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Wednesday, May 16, 2012

Charges Against One May Day Protester Dropped After Incident Video Surfaces

Posted by on Wed, May 16, 2012 at 6:00 AM

From the King County Prosecutor's office:

Joshua Garland, 28, was charged with one count of Assault Third Degree for allegedly grabbing a police officer's hand and twisting and pulling his arm. After reviewing video provided by Garland's defense attorney showing the alleged incident, prosecutors no longer believe they could prove the case beyond a reasonable doubt.

Andy Roberston, the attorney for Joshua Garland, tells me that the charge-dropping video comes from YouTube user seanbann, and shows Garland, at about :20 in, holding a large camera and wearing a black a bandana over his nose and mouth as he gets forcefully pulled behind police lines and arrested.

Garland is a photographer who goes by Alex (that's his middle name) and if you notice him wearing a gas mask beneath the black bandana, his attorney says that's "because he was pepper sprayed by police earlier in the day, while shooting photos."

Three other protesters still face charges of assaulting officers during the May Day protests, and are set to be arraigned on May 17.


Comments (38) RSS

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Karlheinz Arschbomber 1
No wonder the Kops hate people photographing them. Amateur photojournalism is a major Enemy of FreedomĀ® and must be stopped.
Posted by Karlheinz Arschbomber on May 16, 2012 at 7:02 AM · Report this
Geraldo Riviera 2
Why are police such liars? It seems they are perfectly willing to lie under oath.
Posted by Geraldo Riviera on May 16, 2012 at 7:26 AM · Report this
Pithy Name 3
Wouldn't it be nice if they had actually arrested the asshole who stabbed the reporter in the head with his sharpened stick?
Posted by Pithy Name on May 16, 2012 at 7:35 AM · Report this
Kinison 4

Liars? Ever heard of Jennifer Fox?
Posted by Kinison on May 16, 2012 at 7:59 AM · Report this
Kudos to the prosecutors for doing their job well. At cop-taunting events such as this cops being teased often make "extra" arrests and let prosecutors sort it out. It's great there was convincing video evidence, not to mention a fine attorney taking a break from her usual DUI work, Andy Robertson, who subleases her office space from McGinn and O'Brien's old corporate law firm Stokes Lawrence.

Note to future mayhem-tourists like Garland: memorize Andy's number before you don your black face bandanna.
Posted by gloomy gus on May 16, 2012 at 8:04 AM · Report this
This guy should file a claim with the City to get his attorney fees paid.
Posted by DOUG. on May 16, 2012 at 8:10 AM · Report this
I saw this whole situation go down from a different angle and farther away, (in one of the buildings) and I and every single person with me would have sworn to anyone that he took a swing at a cop, and that he instigated the whole thing.

This is why eyewitness testimony is worthless. I'm glad there was video footage of it. I'm in no way defending the cops, but sometimes you see something that didn't happen. Until I watched this, I would have believed what my own eyes told me. Turns out they were wrong.
Posted by Eyewitness on May 16, 2012 at 8:30 AM · Report this
Cameras cameras everywhere. Just not in the hands of the state?
Posted by STJA on May 16, 2012 at 8:38 AM · Report this
Geraldo Riviera 9
@4 yes I have, why? Are you telling me that people other than the police lie too?
Posted by Geraldo Riviera on May 16, 2012 at 8:47 AM · Report this
Sargon Bighorn 10
Cowards all; "Let him go" Oh my HOW BRAVE. What some of these babies need is to be in a REAL protest where the other side don't give a dam if you live or die. "Let him go" works in play protests, but not in the real world.
Posted by Sargon Bighorn on May 16, 2012 at 8:49 AM · Report this
Westlake, son! 11
When's the last time a SPD officer faced a perjury charge?
Posted by Westlake, son! on May 16, 2012 at 9:25 AM · Report this
Why do you insist on calling him a photographer? He isn't. He's an aggressive, masked protester, who happens to have a camera.

