The Prosecutor, July-August 2012, Volume 42, No. 4

Prosecuting protesters at “Occupy Fort Worth”

A “peaceful” protest still violated the law. Here’s how Tarrant County prosecutors held protesters accountable.

By October 2011, less than a month after its notable beginning as “Occupy Wall Street” in New York City’s Zuccotti Park, the “Occupy” movement arrived in Fort Worth. However, the movement didn’t have my full attention until Deputy Criminal Division Chief Betty Arvin personally delivered two DVDs to me. Unaware as to the reason for Betty’s visit, I quickly glanced at the discs and immediately spotted the words “Occupy Fort Worth” prominently written among various other markings. “There’s more on YouTube,” she commented before leaving.
    Deputy chiefs don’t routinely hand-deliver evidence to misdemeanor attorneys in our office, so with little hesitation, I grabbed the discs and met with my court partner, Bryan Hoeller. The anticipation of what I might see conjured images of angry protesters set against a backdrop of tear gas and burning vehicles. However, what we actually observed was lengthy footage of a peaceful yet energetic protest rally. Captured from a small camera clipped to an officer’s uniform, the videos showed a modest gathering of approximately 50 people tirelessly chanting while enjoying live music. Seeing no apparent misconduct, we pulled the offense reports to learn why five protesters were arrested for interference with public duties.
    Our initial impression of what we observed on video ultimately shaped our approach. There was no violent or unruly behavior. There was no cursing and very little banter toward the officers. From reading the offense report, we learned that the five protesters were arrested for merely refusing to leave a tent that was set up on the sidewalk, and this action was eventually shown toward the end of the videos. We quickly realized that aggressive trial tactics filled with theatrics and a demand for justice would be inappropriate. Because the protesters’ actions were purely limited to civil disobedience as a means of furthering their message, the common aggravating facts that motivate a jury to convict were not present. As a result, Bryan and I immediately began discussing a reserved approach that would provide the jury with sound reasoning as to why these individuals should be held accountable.

