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Some arrested at Occupy Boston in 2011 continue to fight charges, calling arrests 'unconstitutional'

Posted by Matt Rocheleau  February 4, 2013 07:29 PM

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A judge will determine next week whether to dismiss criminal charges against five people who were arrested during the Occupy Boston encampment in 2011.

The five argue that their arrests were an unconstitutional infringement of their First Amendment rights. The outcome could set an important precedent for similar cases, including nearly two dozen others who are fighting charges.

At Boston Municipal Court on Monday afternoon, Associate Justice Mark Hart Summerville heard brief arguments for and against the motion to dismiss. But said he wanted to wait to make a decision on the motion until the case’s scheduled trial date on Feb. 11.

“There are a lot of fact-based issues that are going to have to be resolved regarding what happened, when it happened and how it happened,” Summerville said.

About 185 people were arrested on charges, mostly for trespassing or unlawful assembly, during two 2011 police raids on the Occupy camp along the Rose Fitzgerald Kennedy Greenway – the first when the group tried to expand the camp on Oct. 11 and the second when police shut down the camp on Dec. 10 in an overnight raid.

Protesters were calling attention to the nation’s economic inequities.

All of those arrested were given free legal representation by attorneys from the Massachusetts chapter of the National Lawyers Guild. For most defendants, prosecutors agreed to drop charges or convert them into civil infractions, which are settled by paying a fine.

But 27 defendants have declined those offers, pleading not guilty to the charges and continuing to fight in court. Their court proceedings have been split into four groups of five co-defendants and a fifth group with seven.

Andrea Hill, Ashley Brewer, Brianne Milder, Tammi Arford and Kerry McDonald, the five co-defendants slated to go to trial on Feb. 11, are the first of the group to go before a judge.

No trial dates have been set in the other cases, said Urszula Masny-Latos, executive director of the lawyers guild.

The defendants argue that the area where they gathered, Dewey Square, is state-owned land managed by a private nonprofit and created to be public space. They also note that the nonprofit had written a letter before the police raids saying it would allow the encampment to stay.

“Arresting them and charging them with criminal conduct for exercising those rights was plainly unlawful and in violation of their constitutional rights to assembly and free speech under the First Amendment to the United States Constitution and Articles 16 and 19 of the Massachusetts Declaration of Rights,” said a statement from the National Lawyers Guild.

But prosecutors cited a December 2011 decision by Suffolk Superior Court Judge Frances A. McIntyre saying that those arrested at the site were not immune from prosecution.

“While Occupy Boston protesters may be exercising their expressive rights during the protest, they have no privilege under the First Amendment to seize and hold the land on which they sit,’’ McIntyre wrote in her decision.

Drawing a distinction between “occupation’’ and “living activities’’ on the land, McIntyre added: “The act of occupation, this court has determined as a matter of law, is not speech. Nor is it immune from criminal prosecution for trespass or other crimes.’’

Jake Wark, a spokesman for the Suffolk County District Attorney’s office, said, “We’re prepared to argue against the motion” to dismiss the charges.

E-mail Matt Rocheleau at mjrochele@gmail.com.
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