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The “Whatcom Three,” who last May blocked Guide Meridian Road in Lynden on the day President Donald Trump made a campaign appearance there, want to know whether Republican state Senator and Trump campaign organizer Doug Ericksen played a role in the police response.
The Three, Bellingham residents Josefina Mora, Neah Monteiro and Thomas Kaplan, face trial for disorderly conduct after blocking northbound Guide Meridian just north of the Nooksack River bridge for about an hour on May 7, 2016.
Their attorney, Larry Hildes, filed a subpoena on March 24 directed at Ericksen and the Seattle Police Department. The subpoena seeks any communications between the senator and the police about preparations for the Trump rally. Ericksen was deputy director of the Trump campaign in Washington state, and he orchestrated the Lynden appearance after plans to hold the rally at either Boeing Field in Seattle or Paine Field in Everett fell through. As a reward, Trump hired Ericksen in January to be temporary communications director for the Environmental Protection Agency.
“I know [Ericksen’s] in the mix on this somehow,” Hildes said in an interview after Mora, Monteiro and Kaplan appeared in court on Jan. 19. “I don’t know how much influence he has on the ground. We’re going to find out.”
The Three have their next court appearance in two days, Thursday, April 6, before Whatcom Country District Court Judge David Grant. The judge is expected to rule on whether to allow the subpoena ordering Ericksen and the police to divulge their communications. Also, Judge Grant probably will decide to move the trial date back. It was set at the January hearing for April 18.
Hildes elaborated on his rationale for the subpoena in an email on Monday, April 3:
“We want to know ... what effect the (Trump) campaign’s demands, given Ericksen’s stature in the Legislature and with law enforcement, may have had on the way the protest was handled, why arrests were made, why they were charged.” Hildes also wants an accounting of “the roughness of the way the Three were handled, why pro-Trump people were allowed to approach and attack them, etc.” Video taken at the protest shows rough or at least careless handling of the Three by law enforcement officers who were trying to separate them. Mora had her arm bent uncomfortably backward momentarily, and both Mora and Monteiro said they documented bruises they received at the hands of police.
The video shows how the Three were able to form an effective blockade. Kaplan and Monteiro, on the flanks, were chained to step ladders. Mora, in between them, was attached to the other two with their arms inside PVC pipes.
Chants and signs at the protest opposed Trump’s racist immigration proposals and supported the rights of indigenous people.
“The main message we wanted to convey was that we as community members don’t feel safe ... with all the hatred that has risen in our community,” Monteiro said in an interview in January. Racial hatred has been brewing in the north county, where Ericksen’s constituents live, Monteiro said.
“That’s one of the reasons Trump decided to have a rally there. We’re not going to accept that,” Monteiro said.
Disorderly conduct is a misdemeanor that carries a maximum 90-day jail sentence and $1,000 fine. According to state law, the crime is committed when a person “intentionally disrupts any lawful assembly or meeting of persons” or “intentionally obstructs vehicular or pedestrian traffic” without lawful authority.
Hildes could argue that the defendants’ freedom of speech and right to peaceably assemble, as guaranteed by the First Amendment, should supersede the disorderly conduct statute.
For those who enjoy courtroom drama, there is little of that in district court. The Three’s turn before the judge on Jan. 19 came near the end of a long line of DUIs and DV cases. The intrigue in this case will be in how a district court judge will play the cards Hildes is dealing him. Most misdemeanors are straightforward and can be summarized as follows: “I made a bad decision, but nobody was badly hurt.” This case is different. Was the Three’s decision to block traffic a bad one that hurt anyone at all, when measured against the systemic racism they were protesting?
It may be worthwhile for a court to reveal what is going on behind the scenes between Ericksen and law enforcement. Ericksen, after all, proposed a bill this legislative session that would have enhanced the penalty for disorderly conduct if a judge believes a political protest caused “economic disruption.” The bill went nowhere in the Republican state Senate. Local law enforcement, meanwhile, overreached by seeking a search warrant for Facebook messages related to a No Dakota Access Pipeline protest that blocked Interstate 5 in Bellingham for an hour on Feb. 11. No arrests were made that day, and Whatcom County Sheriff Bill Elfo obtained the search warrant to see Facebook messages to determine who the protest organizers were, and to make arrests. Elfo withdrew the warrant after a challenge from the American Civil Liberties Union, which asserted the Facebook search would have been overly broad and amounted to “unreasonable search” as prohibited by the Fourth Amendment.