Justice prevails in first Occupy case

Occupy Des Moines protester prevails

Polk County jury finds Fallon not guilty of trespassing during Occupy Des Moines protest

Des Moines 

10 March, 2012,

Former state Rep. Ed Fallon, who admitted under oath that he violated a state Capitol curfew during an Occupy Des Moines protest in October, was found not guilty of trespassing Friday by a Polk County jury.

Six jurors in the misdemeanor trial deliberated for roughly four hours covering two days.

“It feels incredible,” Fallon said of the verdict. “It was really interesting from an instructional point of view to be in that position for an entire week.”

Occupy Des Moines, in a brief emailed statement, called Friday for charges to be dropped against 14 people now awaiting trial on similar trespassing charges. The verdict “demonstrates that the Occupy Wall Street message generally, and the local Occupy Des Moines incarnation specifically, still has broad public support,” the message said.

Polk County Attorney John Sarcone said prosecutors plan to review legal instructions given to jurors in the case, but have no immediate plans to abandon the upcoming cases. There is no legal possibility of the county challenging the verdict in Fallon’s case, he said.

“The jury made their decision, and we will abide by their decision,” Sarcone said. “We presented what we believed was a correct statement of the law, and we’re going to continue to present what we believe to be a correct statement of the law.”

Fallon was the first of 15 protesters to stand trial for violating an 11 p.m. curfew at the Capitol on Oct. 9. (Of the 32 arrested that day, 13 eventually pleaded guilty to some charge, three were let go following their arrest, and one had the case dismissed.)

Testimony during this and other court proceedings have recounted how Occupy Des Moines protesters assembled on Oct. 9 with little planning and only decided that day to investigate the possibility of staying on the Iowa Capitol grounds. Fallon tried to obtain either permission or an official permit from state workers, but was unable to do so on a Sunday. Protesters eventually decided to remain despite warnings of arrest.

The radio talk show host and former Des Moines legislator acknowledged in court this week that his presence on state grounds past 11 p.m. violated “a rule in a book.” But Fallon and other protesters contend their action was legally justified under a section of Iowa law that, for example, allows Iowans to ignore a “no trespassing” sign to respond to emergencies.

“There is no better place to express our First Amendment right than a state government building or City Hall,” Fallon testified Wednesday. “The reason for our being there was very clear to me.”

Joseph Glazebrook, Fallon’s lawyer, said jurors would have had to adopt the defense’s legal argument to reach a “not guilty” verdict in the case. Jurors essentially found “that under these circumstances, he was acting reasonably and exercising his constitutional rights,” Glazebrook said of Fallon.

Juror Aimee Mairs agreed. “One of the things we talked about is that there are always exceptions in laws,” she said. “The Constitution supersedes all state laws and regulations.”

Fallon’s protest on a public property therefore should trump trespassing laws, jurors concluded. “He chose to exercise his First Amendment right,” Mairs said. “He did make the choice to exercise that right, and he should be protected for that.”

The remaining 14 cases stemming from the roughly three dozen arrests on Oct. 9 are scheduled to go to trial between March 26 and June 11. They will go to court in pairs, using seven different juries — barring action on an appeal from the protesters, who initially sought to merge the cases into a single trial.

Fallon and Glazebrook declined to predict the impact of Friday’s decision, but Fallon pronounced himself “excited in terms of the protective aspects of this in terms of freedom of expression.”

“Iowans have a right to present their grievances to the government, not through a lobbyist or through a campaign contribution, but through a physical presence at the seat of government power,” Fallon said. “I think that’s a very strong message that this sends.”

Heather Ryan, whose trespassing case is set to go to trial on June 4, described herself on Friday as “over the moon.”

Ryan, who plans to make a similar justification argument in court, said she recognized Friday’s verdict may not have an effect on her trial.

But it makes her more comfortable with her own chances. “I’m almost looking forward to my own trial,” she said. “But I’m still hoping the state sees the error of their way and drops the charges.”