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Litigation as Tactic
by Steve Pleich
Tuesday Dec 3rd, 2013 2:02 PM
The Courts and Civil Liberties
At the most recent meeting of the ACLU Santa Cruz Board of Directors a discussion was had concerning the best way to challenge a new and restrictive ordinance proposed by the Santa Cruz City Council. The ordinance, which will have a second reading before council on December 10, would require that any gathering of more than 50 people be subject to permitting by the city and would additionally provide for an extended waiting period for the issuance of any permit.

It was argued by some that public education and outreach would be the most effective tool to bring pressure to bear on the city council to reconsider the adoption of this ordinance. It was also suggested that a direct appeal by letter or other communication by the ACLU board would temper the council’s deliberations. Although these measures may be well taken, it is my opinion that the most effective tactic to bring down this latest attack on the freedom of speech and freedom of assembly in our city is litigation; in common parlance, a lawsuit. And while I respect diversity of tactics, local history has shown that litigation, even unsuccessful, can be a powerful tool in the fight against oppression.

Remember the courageous legal battle fought by Ed Frey on behalf of the Peace Camp 2010 defendants or Jonathan Gettlemen’s exhaustive legal arguments in defense of Linda Lemaster; both unsuccessful in wresting a verdict of not guilty from our courts but both well attended and widely publicized in the public eye. Remember Ed Frey’s full-throated defense of Occupy Santa Cruz that brought broad public support to the movement. Remember also the solidarity of the Santa Cruz Eleven and the impassioned courtroom arguments made on their behalf. Remember the community rallying around those defendants as we hope they will again as the remaining four approach their moment of judgment. I believe that the battles fought in the courts of law are as important as the ones we wage in the court of public opinion. And they are all the more powerful for the public stage they are played out upon.

Many will say, and perhaps rightly, that the courts are poor places for the protection of civil liberties. They will say that the courts are bastions of injustice rather than justice. But like anything else, it is not the system that determines our rights; it is how we use that system. I believe that we can use it to our advantage. And so I respectfully submit the idea of litigation as tactic and thereon rest my case.

Comments  (Hide Comments)

Also note Ed dropping the ball during trial(s), post campaign, and failing to follow through with claims of taking it to higher courts. I suppose the lack of 'skin in the game' was a factor, and Ed was my cellie the first time around, so it can't be said that he 'phoned it in', but there is a different between changing the law through legal action and posing for the cameras.

I'm all for fighting unjust laws, and Ed certainly did more than most, but if winning is not a primary interest, don't waste the time, money, and effort, please.

The PeaceCamp2010 legal push will continue, without Ed, nor the local ACLU (in spite of the local ACLU, in fact). So Steve, please use another example when campaigning for yourself and the local ACLU, because doing so is deeply, deeply insulting.
we have a legal system, not a justice system.

our system is designed to ensure order,not necessarily justice.

I would love to see the ACLU in Santa cruz do something. everyone needs to be doing something on any level. It's not like there are not a lot of issues to address or that there's not a well coordinated effort to dismantle progressive and alternative politics, lifestyles, and community in Santa Cruz city and county.

education surrounding any litigation is important since the well organized opposition with their media and 50centers has already formed public opinion and so any litigation would be entirely easy to push back against.(agitators, anarchist sympathizers, wasters of taxpayer $$, people ignorant of city needs, in other word's the "others" trying to ruin SC for law abiding town folk).

I'm not sure if it's possible in this town or if egos are too large, but a coordinated effort would be nice.
by Robert Norse
Wednesday Dec 4th, 2013 5:41 PM
Check out this history: "Expose the Local ACLU" "Local ACLU Again!" "ACLU Chair Closes Monthly Boad of Directors Meeting, Homeless Issues Off the Agenda" "Activists ask ACLU to help end sleeping ban"

There's more, but you get the idea.

