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My Sentence

2012-07-06T17:17:44Z

I was sentenced last Friday for my crimes against the People of the State of Colorado:

$249.50 in fines and fees
32 hours of useful community service to be completed by October
12 months of unsupervised probation

The fine for being convicted of “unlawful conduct on public property” was only $50 (there was no fine or penalty associated with the “criminal trespassing” conviction). The fee to perform useful public service was $75. The rest is standard fees which I think go along with any misdemeanor conviction.

The probation officer who conducted my pre-sentencing investigation interview recommended first fines/fees alone, like he said he would, and secondly a whole variety of probation options (luckily the court saw fit to select only one of them). He also snuck a line in there about how I’m determined to be a public nuisance.

Mr. Wenig, Denver’s Chief Deputy District Attorney who tried my case, wanted supervised probation (expensive) and argued that my case demanded some form of rehabilitation since I showed no remorse for my actions. He explained to the judge that obeying (or enforcing, I presume) laws, even when they contradict one’s own conscience, is necessary to prevent people from justifying crimes and acts of violence by arbitrarily appealing to their own conscience. I believe his exact phrase was, “conscience is not sufficient.” This is the same argument he delivered to prospective jurors during voire dire.

Accepting as moral exactly those things as are legal is not only a surrender of reason and personal responsibility but leads, at least historically, to a support of atrocity. It was this legalistic thinking, the rejection of the possibility of autonomy for the false promise of authority, by Mr. Wenig’s 18th and 19th century counterparts which enforced for so long the devastating (legal) institution of chattel slavery in this country. Now I don’t know if the DA personally lives by such a simplistic moral philosophy, but I am convinced that he would professionally argue for and enforce any deplorable law with the same wasteful vigor as he prosecuted me for being a nonviolent resister to the criminalization of homelessness.

My May Day in Denver: Trial, Verdict, Sleep-In Protest

2012-05-06T06:00:00Z

My Trial

On April 30th I had my jury trial for the criminal charges brought against me in October when I protested the criminalization of homelessness and the eviction of Occupy Denver by sitting in Lincoln Park and refusing to leave (“I Was Arrested at Occupy Denver”). I was represented by an attorney who volunteered to take my case through the National Lawyers Guild. Several of my friends and family members came to watch the proceedings (many for the entire day — thank you everybody!)

My attorney did an excellent job, and despite my antagonism towards the state and flagrant lack of remorse for my actions, put quite a bit of work into what he hoped was a viable defense. Despite ruling against my motion to dismiss at an earlier hearing, finding that the State’s actions in closing the park did not violate the First Amendment because they were content-neutral and narrowly tailored to the State’s interest (and so fell within valid time, place, and manner restrictions of speech), the Court did rule that my attorney would be able to speak about freedom of speech in front of the jury. She also ruled that if I were to testify he would be able to ask me about my property that was taken from me during my arrest and that the Colorado State Patrol subsequently lost. Two early victories.

The prosecution’s case was not especially strongly argued, despite fairly clearly having the law and the facts on their side in at least one of the charges ("Unlawful Conduct on Public Property" — it was undisputed that I ignored a police officer’s request to leave a public park). During jury selection voir dire he smartly emphasized the oath the jury took to determine only the facts of the case, and not to decide whether a law is just. He even implied that all laws must be obeyed in a sensible society. I wish I (or my attorney) had asked them to think about the absurd implications of that and to consider whether an oath which will cause more harm than good is an ethically binding oath. Oh well.

As far as evidence, the prosecutor’s strategy was to first demonize the Occupy Denver camp and then to condemn me by association. Neither step was very convincing I don’t think, even to an objective observer. Unfortunately my attorney was so focused on his negative defense based on my state of mind (he wanted to argue that I didn’t "knowingly" break the law, because I believed the law to be invalid… or something) so he didn’t focus on the hypocrisy of the State’s actions nearly as much as I’d have liked: that the mess in the park was the result of the state police disassembling tents, that instead of offering toilets or trash service the state offered 100 riot police, that even if there was a good reason to evict the camp (there wasn’t) there was certainly no good reason to arrest me (I was, by all accounts, sitting peacefully at the edge of the park). For my part I wasn’t sure whether to defend Occupy Denver, to defend myself, or to explain why it is unjust to criminalize living in public. When I finally took the stand to testify I was too nervous to say much of anything.

