For the People

by Larry Krasner

  Immediately after the puppet warehouse raid in 2000, an uncritical press provided misleading reports that the warehouse contained explosives and materials suitable for arson. These turned out to be nothing more than varnish, paint thinner, and other tools of the carpenter’s trade. The press reported that city inspectors had determined the warehouse was a firetrap unsafe for the people who were arrested. City inspectors had shown no interest in the building for years prior. It was the kind of grimy, selective-enforcement tactic that the city had used for decades to carry out nefarious schemes—and the pro-law-enforcement press simply reported law enforcement’s sneakiest claims as truth.

  Finally, as further proof of the protesters’ alleged criminality, the press reported that the warehouse contained lockdown devices. Part of that claim was actually true. There were lockdown devices, but their possession wasn’t a crime. These homemade devices consisted of short lengths of white plastic PVC plumbing pipe just large enough to slip over the hands of two people, plus some other fittings like nuts, bolts, and carabiners that made it difficult for police to force two people’s hands apart. Non-violently locking down or locking on (to a fence or to another person) has been a staple of peaceful protest since before the suffragettes used it successfully in their efforts to gain the right to vote for women. It non-violently slows down arrests long enough for protesters to speak and be heard.

  Between the earlier surveillance and the raids on Spiral Q and the puppet warehouse, we knew that the hurricane we’d expected had arrived. The judge’s cryptic mention of a plan to detain people in order to silence their message during the most sacred of American democratic institutions—a presidential election—was real, and there was more coming.

  I was in my office wrestling with a legal filing deadline when I got a call. The caller identified herself, said she was part of the R2K protest coalition, and asked me to drop everything and go to a police station to legally advise someone named John Sellers, from the West Coast. I didn’t know John, but quickly found out he was part of the leadership of the Ruckus Society, an organization that teaches non-violent direct action to achieve social change. The caller said John had been involved in the Battle of Seattle, a famous protester-led shutdown of a meeting of the World Trade Organization the year before. The person on the phone told me John hadn’t done anything illegal; he hadn’t even been protesting when he was picked up. I missed my filing deadline for the moment because my gut said seeing John was more important.

  John was sitting in a room in a police station, studying me and offering me a broad smile. Local police and FBI had already tried to question him without a lawyer present. My first thought when I saw him was that he looked like an Amish farmer, with his pale skin, broad shoulders, and intense blue eyes.

  “What’s your name? You’re a lawyer?”

  “Yes.”

  “Yeah? That’s great. Well, show me some ID. Where’s your business card? Because, so far, all I’m seeing are FBI agents and Philly cops, and now you say you’re a lawyer.” His broad smile was getting wider. I showed him my ID, but I hadn’t grabbed business cards when I ran out to see him. He looked at the carabiner I used to hold my keys and smiled again. John knew carabiners. Among other adventures, like chasing Japanese whaling ships with Greenpeace, John had climbed skyscrapers, bridges, and giant construction cranes in Chicago, San Francisco, and Texas with his people to drop enormous protest banners about protecting the rain forest or ending deforestation or otherwise saving the planet. His colleagues included tree-sitters—people who climbed into the tops of sky-high old-growth redwoods and sequoias and set up temporary homes there in order to prevent loggers from cutting down the trees. Sometimes they lived up there for more than a year. Sometimes they got hurt or killed. I later learned that when he saw the carabiner on me, his suspicion grew that I was law enforcement posing as a lawyer and trying to get him talking with my keys on a piece of climbing gear. A busy, out-of-shape dad at thirty-nine, I didn’t look like much of a climber.

  “So, carabiner, huh? You climb?”

  “Not really. I mean, I did a few years ago.”

  “Where?”

  “Ralph Stover State Park a few times when I was young. And then the only real effort was a few years ago in Colorado.”

  “Colorado’s a big state. Where in Colorado?”

  “Uh. What’s it called? Eldorado Canyon?”

