The first Occupy Oakland protester to allegedly be in violation of a stay-away order has a hearing today.
Joseph Briones, 30, was arrested along with 408 others at an Occupy Oakland  protest Jan. 28. He is one of 12 who were apparently issued the restraining orders, and is therefore barred from being within 300 yards of Oakland City Hall, potentially for the next three years, according to Alameda County Deputy District Attorney Teresa Drenick.
But based on a Feb. 8 hearing, Briones and his lawyer understood that he did not have a stay-away order against him, said Occupy Oakland media committee member Omar Yassin.
“That’s why he was at the plaza, carefree, on Wednesday,” said Yassin. That’s when Briones was arrested.
In a Feb. 9 press release, Officer Johnna Watson of Oakland Police media relations said that “Joseph Briones is one of four individuals charged with a violent felony offense stemming from the Jan. 28 protest.” But according to records at the District Attorney’s office, that’s incorrect; Briones is charged with three misdemeanors.
While everyone scrambles to get their story straight, Briones is still in jail. He has a hearing at 2 o’ clock today. If found to have violated a stay-away order, he could face six months in prison.
So far, Briones is legally innocent of any crime; he has not been convicted of any of the charges leveled on him in connection with Jan. 28. None of the other 11 who are prohibited from going near City Hall have been convicted of anything either.
Besides all that, the stay-away orders may be entirely illegal.
According to Jivaka Candappa, one of the attorneys working on the stay-away order cases, “the orders are unconstitutional and unreasonable.”
Most of the charges on the twelve are as benign as blocking the sidewalk and remaining at the scene of a riot (the latter is the same charge that was placed on hundreds who were cited and released with no bail, and whose charges will likely be dropped—including me.) Even the felony charges, such as assault of a police officer, are common charges leveled on protesters that are usually dismissed. It is highly unusual to ban individuals from any public place, for any reason, let alone City Hall and a public plaza so obviously necessary for access to First Amendment rights, under any circumstances.
“This is legitimate action in, for example, a domestic violence situation. Here, protesters have not attacked anybody and they’re not a physical threat,” said attorney Mike Flynn, president of the San Francisco chapter of the National Lawyers Guild.
Candappa says that he and his colleagues may file motions in the Alameda County Superior Court challenging constitutionality of the stay-away orders.
Said Candappa, “preventing someone from exercising their First Amendment rights doesn’t promote public safety. Courts are very reluctant to restrain someone’s expressive rights, because its really a cornerstone of any democracy and if you want to be able to participate in democracy you’ve got to have a right to express yourself. To take away that fundamental right to express yourself is something courts are very reluctant to do, especially when those conditions are applied against someone who has not yet been convicted.”