McMurtry’s G20 probe: “More smoke and mirrors?”

No 79 Posted by fw, October 21, 2010

Further to the previous post, G20 Summit/MPP Pupatello update: Encouraging development, in the course of our conversation with Marion Fantetti, Ms Pupatello’s Special Assistant, she pointed to the Liberal’s appointment of Roy McMurtry as a positive development in the investigation of the G20 scandal. McMurtry, a respected former attorney and Ontario chief justice, had been called upon to conduct an “independent review.” However, when asked about McMurtry’s mandate, which is, after all, the initial acid test of any government probe, Ms Fantetti was unable to be of assistance. Googling “McMurtry G20″ provided answers to the mandate question and more. Here’s a sample of news media coverage –

G20 probe is more smoke and mirrors from the Liberals by Adam Radwanski, Globe and Mail, Sept 22, 2010

Roy McMurtry

As Radwanski put it in his scathing concluding paragraph of his piece in the Globe:

“Whatever the government was up to, it was just about the furthest possible thing from the mea culpa that had briefly been expected. Instead, it was gamesmanship of one form or another. As reporters tried to make sense of it, some Ontarians might have got the impression that the Liberals were taking responsibility for their lackadaisical protection of civil liberties. For now, at least, that impression – like so many others around the G20 – would be false.”

In the lead up to his skeptical conclusion, Radwanski pointed out how quickly the Liberals dashed the widespread perception that Mr McMurtry would be looking at how the government concealed its passage of Regulation 233/10 under the obscure Public Works Protection Act.

“In a mild echo of their confusion over their own law back in June, some government officials seemed to believe Mr. McMurtry would be able to cover that ground. His terms of reference focused on the pre-existing Public Works Protection Act, not the regulation passed for the G20. But the call for recommendations on “public notice requirements relating to the designation of a ‘public work’” – which is what the security zone had been branded – was thought to provide enough leeway. That was until Community Safety Minister Jim Bradley emerged from the legislature to disappoint a large and expectant pack of reporters with the news that Mr. McMurtry’s scope would be very narrow indeed. He would be mandated to offer advice on how Second World War-era legislation, meant to allow inspection of people entering government building or utilities, could usefully be updated – but not to look at the specifics of how the law was (mis)handled during the G20.“

But it shouldn’t take a former chief justice to head up an investigation that will, at best, recommend updates to a piece of legislation resurrected from World War II. What gives, asks Radwanski?

“One way or another, Mr. McMurtry appears to have been used as a prop. The government seems to have wanted to give the appearance of responding to this summer’s controversy without actually doing so. The timing of the announcement might also have been intended to distract from Wednesday’s release of a critical report by the province’s Environmental Commissioner; if so, it certainly succeeded.”

Here are the inconvenient questions that McMurtry’s mandate conveniently omits:

“Why hadn’t it [the Liberal government] announced a change to the law that affected access to a large chunk of Toronto? Why did it allow the police to misrepresent the rule, leading Torontonians to believe they could be arrested for coming within five metres of the G20’s security wall? And what responsibility did the government bear for the fact that at least a couple of people were arrested under a law that didn’t really exist?”

Ontario announces inquiry into G20 fence law that is totally not related to the G20. Toronto Life, Sept 22, 2010

Regarding McMurtry’s mandate, the Toronto Life story sarcastically reports:

James Bradley

“When is an inquiry into the G20 not really an inquiry into the G20? When the province announces it’s going to appoint a respected jurist to look at one of the most controversial aspects of the summit, but not the summit itself. . . . The Post is reporting that the review will not look at the effect the law had during the G20. Sure enough, the terms of reference spell out, “Mr. McMurtry will not consider or comment on any litigation or legal matters before the courts.” Except, of course, they also say that the review will look at the law’s historical applications, like recent history when the province and police lied about the powers they had during World War II. They also add that the Minister of Community Safety and Correctional Services, Jim Bradley, will occasionally check in with McMurtry so he doesn’t make the government look like a bunch of clowns again [and] gets regular updates. So, we’ve got an independent review of one of the more embarrassing aspects of the G20—though there are so many to choose from—except that it won’t look at the G20 itself, because the election is just one year away [and] there are still cases before the courts. That’s what we call progress!”