The rally
The Occupy Fort Worth rally occurred on October 15, 2011, in downtown Fort Worth’s Burnett Park. The movement had already established a presence in the park; however, city officials were informed that this gathering would include live music and a march, so they anticipated that it would be the largest to date. Sergeant Darren Young of the Fort Worth Police Department’s downtown bike patrol unit was made aware of the rally, and he was assigned the task of regulating traffic during the march as well as overseeing the subsequent gathering. Sgt. Young was told the protesters did not have a permit for any of their scheduled activities, but they were allowed to hold the rally anyway.
    However, supervisors gave him one specific instruction: Do not allow any tents on the sidewalk. Fort Worth has a city ordinance that prohibits the private use of streets and sidewalks. It specifically provides that “it shall be unlawful for any person to enclose, build upon, or make any other private use of any part of the street, sidewalk, or other right-of-way.”
    The protest was scheduled to begin at 7 p.m., so Sgt. Young and five of his bike officers headed to Burnett Park around 6 to introduce themselves and prepare for the march. When they arrived, they immediately noticed that tents were already set up on the sidewalk. Among the crowd of early arrivals to the protest was Paula Smith, a woman who had identified herself as the protest coordinator to Sgt. Young two days earlier. Concerned about the tents, Sgt. Young approached Ms. Smith and attempted to reach a compromise. He told Ms. Smith that the placement of the tents on the sidewalk was a city ordinance violation, but that the tents could remain there until the conclusion of the march. He assured Ms. Smith that his only concern was the tents, and that he had no intentions of interfering with their plans to protest, march, chant, or play music. At the end of their brief conversation, Ms. Smith dismissively acknowledged his request and rejoined the other protesters.
    The march occurred as planned without any problems. Afterwards, Sgt. Young reminded Ms. Smith that the tents needed to be moved as previously discussed. However, Ms. Smith told Sgt. Young that the protesters had to vote on whether to move the tents. Sgt. Young was not present for the vote, nor was he invited to participate (apparently the vote was not open to the public). However, the protesters’ subsequent inaction indicated to him that the “nays” held the majority. At this time, Sgt. Young took no further action and decided to leave the park with his officers to tend to other matters.
    When Sgt. Young and his officers returned to Burnett Park at around 9 p.m., they hoped to discover that the tents had been moved. However, the tents were still on the sidewalk. Convinced that the protesters had no intention of moving the tents voluntarily, Sgt. Young took a more proactive approach. He planned to meet with each tent owner individually and issue a final warning. If the tent owner refused to remove the tent, a Class C citation for violating the city ordinance would be issued. If after receiving the Class C citation the tent owner still refused to remove the tent, the officers would take down and confiscate the tent. If the tent owner or anyone else prevented the officers from taking down the tent, that person would be arrested for interference with public duties.
    Sgt. Young met with each tent owner individually as the officers made their way down the row of tents. At the outset, the plan went smoothly. The first tent owner refused to remove her tent but changed her mind after receiving a Class C citation. The next tent owner refused to remove his tent even after receiving a Class C citation. After allowing him to collect his personal belongings from inside the tent, the officers took down the tent and there was no arrest.
    Sgt. Young, however, was soon met with resistance. Shortly after the officers began confronting the tent owners, one protester announced to the crowd, “If anybody wants to occupy their tents, occupy them now.” Joann Jones, the first of the five defendants arrested, immediately occupied the next tent in the row.
    As this was the next tent in his sequence, Sgt. Young informed Ms. Jones that the tent needed to be taken down, but her only response was that the tent belonged to a friend. At this point, Sgt. Young explained to Ms. Jones in great detail why the tent needed to be taken down, as well as the consequences of refusing to leave. Sgt. Young told Ms. Jones that it was his public duty to keep the sidewalk clear, and if she prevented the officers from taking down the tent by refusing to leave, she would be arrested for interference with public duties. Hoping to persuade Ms. Jones, he further explained that interference with public duties was a Class B misdemeanor, and he even cited the specific section in the Penal Code by number (§38.15). Ms. Jones ultimately refused to exit the tent and was arrested. While being arrested, Ms. Jones passionately announced to the crowd, “I am exercising my right to peacefully assemble.”
     After taking down the tent, Sgt. Young moved on to a large tent decorated with protest signs and found four individuals sitting comfortably inside. Among the group was Anthony Momentoff, the only defendant to take his case to trial. Momentoff acted as a spokesman for the group and told Sgt. Young that the tent belonged to him. However, when Sgt. Young informed Momentoff that the tent needed to be dismantled, he responded only by saying, “Is there something wrong with the size of my sign?” Sgt. Young provided the same explanation given to Joann Jones regarding the consequences of refusing to leave the tent and asked Momentoff repeatedly if he would comply. However, Mo-mentoff passively explained that being arrested was the only way he would leave the tent. The other three occupants, Bryan Frederick, Matthew Yeager, and Brooklynn Smith, refused as well, so all four protesters were arrested.
    The defendants were charged with interference with public duties, but by the time we received the case file, a second count for obstruction of a passageway (also a Class B misdemeanor) had been added as well. Neither of us had tried an interference with public duties or obstruction of a passageway case, so we knew we would have to spend time learning the law. However, we knew even less about the Occupy movement.

