Occupy Boulder: Attorneys use Fourth Amendment to defend protesters
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.
Photo courtesy of Occupy Boulder, Ilan Sherman Occupy Boulder holds its first indoor general assembly earlier in December.
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.