The trial went late, so after both sides finished presenting their case the Court decided the jury would return in the morning to deliberate a verdict. Before adjourning my attorney won one more important dispute: the wording of the jury instructions for the “Obstructing a Law Officer” charge. The DA’s recommendation included only the verb “to hinder” (not coincidentally, my arresting officer testified that while I did not resist I did “hinder” him by not standing up to be arrested — the first time he ever used that language in describing the events). My attorney successfully had the phrase “by force or by using an obstacle” added to the instructions. The next day being May Day I had planned to stay in Denver that night anyway, so after the trial I went and bought a sleeping bag (to replace the one that was lost when I was arrested). I found a good stealth site under some bushes in a city park — my first time sleeping out alone in resisting curfew!

Verdict

After my rather narrow defense, the verdicts the next morning were not surprising to me:

Unlawful Conduct on Public Property: Guilty
Obstructing a Law Officer: Not Guilty
Criminal Trespass: Guilty

My sentencing is not scheduled until June 29th, so that the state may have time to conduct a pre-sentencing investigation report to inform the Court about what sort of threat I pose to society and so what level of jail or probation I should receive. As part of that investigation I was briefly interviewed by a probation officer. Before the interview they had me fill out a form which was almost exclusively about domestic violence and substance abuse. So I filled it in with a lot of sad forever alone jokes and mentioned that while I’ve never had an alcoholic beverage before, I may have had sips. In lieu of filling in the “describe in your own words the events of your crime” section I attached a copy of my “I Was Arrested at Occupy Denver” pamphlet.

The probation officer was friendly and respectful of my convictions and he said his primary recommendation would be fines/costs with no probation, though he was insistent on emphasizing the penalties for breaking probation if that’s what the court ended up choosing. The insinuated logic was “your reasons may be righteous, but the state is scary and living a principled life is not worth it.” The thoughts he left me with as I got into the elevator were that if I end up spending 30 days in county jail “nobody would care” about my reasons and that despite my valid protests if I ended up in jail then I “wouldn’t be doing any good.” Throughout the interview I was the subject of all actions: I put myself in a position to be arrested; I didn’t take the plea deal; I was sent to a probation office that doesn’t have the resources to spend on nonviolent offenders. The State’s role in unjustly arresting me, in overcharging me, in compelling me to trial, in convicting me, and in subjecting me to a pre-sentencing investigation and possibly probation were conspicuously absent from his thinking.

May Day!

After hearing the verdict and visiting the probation office, I went down to Civic Center Park to partake in the May Day events Occupy Denver had organized. On my way I stopped to pick up my backpack from the county detention center where I left it in a locker while I was in the courthouse. While I was in the lobby a sheriff came out with a handful of cables and locks and announced that the lobby was going on lock-down so everybody who wanted to leave should do so now! I got out and found out the reason for the lockdown was a small group of protesters gathering to show solidarity for a few protesters who were arrested (for jaywalking) during the May Day parade (which I missed). One of the arrested, Sole, was slated to perform in the park later, but instead sat in a holding cell while they waited for his fingerprints to be processed. (You can read his account on his message board.)

By the time I made it to the park there were not many people there, but it was a refreshingly radical and friendly environment. Signs and chalk art everywhere said things like “Another World is Possible Ⓐ ,” “No Human Is Illegal” (although that one included a URL to a Maoist website), “Homelessness Is Not a Crime,” and several General Strike, Industrial Worker’s of the World (IWW), and class war slogans. There was a booth giving away seeds and tomato plants, a barter market (which I think was put on by the Denver Handmade Homemade Market folks), an IWW info booth, and food provided by some Food Not Bombs activists. (You can see some photos and reporting on this Huffington Post article.)

Haymarket: The Origins of May Day as Labour Day

Until recently I never took an interest in organized labour struggles. I have had no personal experience with unions, but what little I saw of them was a strange celebration of unpleasant work, wages, materialism, and hierarchical organization. I had, however, never been taught about (or never paid attention to) radical labour movements, like anarchism, which seek not only better working conditions, but the elimination of the wage system and of the separate employer/employee classes. One hundred twenty-six years ago Chicago, IL, was the hub of such radical movements in America. On the fateful day of May 4, 1886, the struggle for the eight-hour workday had spilled into the streets, and as the police were dispersing a crowd from Haymarket Square somebody — nobody ever found out who — tossed a dynamite bomb into the police line, killing one officer immediately and fatally wounding several others.