Steve Pleich chaired last Monday's meeting (ACLU meets 7 PM every 4th Monday in Louden Nelson Center) and moved to (a) shut down any discussion between visiting HUFF members and ACLU Board members as well as (b) directing all the speakers to leave the room after the "Oral Communications" time was up. It should be noted, he did allow significantly longer Oral Communications time than usual. It should also be noted that no members of the Board objected to his restrictive rulings. For an organization concerned with civil liberties, transparency, and accountability, this shows how easily things can deteriorate.

Pleich's comments about the value of litigation have merit. They would have more merit if they didn't seem to be political stepping stones in a quest for office or justifications of the ACLU Board, on which he has sat without meaningful local homeless work for the last year in spite of many pleas. Moving to stack the board with your allies, but then refusing to press strongly and publicly for the obvious (ending the sleeping ban, stopping the homeless sweeps) appears to reflect a desire to attain higher office not better legislation. Trumpeting the decision of the ACLU to support the rights of PALO ALTO but not SANTA CRUZ homeless people leads the naive to believe the local ACLU should be supported.

The main point is that the local ACLU seems to be a fan club for politicians (like Rotkin and the Coonertys) who take positive positions on national issues, but create vicious laws that criminalize local homeless people. It also serves as a fund-generating machine (2000 members reportedly in the county)--but slim to no concern with local civil liberties violations--when they impact poor peoplel

by SueTheState
Wednesday Dec 4th, 2013 11:46 PM
i hear about multimillion dollar settlements in other cites, and i see our authorities committing the same torts. yet when i go to political trials in santa cruz all i ever see are defense attorneys in criminal cases.

When are we going to go on the attack and sue for damages?

i would rather be a plaintiff in a civil case,
than a defendant in a criminal case.
by G
Thursday Dec 5th, 2013 6:20 AM
Personal anecdotal evidence indicates fear is the greatest barrier. Local lawyers that 'push' are subject to 'pushback', where 'the legal system' can interfere with their 'future earnings'. Ostracism, random processing issues, quirky judge assignments, quirkier nit picking from the bench, potential bar reviews, etc. Even winning big won't protect them from retribution (I heard rumor of a lawyer that dares to push back, outside of their own county, and as a result, never drives themselves, using a chauffeur to avoid traffic cop 'payback'). So they seem to walk a line between getting in trouble with their clients and getting in trouble with the system, typically choosing to take risks with client pushback instead of system pushback.

Another barrier is the 'stacked deck'. A local public defender, when asked why they wouldn't fight, told me the law was stacked against the poor, and not even the most expensive lawyers in town had any chance of victory. Appellete court is the obvious solution to that problem, but appellete success requires establishing a strong case and moving forward with it, which is not easy when local lawyers are unwilling to do so. This is one reason why the 'take a deal' corruption of due process is such a big problem in the USA.

So, a successful civil suit (for the poor) probably requires an out of town (but in state) lawyer, that expects and is prepared for systemic retribution, knows how to win cases, is willing to gamble, and cares. Given the good/fast/cheap (pick two) rule, it seems unlikely that such a lawyer will surface any time soon. If one does, please let me know.
by petrak
Thursday Dec 5th, 2013 7:05 PM
There seems to be numerous issues assaulting the community in terms of increased police actions by the city against citizens and free speech.

What does the local ACLU actually do?

Can someone educate me and others?
by withSkills
Thursday Dec 5th, 2013 8:58 PM
attorney's take political cases primarily for the public exposure, a cheap form of advertising. they are only going to do so much. they may be unwilling to appeal, unwilling to offend the local system, and they are certainly unwilling to risk their reputation.
the local system is stacked against the poor. where judges are elected by majority, judicial decisions will reflect the prejudices of that majority.

Federal court is our only chance, that court is outside the local power structure, like an appellate court, but you can file there directly, without waiting years like you do with an appeal. the one time i heard of a political case in Federal court recently, Ed's Occupy public nuisance case, it was quickly brought back to local court by the city.
Federal court scares them.
Yet even in Federal it is an uphill battle. the denial of a right to sleep for the poor shocks the conscience and is the Dred Scott of our times.
this struggle is best fought by a group or collective with enough will, time, expertise, and courage to win.

the local ACLU is clearly not that group.

what is needed is a collective of local law students who care about our rights.