G20 law review too narrow say critics. CBC News, Sept 22, 2010

One of the critics was prominent lawyer, Clayton Ruby, who had this to say about McMurtry’s review and the “secret law” that violated the constitution:

“It may not prove much use to people in Ontario. . . . How did this [the secret law] happen? Who was so stupid in the attorney general’s department not to point this out? Why did the premier not know this? And why did the police not make it public that there was this law?”

A news release on the government’s website disclosed McMurtry’s mandate:

‘The review will look at the historical context of the Act, how it has been used in the past, the definition of a “public work,” the requirements for public notice, and the scope of authority given to police.”

Roy McMurtry to lead review of secret G20 law by Johnna Ruocco, National Post, Sept 22, 2010

In a desperate attempt to justify McMurtry’s review, Jim Bradley, Ontario’s new Minister of Community Safety and Correctional Services, said:

“This law has been on the books since 1939, when we were probably worried about Nazi saboteurs.” It deserves a review. It might still make sense [to have such a law updated]. Mr McMurtry will be exploring similar laws in other provinces . . . The review is only focusing on the law itself as there are already a number of reviews being conducted by other parties. [I] look forward with anticipation to the report.”

Former chief justice Roy McMurtry to lead review of G20 secret law Keith Leslie, Canadian Press

Although very late out of the gate with his criticism, even Ontario Progressive Conservative Leader Tim Hudak couldn’t pass up this opportunity to take a shot at McGuinty over the McMurtry appointment — apparently satisfied that there was little risk of implicating Prime Minister Harper:

“Heads should roll. . . . All justice McMurtry needs to do is talk to the premier himself (to ask) who put this through cabinet, who made the decision to lie to the public, and who’s going to pay the price for that.”

Notwithstanding the tardiness of his response, Hudak’s questions are to the point.

In the light of these news stories, it will be very interesting to see how Minister Pupatello deals with our questions. We anticipate that she may refuse to comment on any litigation or legal matters before the courts or under review.

G20 Summit / MPP Pupatello update: Encouraging development

No 78 Guest post by Helga Wintal with background information by fw, October 19, 2010

Background

To put this post in context, it’s a follow-up to two previous posts: Holding Ontario Liberals to account for the G20 outrage (July 6, 2010), and Desperately seeking Sandra. The “unaccountable” Windsor MPP Pupatello (August 12, 2010). The former is a copy of an email letter that my wife, Helga Wintal, and I sent to the Hon Sandra Pupatello, MPP (Windsor West) to express our alarm over the breach of civil rights of peaceful protesters at the G20 Summit. The latter is a follow-up post expressing our frustration at the failure of our repeated attempts to establish contact with Ms Pupatello’s Windsor constituency office.

We are pleased to report an encouraging development. This morning Helga and I had a very cordial and productive one-hour meeting with Marion Fantetti, Ms Pupatello’s Special Assistant. We were impressed with Ms Fantetti’s effective use of active listening skills and her full and accurate recapitulation of our main points. She promised that she would brief Minister Pupatello, share with her our memo, copied below, and keep us informed of relevant developments.

Here is a copy of Helga’s memo that we presented to Ms Fantetti this morning.

To:      Hon Sandra Pupatello, MPP (Windsor West) & Marion Fantetti

From:  Helga Wintal and Frank White

Date:   October 19, 2010

Re:      Issues of concern surrounding the G20 Summit in Toronto

The purpose of this submission is (a) to document our apprehension pertaining to events surrounding the G20 Summit in Toronto, and (b) to invite Ms. Pupatello to respond to the questions we have raised regarding our concerns.