Eight anarchists were arrested for their roles in organizing the protests, seven of them were sentenced to death, one killed himself before the state could do it, four were executed, and the remaining two had their sentences commuted by the governor. One of the anarchists, August Spies, moments before being hanged shouted out his famous last words, “The time will come when our silence will be more powerful than the voices you strangle today!”

The Haymarket affair (see also this very good short history which was first published in the April 1986 issue of Revolutionary Worker: The Origins of May First) became an excuse for the propertied class to discredit and crackdown on socialists everywhere. The momentum for the eight-hour workday was lost, anarchist groups were constantly accosted by police (and to this day the dark bearded man sneaking about with a round, fused dynamite bomb is the caricature of an anarchist), revolutionary unions like the IWW lost membership to reformist unions like the now-dominant AFL, etc. But Haymarket also became a rallying event for labour movements all over the world, with the First of May becoming an international workers' day in commemoration of the Haymarket martyrs.

Today more than eighty states officially recognize May Day as a labour holiday. The United States does not. In fact this year Obama, like in past years, proclaimed May 1 to be Loyalty Day in a not-so-subtle snub at the Chicago anarchists who gave their lives in the struggle for equality. In past years America has also officially celebrated those deaths as Law Day and “Americanization Day”.

This year, thanks to the organization of the various Occupy movements, May Day was once again celebrated by thousands as a day to commemorate labour struggles (see also the Great American Boycott of 2006). Including me, for the first time.

Sleep-In Protest

After the events in the park, about 50-60 of us walked over to the 16th Street Mall to sleep for the night in protest of Denver’s proposed urban camping ban (which will likely be put into effect later this month). I met several friendly young people, several of whom were currently homeless, recently homeless, or were currently hitchhiking around between jobs. They included me in their conversations, listened to what I had to say, and were generally very encouraging people to meet. The Thunderdome stopped by to make s’mores, coffee, and chai for everybody. Other people brought pots of soup and loafs of bread. (Somebody posted a Flickr photo album of the protest. I’m visible in some of the photos.)

At first there was a large police presence, but once it was clear we were just there to sleep they left us alone. All the local TV news stations were there both at night and in the morning to run short live reports on the protest. At one point during the night a very frustrated man who decided he wanted to get arrested that night tossed a large rock through the glass door of one of the shops we were sleeping in front of. Even to that incident the police reaction was subdued, responding with only one vehicle and at least ten minutes after it happened (there was a group of private security guards keeping an eye on us all night who reported the window smashing immediately). The guy who threw the rock was getting impatient waiting for the police (at one point shouting “Where are the police?!” while standing on the curb with his hands behind his back). The window was boarded up before the news crews came back in the morning, and nobody reported on the incident — I don’t think any news station was ever aware it occurred. (I can be seen walking in front of the camera during a clip aired by 9News.)

There is a similar sleep-in protest planned for next Saturday. I intend to be in attendance.

I Was Arrested at Occupy Denver: A Brief Narrative and an Anarchist's Perspective

2011-11-02T21:01:56Z

My Arrest at Occupy Denver on October 14, 2011

It’s not cool. It’s trespassing, and that is breaking the rules. Cool people make the rules. They don’t break the rules. And if those kids want you to break the rules then they’re not really your friends.

— Leslie Knope
Parks and Recreation

Municipalities are in recent decades increasingly responding to homelessness by ordaining public spaces like parks and sidewalks to be off-limits for sleeping.^[1] Combined with the partitioning of cities into private and public property, and the fact that acts such as sleeping are biological imperatives, these ordinances effectively make it criminal for anybody who does not own or rent property to be. Such anti-homeless camping ordinances are an example of what the geographer Don Mitchell calls the annihilation of space by law.^[2]

I happen to hold the opinion that real property should not be a requirement for citizenship or a prerequisite to live and participate in the city. Informed by that opinion, I have recently been preparing to spend my nights sleeping on public property in and around my Colorado hometown as a form of direct action challenging the legitimacy of the legal annihilation of those spaces. That is why when I read Governor Hickenlooper’s statement^[3] that he would begin enforcing the law to remove protesters and homeless who had occupied the state-owned park in front of Denver’s capitol building between the hours of 11pm and 5am, I decided to pack my sleeping bag and bivy shelter into my backpack and head to Denver.