  “Yeah? What did you climb in Eldorado?”

  “I mean, I just took some lessons. I wasn’t ready to climb the Bastille Crack. Too old, too fat.”

  Apparently, that was proof enough. John stopped interrogating and got friendlier. He knew I was no serious climber, but had also decided from my self-deprecating answer that I probably wasn’t a cop trying to get him to talk. He decided to trust me enough to have me handle his bail hearing, which was coming up in a few hours. John was adamant that he had done nothing illegal. He said he was in town to observe what happened in the next few days and to speak to the media about protest generally, the theory of nonviolent social change, and the specific issues that were motivating these RNC protesters. John told me he was arrested walking around Philadelphia in shorts and a T-shirt, nowhere near any protest. He said he thought they just wanted him in jail for several days until it was all over. He was right.

  At the bail hearing, John was given an outrageous and unprecedented $1 million bail for nonviolent misdemeanor charges, including obstructing the highway, disorderly conduct, defiant trespass, and conspiracy. In 2000, most people charged with rape, arson, gunpoint robbery, or aggravated assault with a firearm got less than $1 million bail. Million-dollar bail for a pile of misdemeanor protest charges was absurd. I immediately appealed the outrageous bail in a telephonic hearing with a higher judge. She was ordinarily reasonable, but glaringly not so that day. That appeal failed. What the city bureaucrat claimed he had heard a judge say a few days earlier seemed to be on point. Was there really a plan to detain and silence protesters, including anyone law enforcement supposed might be their leaders, until Bush’s plane left the tarmac?

  Once future president Bush was gone, suddenly so were the exorbitant bails—reduced in sweeping ways. People who had spent a week or more in jail for no good reason were finally released. I broke my own rule against having criminal defense clients in my home, and invited a backyard full of protesters, including John Sellers, over to my house for food (including vegan barbecue), talk, and a little bit of work. John and I spent several minutes discussing his case privately in the living room. Out of the corner of my eye, I caught my seven-year-old son, Caleb, and his best friend peeking around the corner at us. Lisa later told me that she overheard Caleb in the kitchen, both hands holding on to his wide-eyed friend’s shoulders for emphasis: “Do you see that guy with my dad? He’s been to jail!”

  John wasn’t the only potential protest leader arrested with a million-dollar bail. But he was the first to have his charges thrown out in court. Months later, they were dropped by an honest prosecutor who had little choice on the day of trial because video told the story. At the time when police paperwork falsely claimed John was committing and leading others in a bunch of misdemeanor crimes, video captured him in a lengthy conversation with a national television news reporter.

  I also represented Kate Sorensen, a union organizer who led marches around healthcare. She was given a similarly enormous bail after a similarly questionable arrest. Almost two years after her arrest, she and I endured a lengthy jury trial on more than a dozen heavy charges, including serious felony charges like riot, risking a catastrophe, and conspiracy, as well as criminal mischief and others. She was found not guilty of all but one misdemeanor charge of criminal mischief by an exhausted jury, and walked away with probation. Terrence McGuckin, a “half-million-dollar baby,” was represented by another attorney and was convicted of nothing.

  John, Kate, and Terrence were among the 420 people who were arr
ested and often given crazy bails at the RNC for nothing more than using their rights of assembly and speech to try to make the world better. The 420 arrestees were found not guilty at the absurdly high rates of 99 percent of all charges and 98 percent of all people. None of the 420 people did an additional day in jail beyond what their fixed, excessive bails had already caused. And all of their bails were lowered as soon as their free speech was erased forever, right after the Republican convention ended and Bush’s plane was wheels up.

  But these victories in court would take four long years, more than enough time for the U.S. Supreme Court to declare George W. Bush the winner of the 2000 general election. Enough time for W to ignore an early warning about the 9/11 attacks and for those attacks to come. Enough time for Dick Cheney to assume nearly presidential power and advise Bush to invade Iraq over phony “weapons of mass destruction” while Cheney’s stock from his former employers at Halliburton grew enormously in value during the war. And it was enough time for anyone to wonder bitterly about the real cost of a preemptive strike against free speech at a national presidential convention and what difference that free speech might have made if it had been heard in such a close election.

