Tag Archives: Socialists

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.

Who is this El Paso Sheriffs undercover infiltrator provocateur? We don’t care!

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COLO. SPRINGS– Lawyers for the city are fighting defense team efforts to expose who, how, when and why local law enforcement agencies infiltrated a campus political activist group. The 2017 undercover operation was revealed in CSPD bodycam videos, but city courthouse lawyers and judges are preventing the evidence from being made public.

Alerted to the October 17 evidentiary hearing meant to shed light on the bodycam video, journalists and news crews instead witnessed stonewalling by city attorneys but made to look like a disorganized defense. They saw municipal Judge Kristen Hoffecker blame the defendants for not submitting to a sham proceding, when the judge should have confessed that the defense’s subpoenas had not been honored.

Today the city learned that our defense team went around them and served the subpoenas directly, requiring the responsible law agency parties to testify as witnesses at an evidentiary hearing on November 3. Now the city wants to use a November 1 status hearing to quash the subpoenas.

What’s the big deal? The city asserts the confidential identity of its undercovers is a stake. That is of course the least of it.

The city’s own evidence against the defendants, accused of marching in the street on March 26, 2017, documents police officers deciding to issue tickets. What’s clear from the video is that the police issued tickets, not to cite wrongdoers, nor to halt law-breaking, but to 1) “identify everyone”, 2) arrest an undercover agent, and 3) disperse a lawful assembly. It’s all on tape.

When defendants first grasped what they were seeing on the bodycam video, they brought it to the attention of the various municipal court judges who take turns directing the daily court matters. Asked to produce the written reports generated by the officers on the video but missing from the discovery evidence, the judges declined. Asked to subpoena the officers involved, the judges declined. After each defendant’s pro se arguments were rebuffed, one motions hearing after the other, the defendants sought legal help. Actually Judge Hayden Kane II did eventually grant a hearing to look into the video, but he told us he’d already watched it in private and was not inclined to find it relevant, so defendants were not encouraged that his opinion would change.

In the meantime civil rights lawyers were highly interested in the police activity documented by the video. They submitted 20 pages of argument for the dismissal of charges against the defendants, citing outrageous police misconduct in violation of the Code of Federal Regulations, part 23. They requested that the sheriff, the police chief, the commander of CSPD intelligence, and others named and unnamed, be subpoenaed to testify at an evidentiary hearing on October 17. That didn’t happen, as everyone saw. The subpoenas didn’t even go out.

The October 17 hearing misfire was simply the latest of months of attempts by the defendants to bring this story to light.

This time around the city wasn’t given the chance to sit on the subpoenas, they’ve been served directly. On November 1, will Judge Hoffecker invalidate the subpoenas two days before the witnesses are compelled to appear? The question reporters can ask is should she?

The city’s argument will be that the police undercover operation, however illegal, does not have anything to do with the guilt or innocence of the socialists charged with marching in the street. Outrageous police misconduct is a matter for federal court, that’s true. But have a look at the video. Notice that the first marcher fingered for arrest, the only one assigned an arrest team, was the undercover “Mark Jackson.” When the police shouted their warning that all who remained in front of City Hall would be issued citations, their only unequivocable target was Jackson.

Without the motive of arresting Jackson, whether it was to provoke the crowd or to embed their infiltrator, and until the order “LT wants everyone identified”, the police weren’t going to make any arrests. What does that say about the supposed guilt of the accused?

The police had already told the socialists “you’re free to carry on with your rally so long as you don’t step back unto the street.”

What the socialists were doing on March 26 was the essence of protected speech. But senior officers not on the scene had a crime of their own up their sleeves, and they needed an arrest or two to set it into motion.

Should we get to the bottom of this story, or let the city pretend it didn’t happen until the defendants get to turn the tables in federal court?

One presumes that undercover agents are only performing the intelligence function of surveillance, monitoring protest activity for hints of criminal behavior. At worse, we call them agent provocateurs, trying to encourage illegality, and believe that everyday nonviolent activists should know better than to be entrapped into illegal acts.