I arrived at the park at about 9:45pm on Thursday (October 13th).^[4] I walked around and sat watching the protesters do their thing until about 1am when it got cold enough that I spread out my sleeping pad on the grass near a statue at the northeast corner of the park (which was a bit away from the main group of tents along the west-side of the park near the sidewalk on Broadway) and got into my sleeping bag. I slept off-and-on between 1am and sometime just before 3am when I was awakened by the PA system of a police SUV announcing that the park must be cleared within half an hour. I got up and packed my stuff back into my backpack so I wouldn’t lose track of anything if I was arrested. The three homeless guys who were sleeping near me packed up and left the park. The SUV returned (to the east-side of the park, on Lincoln) at least twice more to make the same announcement. On these latter occasions it was accompanied by a small number of state troopers in riot gear.

I joined the main group of protesters near the tents. A little before 4am a small army of riot-gear-clad officers (I’d estimate around 80) of the Colorado State Patrol entered the park from the south-east and began searching and dismantling tents. As I watched, I was approached by one trooper who told me to leave the park or face arrest.^[5] I said I wasn’t going to leave, and he repeated himself then walked away. I retreated with most of the protesters to the area near the kitchen and first-aid tent, which was the heart of the encampment. When the police finished dismantling the other tents, they then lined up facing us and ordered us to get out of the park and move onto the sidewalk. I refused. The state was going to impose its exclusionary property rules with or without me, the least I could do was make them go to the bother of carrying out their threat of force.

So I sat on the grass.^[6] I sat there and shivered for two hours while the troopers initiated a staring contest with the other protesters who had moved to the sidewalk or had gathered to defend the kitchen. I believe I was the only one to remain on the grass, which gave me a unique perspective of the standoff. I was twice approached by officers (I think from the Denver Police Department) while I was sitting who matter-of-factly told me that I would be arrested if I did not leave. I was usually sitting within a few feet (sometimes inches) of the troopers (in their riot gear) holding their line. Sometimes a portion of the police line was actually on the other side of me, between me and the protesters on the sidewalk.

While the protesters alternated between cursing the police and asking them to join the protest, the police remained largely stoic and unresponsive. The trooper nearest to where I was sitting, however, engaged me in conversation a few times: he once asked me if I was doing okay, then joked that he had been standing for so long he might have to sit next to me, and another time asked where I was from. Other than that I don’t remember seeing any other attempt at the police to engage the protesters in dialogue.

Finally, around 6:20am, the police lined up for their final push, right in front of me. Before the push, the officer directly in front of me pointed to me and told the trooper next to him, "he is a passive". They then deliberately stepped around me as they began their assault on the protesters defending the kitchen, leaving me sitting alone on the grass. I watched them begin to break up the few remaining protesters, who had linked arms around the kitchen, for a minute before state troopers in standard uniform (no riot gear — they were the mop-up team) noticed me. They spent a minute or so trying to convince me to leave (they could tell I was concerned about my backpack and told me if I was arrested it would probably be "lost"), before they finally arrested me. I refused to stand, and after informing me that I was resisting, two officers lifted me by my arms and handcuffed me with plastic cuffs.

My arresting officer read me my charge (18-9-117 "Unlawful Conduct on Public Property") and placed my backpack in an orange bag with my cuff number written on it.^[7] This is the first time I’ve ever been arrested. When we arrived at the processing center he asked if I felt at least a little bit silly for being arrested. The cognitive disconnect in that question was striking to me: here was a man who just participated in a senseless waste of other people’s time and money insinuating that the guy who disobeyed a law in accord with his conscience was the one who should feel silly about his actions.