While we recognize that our main concerns are not directly related to Ms. Pupatello’s portfolio, as a member of Cabinet she is in a position to exert influence on her Cabinet colleagues. Moreover, as our MPP, she needs to know that some of her constituents are seriously troubled by what appears to be an erosion of our civil liberties. The G-20 events may no longer be an issue for Cabinet, but for responsibly informed citizens it is important to get government assurances that the mistakes made during the G-20 summit will not be repeated. Here are our concerns –

1.     Responding to constituents’ correspondence

We wrote to Ms. Pupatello on July 6, 2010, expressing concern about the use of the Public Works Protection Act during the G-20 summit and about the last-minute passage of Regulation 233/10 to designate a large section of downtown Toronto as a “public work” and to provide broad powers to the police to verify the identity, search and arrest any person who came within five metres of the designated area.  We are disappointed that we never received a written or emailed response or even an acknowledgement of our correspondence. We emailed our letter, and subsequently hand-delivered a print copy when the original email went missing.  Our letter was clearly neither a form letter nor a petition, and it should have been given the courtesy of a timely response. In effect, it has taken about 14 weeks for Ms Pupatello’s constituency office to finally schedule a meeting (October 19,2010) with Ms Marion Fantetti.

Question 1:  What is your policy re: responding to letters and emails from constituents?

2.     Communicating important regulatory changes that impact on our rights

Technically, the Ontario government was in conformity with the Legislation Act, 2006 when it made Regulation 233/10 on June 2, 2010, filed it on June 14, 2010, published it on e-Laws on June 16, 2010 and printed it in the Ontario Gazette on July 3, 2010, several days after the regulation was revoked and after the weekend of the G-20. (The Legislation Act, 2006 provides that Regulations are enforceable on the earliest of: actual notice to the person concerned, electronic publication on e-Laws, or publication in the print version of the Ontario Gazette, unless otherwise stipulated.)

However, it is the perceived secrecy surrounding the coming into effect of this Regulation that is disturbing.  The Regulation, and its authorizing Act, provided the police with extraordinary powers of search and arrest of any person who came within five metres of a large swath of downtown Toronto. Over 1,000 people were arrested and detained during the G-20 weekend.  The legislation clearly impacted the lives of a large number of people who were not even aware of its provisions.  Paul Cavalluzzo, a constitutional lawyer, indicated in an interview on July 5, 2010 that his clients — the Civil Liberties Association and the Canadian Labour Congress — had been meeting with the police for two weeks before the G-20 to learn about the kind of powers the police had and at no time did the police mention this Regulation.

Many civil rights lawyers only found out about the Regulation when people were arrested. The Toronto Star reported that even the Mayor of Toronto didn’t know about it in advance.  Given the long timeframe that the Government had to plan for the G-20 weekend, the last-minute passage of Regulation 233/10 and the lack of information provided to demonstrators and to the general public seem, in retrospect, to have been a deliberate attempt to stifle criticism and debate and to take away the right to challenge the Regulation before the G-20 summit.

Question 2: a) Does Ms. Pupatello believe that it is fair and just to expect citizens to conform to a law without giving them notice, in advance, of the content of new Regulations which may affect such important rights as freedom of expression and peaceful assembly?  b) And will Ms. Pupatello urge her Cabinet colleagues not to enforce significant new Regulations in future without giving adequate notice to citizens who could be directly affected?

