Politics & Government
Occupy Santa Cruz May Have its Day in Court Jan. 3
In which court the case will be heard is a question. Meanwhile, the tent city is still up and running, while others in the country have been shut down.
Occupy Santa Cruz's attorney Ed Frey hopes to keep the public nuisance case against the protest in federal courts in San Jose. He said his constitutional defense will hold more weight there than in Santa Cruz County Superior Court which is likely to only consider local and state laws.
Representing Santa Cruz, attorney John Barisone said the lawsuit should be hashed out in local courts because the public nuisance case is based in state law, and is not a federal issue.
“They had the case removed to the federal courts, wrongfully we feel,” said Barisone. “All of the statutes involved are state and local, so it belongs in state courts.”
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On Jan. 3 Frey plans to block the Barisone's attempt to bring the case back to the very building OSC has been camping in front of for more than a month. OSC's is also considering filing a counter suit in federal courts claiming that the public nuisance charges trample on their First, Ninth and 14th Amendment rights. Frey plans to cite debates from the Constitutional Congress of the 1780's to claim there are many implicit rights in the Ninth Amendment “including sleeping, eating, and breathing” in the defense against the original charges from the city.
Frey quotes Constitutional congress member Theodore Sedgwick, saying, “If Congress were to assemble a complete list of of the rights of citizens, such a list would have to include a person's 'right to wear a hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper.”
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Rather than requiring a formal consensus vote Frey will move forward unless someone in the Occupy Santa Cruz General Assembly “blocks” the idea.
He will also request a district judge instead of magistrate judge Howard Lloyd who will oversee the Jan. 3 hearing. District judges have lifetime positions on the bench, and Frey said their decisions make for more powerful ammunition when cases are appealed.
Many occupiers, though, are convinced that any system currently in existence will automatically be against them. A different courthouse or ranking of the judge doesn't seem to change that view. Frey said as a group they are struggling with an internal conflict of how to be a peaceful movement but also opposed to using existing channels of government.
“A lot of them are anti-establishment people,” said Frey. “They want to see a spontaneous replacement of the Congress we have now with a General Assembly. That's pretty unrealistic. If you give veto power to every person [in the country}—like they have with a 'block'— nothing would ever get done.”
Frey is more pragmatic and said he believes we need to push leaders who are in office to do the right thing, rather than replace the entire political system.
“When those debates were held [in 2008] Barack Obama said over and over again, 'I not only want to get us out of Iraq but I want to change the mindset that got us into Iraq,” Frey told the GA last week. “Now that our troops are coming home we have to change the militaristic mindset that got us into Iraq. That is something we can do.”
Steve Pleich—also an attorney—is representing himself separate from Occupy Santa Cruz. He said that he wants to argue the case less on “whether we can or can't be here, but why we can be here.”
Several Occupations around the country are waiting for similar court cases to play out, but that has not prevented mayors and police from cracking down on the protests. Vice Mayor Don Lane said the city council is trying to let everyone's case be heard:
“We are trying to be patient and let this all play out.”