But undercover officers are much more disruptive than that. Undercovers sow dischord and mistrust among strangers who’ve come together to advocate for a common cause. Infiltrators pit activists against each other and confound organizers with sabotage. They volunteer for responsibilities then drop the ball. They complicate discussions with irrelevant, impractical, or illegal suggestions. When their ideas are rejected they express frustration by demeaning their fellow participants for being unmotivated. When “Mark Jackson” was found out, and it took many weeks for everyone to become convinced he was an undercover, he berated everyone for every personal failing in the book. He accused individuals of paranoia, ineptitude, or lacking courage. “Get back to me when you decide you want to DO SOMETHING” were his parting words.

Police infiltration harms every citizen effort to organize. The Code of Federal Regulations mandates that police agencies have suspicion of real crime before embedding infiltrators.

If CSPD or the El Paso County Sheriff’s Office or the Department of Homeland Security or the Colorado Bureau of Investigation has proof of a crime brewing among the Colorado Springs Socialists, wouldn’t we all benefit to know about it? We would if their motive is truly crime prevention.

The real identities of “Mark Jackson” and his partner “Aimee Walter” doesn’t matter at all. Who they work for is paramount. Are they “with the Sheriffs” or contracted or embedded from another agency? As the video shows, Jackson’s jittery hyperactive behavior while detained in the cruiser doesn’t give one much confidence about who law enforcement is entrusting with a loaded weapon in a crowd they hope to be inciting to riot.

The city’s determination to quash the question of whether or not such evidence exists points to police malfeasance, not the Socialists’.

Justice delayed is justice denied. Colorado Springs police infiltration operations against social justice activism should be brought to heel sooner rather than later.

OCTOBER 27 UPDATE:
According to Judge Hoffecker’s order: November 1st at 2:30pm will be the city’s next chance to quash the subpoenas. If they do not succeed, the evidentiary hearing is scheduled for November 3rd at 8:15am.

City plan to snuff socialist infiltration hearing blows up in courtroom’s face

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El Paso County undercovers
COLORADO SPRINGS, COLORADO– If you attended today’s evidentiary hearing about the police infiltration of a local student group, you are no doubt left wondering what happened. Where were the defendants and why was the judge so angry? The outcome was not what either side wanted, but still it was a huge false step for the city. The defense was not provided the police witnesses it requested, but the prosecution was prevented from quashing those subpoenas outright. As a truant co-defendant, I had a unique vantage point on today’s anticlimax and I apologize I was unable to explain it in person.

Today’s hearing, it turns out, was supposed to exclude the defendants. The review of evidence relating to the police infiltration operation was intended to happen outside of public view. The lawyers signed the setting slips, not the defendants, who were kept uninformed of the October 17 hearing. The judge had specified lawyers only, to keep the details and identities of the undercovers confidential.

Can courts exclude defendants from their own hearings? Not really, but anyway.

It turns out the judge wanted privacy because she had no intention of conducting the hearing at all. Without an audience to offend, this judge planned to summarily quash the defense motions to make police administrators testify and that would be the end of it. Objections be damned, let the lawyers take it up on appeal. Push this hot potato off a year or two.

However, through documents obtained directly from the courthouse, the defendants did learn about the hearing. So the defendants made plans to attend the hearing regardless of a judge’s preferences, and they publicized the event for what it promised to be, a scandalous exposé of CSPD intelligence overreach. Subpoenaed to testify were El Paso County Sheriff Bill Elder, Colorado Springs Police Chief Peter Carey, Lieutenant Mark Comte of the CSPD Intelligence Divison, and Sergeant Clayton Blackwell, among others.

Colorado Springs prosecutors did not inform the defense team that they had no intention of honoring those subpoenas. Instead they planned to motion to quash the subpoenas and truncate the hearing. The city attorneys did not file those motions beforehand nor give the defense any indication they were contesting the subpoenas.

