Colorado Springs police win round one against socialists, convince local jury that free speech obstructs order.

CONVICTED! The March 26, 2017 arrests of socialist marchers finally came to trial last Friday. We were all found GUILTY! OF MARCHING! YES! Because that’s a crime in Colorado Springs. It’s disguised as a misdemeanor offense called “Obstruction.” On the other hand, all four defendants were acquitted of the more serious charge of Failure to Desist or Disperse, of which we were equally culpable, if you consider the police dispersal order lawful.

While a complete not-guilty verdict would have been more comforting, and of course just, the silver lining is that we can now appeal this decision to a higher court.

Appeal
Next time round, the judge’s prejudice, the prosecution’s dishonesty, the police misconduct, and the impropriety of applying an obstruction ordinance to curb protest, can be reviewed by adjudicators with more authority, whose decision can set legal precedence. Though appealing to higher wisdom in Trump’s America has become a crapshoot.

The kangaroo aspect of municipal courts does get tiresome. Our railroading was well oiled so our court scheduled only one day of trial. Six to ten officer testimonies, plus ours, plus the various surveillance and body-cam videos, seemed sure to expend more than a day. We played along, hoping to spare the charade no more time than it deserved.

We were also confident a jury could not fail to see through the preponderance of bullshit. Ours seemed a sympathetic jury with smiles and eye contact. They rolled their eyes at the police overreach. We sympathized with their having to upend their schedules to listen to the bullshit and so we wanted to hurry it along for their sake. We abbreviated our testimonies and our cross-examinations of the idiotic cops to spare the jury excess misery. At the same time we feared a contempt charge from the judge if our testimonies strayed into subjects the judge had forbidden us to mention to the jury. Like the Outrageous Governmental Misconduct.

Censored topics
The verdict should not have been a surprise. Earlier in the week the judge forbid defense attorneys from instructing the jury about the First Amendment. And so Friday’s jury had only to decide, were they out on the street or not? None of us disputed being in the street, which the prosecutors defined as obstructing traffic, therefore we were found guilty.

Judge Kristen Hoffecker’s rationale for eliminating the standard First Amendment jury instruction, and prohibiting defense lawyers uttering the phrase “First Amendment Rights” was because prosecutors argued the charge of obstruction had nothing to do with free speech. But what charge does? If a law overtly infringes on free speech, it would be held unconstitutional. As a result, police and city prosecutors use tangential offenses to criminalize protesting. Obstruction is a local favorite.

If police officers don’t understand the First Amendment enough not to violate it, and city lawyers don’t respect it enough to persist with prosecutions, and judges don’t know enough to throw out abusive charges, are we really to expect common citizens sitting in the jury box to know where they’re supposed to draw the line?

Obstruction
By chance I have some familiarity with the obstruction pretext. The prosecutor kept telling the jury that had we marched on the sidewalk, we would have avoided citations. Had she asked me directly, I could have answered: not true. I have frequently been threatened with arrest for OBSTRUCTING THE SIDEWALK. And there’s more to that story obviously.

Likewise, walking in the street is not the only way to be targeted with obstruction. I’ve been charged with obstruction IN A VEHICLE ON A STREET. Both examples happened at protests. Police can accuse you of obstruction, on the street or off.

Obstruction is be a legitimate violation of course. If you’re preventing someone driving by, in this example, or walking by, or a government function, or a commercial activity, etc. However, if the accusation of obstruction is the pretext to obstruct YOU from expressive activity, that’s an abuse of the ordinance.

An indication of such abuse might be if police allow others to do what they’re disallowing you, perhaps because of your ideology. In Colorado Springs, authorities have allowed numerous political marches on the street without arrests or threat of arrest. Some recent examples include #MeToo, the Women’s March, Black Lives Matter, Anti-Fracking, Critical Mass, Occupy, to name demonstrations which have taken our downtown streets without arranging permits beforehand.

Those who’ve sought permits, by the way, learn they cost $7,000. Events have been cancelled for failing to fundraise the required fee. That very literally is not free speech.

Jail
Back on the stand, if I had been able to recount being charged with obstruction of a sidewalk, I could have emphasized I was JAILED for it.

Jail was another topic we were forbidden to broach. A jury is not supposed to consider the potential penalties to result from its verdict. Our jury had no inkling we could be jailed for our protest march. I say this because even our lawyers discounted its likelihood. But the first thing Judge Hoffecker did after dismissing the jury was to schedule all defendants for a Pre Sentencing Investigation. PSIs are unusual for misdemeanor convictions, though standard for felons, addicts and sex offenders.

The trial flaunted other indignities.

Objections
The jury pool from which we chose our jurors included an African American Teamster who spoke proudly of protest, even if it might block traffic. We wanted him on our jury and he was the only black person in the group. Naturally the city eliminated him first, without regard for the federal law which gives protected status to minority jurors. The judge repaired to her chambers and conjured another pretext to overrule our objection.

Two of our defendents exercised their Fifth Amendment right, not to testify, and as we all know, not to have that used against them. In her closing statement, our city prosecutor brought up the fact they’d chosen to avoid incriminating themselves. That’s a red letter all caps NO-NO which should produce a mistrial. Our judge ran to her chamber to consult the law (likely make a phone call) and reemerged steeled to shrug it off.

Lawful order
As I said, we were acquitted of Failure to Desist and Disperse. Most of us didn’t hear or understand the garbled commands which the police officers testified were lawful orders. Listening to the audio on the bodycam footage in court made it clear to me why those orders were not conveyed.

It turns out, instead of saying “This is Officer Keller with the Colorado Springs Police, I’m ordering you etc, etc”, the police were actually yelling “Get on the sidewalk! Get on the sidewalk!” We mistook them for hecklers responding to our chant of “Off the sidewalks! Into the streets!” And of course “Whose street? Our street!”

I didn’t hear the police barking at us on March 26, but I would recognize it now. I have since come to witness how police in their cruisers use their intercoms to communicate with the urban poor. They pull up on the homeless and from their cruisers dispense with all formality. “Get up! Stand up!” They yell to homeless not abiding by the new no-sitting ordinance. “Move it! Pick up your things!” They yell as they sweep the public parks and homeless encampments. Those apparently are lawful orders. If they say it twice, that counts as two warnings.