I counted twenty-two other protesters who were arrested (I was the third arrestee to arrive at the processing area). They transported us a few blocks to the Van Cise-Simonet Detention Center, where they processed us quickly enough that we were able to have our bond hearing the same day. Two of my sisters and a friend found out about my arrest and were in the courtroom during my hearing which was a nice surprise. The Denver Anarchist Black Cross had arranged for attorneys to be present on our behalf. Most of us, including me, were released with no bond and less than twelve hours after our arrest. My first appearance in court was October 21. The National Lawyer’s Guild and other organizations found enough lawyers to volunteer that each of us, including 24 who were arrested during demonstrations the next day, had representation at our hearings. The Denver Police Department has confronted protesters in riot gear on several additional occasions since my arrest, and over 100 protesters have been arrested since that first confrontation.^[8]

Trial

So that was my first experience with civil disobedience. It is discouraging because it has made plain to me how easily living my life openly in accordance with reason and conscience can bring me into conflict with the state, and how easily conflict with the state can bring me to spending my time in a concrete room. Which is a bummer, because that seems like an otherwise good way to live my life. I think I understand now why Diogenes could never find an honest man on the streets of Athens: he never looked in the prisons.

It is a difficult balance resisting the crimes of the state without either becoming complicit in its actions through obedience, or mimicking its actions through violence. In trying to walk that balance I adopted Tolstoy’s tactic of non-resistance to evil by force (or what I would call non-forceful resistance to evil) by not leaving the park when I was told to, not standing up to help the officer in arresting myself (for which I was charged with the crime of “Obstructing a Law Officer”), not accepting any of the plea deals I was offered, and also not actively or violently resisting. I feel I navigated the balancing act rather successfully.

My case went to jury trial April 30, 2012. Several of my friends and family members came to watch the proceedings (many for the entire day — thank you everybody!) My attorney did an excellent job presenting a negative defense given the law and facts of the case. The prosecution’s case was not especially strongly argued, despite fairly clearly having the law and the facts on their side in at least one of the charges ("Unlawful Conduct on Public Property" — it was undisputed that I ignored a police officer’s request to leave a public park). During jury selection voir dire he smartly emphasized the oath the jury took to determine only the facts of the case, and not to decide whether a law is just. He even implied that all laws must be obeyed in a sensible society. I wish I (or my attorney) had asked them to think about the absurd implications of that and to consider whether an oath which will cause more harm than good is an ethically binding oath.

As far as evidence, the prosecutor’s strategy was to first demonize the Occupy Denver camp and then to condemn me by association. Unfortunately my attorney was so focused on his negative defense he didn’t focus on the hypocrisy of the State’s actions nearly as much as I’d have liked. For my part I wasn’t sure whether to defend Occupy Denver, to defend myself, or to explain why it is unjust to criminalize living in public. When I finally took the stand to testify I was too nervous to say much of anything. The trial went late, so after both sides finished presenting their case the Court decided the jury would return in the morning to deliberate a verdict. After my rather narrow defense, the verdicts the next morning were not surprising to me:^[9]

Unlawful Conduct on Public Property: Guilty
Obstructing a Law Officer: Not Guilty
Criminal Trespass: Guilty

After several weeks to allow for a pre-sentencing investigation, I was sentenced on June 29th:^[10]

$249.50 in fines and fees
32 hours of useful community service to be completed by October
12 months of unsupervised probation

Anarchy and The Occupy Wall Street Movement

Liberty without socialism is privilege, injustice; socialism without liberty is slavery and brutality.

— Mikhail Bakunin

The Occupy movement has been criticized for being vague and not standing for anything definite. But there is some educational opportunity, at least, arising from the pluralistic nature of this movement. Vaguely disaffected individuals are attending events or following them on the Internet and, potentially, discovering almost 200 years of anarchist and Marxist thought. Even so, I cannot get excited about the entitled attitude which seems to saturate the “1% vs 99%” rhetoric, or the reformist/progressive elements of the movement. It’s not that the progressives are fighting a losing battle, but that they are fighting the wrong battle.

Capitalism, a system of production whereby the worker of capital and owner of capital are two different individuals, is not a salvageable system. Saving capitalism from plutocracy still leaves us with capitalism and with wage labour. Those who identify as “the 99%” seem more focused on comfort than autonomy. They don’t care who owns their workplaces or the products of their labour, as long as they have workplaces and their wages are high enough. It’s been said that Man does not live by bread alone. The point of eating is to live; capitalism has it backwards.