I can only surmise that the city prosecutors began receiving calls from the media about the anticipated testimony of the sheriff and chief of police, because it wasn’t until late morning on the day of the hearing, after our press release went out, that the city emailed the defense team to say that “Sgt Blackwell is on vacation.” Blackwell wouldn’t be attending the hearing, they said, and by the way, his was the only subpoena delivered.

To which I imagine our legal team said: WTF?! Now we needed a hearing to learn why the city thought it could unilaterally decide to whom to deliver our subpoenas.

It’s one thing to disrespect the rights of defendants. Our municipal court does it ALL THE TIME. Everyday, sadly. In fact, it’s done it repeatedly to the very defendants in this case, before we got lawyers. But it’s quite another thing to trample on our rights when a civil rights attorney is involved.

If Blackwell was on vacation, the case needed a continuance. And if subpoenas were going to be quashed, we needed a motions hearing. Oddly, the judge was demanding our defense attorneys show up in person. To arrange a continuance?! Riiiiiight.

Our lawyers quickly let us know there was to be no hearing. Since the defendants weren’t supposed to attend today’s hearing anyway, we deemed it prudent not to attend the prosecution’s switcheroo. Without defendants, whatever the prosecution planned couldn’t proceed. Meanwhile the defense lawyers weren’t going to abide a Podunk Springs Judge Roy Bean throwing the law book out the window. If subpoenas aren’t going to be honored, you have to present the legal basis beforehand. Them’s the rules, Hayseeds.

So the courtroom audience, including journalists and media crews who had to leave their television cameras outside, were left to witness a Colorado Springs judge fuming at being out-thunk. The defense lawyers weren’t there to let her quash away with her gavel, without regard for the Colorado Rules of Proceedure, and the judge’s original scheme excluded the defendants so as a result there were no defendants present to accept her rulings. The judge could do nothing but seethe and lecture the audience about big lawyers disrespecting municipal courts. Nevermind that our courts are corrupt mechanisms that trample rights for breakfast. (The ACLU recently released a report damning Alamosa’s city courts: Justice Derailed. Believe me, the identical abuses of power occur in Colorado Springs.)

Nevermind too, what today’s court hearing was supposed to be about: Outrageous Conduct on the part of CSPD and EPCSO, and violations of the Code of Federal Conduct. Today’s defendants were arrested on March 26, 2017, but not for walking in the street. The socialists were arrested because the Intelligence Division wanted to “arrest” an undercover officer, maybe two, in order to give them deeper cover as they infiltrated a student-led group just formed in Colorado Springs. The CSPD body-cam video released to the defendants already proves this. We wanted the decision makers responsible to explain it.

Instead of a comedy of errors spotlighting local law enforcement ignoring the people’s Bill of Rights, the courtroom audience today saw another facet of our corrupt judicial system. They witnessed a judge prepared to ride roughshod over further rights that protect citizens from authoritarian zeal. You may not care how police abuse “socialists” but the whims of a municipal court despot affect everyone caught in their dragnet, be it a ticket or a zoning dispute. Even with an expensive lawyer, you are powerless to object when a judge pretends there are no rules.

What the judge saw today was a courtroom filled with supporters of the defendants and a media interested in their story. She saw that she and her gavel are not going to make this story go away.

Colo. Springs police disperse March 26 anti-imperialism rally because it was easier than listening to socialists

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COLORADO SPRINGS, CO- Local socialists assembled at City Hall on Sunday to “March Against Imperialism”. After a brief march and an half-hour rally while encircled by CSPD, the socialists were informed they were “free to carry on with their assembly” but whoever lingered would be issued a citation for having been in the street. Making no distinction for who had and who hadn’t, the police began handcuffing participants and the couple dozen others quickly dispersed. Five socialists were issued citations for “pedestrian in the highway” and “failure to disperse” while another was arrested and detained for failing to show an ID while filming the police. That person was taken to the downtown police station and held until officers finally informed her of the charges for which she was being cited, after which she identified herself. Throughout her detainment, multiple officers kept up a harassment of questions, refusing her requests that she contact her lawyer. CSPD never issued an order to disperse, a fact that is borne out by witness video. But in effect that is what the officers accomplished. They threatened the legal assembly with citations, for failure to disperse!