  By the time I was arguing the last of the R2K arrest cases, it was 2004. I was forty-three years old and had been a defense lawyer for seventeen years. Lisa was settled into her third year of being a judge; our boys were eleven and thirteen. That last case was the jury trial of Caleb Arnold and Curtis Rumrill, better known as Curt the Skirt after I began calling him that. Curt was a straight guy who wore skirts; Caleb was trans. Caleb and Curt the Skirt were arrested away from the puppet warehouse the day it was raided in 2000 by Pennsylvania state troopers who had gone undercover for days in the warehouse, posing as union carpenters. The phony carpenters volunteered to work on parade floats for days in order to surveil and lay various traps for protesters. They kept suggesting extreme, even violent activity, while the real protesters winced and eyed one another, trying to figure out how to rein in the newbies. The undercovers failed to foment violence or observe anything serious, so they settled for arresting whomever they could, including Caleb and Curt and others, whose actual and non-violent plan was to span a central city street in order to temporarily block a bus of Republican delegates on their way to the convention. If they succeeded in blocking the bus for a short while, the protesters would use the time to school the Republican delegates on board, and the public via the press, on criminal justice reform. Their tools were lockdown devices, signs, banners, and posters bearing messages. They carried a couple of gas masks in the event that they were teargassed by law enforcement. After loading their signs, posters, and other gear into a van driven by one of the undercover state troopers, Caleb and Curt and others were stopped and arrested at the side of a road far from the location of their planned protest and away from the puppet warehouse raid that would happen the same day.

  By the time we tried the case in 2004, it was four years after the arrest and I knew Caleb well. Caleb, born Calyn, had worked at my law office for a couple of years. They were the child of Colorado high-country farmers who were so alarmed by their child’s sexual orientation during high school that they expelled them from the home for fear of Caleb’s orientation spreading to their siblings. Caleb attended Mount Holyoke College and became an organizer, advocating around queer rights, mass incarceration, and animal rights.

  After being arrested in 2000, Caleb did great work as a volunteer gathering video and witness information to assist other activists with their defenses in other cases, which is why I hired them a year later. Caleb soon became an efficient, sharp, and pesky employee in my law practice who was increasingly interested in becoming a lawyer and who knew how to argue. When Caleb was photocopying, the number of copies I needed was frequently in dispute. Caleb, like the Lorax, spoke for the trees.

  By the time Curt the Skirt and Caleb went to trial, Caleb had completed two weeks of law school. We devised a scheme. Caleb would represent themself, sitting at counsel table next to me. Curt was another matter. He had no legal training and didn’t want to represent himself, although he was handsome and personable. I thought if he spoke, he would go over well with the jury. He was musically talented, and would go on, fifteen years later, to get a graduate degree in musical composition. But, for now, he was going to trial. The scheme was that I would represent Curt Rumrill while simultaneously advising Caleb. It was traditional representation for Curt. It was hybrid representation for Caleb, an opportunity for Caleb to speak directly to the jury and convey their idealism during opening and closing arguments as well as while testifying, with my help on the technical aspects. Caleb was starting law school, after all. We hoped the trial wouldn’t end that.

  The judge, D. Wayne O’Maith, had spent his life in the military before becoming a judge. He was a Republican and compassionate and fair on the bench. The Philadelphia District Attorney’s Office, tired of already losing so many RNC cases, was determined to win this one. As usual, they had assigned a homicide prosecutor to try to crush protesters.