Btw it's clear he made the first contact, chest bumping the cop.
Posted by Sugartit on May 16, 2012 at 9:39 AM · Report this
I think it's pretty clear from the video that the cops would have been within their rights to arrest every member of that crowd for disorderly conduct or creating a public nuisance or something like that. The question isn't whether Mr. Garland's arrest was lawful, but whether the prosecutor has enough evidence to charge him w/ a serious crime.
Posted by Ken Mehlman on May 16, 2012 at 9:53 AM · Report this
WildRumpus 14
What a coward, covering his face with a mask like that. He wants to be anonymous so that he won't be held accountable for his actions. Then, the douchebag provokes the police.

I am a real video journalist and I work with real photo journalists and we never cover our faces and we usually carry ID so we can get special access during events. As well, real photojournalists are there to document events, not create news. Finally, the police in North America usually give us tons of leeway as long as we identify ourselves and behave appropriately.

This guy is a wannabe photographer provocateur who tried to stir shit up so he would have something to take pictures of. Good thing the police got him off the street before he could start something more.
Posted by WildRumpus on May 16, 2012 at 9:55 AM · Report this
trstr 15
@12, @13, @14: I hear Golden Dawn's looking for recruits over in Greece...
Posted by trstr on May 16, 2012 at 10:04 AM · Report this
Kinison 16
@9 Are you telling me that people other than the police lie too?

Yes and sometimes theyre members of the Occupy Seattle movement. Sometimes they like to lure children away from their parents, promising them Olympic glory.
Posted by Kinison on May 16, 2012 at 10:10 AM · Report this
Will in Seattle 17
No way we'd convict him.

Everyone knows the SPD is out of control. Except the Council, the Mayor, and the Chief - they're still in denial.
Posted by Will in Seattle on May 16, 2012 at 11:10 AM · Report this
I have no problem with the cops making life a little more miserable for assholes like this "photogapher."
Posted by bigyaz on May 16, 2012 at 11:29 AM · Report this
The polie lie? Shocked I am.

At least they have a learning curve over at the CIA.

The first underwear bomber, whose father had worked off and on with for the CIA (an African national of high position), had difficulty boarding his European flight (no luggage, one-way ticket, no passport, on passenger no-fly list, and kept mumbling about "bombs") was aided past security with the help of an American man later identified as the embassy attache (the standard position for the embassy CIA guy).

The second underwear bomber simply works for the CIA; a much smoother story.

I guess McGinn's $41 million figure for SPD training was to aid them in telling smoother stories.
Posted by sgt_doom on May 16, 2012 at 12:41 PM · Report this
Irena 20
The other Alex Garland is better looking. Just saying.
Posted by Irena on May 16, 2012 at 12:52 PM · Report this
Eric Arrr 21
Let's compare the officer's version of events to the video. Here's what Officer Stephen Smith, serial #6829, said in the charging documents:

"Garland had tried to push past Officer Smith, and when he was ordered back, he refused to do so although he had room and he kept trying to get by Officer Smith to the prisoner. Officer Smith put his left hand on Garland's chest and tried to turn him away from the officers trying to handcuff and deal with their suspect, but Garland grabbed officer Smith's left hand with both hands and twisted and squeezed, causing Officer Smith pain and concern. Smith said he thought that Garland was trying to pull him into the crowd so he was more vulnerable to an assault from the crowd..."

Does the video show Garland try to push past Officer Smith? No.
Does Garland grab either of Officer Smith's hands "with both hands" and twist or squeeze? No.
Does Garland pull at Officer Smith in any way? No.

This officer, Stephen Smith, fabricated a false version of events to get an innocent person charged with felony assault, at a considerable & needless expense to both the city and county. Officer Smith should be fired, and then charged with official misconduct under RCW 9A.80.010.

McGinn and Diaz: if you can't cut a harmful fabricator loose, all this talk about reform is just lip service.
Posted by Eric Arrr on May 16, 2012 at 4:20 PM · Report this
@21 I don't know which of them is Officer Smith, but the tape clearly shows Mr. Garland trying to push past the cops. Garland has a camera in his right hand during the entire altercation, so obviously he didn't grab Officer Smith's hand with both of his. That doesn't necessarily mean the cop is lying. These things happen very quickly. As you've just demonstrated with your histrionic commentary, people's memories of events are often shaped by preconceived notions about how things are supposed to be.
Posted by Ken Mehlman on May 16, 2012 at 5:12 PM · Report this
Eric Arrr 23

Histrionic? Please precisely quote exactly which words and phrases I used that were "histrionic."