3.      Using the Public Works Protection Act for an unintended purpose, to constrain public protests

Two constitutional lawyers, Paul Cavalluzzo and Clayton Ruby, advise that the Public Works Protection Act which was passed in 1939 was originally intended to protect courthouses, police stations, and other similar buildings and facilities as well as public officials against attack. As such, it provides fairly draconian powers: it gives the police (and guards appointed under the Act) the authority to require any persons approaching or entering a designated public work to identify themselves and state their purpose; authority to search without warrant any such persons or their vehicle; to refuse permission for entry and to use whatever force is necessary; to arrest without warrant any persons who neglect or refuse to comply with a request or direction of a guard or peace officer or who are found upon, or attempting to enter, a public work without lawful authority.  Those who neglect or refuse to comply with the request or direction noted above, or are found upon or are attempting to enter a public work are guilty of an offence and upon conviction, are liable to a fine of $500 or two months in prison.

This Act was not intended to be used against protests, demonstrations and the right of assembly. By using this Act to guard the G-20 participants, the whole right to privacy and the right to probable cause for search and seizure has been eliminated. You just need to be in the area in order to face the possibility of being questioned, searched, clubbed, arrested and detained.

According to Clayton Ruby, it is unlikely that the use made of this Act and Regulation 233/10 in the G-20 context would withstand a Charter challenge. However, it is equally unlikely that the matter will be tested in court. Two demonstrators were charged under the Act. The charges against one were subsequently dropped and charges against the second may yet be dropped to avoid court scrutiny. If a separate Charter challenge is mounted, a court could decide not to deal with it because the Regulation is no longer in effect.  This is unfortunate, because the prospect of using this Act in future will have a chilling effect on peaceful protests.

Question 3: a) Does Ms. Pupatello agree that the use  of the Public Works Protection Act and its regulation-making authority, in future, should be restricted to the use for which it was originally intended: namely, to thwart hostile attacks on key public buildings and facilities? b) And will she lobby her Cabinet colleagues to that effect?

4.     Abuse of the Common Law offence of “Breach of the Queen’s Peace”

The police have the power, if there is an actual threat of violence or apprehension of violence, to order people to disperse and if they don’t, to arrest them and charge them with breach of the Queen’s peace. This power was used extensively during the G-20 summit to arrest hundreds of peaceful demonstrators. Clayton Ruby argues that without a threat of violence, police use of breach of the peace is unconstitutional.  Unfortunately, if the police don’t lay a charge, or subsequently drop the charge, the only recourse is to sue, which is beyond the means of most demonstrators.  By using this power extensively, police were effectively eliminating the right to protest in free assembly without the risk of having their actions tested in court. The whole focus of the police was on crowd control, instead of protecting citizens’ rights to protest peacefully.

Question 4:  Does Ms. Pupatello share our concerns that citizens are effectively denied their Charter right to freedom of assembly when they are arrested for no reason other than for engaging in a peaceful protest?

5.     Need for a thorough, independent public inquiry into police action

Numerous complaints emerged from the actions of the police during the G-20 summit, including allegations of police targeting of journalists, police roughness and violence in handling demonstrators, use of horses, batons and rubber bullets, police disruption of medics who were trying to treat demonstrators, the denial of heat, proper clothing, medical care, basic privacy and access to counsel in the makeshift detention centres.  There are three separate reviews currently underway into police actions during the G-20. However, none are expected to be sufficiently independent or comprehensive. Details regarding one review are provided below as an example.

Gerry McNeilly, Director, Ontario Office of Independent Police Review, is conducting a systemic review of what occurred during the G-20 situation in Toronto, focusing on patterns of behaviour which were the subject of complaints. He has stated that his terms of reference include looking at the unlawful arrests, the unlawful searches, the detention that took place in the streets and incidents at the detention centre, as well as how the police prepared for the G-20 and what training they got. Included in his review is whether journalists were specifically targeted, as a number of journalists were arrested, ordered to leave the scene or actually physically attacked. He intends to make recommendations so that in future, some of what occurred can be avoided.

McNeilly, himself, identifies three significant limitations with his review:

First, he admits that he is only going to look at unlawful arrests and searches. Using breach of the Queen’s peace is lawful.  His review won’t be answering the question whether it was a justifiable use of the power of arrest.

