“No reasonable person could think that writing with chalk could damage a sidewalk.” Ninth Circuit Court of Appeals (Mackinney v. Nielsen 69 F.3d 1002, 1995)
What’s happening in this country?
I know this is a question we ask frequently on these pages. Every day, some new offense against basic freedoms comes to light, further shaking faith in the basic principles of our constitution. I thought I was jaded, but what happened in Austin last Thursday shook me — not just because chalk merits police response, but because of the intensity and overwhelming force being used to strike at one of the simplest, most transient forms of expression possible.
By now most of us have heard of the crack down on chalk which occurred in Los Angeles in July, when Occupy Los Angeles passed out chalk to a monthly Artwalk event and the gathering found itself under attack by violent riot police retaliation. Activists decided to pass out chalk at the Artwalk in the first place because of almost two dozen arrests for chalk in public places just in Los Angeles. Not a single one of these arrests has resulted in charges.
From an Occupy Los Angeles press release:
Participants of Occupy LA’s Chalk Walk wonder why the Los Angeles Police Department continues to arrest them for chalking when the City Attorney has declined to prosecute any of the chalking arrests.
One Occupier wonders, “If the so-called crime is not worth prosecuting, then is it worth making the chalk arrests in the first place?” and then adds, “LAPD harasses us with these arrests to intimidate us.”
Occupy activists say that LAPD had made nearly twenty arrests for chalking related to Occupy but has failed to make chalking arrests at non-occupy events including an event the Mayor handed out boxes of yellow chalk to be used on the “sidewalks,driveways, and any blank canvasses” including the streets of Sunset Blvd in traffic at night for a fundraiser for Lance Armstrong’s art campaign, “Hope Rides Again”, sponsored by Nike.
The crack down is not limited to Los Angeles, but appears to be occurring nationwide. Activists in Orlando recently won a lucrative lawsuit against the city for wrongful arrest in a chalk-related arrest of an Occupy Orlando member. Occupy New Orleans members fled from police during their chalkupy event. While the crackdown may be political in nature, not just activists are getting caught up in it — a mother in Richmond, Virginia faces 50 hours community service because her daughter chalked some rocks, and two teens in a Philadelphia suburb were ticketed for drawing a sea turtle and a whale in chalk. Which brings us to Austin, where two people were arrested Thursday and face uncertain charges for expressing their right to free speech.
Occupy Los Angeles declared Thursday, August 9 Chalkupy the World day, an action carried out in at least a dozen locations with few if any arrests for chalk. Yet in the ‘liberal’ city of Austin, whose unofficial motto is Keep Austin Weird (a campaign by local businesses which creates omnipresent bumper stickers & t-shirts, and has since spread to Portland and other cities), chalk merited a shocking police response. Back at our July 4th occupation of the State Capitol, Texas State Troopers led by Sgt Cummings singled occupiers and the Iraq Veterans Against the War out for harassment for their use of chalk, among other things. Occupiers involved in planning our chalk solidarity event chose to challenge this by gathering on a public sidewalk near but not on the capitol; though there are no clear markings to indicate this we were later informed by Austin activist Debbie Russell that this generic bit of sidewalk is still somehow considered part of the Capitol grounds.
From the moment we began gathering on the sidewalk across the street from the Capitol, near a city bus stop, we were under surveillance. An undercover vehicle with a uniformed Trooper was parked across the street, watching us with binoculars. As we began to gather so did the Trooper vehicles, with 8-10 and Troopers gathering near the capitol’s gates and, we later heard, others guarding the other sides or waiting as backup. Later, a Sheriffs Department van arrived and sheriffs were reported waiting with zip ties out nearby for orders to sweep in.
No warnings were issued; Troopers watched us for approximately 30 minutes of heavy chalking before four suddenly crossed the street, including our old friend Sgt. Cummings. I think we all expected another of his speeches or more threats like we’ve received before. Instead, two chalkers were immediately placed in handcuffs — Corey Williams, Occupy Austin’s most active livestreamer and a woman named Audrey Steiner. About a dozen of us were chalking, not including random people who would briefly chalk as they passed, including a mother with two young children who burst into tears at the arrests. Out of all the people chalking, the two arrests were made for what seem like political reasons — Corey was wearing a Guy Fawkes bandanna over his face while Audrey was in a Peaceful Streets t-shirt.
Hillary Procknow, mother of the two crying children, returned to confront State Troopers only to be told that chalk costs taxpayers money:
Audrey & Corey spent about 6 hours in jail for the crime of expressing themselves in the same way almost all of us played as a child. They initially faced misdemeanor class C charges, but the State is now threatening to increase this to Class B after KUT’s Wells Dunbar followed up on the story:
The charges might be enhanced to a class B misdemeanor if the cost to the city of Austin is $50 or more but less than $500. This is based on the cost to clean the chalk off of the sidewalks.
According to the Criminal Mischief law (28.03), “a person commits an offense if, without the effective consent of the owner, intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings on the tangible property of the owner.”
The State will undoubtedly seek to justify these charges with the power washing bill — when an occupier visited the corner the next day, all traces of the chalk were gone.
Even after all I’ve seen and read, these events shake me because if the state were really concerned about damage they’d have simply stationed two Troopers on the corner when we got there to warn us, instead of staging a major show of force. I’m shaken because chalk scares the state so much an innocent man was nearly held at gunpoint by a government thug, and two innocent activists face criminal charges. Are there greater injustices? To be sure. But when the simple, court-supported right to use washable sidewalk chalk faces overwhelming attack, the state of our rights is very grave indeed.
Sometimes all occupiers take risks, but none of us expected to be arrested that evening for chalking on a sidewalk. The crack down on dissent means that all of us can face police repression at any time, for any reason, even those who never speak up. More and more scenes like this will play out every day, until enough people decide they can’t take it anymore.
See Also: Hillary Procknow, Ph.D., mother of the two young children at Austin Chalkupy, on the Cost of Erasing Dissent
Update: I corrected the article to reflect that the ticketing of the two teens occurred in a suburb of Philadelphia, not in the city. Also, see Mother Jones interactive map of chalk arrests.