Columnist Bill Newman: Dismiss the charges against UMass protesters

Bill Newman

Bill Newman

By BILL NEWMAN

Published: 06-07-2024 6:42 PM

UMass Chancellor Javier Reyes’ decision in early May to call in the cops, resulted in the arrest of 130 protesters, including 85 UMass students, six faculty and other members of the five-college community. That decision was wrong — morally, ethically and educationally. Also legally, which we’ll get to in a moment.

The protest was aimed at the university’s investments in corporations profiting from weapons being used in Gaza. The major demand was for divestment.

The university was focused on the protesters’ make-shift encampment. On May 7, negotiations began between the chancellor and his team and representatives of the protesters. The university wanted the encampment taken down, that protest to end. After about an hour and a half the UMass administrators announced that the negotiations, having not reached an agreement, were terminated.

While the parties were talking, the police were amassing. The administration gave the nod, and the police moved in — Amherst and UMass cops along with the state police riot squad, called SERT, the Special Emergency Response Team.

The police then indiscriminately arrested everyone in the area including persons standing across the walkway from the encampment who were not engaged in civil disobedience and reasonably believed that they could not possibly be taken to jail. The police also busted a student journalist who was wearing a homemade badge that clearly said “PRESS.” And so on.

Almost everyone arrested faces two charges: riot/failure to disperse and trespass. The riot/ failure to disperse criminal complaint tracks the statutory language. It begins with the allegation that the defendant may have been “part of a group of five or more people armed with clubs or other dangerous weapons.” No protester had any weapon. As for “armed with clubs?” Sounds like a law from the Stone Age, which it pretty much is.

That charge then posits an alternative theory of criminal culpability: that each defendant was part of a group “of ten or more other persons (who) had unlawfully, riotously or tumultuously assembled” and failed to disperse when ordered to do so.

But this was a peaceful protest. Riotously assembled? Tumultuously assembled? Not this group. As for unlawfully, the alleged unlawfulness was a violation of the University’s Land Use Policy. OMG — a violation of the University’s Land Use Policy?

But there was no such violation. And even if there had been, it legally wouldn’t matter.

The Land Use policy provides, “No structure shall be erected on the campus without the specific approval of the Vice-Chancellor for Administration and Finance.” Note that the policy prohibits “structures” from being “erected,” not tents being pitched.

The chancellor himself described the protest as being in an “encampment.” The dictionary definition of “encampment” is “temporary accommodations consisting of huts or tents…,” not “structures” that have been “erected.” And approval or disapproval being vested in Administration and Finance tells you a lot.

The prosecution faces another huge hurdle — the leading case on this law, a 2006 decision from the Massachusetts Appeals Court, which involved a demonstration in Northampton against the Iraq War.

That decision holds that in light of the constitutional guarantees of freedom of speech and assembly and what the law means by “unlawful assembly,” violation of this statute requires proof beyond a reasonable doubt that those assembled had agreed and intended to accomplish their goals “through force and violence.” “Imminent violence” and “the intent to commit an act of violence” is an essential element of this crime as is acting riotously and tumultuously. There is no evidence to support such allegations.

The second charge is trespass, essentially staying somewhere you’re not legally allowed to be. However, UMass never banned these protesters from that location. The university’s complaint was about existence of the encampment, not the presence of the people.

A related but distinct problem is UMass’ selective, content-based enforcement. As recently as spring 2023, another group with a different cause (housing access) had a similar encampment in the same location without complaint or interference from the university.

Back to May, 2024. The semester was almost over. The encampment was posing no danger to anyone. No property was being damaged. No university activity was being disrupted. Students violating a school policy could face discipline. Why summon the police?

As Chancellor Reyes said, arrests should have been “the absolute last resort.” What he said was right. What happened wasn’t. Police intervention was not necessary. These charges should not have been brought.

Criminal charges are initiated by the police. After that, the district attorney’s office takes over, which in this instance brings to mind the axiom that it’s easier to make an omelet than to unscramble eggs.

The DA’s Office can’t completely unscramble these eggs, undo all the harms caused by the mass arrests, but the DA can mitigate the damage. The prosecutors can and should drop all the charges against all the protesters. It’s a matter of, considering all the circumstances, doing justice.

Bill Newman is a Northampton-based lawyer and co-host of Talk the Talk on WHMP. He writes a monthly column.