Chanting Gets People Arrested at Second Round of OpBART Protests
(update below w/ video)
Opponents of the cell phone shut down by Bay Area Rapid Transit (BART) just over a week ago continued their protests with another round at 5 pm. Those who attempted to hold a peaceable assembly on the platform at the Civic Center station were immediately met with riot police, who had orders to not tolerate any demonstration whatsoever.
Forty-five people, in total, were arrested—thirty-five of the arrests took place near the San Francisco Public Library.
SF Weekly reports suggest there were not many protesting but there were plenty of reporters and camera crews seeking to cover the protest. Also—get this—protesters were told not to chant by police or they would be arrested.
Protesters on Civic Center platform were chanting, “No Justice, No Peace, Disband the BART Police,” which was chanted last week. The riot police present told protesters that chanting would mean they would be arrested. This was, of course, absurd to those present so they continued to chant. The police arrested a protester. And then another. And then another.
It appears that one of the arrests was for obscenities that were shouted by an older gentlemen, a thirty-five year old white male, who was wearing a red scarf. If that is indeed the case, he clearly lost control and gave BART police the upper hand in that situation. However, arrested for chanting? For speech in the BART station?
This reaction at the protest likely stems from a rule that BART has decided to institute:
No person shall conduct or participate in assemblies or demonstrations or engage in other expressive activities in the paid areas of BART stations, including BART cars and trains and BART station platforms.
The police are probably taking a position that chanting would make the assembly on the platform a demonstration or an “expressive activity.” If they remain silent, the police couldn’t prove they were there to protest. But the moment they open their mouths they would be violating the rule or guideline BART has chosen to enforce.
BART seems to think that protests called by anyone now constitute an “imminent lawless action.” Anyone listening to radio communications among BART officers can attest to the fact that BART doesn’t know the first thing about peaceably assemblies. For tonight’s protest they were characterizing what was happening as “civil unrest.” If what was happening is civil unrest, one wonders what would happen if it had to deal with a bunch of Bahrainis in the Pearl Roundabout. And, last week BART was saying the protesters were engaged in civil disobedience but no officers were saying anything about any protesters breaking the law or defying police orders.
If one looks up instances where protesters have been arrested for chanting, this is what one will find: (1) Gaza Flytilla activist arrested in Tel Aviv airport in Israel for chanting “Free Palestine” (2) three individuals arrested in Iran by security forces for chanting. And, (3) a Jets fan taken down by police and arrested for cheering on his favorite sports team.
Reports from the protest also indicate that police were just making up reasons to defuse the protest. One officer told Peter Fein of Telecomix to get off the sidewalk or be arrested. There were also messages from the scene that police had threatened media with arrest.
Again, stations were shut down. The mere presence of a group of protesters would be enough for BART police to call it in and shut down a station. BART wants commuters to get more and more angry with those trying to peaceably assemble and exercise First Amendment rights because, as far as BART is concerned, this is war. They are right, the protesters are wrong and they will pay. BART will make propaganda videos, work the local media and create constitutional theory on the fly to justify actions. They are even willing to claim protesters intend to be lawless and provoke riots just so they can win.
Let’s not forget why this problem arose in the first place. Two BART officers shot and killed a homeless man named Charles Hill, who was forty-five years old. Hill was drunk. BART police maintains he was wielding a knife. Three bullet casings were recovered on platform. Coverage of videos released of the incident indicates that BART played a bit fast and loose with details on the incident.
Prior to Hill, four men had been shot and killed. The most well-known of the four is probably Oscar Grant. As SF Bay View details, “On Jan. 1, 2009, an African American youth, Oscar Grant, was assassinated while already handcuffed and lying face down on the platform by BART officer Johannes Mehserle, who was released from custody on June 12, 2011, for ‘good behavior’ following a substantial reduction of his incarceration for time already served from his indictment to the trial.”
A protest took place on July 3. For BART police, it was out of control. Protesters were climbing all over the train cars. They were engaged in massive resistance against BART for what had happened to Hill. Those on top of trains were definitely doing something that would get them arrested. Actually disrupting trains should not be legal. But, if that is something protesters want to do in an act of protest, if they are willing to face the consequences, that is the protesters’ choice.