Second, with more than 320 complaints to review, he’s concerned that he won’t be able to complete the review while the issue is current, so that it doesn’t get forgotten.

Third, the role of the RCMP in policing and providing security for the G-20 is outside his mandate and would have to be reviewed by the Canadian Police Commission in Ottawa.  (The Integrated Security Unit was in charge of policing, under the direction of Chief Superintendent McNeil of the RCMP).

Question 5:  Does Ms. Pupatello agree that a comprehensive, independent public inquiry into the actions of police at the G-20 summit is needed to determine what actions by police infringe citizens’ rights to assemble and to demonstrate peacefully and to avoid future repetition of these actions?

Stay tuned for further reports.

Clayton Ruby: “What we’ve seen here is a picture of the police state to come.”

No 48 Posted by fw, August 24, 2010

The following is my transcription of Part 1 of Paul Jay’s video-recorded interview of Clayton Ruby, first broadcast on the Real News, August 21, 2010. Part 2 is accessible here. And my transcription of Part 2 of the interview is Post no 47 on this blog.

Clayton Ruby’s client, Charlie Veitch, arrested twice

PJ — In a recent story on the Real News, we had a story about David Vasey. He was arrested under the Public Works Protection Act at the Toronto G20, and we reported that he was the only person arrested under that act. Well we were wrong. There was another person arrested and his name was Charlie Veitch. And here’s some video of his arrest. (Video shows police questioning Veitch – who is he, telling him he’s not allowed to film and then taking him away for refusing to reveal his identity).

When Charlie Veitch gets to the airport after G20 is over, he’s about to board a plane to go back to his home in England, he’s arrested again. Why this time? Well, a few minutes before the first tape that you saw, he encountered a private security officer and told that officer that he was a member of the British military intelligence, and here’s a little clip from that encounter. (Video shows officer asking Veitch if he has certification for that [megaphone]; Veitch responds that he’s from British military intelligence and that he doesn’t carry ID, explaining “In the spy world we call them ‘ghosts’ and we’re ghosts.”)

So when Charlie gets to the airport he’s arrested for impersonating a police officer, hauled back to jail again, and now he’s facing both charges. And now joining us is his lawyer, Clayton Ruby, who’s a renowned, leading Canadian constitutional lawyer for decades in Canada. Thanks for joining us.

CR – Pleasure.

PJ – And I should add, a member of the Order of Canada. Tell us Charlie’s story. This whole thing sounds completely bizarre and crazy.

Ruby: “Authorities do not have much of a sense of humour”

CR – Well, you got to put it in context. Charlie is a clown. Charlie runs absurdist theatre. His job is to entertain the police while they’re harassing the demonstrators and he does that very well and very cleverly. And it’s all designed to make a political point. He wants to point out the creeping police state that we’re getting in to. He wants to point out the way we worship things in inappropriate ways. And he wants us to start thinking about how this can be done better. And that’s what he’s about. However, it seems the authorities do not have much sense of humour.

First charge against Veitch: Violation of the Public Works Protection Act

PJ – Apparently not. Let’s take the first charge first. The big one I guess is the violation of the Public Works Protection Act (R.S.O. 1990, Chapter P.55) because that’s the precedent-setting thing. Now in Vasey’s case, they go to court, expecting a hearing leading up to a trial for the Public Works Protection Act. When they get there, they can’t even find the charges. It’s all been blown away. And Howard Morton, his lawyer, theorized that they don’t want this tested in court. But it looks like Veitch’s case is going to proceed.

How can citizens be expected to conform to a law amended in secret?

CR – It’s hard to say that. At the moment, it’s set to proceed. But I think you’d have to be a peculiarly dumb civil servant to say, “I want to see a constitutional challenge of this act”, which was amended in secret. And it appears deliberately so. Have the various ministers, the public works and the attorney general subpoenaed to court to explain why was it notice wasn’t given to the public to the regulatory change. So that is a case in a democracy. People can conform their behaviour to obey the law. If that’s impossible, it’s hard to say how that can be constitutional. So I would be very surprised if they want to have that court challenge. But I’d be delighted to bring it. And I think we’d all have a lot of fun with it, including Charlie who’d understand the theatre.