  I showed up on the day of trial, having won case after RNC case in which I spoke about the theory and strategy of protest, the legacy of non-violent direct action and especially Dr. King, and the fact that most Philly jurors wouldn’t even be serving on the jury but for protest. I brought into the courtroom several giant cardboard-backed black-and-white photographs of famous direct actions that recorded that history. There were photos of people locking down streets and using signs and banners for political expression. The judge quickly announced there would be no reference whatsoever to any person in history during the trial. I was stunned. There had been no timely written motion by the prosecution to exclude the history and theory of protest, not even a last-minute oral motion, and zero prior discussion with me. I was given no chance to argue the photographic exhibits’ relevance and why they should be allowed. I knew the prosecutor had ordered trial transcripts from my prior wins for protesters. The judge’s bizarre announcement that history wasn’t allowed made me wonder if she had violated legal ethics and talked to the judge alone, or ex parte as lawyers call it. I slyly asked the judge if his requirement that I reference no person in history included all the defendants and witnesses.

  The trial’s start was funny but deeply troubling. Another defense attorney in the case flouted the ruling, repeatedly bringing up Frederick Douglass during the opening argument only to be ordered twice into the back by the judge and dressed down out of the jury’s presence. The bewilderment on the jury’s diverse faces suggested they were wondering what was wrong with mentioning Frederick Douglass. It was pretty good comedy, and I was happy to see my fellow attorney stepping up for a beating early because I knew there would be some beatdowns later for me. I could see the prosecutor’s efforts to exile history from the trial were working with the judge but might be backfiring with the jury.

  Both the judge and the jury appeared to be coming around to our side as they observed the slow accumulation of evidence. There were no weapons. There was no plan to commit violence. The defendants’ tools were mostly words on banners and T-shirts, which the Constitution allows, plus lockdown devices and a gas mask in case police went wild. Both Curt and Caleb told their stories. The jury and I noticed the prosecutor’s unnecessary use of purple latex gloves to handle ordinary evidence. In more than twenty years of trying cases, I had never seen anything like it. The evidence had been in storage for years; there had never been anything to test. Everyone agreed who and what was in the van, so why purple latex gloves? Was this an odd coincidence or a dramatic attempt to imply uncleanness or contagion? Why the latex gloves’ purple color rather than ordinary white or beige? If the point was to dehumanize Curt for wearing a skirt and Caleb for wearing men’s clothing, it was backfiring. The prosecutor’s curious tactics peaked during closing arguments when she compared the non-violent defendants to abortion clinic bombers. The judge erupted, instructing the jury to comp
letely disregard that kind of argument, which he told the jury was improper and had the potential to prejudice them. He growled again that the jury should completely disregard it.

  During my closing, I argued that Curt could have put on pants and Caleb could have worn feminine clothing if they wanted to misrepresent who they were. But they didn’t, which meant their testimony was good. And, despite the order not to mention anyone in history, Caleb and I got away with arguing to this typically diverse Philly jury that their jury service was impossible without protest. With the exception of white men like me, every member of the jury had the right to serve on a jury only because of peaceful protest. Women’s fight for suffrage eighty years prior came from women locking themselves to fences, doors, and each other as they peacefully resisted and spoke. Their vote paved the way for their jury service. Black and brown people’s jury service came from centuries of struggle and passive resistance as they raised their voices for equal rights, the Voting Rights Act their efforts produced, and the greater jury participation they made. As the jury left the jury box to deliberate, a number of them made and held eye contact with the defendants or with me.

  They had a verdict in less than forty-five minutes. The foreperson, Romeo, a Black musician and dancer who was very busy on the bar mitzvah circuit, read the not-guilty verdict on each one of the several charges for each defendant more loudly than the last until he almost yelled “Not guilty!” on the final charge. After the jury was dismissed, we spent a few more awkward minutes listening to the aging judge explain to the defendants that he would have given them probation if they were convicted and that their idealism was commendable but should be channeled into “more constructive” activities—such as pursuing graduate studies or working to change things as professionals. Caleb would be finishing law school after all. The last of the R2K trials was finally over.