It made a funny scene. Around thirty self-declared socialists, blockaded by eight sometimes more CSPD cruisers, in a standoff that lasted until the police lost their patience. Socialists spoke against imperialism, the police officers being their main audience that quiet Sunday downtown. Immediately as the march had ended the police had announced that anyone stepping back into the street would be arrested, and so no one did. But a half-hour of speeches proved too much for the officers to bear and so they interjected again, this time to discuss the problem they had with what had happened earlier. We told those officers they were of course free to discuss such matters individually with whoever they considered a person of interest, BUT AFTERWARD, because they were otherwise interrupting our legal assembly. But the officers persisted in their interruption, deciding after the fact what charges to bring, regardless that they’d forgotten to provide the evidence to back them up. “See you in court” they laughed! We’ve heard that before.

On a serious note. What happened Sunday could have a chilling effect on the nascent kick-ass Colorado Springs Socialists. Unwarranted police attention is an unhappy tradition for socialist organizers, from anarchists to trade unions. Sunday’s denouement confirms all their parents’ worst worries, the folly of declaring yourself to be a socialist in a regressive backwater like Colorado Springs. People were arrested? Handcuffed?! Now you’re on a police watch list! I remember my father’s alarm when he learned his college sophmore had a subscription to Mother Jones Magazine.

Fun as it was, Sunday’s event was essentially uneventful: no altercations, no property damage, not even rhetoric to threaten infrastructure. Minus any media attention, or much of an audience at all on a sleepy Sunday evening, these socialists were determined to parade their dissent where and how those around could see, and reaped more law enforcement than the circumstances required.

While you might say the outcome was predictable, it needn’t have been. Students from the wealthier Colorado College have free range on downtown streets, protesting racism or election outcomes on the street without arrests or citations. Every full moon CC students ride the length of downtown’s main street on bike, skate or skateboard, without even police escort. Sunday’s fledgeling socialist organization is a student club of the UCCS campus. UCCS is more working class, for many a commuter campus, and obviously isn’t shown any deference by city administrators.

Compared to the liberal arts curriculum of Colorado College. UCCS is considered more conservative. UCCS hosts business and military related classes. It even has a Brazil-esque Department of Homeland Security -um- Department. So I think it’s all the more admirable that UCCS has spawned a bonafide socialist group that dwarfs even their school’s Young Republican franchise. I’ve no doubt those socialists I met on Sunday will not be cowed by CSPD’s preemptive aggressions. Hopefully their more timid members will take heart.

Public protests are regularly given use of the streets, which like parks are considered traditional free speech zones. The Tea Party and Occupy took to the streets of Colorado Springs without incurring arrests. More recently people have marched for Black Lives Matter and for solidarity with Native Americans fighting oil pipelines. These have produced zero arrests.

In the meantime it will be important to debrief on what happened and unify the legal strategies. All defendants face the traffic offense of being a pedestrian on the highway [sic] and the misdemeanor of failure to disperse, no doubt tacked on to be a droppable charge as fodder for plea bargains. The recalcitrant videographer faces an added charge of misdemeanor interference for failing to produce her ID. They give her no extra credit for providing a pretext for interrogation because she wouldn’t say zilch without a lawyer present, except to explain where and when they were violating her rights. It used to be that cops had to read us our rights.

Police can issue all the tickets they want when there’s probable cause. They can’t threaten to issue tickets for the solitary purpose of disbanding a legal assembly. In the end, the only socialists who got citations were punished not for being in the street but for standing their ground in front of City Hall.

Right Wing running with scissors on the Accidental Missile reports.

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the myth of middle ground