Also, when an officer tries to substantiate an assault charge by claiming that the defendant "grabbed his hand with both of his hands" when the defendant never grabbed him at all, and then "twisted and squeezed", when the defendant never had a grip by which to twist or squeeze, causing him "pain and concern" when there was no actual twisting or squeezing, and causing him to worry that he was being "pulled into the crowd" when in fact it's the officer who responded by pulling at the defendant... that's not necessarily lying? What is it, then? Fact-like embellishment?

Also, it's clear which officer is Smith, and it's clear that at the moment when Smith reached out and pushed Garland, that Garland's right hand was on his camera, and his left hand was at his side.
Posted by Eric Arrr on May 16, 2012 at 5:41 PM · Report this
@23 At :25 on the tape Garland gets yanked forward. After that you can't really see where his hands are. Is it possible that at some point before he was handcuffed both of Garland's hands were on one of Smith's hands?
Posted by Ken Mehlman on May 16, 2012 at 6:11 PM · Report this
Eric Arrr 25

I don't think it's possible in any manner that would still be compatible with the narrative.
Posted by Eric Arrr on May 16, 2012 at 6:26 PM · Report this
@25 If the video had confirmed Officer Smith's version of events, Garland would still be facing, now wouldn't he?
Posted by Ken Mehlman on May 16, 2012 at 6:55 PM · Report this
@26 Facing charges.
Posted by Ken Mehlman on May 16, 2012 at 6:56 PM · Report this
Eric Arrr 28
@25, yes, I expect that he would. Notwithstanding any mitigating facts excluded from the narrative, it describes an assault.
Posted by Eric Arrr on May 17, 2012 at 11:36 AM · Report this
@26: Ken, what's your point? Yes, absent the video evidence which makes it clear that Seattle Police Department Officer Stephen Smith #6829 blatantly lied in his report, Alex would very likely have been tried for a felony offense that he did not commit, and it would likely have been his word against that of this lying piece of shit with a gun and a badge.

Alex annoyed some cops, so they threw him in jail, pulled a charge out of their asses, then made up a story to support that charge. It happens all the time. It happened to me in Albuquerque. It happened to Eric here in Seattle. Without video evidence, all three of us probably would have been convicted on the word of lying police. It's no wonder they targeted the guy with the camera.
Posted by Phil M http:// on May 17, 2012 at 12:24 PM · Report this
@29 What I think probably happened is that Garland made a half hearted attempt to push through the police line. Officer Smith over-reacted on account of Garland being decked out like a super-villain in dark glasses and a black bandanna. Nobody wants to think of himself as an over-reacting jackass, so Officer Smith convinced himself Garland had assaulted him. Anybody who watches the video and concludes Officer Smith must be a perjurer has no conception of the human capacity for self-delusion.
Posted by Ken Mehlman on May 17, 2012 at 2:00 PM · Report this
Eric Arrr 31

As to what actually happened, I agree insofar as it also looks to me like the arrest was the result of an overreaction by Smith. But from video, it appears what Smith is reacting to is Garland stepping up to him to say/yell something at close range. (Shouting "Let him go!" would be my guess.)

Garland is definitely not making a half-hearted attempt to push through the line. Watch closely as Garland steps up to Smith at exactly 0:23 and 0:24 -- first, notice the placement of Garland's hands, at his sides, which is not where your hands would be if you were trying to push past someone. Second, look at the placement of Garland's feet as they relate to his posture and balance. He's not squaring off to support a push in any direction, instead his feet remain close together, and at the instant when he leans closest to Smith, he's lifting his back (left) foot slightly off the ground, which again is not the way you'd balance yourself to push past someone.

I could forgive Smith for merely overreacting to someone yelling protests in his face. But sending someone to court to answer a felony assault charge is a very serious thing. It goes way, way beyond mere "self-delusion" to claim to have been assaulted, and elaborate in so much false detail, when it's so visibly clear that Smith, and not Garland, was the one who acted forcefully.
Posted by Eric Arrr on May 17, 2012 at 2:52 PM · Report this
@30, Ken wrote that the victim of this wrongful arrest -- he who was forcibly removed in violation of his First Amendment protections against government infringement on speech and assembly, thereby neutralizing his ability to participate in this political demonstration -- was "decked out like a super-villain in dark glasses and a black bandanna." Ken, would you find peaceful demonstrators to have a less villainous appearance if they used some other protection from SPD's known-indiscriminate use of chemical agents to gain compliance of people suspected of jaywalking and/or of pedestrian interference? Are you truly frightened by the color choice? What colors do you see other people wearing when they're going about their everyday lives downtown?

