ACLU Argues Occupy Oakland Stay Away Orders are Unconstitutional

Attorneys for Occupy Oakland protesters are charging that stay-away orders to keep them away from Frank Ogawa Plaza and other sites of recent protests are unconstitutional.

American Civil Liberties Union attorneys representing four Occupy Oakland activists filed a writ of habeas corpus today that argues the orders are too vague, unfairly target a political group, and burden free speech without a reasonable justification.

At least 14 protesters have received stay away orders as of today and prosecutors have sought them for protesters they say are violent over the last several weeks, Alameda County District Attorney spokeswoman Teresa Drenick said.

The orders are a condition of release for protesters that have been arrested during demonstrations, for charges including inciting a riot, vandalism and assault on a police officer. They prevent protesters from going within 100 or 300 yards of Frank Ogawa Plaza.

"Under the law it's common for courts to issue stay away orders so long as the conditions are reasonable," Drenick said. "We believe in this instance the stay away orders are both reasonable and necessary."

But ACLU attorneys said that the four protesters named in the writ's charges are for crimes that were not committed in Frank Ogawa Plaza, leaving little justification for the stay away orders.

The four protesters named in the writ are Joanne Warwick, arrested on Ninth Street near Laney College, Chloe Watlington, arrested on suspicion of committing vandalism at the Marriott Hotel on Broadway and Tenth Street, Mario Casillas, arrested on suspicion of assaulting a police officer during a march near 12th and Oak streets, and Michael Lubin, arrested on suspicion of assaulting two police officers at 12th and Jackson streets.

The ACLU also cited a Feb. 9 opinion article written by Alameda County District Attorney Nancy O'Malley, published in the San Francisco Chronicle, which argued that the stay away orders were necessary to protect Oakland from militant, violent protests.

"California courts have long upheld the authority to issue a stay-away order as a condition of release from custody. Stay-away orders serve a vital community need to keep the peace, avoid further criminal conduct and maintain safety in public spaces," O'Malley said.

But the ACLU argued that other language in O'Malley's article indicated that protesters were being unfairly targeted for the content of their message, and the imposition of stay away orders partially came because the protests' message is anti-police and anti-government.

"These individuals were not rallying on behalf of Occupy Wall Street, or even the greater Occupy Oakland movement. Rather, they advertise themselves as 'militant, anti-government, anti-police, and anarchists,' with a mission to destroy the community fabric of Oakland through the use of violence," O'Malley said.

More protesters are expected to be facing stay-away orders over the coming days and weeks, including protester Brian Glasscock, 20, who said he will appear in court Friday and a judge will rule whether he will receive a 300-yard stay-away order for Frank Ogawa Plaza.

Glasscock said he was charged with suspicion of inciting a riot after a Dec. 30 arrest during an Occupy Oakland demonstration. Glasscock said he was held in jail for five days after that arrest, before being released without charges, but a warrant was later issued for his arrest.

It was only during the last several days, however, that he learned he might be unable to legally visit Frank Ogawa Plaza.

"300 yards is a long distance, it keeps you away from a lot of stuff in Oakland," Glasscock said. "It's about three blocks as the crow flies, it's a pretty ridiculous space."