Government, a system of organizing people by force (in which capitalist production is an example form), is not a salvageable system. To ruin an old programming joke: Some people, when confronted with the problem of concentrated wealth and capital, think “I know, I’ll solve it with government.” Now they have two problems. I do agree with the sentiment held by many of those participating in the occupations that if we are going to be governed through representative democracy, then it should be elected by and representational of sentient people rather than corporations. And again, if we are going to control credit through centralized banking, and create credit through fractional-reserve banking, then those banks should be guided by macroeconomic policy in such a way that they contribute to the wealth of everyone, rather than to just a few. But at the root, government (historically if not logically) is a tool of the ruling class to preserve the status quo. Restoring capitalism to health is no great accomplishment. What good is it to gain the world of economic justice if it costs your soul?

Libertarian socialist political views like this, which reject both authoritarian government and the private ownership of capital which depends on and perpetuates such governments, were advanced by 19th century philosophers and revolutionaries who called themselves anarchists (from the Greek for ‘without a ruler’). Anarchist political theories are often challenged on grounds of feasibility (“Sure anarchism may sound good, but it would never work because human nature…”). While there are many points of specific debate, these challenges ask in general, “Can and will libertarian socialism result in a better (happier/safer/wealthier/…) world than current social organization?” This is a consequentialist approach: it seeks to determine what policies to pursue by trying to judge the goodness of their consequences. While I believe convincing arguments can be made in favor of libertarian socialism on this basis, I do not believe consequentialism to be a necessary or sufficient theory of ethics.

The problem all consequentialist theories must face is that as individuals our ultimate consequent is already known. To prioritize ends over means is to prioritize death over life. My anarchism^[11] is not merely a political recommendation; it is a moral philosophy. The goal is not to establish a utopian future by whatever means necessary. The future can worry about itself. The goal is to live a meaningful life now. The basic assumptions of anarchism are equality and reciprocity. So anarchists won’t rule others and will resist being ruled. They won’t claim ownership of others' labour, and will resist others' claims to what they use and produce. From squats to cooperative collectives to challenging unfair property rules by sleeping in a park, living anarchism will not bring about the revolution; it is the revolution. As Leo Tolstoy put it in his essay On Anarchy, “There can be only one permanent revolution — a moral one: the regeneration of the inner man.”^[12]

1. “Homes Not Handcuffs: The Criminalization of Homelessness in U.S. Cities.” The National Law Center on Homelessness & Poverty and The National Coalition for the Homeless. July, 2009. https://www.nationalhomeless.org/publications/crimreport/CrimzReport_2009.pdf

2. Mitchell, Don. “The Annihilation of Space by Law: The Roots and Implications of Anti-Homeless Laws in the United States.” Antipode 29:3 (1997): 303–335. http://onlinelibrary.wiley.com/doi/10.1111/1467-8330.00048/pdf Also reworked as Chapter 5 of his book: The Right to the City: Social Justice and the Fight for Public Space. The Guilford Press, 2003.

3. October 12, http://www.denverpost.com/commented/ci_19100471

4. All of my times are approximate. My only clock was on my Kindle, which I didn’t check very often

5. I found a photograph of me talking to this trooper (I’m not sure who the photographer is): photos/talkingtotrooper.jpg

6. I found two photos of me sitting by Westword photographers. This one by Jenn Wohletz: photos/sitting.jpg and this one by Brandon Marshall: photos/sitting-closeup.jpg

7. All of my property is still (two weeks later) in the possession of the Executive Security Unit of the Colorado State Patrol. They have been unable to give me an estimate of when I will be able to reclaim it. Update: the CSP has lost my property (I stupidly had most of my camping gear with me, worth about $1,700). I’m told it is probably thrown away.

8. Whipple, Kelsey. “Occupy Denver update: 100-plus arrests, more charges added, one case misplaced.” Westword, 21 Feb 2012. https://www.westword.com/news/occupy-denver-update-100-plus-arrests-more-charges-added-one-case-misplaced-5903435

9. For a more detailed account of my trial and May Day in Denver, see: https://americancynic.net/log/2012/5/6/my_may_day_2012/

10. For a few of my thoughts on the sentencing, see: https://americancynic.net/log/2012/7/6/my_sentence/

11. And of course many who identify as anarchists will disagree with much of what I’ve said here

12. Tolstoy, Leo. “On Anarchy” in Pamphlets. Translated from the Russian. 1900. Online: http://theanarchistlibrary.org/HTML/Leo_Tolstoy__On_Anarchy.html