Interview with Phil Horne of Occupy Legal Committee on the Occupy Oakland Vigil

Posted on November 29, 2011

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Phil Horne is a civil rights lawyer and a member of the Occupy Legal Committee–a group which grew out of the legal support team for Occupy SF, and evolved to also focus on issues for Occupy Oakland and the Occupy movement in general. Horne was drawn to Occupy Oakland, because it was an “amazing place”, an attempt at a “utopian” community. After the first raids of both occupy locations, and others, the group began discussing possibilities of legal defense of the occupation movements based on freedom of expression—so-called 1983 cases.

Out of that series of discussions, the OccupyLegal committee was born, with the goal of re-igniting the Occupation movement with the ostensibly constitutionally-protected vigil. The vigil would be, in some sense, an “occupation” with tents, and a human presence, but without the “dwelling” which had been ruled non-protected speech in Supreme Court precedents. The committee decided that Oakland would become a sort of test case for the concept. The difficulty in that test will come in whether police understand the legal concepts involved and are actually aware that there is constitutionally protected speech that transcends their idea of law enforcement for city code violations.

The vigil that begins today is the first step in that test.

Phil has been a movement lawyer for several years, and is also the attorney in a whistle blowing case representing Sean Gillis, the firefighter who exposed negligent care by the Oakland fire department that may have contributed to the death of Oscar Grant.

I spoke with Phil during a lull in the GA on Sunday about the origin of the vigil idea, his involvement and attraction with Occupy Oakland, and his career as a movement lawyer.

[The interview was about a half hour. This transcript  has been edited for flow and space.]

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HR: Tell me a little about your background

Phil: I’ve always been a movement lawyer. I’m San Francisco’s activist lawyer, basically I’m the only one because what I like to do is take cases where there’s an emotional reason. I feel people have suffered some kind of wrong, so I want to correct it. I often use the media in the movement to achieve things. Or to take cases that will help the movement. So I used the press to expose [for example] bad land lords in the gay community that were gay, that were evicting people with AIDS.

… I got a bleeding ulcer, I almost died, I lost thirty pounds in thirty days. You know, you realize what’s important, and when you first get recovery, you’re like I got to keep this in my brain the whole time, cause I know its really important now, and I know what life is about and everything, and its not about, can I make this BMW payment. So I started reading and  studying more radical thought. Because I believed that there was more truth in that.

…I went to Occupy San Francisco and I was doing a lot of educating of people on what the federal reserve was, how the banks work, how bank and war go together. There’s an interest on war loans, there’s a huge amount of money being made on war loans by the banks. Debt is perpetual money for the banks, they don’t have to do anything, they just get money.

…but I have to say nothing was like when I first came to Occupy Oakland, it was like…I mean, it was just such a wonderful experience. [I arrived] before the first raid, the Sunday before. It was like a utopian commune, it was like the Paris commune, Oakland commune, they say…I mean, it was amazing, it was like, this is exactly what I want the world to be. I also think it was really powerful to have the kitchen right in the front. This is what’s important, the kitchen is important.

HR: Tell me about the committee that you’re on. Did it grow up out of Occupy Oakland, or another Occupy?

Phil: I came along [to Occupy Oakland] with [my roommate]. I was already working as the assistant to Belle Star, legal counsel for San Francisco Occupy. When I came here,  I was amazed by Occupy Oakland. Within a couple of days, the first raid had happened and Scott Olsen had been shot and everything. I think a lot of people within the legal committee started to wonder what we were going to do about this…

…I started coming to Occupy Oakland a lot and lost touch with Star. Then she sent me an email saying, you’d better come to the lawyer’s committee. Well by that time some of the big people in freedom of expression issues–its called section 1983 law suits–which are lawsuits basically against police officers for violation of constitutional rights…the 1983 people had expressed an interest in going to Belle’s legal committee. But in the beginning it was me, a legal secretary and a bankruptcy lawyer, and Belle Star didn’t’ come…that was the first meeting. The second meeting was where we had the all stars–and that’s what we’ve got now–we’ve got people who’ve actually done relevant work in San Francisco and the Bay Area. So anyway, we’ve got these great lawyers and we sat around talking…I was very concerned about Oakland, I said, we have to get something together for when the next attack on Oakland happens…

…when the lawyers got together,  we all talked about what the strategy should be and we agreed to do research and we spent the next week all doing tons of research on what was allowed, what wasn’t allowed in these types of protests. Could sleeping be allowed? And we had a couple of meetings and we came to the conclusion that we should do a vigil. I argued that it should be Oakland.

HR: Did you all want like a test?

