or probation violations hanging over them.

With this agreement in place, the “show cause” hearings proceeded smoothly in February, although it came as a surprise to one of the police prosecutors that all of these demonstrators were being represented pro bono by Guild attorneys. Every demonstrator, with one exception, chose to accept the deal and had his or her case fully concluded. One older non-student activist decided to refuse to pay any sort of fine to the government as a matter of principle and chose to proceed with the “show cause” hearing. A criminal complaint for trespass was issued against him and a volunteer Guild attorney will continue to represent him throughout the subsequent criminal proceedings. The organizers and many of the individual demonstrators repeatedly expressed their gratitude to the Mass. Chapter’s Mass Defense Committee for negotiating what they felt was an excellent resolution to these potential criminal charges, in that they were quickly resolved and allowed them to focus their enthusiasm and abilities directly on their clean energy campaign and not on having to defend against time-consuming criminal charges. The Mass Defense Committee also was pleased with the tone of the negotiations with the DA’s and Clerk-Magistrate’s office and the willingness of these government agencies and the Boston Police Department to recognize the legitimacy of political protests, even when civil disobedience is involved.

Jeff Feuer, member of the Mass Chapter Board of Directors and Mass Defense Committee, is a partner at Goldstein & Feuer in Cambridge.