PJ – (Chuckles) He could get his megaphone out.

CR – (Laughing) A running commentary in the hall.

Police Chief Blair asserts the Public Works Protection Act has been tested in court

PJ – Now I had a little go-to with Chief Blair in a press conference (June 16, 2010) during G20 where I asked him about the Public Works Protection Act. And I said: To all intents and purposes this suspends probable cause. Here’s a little bit of his answer to that:

Toronto Chief of Police William Blair

Video clip plays and here’s the exchange between Paul Jay and Chief Blair:

PJ — “The Act allows, essentially, for elimination of probable cause for search and seizure”

Chief Blair: “That’s not correct.”

PJ – “I can read it to you.”

Chief Blair – “Yeah, by all means. I’ve read it at great length. It’s an act that has been in the Province of Ontario since 1939. Its authorities have been tested through the Ontario Court of Appeal and upheld. It’s not an act of which we are not familiar.”

PJ – Has this act been tested in court? Has it been tested during the life of the Charter? And would it stand up to the Charter?

Ruby refutes Chief Blair’s assertion: “I know of no constitutional challenge to that legislation”

CR – I know of no constitutional challenge to that legislation. It might get sustained because its primary purpose is to protect named public works. So let’s assume that it’s valid legislation. In order to commit an offence under the regulatory scheme in the act, you’ve got to be entering or attempting to enter the enclosed area. Simple enough. Charlie is standing outside the five-meter limit. He doesn’t know anything about the five-meter limit any more than anybody else does. It’s all secret. But he’s standing well outside it. The police say to him, “Come over here.” And they put him two meters from the actual fence. Now, they say, you’re within five meters of the fence. And the answer, of course, is but he wasn’t attempting to enter the area. Indeed, there’s no way to enter the area at that point. There’s a ten-foot fence but no gate, no door. You couldn’t enter the area if you tried. So, this prosecution is ill-founded on its facts.

PJ – But if they really tried to fight you in court, then my understanding of the act is that the policeman or the guard can define the boundary any way they please, and not only that, it’s actually irrefutable in court. That whatever the guard or policeman says it is, it is, and you can’t counter it.

CR – It can’t be the case that a guard’s opinion or decision would take precedence over a regulation passed by order in council.

PJ – Maybe in this particular case because they defined it. But the legislation doesn’t – as I understand it correctly – doesn’t require them to define it.

CR – Absolutely. I think that’s true. You can define it in a number of ways and that may be one of them. But in this case you’ve got to define an area by regulation.

PJ – And they suck the guy in to the . . .

Police sucked Charlie into the five-metre area where there’s a perimeter fence but no gate

CR – They suck him into the five [meter area]. But even then they can’t make him enter in to a place where there’s no gate. That’s a little hard.

PJ – Now when I questioned Blair I said one of the issues amongst many with this legislation – and essentially eliminates probable cause for search or seizure – he said “That’s not true.” Does this legislation essentially do that?

The Public Works Protection Act essentially eliminates probable cause

CR – It does. It replaces probable cause – the standard in ordinary criminal law – with the two factors: being within five meters of the restricted area and attempting to enter or entering the restricted area itself – as your purpose. That replacement might be okay if in fact the act was used to protect some small area – a munitions plant, a public work like a nuclear facility. But when you’re taking an entire section of downtown and proclaiming it off-limits, people who want to protest – there are serious doubts that’s constitutional in itself.

PJ – Charlie’s other charge seems ridiculous.

