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Legal observers keep an eye on rights as protest rules shift

ST. LOUIS, Mo. — It’s a steamy and mosquito-ridden evening, but Dan Gregor of the National Lawyers Guild opts to conduct legal observer training for the Ferguson, Mo., protests outside.

Prospective and current volunteers stand in knots outside a school building next to Greater St. Mark Family Church in North St. Louis County. The building, which is nominally air-conditioned, is the only “support” space that’s safe and within walking distance of the protests, Gregor says. Other protest support groups also are using it as a base, and sorting out who can be in which room at what time is a headache Gregor, the interim executive director of the guild, would rather avoid.

Gregor, wearing glasses and a 5 o’clock shadow, says his training will take about half an hour that evening. Nadia Kayyali, a member of the guild’s San Francisco chapter board who wears the red hair on her partially shaved head in a ponytail, hesitates.

“Twenty minutes to half an hour,” she says.

Protesters yell at police wearing riot gear Tuesday, Aug. 12, 2014, in Ferguson, Mo. Racial tensions have run high in in the predominantly black city of Ferguson following the shooting death by police of Michael Brown, 18, an unarmed black man. (AP Photo/Jeff Roberson)

Protesters yell at police wearing riot gear Aug. 12 in Ferguson, Mo. Racial tensions have run high in in the predominantly black city of Ferguson following the shooting death by police of Michael Brown, 18. (AP Photo/Jeff Roberson)

Depending on who’s giving it, legal observer training can last a full eight-hour day, Gregor says, but there’s urgency in Ferguson, where protests have persisted since Ferguson police Officer Darren Wilson fatally shot unarmed teenager Michael Brown on Aug. 9. The protests are punctuated by occasional violence and looting. Police have employed crowd control methods such as tear gas that Gregor says are questionable.

“We need people to document what is going on out here,” says Gregor, who is based in New York.

The eyes of the world may be on Ferguson, but what the world is recording may not help in court. Observers who document police interactions with protesters, including arrests, can be valuable to plaintiffs in civil rights violations lawsuits and protesters facing criminal charges.

It’s helpful at trial to have a video a witness can testify about, said Brendan Roediger, a Saint Louis University law professor.

“If it’s something found on Twitter, it’s a lot less useful than to have a video where someone can actually explain where they were and what was happening,” said Roediger, who is also a member of the National Lawyers Guild.

The guild is a human rights organization, and its observers, often volunteers, are tracking interactions between police and protesters. They include lawyers and law students and people without a legal background.

The officers of the Missouri State Highway Patrol, which has been leading policing of the protests, are working “to protect the public, while at the same time preserving citizens’ rights to express their anger peacefully,” Gov. Jay Nixon said. In addition to calling in the Missouri National Guard to protect a command center, Nixon imposed a curfew that lasted only over the Aug. 16 weekend.

A curfew can be appropriate if it’s used to protect the public and not out of a desire to suppress speech, Roediger says. But the feeling “on the ground” was that it was being used to suppress speech because people were forced to go home, he says.

In an earlier interview, Gregor rattled off police responses to the Ferguson protests, including the use of tear gas and rubber bullets and rough handling during arrests, that he said interfered with rights to assemble, protest and petition the government to redress grievances.

True, protesters are not allowed to break the law or block traffic, Gregor said, but the response has been out of proportion to some offenses.

“We shouldn’t be shot at for jaywalking,” he said.

Human rights organizations also have kept an eye on the shifting rules, including a rule requiring protesters to keep moving unless they are in a designated protest zone and restrictions on where journalists can go. Protesters also must stay off the streets. Under federal caselaw, cities and states can prevent obstructions in the interest of road safety.

Since the shooting of Brown, the American Civil Liberties Union of Missouri sued in U.S. District Court in St. Louis over two of those restrictions, with a 50 percent success rate so far. A lawsuit over allowing journalists and others to record police ended with a settlement saying that it would be allowed as long as it didn’t interfere with the ability of police to perform their duties or threaten other people’s safety or activities.

The ACLU lost a skirmish on the rule requiring protesters to keep moving when Chief U.S. District Judge Catherine Perry turned down a request for a temporary restraining order Aug. 18.

It’s hard for protesters to know what’s illegal at any given moment, Roediger says. If their civil rights are violated, it may take years to get recourse in court.

“The immediate sense is, if the police are stopping you from doing something, you don’t have the right to do it,” Roediger says.

Observe, document, record

The ACLU tends to tackle “broader impact litigation” on those kinds of issues, Gregor said. The NLG lawyers take more of a front-line role.

That role is a limited one.

“You observe, document, record,” Gregor tells the half-dozen people gathered for his lecture in the hot dusk.

Gregor cautions against getting involved in the protests, peacekeeping or any other role while wearing neon lime-green hats emblazoned with “National Lawyers Guild Legal Observer.”

Wearers of the green hats also must refrain from posting on social media or elsewhere while on duty. And they need to be restrained in another way.

“Never run, ever,” Gregor said on being a legal observer. “When they start seeing legal run, people panic.”

He suggests instead “walking expeditiously” or, if a full-on sprint is needed to evade tear gas or other dangers, taking off the hat.

Listening are Joseph Welch, NLG member and a solo criminal defense attorney in St. Louis, and Maggie Ellinger-Locke, the St. Louis chapter president and an associate at O’Fallon, Mo., general practice firm Ellinger & Associates. Locke says the St. Louis chapter restarted during the Occupy protests after a hiatus.

Of the trainees, only Welch opts to start observing tonight. Per observer protocol that encourages observers to team up with others, he pairs up with third-year DePaul University law student Max Suchan.

The observers gear up with the hats, plus goggles and masks to fend off the effects of tear gas, and write a “jail support” hotline number on their arms with Sharpie markers. Community activist group Missourians Organizing for Reform and Empowerment is operating the hotline. In addition to documenting arrests, observers also try to get the number to arrestees and find out their names so they can track them in jail.

Arrest is a risk for the observers themselves, and they need to assess how much risk they’re willing to take, Gregor says.

The protest site is more than a mile from the church. The observers walk west on Chambers Road to West Florissant Avenue, a section of which police have blocked to automobile traffic. Gregor points out the water-filled ditch parallel to the sidewalk along West Florissant where he took cover during tear-gassing on an earlier night.

In the approximately six-block-long protest area west of the apartment complex where Brown was shot, legal observer Alex Graff makes a beeline for Gregor and Kayyali’s lime-green hats. Graff, a St. Louis activist, has been patrolling since the afternoon.

“I’m so glad to see you,” she says.

Two men wearing “Young Black Males Support Network” T-shirts ask Gregor when tension is likely to escalate.

“It’s different every night when it’s gotten f—d up,” Gregor tells them.

The observers walk south. Kayyali photographs soldiers or police in protective vests and boots standing in front of armored vehicles in a shadowy area in the back of a parking lot.

Gregor and Kayyali spot police making an arrest on the other side of the street.

They dart across. Kayyali and a man from the crowd talk with a police officer outside an Ellisville police SUV while Gregor films. Gregor then steps up to hand the officer a card with the jail support number for the arrestee.

“Are you his family?” the officer asks.

Gregor explains that they are legal observers and the card could give the man information on where to call for help.

“If I give this to him, he’s just going to throw it away if he doesn’t know who you are,” the officer says, but he pockets the card.

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