Educating ourselves
We tried to gain a general understanding of the protesters’ outrage over corporate greed and income inequality, but our primary focus was on learning about the local movement. We read local news articles, browsed Facebook pages, and watched YouTube videos—lots of YouTube videos. Several defendants were regularly featured and praised on YouTube for standing up for their First Amendment rights. We anticipated an emotional First Amendment defense from the beginning, and our research and eventual first meeting with their defense attorney assured us that this would be our biggest obstacle.
    All five defendants received pro bono representation from an attorney closely associated with the local movement, and his passion for these cases was obvious from our initial meeting. With a confident swagger he walked into docket and immediately informed us that all five cases would be trials. Though our conversation was brief, he told us, “These are First Amendment cases. My clients have principles and are not willing to plead. However, I might be able to convince them to do 12 hours of community service for a dismissal.” I responded with a firm offer of one year of deferred adjudication, a $500 fine, and 24 hours of community service for each of the five defendants.
    The defendants’ first trial dates were set in January 2012, and in the preceding months, plea negotiations remained unchanged. However, on the day of the first trial setting, the defense told us that two defendants, Matthew Yeager and Bryan Frederick, had a “change of heart” about accepting the plea agreement. Given his previous assurances of a trial, along with the protesters standing side by side in solidarity outside the courthouse, we were surprised. However, the defense attorney immediately qualified his remarks by informing us that although Yeager and Frederick were willing to accept deferred adjudication and community service, they would not accept a fine under any circumstances. Apparently, accepting a fine was in direct conflict with the principles of an Occupy Fort Worth member.
    Emphasizing their unwillingness to pay a fine, he went on to say, “They will do all the community service in the world; they just won’t pay a fine.” The defense attorney was clearly exaggerating his clients’ feeling towards community service. However, we chose to take him literally and offered both Yeager and Frederick one year of deferred adjudication, no fine, and 100 hours of community service—the maximum amount permitted for a Class B misdemeanor probation sentence. After discussing it with their attorney for about a half hour, they accepted the deal. We ultimately pled four of the five cases that week. Joann Jones accepted 10 days in jail with no fine, and Brooklynn Smith, a possible victim of peer pressure whom we believed had the lowest level of involvement, accepted one-year deferred adjudication, no fine, and 24 hours of community service.

Heading to (one) trial
With four of the five Occupy Fort Worth defendants having pled, Anthony Momentoff remained as the only one on our contest docket. Momentoff failed to show up for his first contest setting, so his trial was eventually reset to April 19, 2012. Having already prepared for all five cases, this delay gave Bryan and me plenty of time to refine our trial presentation.
    Before the first trial setting, Bryan and I divided up trial responsibilities. As first chair, I began by researching caselaw and organized a meeting with Sgt. Young and the other five officers. Bryan offered to order priors and file all the appropriate pre-trial motions, typically the job of a first chair. Momentoff had a prior conviction for possession of marijuana under two ounces out of Hill County. When the prior arrived, Bryan immediately filed a Brooks notice, thereby enhancing Momen-toff’s punishment range to a minimum of 30 days in jail.
    As I began my research I quickly realized that legally, our interference with public duties case against Momentoff was very strong. Because the culpable mental state for the charge requires only criminal negligence, we simply had to prove that by refusing to leave the tent, Momentoff “ought to have been aware” that he was interrupting, disrupting, impeding, or otherwise interfering with Sgt. Young’s attempt to carry out a lawful duty. And because the videos showed Sgt. Young leaning down and having a conversation with the defendants in Momentoff’s tent, we believed we had sufficient evidence to meet our burden.
    However, we didn’t obtain our best piece of evidence until I met with Sgt. Young and his five officers. Because the video footage we originally received was captured from a bike officer standing nearby, it was difficult to hear the conversation between Sgt. Young and Momentoff. In addition, it was hard to see exactly who was talking back to Sgt. Young. However, Sgt. Young surprised us with footage from his own personal body camera. We could now clearly see and hear the conversation between Momentoff and Sgt. Young. During the meeting, Sgt. Young informed me that they were issued the small body cameras just a week before the protest rally. The department’s timing couldn’t have been more perfect.
    Sgt. Young’s footage also helped us negate the defendant’s statutory First Amendment defense for obstruction of a passageway. The Penal Code (§42.04) provides that if a person commits the offense of obstruction of a passageway while participating in a political protest and that person has not yet intentionally harmed the interests of others the law seeks to protect, the person “must be ordered to move, disperse, or otherwise remedy the violation prior to his arrest.” We had no evidence that indicated Momentoff intentionally harmed the interest of someone not among the protest group. However, Sgt. Young’s footage clearly showed that Momen-toff was asked numerous times to leave the tent prior to his arrest. As a result, an instruction on this defense was never requested at trial.
    We felt we could easily defeat a potential First Amendment defense, but we did identify a potential issue with the obstruction of a passageway charge. From watching the video, we could tell that Momentoff’s tent was very large and entirely on the sidewalk. However, after visiting Burnett Park, I realized that that the sidewalk is much larger than it appeared on video. At most, Momentoff’s tent covered half of the width of the “passageway.” Because the statute provides that “obstruct” means “to render impassable or to render passage unreasonably inconvenient or hazardous,” we were initially unsure how to proceed on this charge.
    It wasn’t until we watched the videos again that we were able to formulate a sound argument. We realized that we were not able to accurately estimate the size of the sidewalk in our initial review because all the protesters were standing on the uncovered portion. This realization was particularly relevant because the statute provides that a person commits the offense of obstruction of a passageway “regardless of the means of creating the obstruction and whether the obstruction arises from his acts alone or from his acts and the acts of others.” Using this part of the statute, we planned to argue that Momentoff’s act of placing the tent on the sidewalk obstructed a passageway because the combined effect of his act, the other tent owners’ acts, and the gathered protesters’ acts resulted in “unreasonably inconvenient” passage down the sidewalk. Because this language in the statute appears to a certain extent as surplusage, it was omitted from the information. After discussing this omission with a supervising attorney, we re-filed the information to include this language (something our misdemeanor appeals attorney also advised me to do).

