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When Crowds Protest, Legal Observers Serve as Neutral Force

By David O’Boyle

February 14, 2017

D.C. Protests

Washington, D.C., is the center of American governmental power, making it a focal point for protests and demonstrations of all kinds. On Inauguration Day, police response to protesters drew national attention when a small group of people broke away from what were overwhelmingly peaceful demonstrations and destroyed property in the District's downtown.

The group smashed storefront windows and damaged property over a few blocks before being isolated and surrounded by officers from the Metropolitan Police Department (MPD) using a tactic known as "kettling." More than 200 people were arrested in the incident, including D.C. Bar member Alexander Penley of Penley Global Law.

Penley, who has volunteered as a legal observer at protests for nearly 20 years, was at the Inauguration Day demonstrations to observe and document police interaction with protesters. Penley says MPD officers indiscriminately arrested and charged people following the violent clashes.

"The vast majority of people in the protests were just protesting peacefully," says Penley. "There were members of the media there, there were legal observers—both lawyers and law students—and many of them were arrested."

Despite identifying himself and his companions to MPD officers as legal observers, Penley and others were arrested. "I showed [the police] my business card, said I was a lawyer, pointed to the other legal observers, and asked if we could go," says Penley. "They did nothing."

Penley says those arrested did not have access to food, water, toilets, or phones for more than 13 hours. They were taken to the D.C. Superior Court the next morning and held there until approximately 8 p.m. The arrested individuals were charged with felony "incitement to riot," which carries the potential for 10 years in prison and a fine of up to $25,000 if convicted.

The arrests and charges drew a sharp rebuke from human rights and civil liberties defense organizations because of their broad nature. The groups argued that journalists, attorneys, legal observers, and peaceful protesters were caught up among those who actually engaged in the destruction of property.

On February 2 the National Lawyers Guild (NLG), a progressive bar association that trains and organizes legal observers across the country, called on D.C. prosecutors to drop all charges immediately against those who were peacefully protesting and the legal observers and journalists swept up in the arrests.

"On January 20th, not only did our [legal observers] observe police violence against demonstrators, journalists, and passersby, but they experienced it themselves, firsthand," said Maggie Ellinger-Locke, a member of the D.C. chapter of NLG, in the group's official statement.

According to the U.S. Attorney's Office for the District of Columbia, Penley's case was dropped on February 3, as well as charges against eight other individuals who were working as journalists, legal observers, or attorneys, or who were present at the protests as bystanders.

Serving as Objective Witnesses
Legal observers are a regular presence at protests and demonstrations throughout the District. Attorneys, law students, and citizens interested in supporting demonstrations in a neutral, objective manner may become legal observers, monitoring and documenting the actions of police, protesters, and bystanders.

"Legal observers are important because they ensure the constitutional rights of everyone involved, from the protesters to the bystanders to the police, are observed," says Ria Thompson-Washington, executive vice president of NLG. "Their role is to be objective and not to interfere or intervene."

Thompson-Washington says legal observers attend protests armed with notepads, cameras, and cell phones to document what happens between protesters and police. In the case of any police actions and arrests, legal observers record the events from an objective viewpoint. Their observations can then be used in any court cases that stem from the interaction.

"We try to provide the notes and the video that allow lawyers representing those who are charged to help prepare their case," says Ann Wilcox, a solo practitioner and longtime legal observer. "We also try to get the names of other neutral witnesses, people who are there just observing."

Wilcox adds that legal observers provide an additional benefit as neutral, objective witnesses during high-tension protests. "Observers provide a calming effect for protesters and police. Everyone knows there's someone there watching as a neutral force. It's a good presence to have at a protest."

According to Wilcox and Thompson-Washington, NLG has seen an uptick in donations, requests for legal observer training, and membership in the organization since the election in November.

"It's definitely going to be a busy period for us," says Wilcox.

'Chilling Effect'
The arrests and charges stemming from the protests on Inauguration Day were a departure from the status quo in the District. Protests by groups like Black Lives Matter and those opposing the Dakota Access Pipeline have been a common occurrence in the city and largely peaceful. Police often accompany protesters, temporarily close off roads, and divert traffic.

"In D.C., we have a culture where the police know that we're there to make sure that people are safe," says Thompson-Washington. "They don't want anybody to be arrested, generally, either. What happened on Inauguration Day has been a departure from the peaceful interaction between protesters and the police here."

NLG and legal observers like Penley, Thompson-Washington, and Wilcox are anxious about what the future holds for protesters in the city following the events on Inauguration Day. Their past relationship with MPD has been encouraging, but they worry of a "chilling effect" of January 20 arrests.

"I'm concerned that people who are interested in becoming legal observers, who want to protect people's First Amendment right to free speech, won't get involved because they think they will face felony charges or will be pepper sprayed," says Penley. "It's a horrible message to send because in the past there were never any problems."