In what his attorney called "another retaliatory case" brought against a citizen charging the City of Tacoma with failing to protect his civil liberties, Tom McCarthy was arraigned on Thursday in Tacoma Municipal Court for the misdemeanor of failing to obey a flagman; UFPPC's Mark Jensen reports. -- McCarthy's offense: having a backpack. -- Despite clear case law upholding the right of citizens to possess backpacks at demonstrations, in early March the Tacoma Police Department instituted an arbitrary no-bag-or-backpack rule at the Port of Tacoma during the port militarization resistance protests. -- On the evening on Fri., Mar. 9, McCarthy was the first to be arrested for violating this unlawful rule; two days later, eight more were arrested for the same offense. -- They, too, are being prosecuted by the City of Tacoma. -- The seizure of McCarthy by police on Mar. 9 can be viewed in a dramatic YouTube video that shows McCarthy being taken away by police. -- As police put him in a squad car, McCarthy tells the crowd: "Unless we resist these attacks on our civil liberties, we're going to lose our freedom." -- He's right. -- The prosecution of Tom McCarthy is a clear-cut civil-liberties case that calls into question Tacoma's commitment to the Bill of Rights. -- Yet the Tacoma City Council passed a strong resolution in favor of the Bill of Rights on Dec. 16, 2003. -- It's time city officials reread the resolution....
DIDN'T THE TACOMA CITY COUNCIL MEAN IT WHEN IT RESOLVED TO UPHOLD THE BILL OF RIGHTS?
By Mark Jensen
United for Peace of Pierce County (WA)
May 24, 2007
—Couldn't help but make me feel ashamed / To live in a land where justice is a game. —Bob Dylan, "Hurricane."
TACOMA, Washington -- On Dec. 16, 2003, the Tacoma City Council voted 7-1 in favor of a resolution supporting the Bill of Rights. One wonders why they bothered. Four years later, city officials seem to have forgotten that there is such a thing as the Bill of Rights.
Tacoma's indifference to the civil liberties guaranteed by the Bill of Rights was on display at 2:45 p.m. on Thursday in a dim, drab courtroom of Tacoma Municipal Court. Commissioner Dennis Ball found "probable cause" that Thomas McCarthy "willfully refused to comply with an order" from a police officer during the port militarization resistance protests at the Port of Tacoma in March, and ordered him to appear with twenty other defendants at a pretrial hearing to be held at 1:30 p.m. on Fri., Jun. 8.
McCarthy's illegal act? Carrying a backpack.
McCarthy had every right under the U.S. Constitution, the Supreme Law of the land, and American case law intepreting it, to do what he did. But that seemed to matter to Commissioner Ball about as much as Faraday's law of magnetic induction.
The facts are these. On Mar. 9, 2007, McCarthy was among several hundred Americans gathering at the Port of Tacoma to protest the use of the publicly-owned Port of Tacoma to ship vehicles and other equipment for the U.S. Army's 4th Stryker Brigade, 2nd Infantry Division to Iraq. They came to the Port to support the notion that when a government acts lawlessly, its citizens have a right and even a duty to interfere. As millions of other Americans have been doing, McCarthy was seeking a way to influence a government whose leaders are refusing to respond to a public mandate to bring the illegal, immoral, and disastrous war in Iraq to an end.
The Tacoma Police Department decided to ban bags and backpacks at the Port of Tacoma. Just whose idea that was, what "rule of engagement" police were enforcing, and who ordered it to be enforced, have yet to be determined. But one thing is clear: the United States Constitution was written to be a shield against such arbitrary acts of authority.
The First Amendment guarantees "the right of the people peaceably to assemble," and, the Fourth Amendment guarantees that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, [and] shall not be violated, and no warrants shall issue, but upon probable cause." That includes backpacks. Who says so? The Ninth Circuit says so. It held that people have a right to backpacks at demonstrations (Graves v. City of Coeur d'Alene, 339 F.3d. 828 [9th Cir. 2003].)
The "rule" invented by Tacoma police is thus an unlawful one; McCarthy was under no obligation to submit to it. Yet about forty hours later, eight more antiwar demonstrators were arrested for the same "offense." One of them, Phan Nguyen of Olympia, was arrested for carrying a bag containing nothing but a copy of the U.S. Constitution.
That's right. Here in Tacoma, where the City Council loudly declared its intention to uphold the Bill of Rights, a U.S. citizen was arrested for carrying a copy of the Constitution. And believe it or not, the City is prosecuting that same citzen for the "offense."
What a travesty.