Phil: We wanted something that would set a minimum bar, so it was like as long as we do this, we can be there. So we said, let’s look at all the cases…it was really the maximum, like what’s the maximum we can do safely, like rock solid, its definitely safe. So that if they act on that, then we get a restraining order, and then we get a precedent started, so we can build on that. Once we get the precedent, like okay, this is allowed, we get, more people to do exactly whatever that is…

HR: Do you expect the police to actually honor the first amendment rights to do the vigil?

Phil: You know I wasn’t sure. Every time, I’d go back and forth. I think, there’s no way Mayor Quan’s going to come down on Occupy Oakland again., cause Scott Olson’s been shot and almost killed, and she’s been embarrassed everywhere around the world. And then she does it again, and then I think, oh, there’s no way she’ll do it a third time…there’s no way, she’s going to do it again. And she does it again…

Then I think its not going to happen here. Then I hear a security guard [in the plaza] say, say to one of the other security guards, if you see anything put up, take it down. So then I think, oh great, one of the security guards is going to take down the tent

HR: What’s the constitutional basis for the vigil. Are there any precedents? Where did you start looking for the constitutionality?

Phil: The main case is Clark vs. Community for Creative Non Violence, in nineteen eighty four, a decision written by Supreme Court Justice White, who was kind of a centrist, a little bit conservative, but a centrist. Basically they found that a camp across the street from the White House was expressive. It would be more expressive if the tents had writing on them and were actually part of the expression. They said that the city could impose a reasonable time, place and manner restrictions, but basically the decision focuses on the sleeping, its the sleeping that transforms it, in their mind, from first amendment to dwelling. So the city could then ban the sleeping.

HR: So vigil is defined by no sleeping…

Phil: A vigil is defined basically by continuous expression, so basically you have to be leafleting, you should be picketing, you should be walking, you should be moving…

HR: The definition comes from that decision?

Phil: Yes. Its the Clark decision that most people would view as the primary case. We’ve also read dozens of cases about this, very carefully and talked about them…

HR:…there’ve been other cases that have used Clark and won?

Phil: Yeah…the Trenton case, where the occupy in Trenton was defended by the ACLU and successfully. That case is not particularly persuasive in this context, because in that case, they had a park that didn’t ban the activity that they were arrested for, and the officer acted on the instructions of. this non profit…

HR: What they were doing was legal in the first place?

Phil: There was no legal basis for the police to take their action…Here , the Interfaith [members of a group formed during the original Occupy Oakland occupation, made up of interfaith groups] people are being told they have to have a permit.

HR: They don’t have an actual basis for making that determination?

Phil: Right, and he [the police officer] actually went over to them after I gave them the vigil flyer for Tuesday. So a lot of this–people who are not lawyers, they have no idea what the law is. Yeah, they say, well, you better go out there because, you don’t want them to set up a precedent with Interfaith, cause then they’ll be out there with a vigil.

HR: In this context, police have said no tents on the lawn. Is there a legal basis to prevent tents on the lawn?

Phil: The thing is, its a very complicated question, cause the thing is, is there a basis? Well, that means is there a law? Is there a law? What’s the interpretation? Is the law enforced? The law has to be enforced neutrally, you can’t decide on some expression, not on others. If anybody’s allowed on that lawn, it would seem that occupy has to be allowed on to that lawn.

HR: If the lawn is used by public, then the vigil can happen on that lawn…

Phil: Right…

HR: On the day [the porta potties were taken by police], could they have been allowed?

Phil: Well, under Clark, you can have structures and tents and tables, as long as they’re part of the demonstrations, so port a potties are obviously support [for] the demonstration, they’re part of the demonstration. They are essential to the demonstration. We’re humans, we need to go to the bathroom. Even if there is a law that requires [a permit], I’m sure they’re not enforcing it against other people…

HR: So you could argue that they’ve been selectively enforced to prevent this particular freedom of speech event.

Phil: Right, its discrimination based on content of speech…

HR: So this is an area of law in which basically nothing is certain, and that’s why some of the answers you’re giving me aren’t definite?

Phil: Well, law is not an exact science, so when people ask lawyers, well, give me advice on this, you have to say well, this is my best understanding of the law, but it depends on you know, the judge got a full night’s sleep…whether the judge has a dog in the race and it can be very hard to predict. In a situation like this, you have cases where no case is exactly the same as the same as the next as far as what the factual particulars are. So you have to make an educated guess, there’s no appellate decisions on porta potties, so you really have to guess, you know, what exactly does this fit under?

…the other thing is when you’re saying something to a reporter as a lawyer, you have to be careful what you say. You don’t want to explain some of the nuances, you want to leave that to see if Quan’s lawyers’ going to figure this out.