The unexpected ending of the case against the Oakland 25

Nobody expected much to happen at the pretrial hearing on April 22nd, 2004. This was the case of the Oakland 25--the people who'd been arrested at the Oakland port protest on April 7th of the previous year. There'd already been half a dozen of these hearings. The only thing that ever seemed to get decided was that there'd be another court appearance the following month, and that's what we figured would be the result of this morning's session.

Not even most of the defendants were present. Only about 20 people showed up for the session, defendants, supporters, and newspersons combined. On previous occasions the 72-seat courtroom had nearly always been filled with supporters, sometimes with more people standing out in the hallway. Our rallies out in the courthouse plaza by the street had been drawing two to three hundred people. But little effort had been made to publicize this morning's event. "It'll go to trial in June or July," someone said, "Then we'll hold more courthouse rallies again."

Today's event would be short and insignificant -- or so we thought.

However, the proceedings began with Deputy District Attorney Julie Dunger presenting a motion which stunned everyone. She asked Judge C. Don Clay to dismiss all charges on the grounds that:

  • Three lawful protests had taken place since 4/7/03
  • Police had since changed tactics
  • Protesters had since changed tactics
  • No streets or business had been unlawfully closed in these subsequent protests.
It seemed like an incredible role reversal. Motions to dismiss had been presented at nearly every previous hearing, but always by the defense attorneys. Except for point number 3, (which seemed strange because we had not substantially changed our tactics), this motion was something the defense might have presented. In fact, some mistakenly assumed that Julie Dunger was a defense attorney.

Although the defendants were still known as the Oakland 25, one had been dismissed at a separate hearing in March of this year. So 24 remained. The judge said he'd rule on each defendant separately, case by case. He picked up a folder, read the name and set it down. "Dismissed," he said.

The judge took the second folder, and again said "dismissed." He continued in this manner, folder after folder.

The stunned audience sat there, not quite able to believe that everyone would be dismissed. The arrests of some defendants had been videotaped, and they could prove their innocence if they ever went to trial. That had been the case with Olga Kelly, whose case was dismissed last month. But not everything that happened on April 7, 2003 had been videotaped, and there were probably many defendants who couldn't prove anything. Would the court really let them go now?

Suspense heightened as Jack Heyman's name was read. If anybody was on the shipping companies' bad list, it was Jack Heyman, business agent of ILWU Local 10. Although Jack was not part of our protest on April 7, 2003, he had been on duty in the port that day and was arrested when he went to warn union members to get out of harm's way. Jack Heyman hadn't done anything wrong, but then none of the protesters had done anything wrong -- except to exercise their First Amendment right to picket war profiteers in the port of Oakland. SSA Marine, one of the companies we'd picketed, hadn't wanted us in the port. SSA didn't like unions either, and had tried to break up the ILWU. Officials of SSA had instigated the police attack, and there also indications that SSA was one of the parties which had pressured the DA's office to prosecute the Oakland 25.

Once Judge Clay got past Jack Heyman, people began to hope that all would be dismissed, and the judge didn't disappoint us. But it was interesting that he didn't comment on any of the cases, he just said "dismissed."

When it was all concluded, we clapped, shook hands and hugged one other. Smiling, laughing, and congratulating ourselves, we left the courtroom. Some people looked a bit stunned, as though they couldn't quite believe what they'd just heard.

A year ago on April 7th, police assaulted protesters, legal observers, longshoremen and newspeople with "less-lethal" munitions, injuring several dozen people, some permanently. The attack was the most violent police assault on the antiwar movement during the spring of 2003, and it was later mentioned in a report by the United Nations Human Rights Commission. So our city of Oakland is now on the same list as Indonesia, Guatemala and other human rights abusers.

Although the Oakland City Council voted to have a panel investigate the events of April 7th, the investigation was never carried out. Shipping company and Oakland city officials who were known or suspected of involvement in the attack were never investigated or charged with any crime. No Oakland police officials have been held responsible.

Instead, District Attorney Tom Orloff of Alameda Country chose to prosecute the Oakland 25 -- persons who were victims of the attack. The charges were misdemeanor counts which included "creating a public nuisance," and "disrupting a business."

Traditionally, picketing a business is considered a socially acceptable and legal exercise of First Amendment rights. That's because the labor and civil rights movements have spent over a century winning and defending those rights. Now those rights are being called into question once more; had the case been successfully prosecuted, it would have set a precedent that might be used against unionized workers during strikes. After all, striking workers do "disrupt" businesses, and from the viewpoint of corporations, picket lines are a "nuisance."

The plan for our port protest on April 7, 2003 had been to peacefully picket the Oakland shipping terminals of two war profiteers, APL and SSA Marine. The goal was to shut them down for a shift by asking dockworkers not to cross our community picket line.

SSA Marine, formerly known as Stevedoring Services of America, was going to terminate our First Amendment right to picket them. For that they used the Oakland police, then the Office of the District Attorney.

Using taxpayer-funded government agencies for private purposes wasn't something new to SSA Marine. SSA has ties to the Bush Regime which got the company a no-bid contract to operate the Iraqi port of Umm Qasr. The summer before that, during the longshore lockout of 2002, Homeland Security chief Tom Ridge intervened on the side of SSA to intimidate the ILWU. And before that, there were instances of the Clinton administration doing the bidding of SSA. SSA has influence with politicians of both parties at all levels of government.

Our case was argued in court by competent and dedicated attorneys. But arguing in court isn't quite enough in a situation like this because law is largely based on custom and tradition. Tradition isn't something that's carved in stone or set in concrete, it has to be understood as a living thing, as something that has to be constantly nurtured and renewed. So we had to put new vitality into the "Don't tread on us!" part of our American tradition which means standing up to oppressors.

We did this by holding a series of rallies in front of the courthouse, and at the same time waging a campaign against local war profiteers such as Bechtel, Chevron and Lockheed. Most importantly, we returned to the Oakland docks to shut down SSA Marine. We did that more than once, most recently on the April 7th anniversary of the attack, when 600 of us marched back carrying the banner: "Remember the shots! Return to the docks!"

So defense attorneys could righteously have told the judge, "Three lawful protests have taken place since April 7th, 2003." The irony is that it was the prosecutor who said it for us. And during the April 7th, 2004 anniversary return, it was SSA and APL who decided to shut themselves down when they heard we were coming; the Oakland police blocked off the streets, leaving them to us. Now finally, it was the Deputy DA who presented our case to the judge in court.

Although she didn't name those three protests, the events she referred to clearly were: 1) Our successful return to the docks on May 12th, 2003 to shut down APL and SSA Marine. 2) The longshoreworkers of ILWU voted to have a day of no work on March 20th, 2004 -- the rest of the antiwar movement was not involved in that event. 3) The anniversary commemoration on April 7th, 2004.

"No streets or business were unlawfully closed in these subsequent protests," the deputy DA told the judge. To be sure, Middle Harbor Road and SSA Marine certainly were shut down, but it was considered acceptable, and therefore lawful.

Our repeated protests put vitality into a tradition and reestablished a precedent. It's a precedent that carries weight in a court of law and it got charges dismissed for the Oakland 25.

I doubt that the folks in the D.A.'s Office are terribly happy about it, but, for the moment at least, they have gracefully accepted it and kindly presented it on our behalf.

Daniel Borgström
April 2004