In the case of Tom McCarthy, his backpack contained food and medical supplies. In court on Thursday, after Charles Lee, an attorney for the City of Tacoma, explained McCarthy's alleged offense to Commissioner Ball, attorney Lawrence Hildes of Bellingham, representing McCarthy, spoke up.
"Your honor," Hildes began, "this is another retaliatory case. This case was not filed originally; it was only filed after my client filed a complaint against the Tacoma Police Department."
It's true: McCarthy was originally released without being charged. Only after he filed a complaint against the Tacoma Police Department was he ordered to appear at Thursday's arraignment.
Hildes went on: "I have done extensive research in this area [Hildes argued Graves v. Coeur d'Alene], and this was not a lawful order. My office has interviewed [Tacoma Police Dept.] Officer [Paul] Jagodinski, who, when asked for the basis of the law, said: 'Because I said so. I'm the law.'
"Your honor, Sgt. Jagodinski is not the law. My client is correct, and the officer was not. There is not, therefore, probable cause.
"Moreover, of the demonstrators who obeyed the order and left their backpacks behind, some did and some did not get them back. And there was a need for these supplies, as the later events of that evening showed.
"There is no probable cause, because there was no basis for my client's arrest. And the bringing of these charges is highly inappropriate ethically.
"As for release on condition of lawful behavior, I don't know how Mr. McCarthy can know what is legal and what is not, because under this charge that is completely arbitrary."
Commissioner Ball, as indifferent to the Bill of Rights as the Tacoma Police Department and city attorneys, did not even acknowledge what Hildes said: "I'll find probable cause and on condition of lawful behavior order PR [personal recognizance] release. Does the City have a problem with that?" "No, we don't, your honor," Lee replied.
Back in December 2003, the governing body of the City of Tacoma declared that it "seeks to protect the civil liberties and civil rights for all its residents," that "the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States establish a shield of protection for the residents of the City," and that "the Tacoma City Council believes these liberties are precious and any act that seeks to deny or threaten them should be opposed."
It said that "the Tacoma City Council acknowledges that federal, state, and local jurisdictions have a responsibility to protect the citizenry," that "the Tacoma City Council strongly opposes any unconstitutional acts against its residents under the USA PATRIOT Act of 2001 or similar govermental acts." And it declared that "the Council of the City of Tacoma will continue to defend the Constitution of the United States and take all necessary measures to ensure that the practices and policies of the City protect those values of life, liberty, and the pursuit of happiness we all hold so dearly."
Didn't they mean it?
--Mark Jensen is a member of United for Peace of Pierce County (WA) and of the faculty of Pacific Lutheran University.
A RESOLUTION OF TACOMA, WASHINGTON
Approved by: Tacoma City Council
December 16, 2003
WHEREAS, the Council of the City of Tacoma seeks to protect the civil liberties and civil rights for all its residents, and
WHEREAS, the Declaration of Independence of the United States of America holds as self-evident that all people are created equal and are endowed by the creator with unalienable rights to life, liberty, and the pursuit of happiness, and
WHEREAS, the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States establish a shield of protection for the residents of the City, and
WHEREAS, the Declaration of Rights of the Constitution of the state of Washington guarantees all people living in Tacoma freedom of speech, assembly, and privacy; equally before the law and the presumption of innocence; access to counsel and due process in judicial proceedings; and protection from unreasonable searches and seizures, and
WHEREAS the Tacoma City Council believes these liberties are precious and any act that seeks to deny or threaten them should be opposed, and
WHEREAS the Tacoma City Council acknowledges that federal, state, and local jurisdictions have a responsibility to protect the citizenry, and
WHEREAS, the Tacoma City Council established a Human Rights Commission with a mandate to protect and preserve the civil liberties and rights of its residents as a pillar of our common society, and
WHEREAS measures such as the USA PATRIOT Act of 2001 and other recent federal executive orders and governmental actions can undermine or threaten these basic liberties, and
WHEREAS, the Tacoma City Council believes that residents can be both safe and free, as do the governing bodies of over 219 other local, count and state jurisdictions, representing 26,931,608 residents, that have passed similar resolutions and ordinances reaffirming support for civil liberties and civil rights, and
WHEREAS the Tacoma City Council strongly opposes any unconstitutional acts against its residents under the USA PATRIOT Act of 2001 or similar govermental acts; Now, Therefore,
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF TACOMA:
That the Council of the City of Tacoma will continue to defend the Constitution of the United States and take all necessary measures to ensure that the practices and policies of the City protect those values of life, liberty, and the pursuit of happiness we all hold so dearly.