A policy which shaped the history of Occupy Austin has been ruled unconstitutional by the U.S District Court. The ruling comes just over a week before the group celebrates its first birthday on October 6.

38 activists were arrested at Austin City Hall in the early hours of October 31, 2011. Most City Hall arrestees were charged with 'criminal trespass' and banned from City Hall for one year (Photo: John Jack Anderson, used with permission)

On that day, Occupy Austin first encamped on the amphitheater steps outside Austin City Hall; because of a legal loophole, the camping and sleeping ban which applies to most of Austin did not apply at that site.

Almost from the start of the movement’s history, police, security guards and city officials used criminal trespass notices banning occupiers from City Hall as a way to break up and divide the movement’s key volunteers and those most dedicated to direct action. Even recently, when Austin Police want to justify the eviction, infiltration, and suppression of the movement they point to the over 100 arrests which took place at the encampment — over 80 of which were for ‘Criminal Trespass.’

Today, the United States District Court For the Western District of Texas, Austin Division, ruled those bans unconstitutional:

Having carefully considered the evidence presented at trial, the parties’ stipulated facts, the case law applicable to this action, the argument of counsel, and the parties’ post-trial letters, the court concludes that the City’s policy on issuing criminal-trespass notices violates Plaintiff’s First and Fourteenth Amendment rights under the United States Constitution.

The case was brought on December 21, 2011 by Rodolfo “Rudy” Sanchez and Kristopher “Kris” Sleeman, with the help of the Texas Civil Rights Project. Both Sanchez and Sleeman were among 38 arrested on the night of October 30 and the morning of October 31, 2011. The arrests came in three waves — first the arrests were over a food table when city officials insisted food service must stop at night, then more when some staged a sit-in to resist the thrice-weekly power washing which disrupted the encampment. Finally, the remaining arrestees were hand-selected by an undercover operative named “Trevor,” who went behind police lines to point out key Occupy organizers to police.

The criminal trespass notices and arrests had a profound effect on Occupy Austin. Suddenly dozens of its key members could not longer come onto the site of its major encampment. Some took to protesting and holding meetings across Cesar Chavez Street on a tiny patch of land which is technically Margaret Hoffman Oak Park, but became known as ‘Exile Island.’ Some were energized by the Halloween weekend arrests — they inspired this reporter to join the movement; I witnessed one of the newly released prisoners mic-check a demand that Occupy Austin march in the street, not on the sidewalk, a commandment we follow to this day.

The city provided a review process where someone banned could ask for it to be lifted as long as they applied for review within a short window after their ban. Sometimes, our ‘exiles’ would return to City Hall and be surrounded by our bodies to protect them from sight. Yet many of those arrested or who witnessed the police’s show of force left and never returned. At one point, Kris Sleeman returned after his ban had been lifted and was threatened with a new arrest by a police officer ignorant of his reprieve; the chilling effect of these bans was clearly far-reaching

A Long-Awaited Ruling

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Judge Joan Campbell explains Brady disclosure to lawyers at Houston district court, September 6 2012 (Photo: John Jack Anderson, used with permission)

For more on the Gulf Port 7 and Austin Police Infiltration of Occupy Austin see Undercover Austin Officer Enabled Houston Felonies, Judge Campbell Is Not Amused, and Kit’s Gulf Port 7 Interview.

Austin Police coordinated felony arrests at the Gulf Port Shutdown with Houston Police through the fusion center known as Austin Regional Intelligence Center.

The pre-trial hearings for the Gulf Port 7 case continued on September 6, 2012; although the Austin Police Department presented the information Judge Joan Campbell requested at the previous hearing, most of it was done in camera – in private, where defense and accused activists could not access it. What was revealed is troubling — that APD coordinated the day’s actions with Houston police through the local Texas fusion center, known as Austin Regional Intelligence Center. This, of course, raises the question of to what degree federal authorities were involved in the entrapment of Occupy activists; I personally witnessed Department of Homeland Security vehicles on the ground at the Occupy Houston encampment on December 12, in addition to photographing men in unknown military-like uniforms who were observing the port shutdown.

Further, it appears that officials involved may have made a decision to withhold information that was requested by Ronnie Garza’s defense attorney. This is in direct violation of Brady disclosure. Campbell’s frustration with the behavior of the state is clear in court transcripts, as she gives lawyers a lesson in this essential aspect of criminal law:

Here’s the thing, y’all – under Brady — y’all can’t make that decision.  Y’all need to scrupulously look through any information that you have. Always. Y’all cannot just rely on, it does not look like anything, that is not what you can do because clearly the result is an Austin police officer authorized … bought the things that made this a felony. That’s what happened. And so that information … is clearly Brady, can be a defense, may make, if this goes to trial, may make a jury find them not guilty and that type of information needs to be carefully passed down through the channels and y’all cannot under Brady make the decision.

The state has brought a Motion To Quash, asking that the names of undercover officers and related documents not be turned over to the defense. Campbell agreed to review the documents in camera and return near the end of September to make a ruling. But she took the time to underline the unusual nature of this case:

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