I spent most of yesterday in Oakland bearing witness to a hectic day of protests that featured a good deal of violence. Here are some observations.

Again and Again

I heard this spiel blasted over loud speakers so many times last night that I have it memorized:

This is Sgt. Whatever with the Oakland police department. I hereby declare this to be an unlawful assembly. You must leave the area of such-and-such (mostly 14th Street and Broadway) immediately. You can disperse via X street, heading in X direction (mostly 14th Street heading East). If you do not disperse immediately, you will be subject to arrest, regardless of your purpose. If you do not disperse immediately, chemical agents will be used. If you do not disperse immediately, you will be subject to forcible removal, which may result in serious injury.

The problem is that we're taught from an early age that we have a right to peaceably assemble and protest, and that this right is guaranteed by the Constitution and can't be over-ridden by the city of Oakland. It's not an accurate view of the law, which is more nuanced, but it is pervasive. So protesters did not acknowledge that they were assembling unlawfully, remained, and then the tear gas came flying. And this happened again and again for much of the night.

Missing the point

That's not to say that a few idiots in the crowd didn't throw some objects at police.

In the age of camera phones and Youtube, finger-pointing inevitably follows clashes between police and protesters. Who instigated what? Who provoked whom? Which came first -- that protester throwing a water-bottle at cops, or the cops deploying teargas at protesters. And these debates not only miss the central point, they obscure it entirely.

Long before any act of violence occurs on the streets, a series of command decisions are made, and it is those decisions which ultimately determines whether a protest will be largely peaceful or descend into chaos. Smart crowd control requires letting protesters protest – giving them an outlet. Yesterday evening in Oakland, long before anything bad happened, police decided to deny Occupy Oakland that outlet. A peaceful, if rowdy march was headed from the main library towards Frank Ogawa Plaza – the location from which they'd been forcefully evicted the night before. They were headed off by a hastily assembled line of police clad in riot gear. The protesters decided to change course and head towards the jail where, according to a National Lawyers' Guild legal observer on the scene, 105 protesters were being detained.

Again, the police blocked their route. They made another turn – I don't know what the objective was at that point – and were again blocked. The police did not have the manpower to actually block the many cross-streets that we crossed, but somewhere a commander decided to put 5 or 6 cops on every side street. This was a stupid move, as 5 officers cannot keep 500 protesters, now angrier than they had been at the onset, at bay.

It was only then that I witnessed the first violence. Protesters swarmed around these 5 officers, they started swinging battons, made two arrests and then found themselves completely surrounded. I am certain it was a scary moment for those officers. There was another line of riot police a block away – a thicker line. And at some point they realized their comrades were in a jam, and maybe two dozen came running and responded with extreme force (it was at this point that a flash-bang grenade came flying towards me, gong off about 3 feet away and leaving me shaking for about an hour). One officer, at the front, was firing less-than-lethal projectiles wildly at the crowd – which, at that point, was in full retreat -- until he was physically restrained by another (maybe a supervisor). There were injuries and arrests, and I think none of it would have happened had they decided to let the protesters chant, 'let them go!' for a while in front of the jail instead of forcing them – seemingly arbitrarily-- to walk around in circles facing off against line after line of police blocking their way.

As I mentioned several times on Twitter last night (follow me!), the police response last night was not the most brutal I'd seen, but it was the most inept. By hyper-aggressively boxing in protesters again and again, they just ratcheted up the pressure for no readily apparent purpose.

The Costs of Eviction

You could of course take this a step further: the entire exercise was unnecessary. One can only guess how much resources the cash-strapped city devoted to evicting Occupy Oakland in the first place. And not just Oakland. Various reports have suggested that 10 or 15 different law enforcement agencies were involved – I saw officers from at least 5 agencies myself. I have no idea how much this is costing in overtime, but it must be a fortune. An then there's the opportunity cost – police clad in riot gear standing a line against protesters aren't out catching bad guys, writing speeding tickets, etc.

These protests aren't ending anytime soon, and Oakland finds itself having to guard a small chunk of public property with dozens of riot cops. Protesters appear resolute about reclaiming that space as soon as they can. So this vast drainage of resources may go on indefinitely. I'm not sure City Hall considered what the end game might be, but if they thought the Occupy Movement was going to go away, they made a stunning miscalculation.

Oakland's Justification Rings Hollow

On that point, there have been two justifications given for the eviction: health and safety violations – I've heard a lot about rats – and at least one reported incident of violence at the camp.

Here's irrefutable evidence that these justifications are complete nonsense: Snow Park. Snow Park, on a grassy slope on the side of Lake Merritt, had a small satellite occupation. Whereas the main camp was densely packed with humanity, had a kitchen and was no doubt messy – as campsites tend to be after 3 weeks -- Snow Park was just a few scattered tents on a hill. When I visited it on Saturday, it was clean and neat, and there had certainly been no reports of violence.

The courts have long held that the right to assemble isn't without limits. Communities can determine the time, place and manner of protests. But – and this is a crucial “but” – any limits must be narrowly tailored o achieve a legitimate government purpose. If an act of violence occurred in the camp, they should have dealt with it like an act of violence at a private club – you don't destroy the club, you arrest the perpetrator. If they wanted to clean up the park, they could have done it in shifts, or worked with the occupiers to address sanitation issues or taken any number of less restrictive approaches.

Oakland has effectively banned overnight protests within the city. As I wrote last week, this is, on its face, unconstitutional in the context of a movement whose defining act of political expression is occupying public space over an extended period of time.

Self-policing

Last night in Oakland I saw both law enforcement and protesters policing themselves. It is all but guaranteed that in any crowd – be it a group of protesters of a PTA meeting – there will be a few hot-heads. I saw a number of self-appointed 'marshals' among the protesters intervening – physically-- to prevent damage to property or acts that would provoke police violence. These folks, I imagine, are sophisticated enough to understand that the media are never on the side of protesters, and can only get a semblance of a fair shake by remaining peaceful expression of outrage.

Where Does This End?

“You see all these people here?” asked a protester as we rinsed the residue of tear gas out of our eyes a few blocks from Frank Ogawa Plaza. “They're all going home more radicalized than when they arrived.” I think that's right – this kind of crowd control doesn't deter protesters, it steels them. I only heard more resolve as the evening progressed. It may, however, intimidate the MoveOn types, leaving a harder core to continue challenging the police.

These Occupiers aren't going away. I'll be out in Oakland tonight to see what unfolds.