The trial
By April 19, the “Occupy” phenomenon was no longer making headlines. Still appreciating the effect it could have on the trial, we worked on a theme that would keep the jury focused on the fact that the defendant went out of his way to intentionally break the law. In opening statement, Bryan conveyed our theme to the jury: Anthony Momentoff wanted to get arrested, and to achieve his goal, he knew he had to break the law. We felt this theme was appropriate because at the end of the trial, all we planned to ask for was accountability when the law is intentionally broken.
    Although there were numerous potential witnesses, we called only one: Sergeant Darren Young. During his testimony, Sgt. Young described the extraordinary measures he took to avoid making the inevitable arrest of Anthony Momentoff. We limited our evidence as well by offering only two videos, two maps of Burnett Park, and a printout of the city ordinance Sgt. Young sought to enforce. Keeping our presentation of the case straightforward highlighted the patience and professionalism Sgt. Young exhibited.
    During cross-examination, the defense seemed concerned only with making Sgt. Young agree that Anthony Momentoff was exercising his First Amendment rights. Sgt. Young never disagreed. As a result, the defense asked very few questions on cross-examination. By mid-afternoon, both sides rested.
    Prior to closing arguments, Momentoff’s attorney requested that the defense of free speech be added to the interference with public duties charge. Momentoff’s attorney argued that the protest signs on the tent along with Sgt. Young’s acknowledgement that Momentoff was exercising his First Amendment rights required the instruction. However, the relevant section in the statute provides, “It is a defense to prosecution that the … interference alleged consists of speech only.” After reviewing the statute, the judge reasoned that it was Momentoff’s act of refusing to leave the tent, as opposed to any spoken words, that resulted in the commission of the offense. Therefore, he denied the defense’s request.
    During closing argument, the defense attempted to persuade the jury that Momentoff should not be punished for peacefully exercising his First Amendment rights. We were prepared for a jury nullification argument, and if it arose, intended to address it during closing. After arguing the merits of both cases, I pointed out to the jurors that in the charge, a First Amendment defense is never mentioned. Therefore, they could not render a not-guilty verdict on those grounds. I followed this up by candidly expressing to them that our biggest concern was they would base a not-guilty verdict on some other reasons, such as sympathy or the nonviolent nature of the offense. Instead, I asked them to please show support for Sgt. Young and the professionalism he exhibited at the protest rally.
    After deliberating for about 15 minutes, the jury returned a guilty verdict on both counts. Momentoff elected to have the judge assess punishment and was sentenced to 30 days in jail (he had the option to serve on the sheriff’s labor detail program, day for day, instead of jail) and a $500 fine. We were very pleased with the speed of the verdict and believe it was indicative of the jury’s appreciation for the officers’ approach to a difficult situation.

Conclusion
As misdemeanor prosecutors, we mostly try DWI cases. Though the answer is not always clear, evaluating a DWI case primarily comes down to one major consideration: Why will the jury believe this person was intoxicated? However, this case was different. What we learned from the Occupy Fort Worth trial was that, in some instances, preparing for a case begins with gaining an understanding of the defendant’s motivation for his actions, then assessing how a jury will feel about those underlying motivations. We will always be reminded of this experience and know that it will serve us well in our career as prosecutors.