BART has taken it upon itself to ban all assembly because it doesn’t want another action like the one on July 3. In doing so, it has created a controversy by first shutting down cell phone service to four stations and now by enforcing a rule that gives BART police the ability to arrest individuals for chanting.
The chaos being created stems from BART. All BART has to do is allow protesters to stand on the platform with signs. Security can monitor. Riot police should not be deployed every time there is an assembly. Unless another officer has murdered another Bay Area citizen, it seems like there would be no reasonable justification for riot police to be present. Riot police create a scene, attract media and then the thirty or forty demonstrators all become one massive scene that gives BART a justification to shut down stations and make BART commuters pissed and angry. (And, anyone following knows making commuters pissed and angry is good for BART public relations because they will get angry at protesters and maybe protesters will take a hint and leave BART stations alone.)
BART will have a board meeting Wednesday morning to address the cell phone service shutdown decision. If you are in the SF Bay Area, you may want to attend. If you are not, you may want to sign this petition and show BART you are fed up.
FDL’s Lisa Derrick over at La Figa has more details on what happened with media and protesters. Joshua Wolf used his Wikipedia page to prove he was a journalist so he would not be arrested. She also has posted this video of an arrest that took place when most people who had been participating in the protest had gone home. The arrest of what looks like at least a half dozen people happened on the street. Watch police in riot gear use their batons:
Here is the woman who was arrested for chanting. A riot cop approaches her. She is given a chance to stop. But, she proceeds to give the riot cop a lesson on people’s right to free speech (which was destined to not have the outcome she wanted but, hey, she tried) and then the police show off their force and take her up the escalator and out of the station.
SF Indy Bay has a post on BART’s hatred for free speech. What’s most important is the post is able to demonstrate the enforcement of the rule against “expression” was not content-neutral:
In the video below, BART officer J. Conneely from the BART police department’s “Tactical Team” steps up to three demonstrators holding a blue banner, starts to grab it, and tells them that they are subject to arrest for displaying the banner. “You are free to express yourself upstairs. It’s a safety issue. You are not allowed to do that down here,” he says. Conneely refuses to explain how the banner is a safety issue.
Within another couple of minutes, Conneely tells a demonstrator who is discussing the BART police killing of Charles Hill on July 3rd that she has to “keep [her] voice down… for safety reasons,” and that by speaking loudly she is subject to arrest. Picking up on this strange BART police declaration, another protester announces that “if we raise our voices, we will be arrested.” That demonstrator then leads a chant of “No justice, no peace, disband the BART police,” and is promptly surrounded by BART riot police who proceed to physically remove him from the station for arrest. (Reports are that those arrested within Civic Center station have been charged with trespassing. Go figure.)
It is clear that BART’s policy against “expression” within stations is not content-neutral. Four people were arrested in the Civic Center station on August 22nd for speaking out against the BART police, but a passenger who was yelling at protesters was not arrested nor even confronted by BART police, allowed to rant at length. And somehow a political banner has been determined by the agency to be a safety issue, yet BART stations are filled with commercial advertisements, across the walls and sometimes even on station floors and stairs.
Here is the video of this incident:
A week after citing In re Hoffman, protesters don’t seem to have actually read the case. Crowding a train platform to protest is in and of itself causing a disruption in service. Blocking escalators (when the police tried to clear out the Civic Center station) is causing a disruption. Neither of these are protected by the First Amendment.
Much of the tension is arising from the fact that not only is BART abusing authority but there are protesters who do not understand what authority BART (and SFPD) has to defuse or disperse protests.
Should BART police or SFPD police have authority to decide when assemblies are unlawful or out of control? Absolutely. Do police typically arbitrarily make such a decision based on a flawed interpretation of laws or codes? Sometimes. In this case, is BART at all responsible for instituting a rule that police are using to clamp down on free speech? Should this rule be permitted to be enforced in stations?