And how would you describe people decked out in all black, most of them with dark glasses and dark helmets, with shields, shin guards, 4' clubs, and a belt full of weapons, with the only identifying information on individuals in this otherwise-anonymous black bloc being tiny 1/4" print on the fronts of their shirts?
Posted by Phil M http:// on May 17, 2012 at 4:17 PM · Report this
@31 I watched the tape again, and your right, Garland doesn't get aggressive until after the cop pushes him back. So, how many times did you have to watch the video to sort all that out? Do you think maybe your Monday morning quarter-backing just a little?

@32 Was Garland's arrest illegal? I can't say I'm familiar with the relevant sections of Washington state law, but I suspect that every member of that crowd was guilty of about half a dozen misdemeanors. Disturbing the peace, disorderly conduct, maybe jaywalking.
Posted by Ken Mehlman on May 17, 2012 at 4:48 PM · Report this
@33: In the story SPD Officer Stephen Smith made up about the arrest, he did not accuse the victim of disturbing the peace, of disorderly conduct, or of jaywalking, but of felonious assault of a police officer.

If someone restrains you, locks you in a cage overnight, and justifies his actions by making up a wild story that has almost no connection with reality, would the fact that you were standing in the street documenting a political demonstration at the time he arrested you make your arrest any less wrongful?
Posted by Phil M http:// on May 17, 2012 at 6:08 PM · Report this
Eric Arrr 35

I found it immediately apparent that there was no assault (by Garland) depicted in the video, but I didn't get into the slo-mo analysis until you & I got into the weeds of whether there had been any pushing or shoving on Garland's part.

As to your other question (which you directed to Phil), I'll take a stab:

It was definitely not legal as an assault arrest. I don't think it stands up as a disorderly conduct arrest either, since the courts consistently interpret the law as saying that the fist amendment trumps any application of disorderly/disturbance statutes to political speech. (If you're interested, there's a good article here complete with legal citations.)

You can see from the cameraman's position (visible from 0:32 onward) that the whole incident takes place on the sidewalk, so there was no jaywalking or pedestrian interference here. (Also, it's not jaywalking to step off the curb - you have to make it all the way across the street. Finally, jaywalking is just a civil infraction, not an arrestable crime.)
Posted by Eric Arrr on May 17, 2012 at 6:17 PM · Report this
Eric Arrr 36
Oops, fixing the broken link in my previous comment.

The article is here.
Posted by Eric Arrr on May 17, 2012 at 6:22 PM · Report this
@35 I doubt that a court would classify Mr. Garland's actions as a legitimate exercise of his first amendment rights. Even if Mr. Garland were ultimately judged not guilty that wouldn't make his arrest illegal. Cops aren't expected to research the finer points of case law before they slap the cuffs on.
Posted by Ken Mehlman on May 17, 2012 at 6:44 PM · Report this
Eric Arrr 38

If Garland had been charged for something he actually did, you'd have yourself an argument.

To your second point, you're correct to point out that an officer needs only probable cause for an arrest to be legal, but judges & juries need the much higher standard of proof beyond a reasonable doubt to convict. That being said, there was no probable cause for assault in this instance, so I would say Smith does bear some liability for a false arrest.

In your final statement, about whether cops need to know the finer points of case law, it depends on whether the legal question is considered settled by the courts. If the legal question is still open, then the officer has what's called qualified immunity from liability for a false arrest. But if a legal question is well-settled, then an officer who gets the law wrong is not guaranteed immunity. Here in Washington, the state attorney general's office prepares a monthly "Law Enforcement Digest" which is published & integrated into officer training by the WA criminal justice training commission, which is the agency that trains & certifies every LE officer in the state. You can find the LED publications here, and their annual digest update is, for civil rights freaks like myself, required reading.
Posted by Eric Arrr on May 17, 2012 at 7:04 PM · Report this

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