The charge of impersonating a police officer is “ridiculous”

CR – It seems ridiculous and it is ridiculous. There’s Canadian case law from courts that say it is a crime to attempt to impersonate a police officer. You can’t pretend to be a downtown police intelligence officer. No one would believe it anyway. You look intelligent. But you can’t do it, it’s a crime. But the law is you can impersonate all the foreign police officers you want. You can, according to the case law, pretend to be a US marshal from Texas. But you can’t do that by pretending to be a member of military intelligence. That’s not an offence in Canada.

PJ – So they go to the extent of grabbing him at the airport, dragging him back downtown . . . It’s unheard of in terms of any norm of Toronto policing. What is going on here?

“What we’ve seen here is a picture of the police state to come”

CR – Bear in mind that your idea of what is “normal Toronto policing” is not based primarily on any value system the police hold that respects individual rights to protest. They seem to have none. It’s based on limited budgets. And what we’ve seen here is a picture of the police state to come. What happens when you give the police unlimited budgets, all the men they want, all the toys they want, all the machinery they want, and the right to control huge swaths of the city. That’s the police state that’s going to come if we give them the money to do it.

PJ – Which apparently we did.

Canada's CEO -- Chief Enforcement Officer

“Harper” and a coming “police state”

CR – Which we did on this occasion and which Mr Harper wants to spend another eight billion on, on prisons. That’s the other end of this. So, watch out for this police state. It really will come with money. And there’s nothing to stop it because those values of liberty and freedom and democracy are not cherished by the police departments.

Where is our right to protest?

PJ – There’s some other things that happened over the weekend, which again I think are maybe just as disturbing, in some ways even more disturbing than the Public Works Protection Act as they don’t normally drag that thing out anyway – They charged hundreds of people with breach of the Queen’s peace. What is this? And then they would take any number of gatherings and just immediately say this is now an illegal assembly – I don’t know what the basis for it is. Where is there a right to assemble, a right to protest if there’s any number of laws that can simply with the snap of a finger eliminate it?

“Not everything is a potential breach of the peace”

CR – Well, let’s start with breach of the peace. It’s a power which is very ancient. It was designed originally for the British constable to stop by the pub at closing time [and] when he found two guys duking it out in the parking lot, and say, “I’m ordering you to disperse. You’re breaching the peace by this fight.” And they would have to do. And if they didn’t go along nicely and separate he could arrest them and separate them. Simple enough. Perfect sense. Good use of police resources. No charge gets laid. No trial is held. And they go home sheepishly. That has now spread because it hasn’t got any limit — it’s a common law offence – to a somewhat arbitrary universal power in all police officers. Now the case law is not so horrible.  It says: Look, not everything is a potential breach of the peace. And that means you’ve got to have some actual threat of violence before you can do it. So, if a hundred or two hundred people are sitting down quietly making a peace sign there is no violence in the offing.

PJ – Which we know that many of the people that got arrested were doing exactly that.

Absent a threat of violence, police use of breach of the peace is unconstitutional

CR – Yes. That’s a very common scenario. They’re not obeying the police order to move but on the other hand there is no threat or apprehension of violence. So that arguably – and I would take the position – is an unconstitutional use of that power. The police did it effectively. And bear in mind that once they do it, if they don’t lay a charge, your only recourse is to sue. Well how many of us are going to take several thousands of dollars or several days of our time in order to teach the police a lesson? — Which frankly cannot be taught because if you get a judgement for $500 for damages they’re going to pay the money happily. They have unlimited for paying this kind of loss. And they could take a hundred thousand people at $500 each and would not blink.

PJ – Okay. In the next segment of our interview let’s talk about what can we do. Because what we’ve seen right now is to all effective purposes, if they arrest a thousand people or more and then don’t charge them they’ve eliminated the right to protest in free assembly but it’s not ever going to get tested in court because they just drop the charges. You know, they can go fishing and throw the fish back and nothing ever comes of it. So in the next segment, what can people do about all this? Please join us for the next segment of our interview with Clayton Ruby on the Real News network.