[Roger Cossack, Co-host:] Today on BURDEN OF PROOF, tens of thousands of people are descending upon Los Angeles for the Democratic National Convention. Now, some are delegates and some are protesters. How will the police react?
[Lt. Horace Frank, Los Angeles Police:] Those people whose main goal or mission it is to come to Los Angeles and engage in criminal activity, to engage in decadent behavior, our message to them is going to be it is not going to be tolerated.
[Nancy Mitchell, Activist:] Sunday is the big day. We're finally going to see the product of all this work. But it doesn't stop there. On that day, we want to do even more outreach and reach out to more people and get them pulled into the movement.
[Chief Bernard Parks, Los Angeles Police:] People will debate whether we should allow an intersection to be clogged up for 30 minutes because we didn't choose to arrest 100 people, because something more important was going on. There has got to be discretion in all the things we do, and we understand that.
[Announcer:] This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.
[Cossack:] Hello and welcome to BURDEN OF PROOF. Greta is off today. On Monday, the Democratic National Convention kicks off in Los Angeles, but politics may not be the only gathering on the agenda. Schools and businesses around the convention site are bracing for protests in the "city of angels." Blocks away from the Staples Center, an elementary school has prepared its students for a lockdown mode. Police have been preparing for 18 months for next week's planned protests, with more than 2,000 officers assigned to convention duty. But police may be outnumbered as estimates of protesters have exceeded 30,000. Joining us today from Los Angeles is LAPD Commissioner David Kalish. Also in Los Angeles, Margaret Prescod, a founder and co- founder a protester and co-founder of D2KLA. And in New York, we're joined by criminal defense attorney Gerald Lefcourt, who once represented Abbie Hoffman. And joining us today here in Washington, Carly Salazar, constitutional law scholar Bruce Fein, and Ben Jones. In the back, Christian Allen, Jeremy Peters and William Duston. Commissioner Commissioner Kalish, I want to go Commander Kalish I want to go right to you and talk to you about your plans for the upcoming protest in Los Angeles. And I want to start off with this: You are in the perhaps unenviable position of having to keep the safety for the citizens of Los Angeles, recognizing of course that all citizens have a right under the First Amendment to protest, all citizens have a right to assembly. How are you going to try and balance the tension between those two?
[Commander David Kalish, Los Angeles Police:] Well, I think it's important to realize that we have a number of responsibilities. We have to ensure public safety. We have to maintain public order. We have to ensure that the convention is able to conduct their business, we have to ensure that the remainder of the city is able to function. And finally and very importantly, we have the responsibility to facilitate those individuals who want to engage in protests, who want to exercise their First Amendment rights. And we are committed to ensuring that individuals who want to legally and lawfully protest peacefully are able to do so.
[Cossack:] Well, Commander Kalish, I think everything you say is great, but the problem I guess the devil is in the details. I mean, what do you do and how do you handle people when you say legally and lawfully? I mean, who defines legally and lawfully? How do you define legally and lawfully? And obviously, people who wish to protest and wish to exercise their rights under the First Amendment wish to be as vocal and be heard by as many people as possible. What do you do when that sort of tension now becomes?
[Kalish:] Well, it's important to realize also that we handle protests here in Los Angeles on a daily basis. Every day, there's a different protest. We deal with it, and they're nonproblematic. Again, what we are concerned about is working with people to facilitate their rights so that they can engage in public discourse in a peaceful manner. Obviously, we cannot allow violent behavior, we cannot allow destruction of property. And that's when we have to be more proactive. But for the most part, our responsibility is simply to facilitate individuals who want to engage in public discourse in a peaceful manner.
[Cossack:] Well, there's been accusations that some of your decisions already perhaps may and I say "may" violate some First Amendment rights. Let's talk about the decision that you've made to close off access to the protesters in and around the area of the Staples Center. Now, obviously these protesters are going to want to get as close to that Staples Center as possible, because that's who they want to have their message seen by.
[Kalish:] Well, we believe we have made a good-faith effort to try and balance legitimate security needs for the event with the rights of individuals to engage in protests, and that's a difficult balance. It's controversial. It has resulted in some litigation. But we've come to some negotiated settlements, and we believe that we have been able to accomplish that balance.
[Cossack:] Margaret, you are a leader of the protests and protesters in Los Angeles. As far as you as far as you're concerned, what do you want to do in Los Angeles? How do you want to get your message across?
[Margaret Prescod, Protester:] Well, I'm simply one of the protesters. We're non-hierarchical in our approach, and our goal is simply arc call in our approach. And our goal is simply to make sure that a number of issues and concerns at a community level about how globalization impacts us locally in Los Angeles how the situation of those of us who work doing unwage work as wage works also impacts the global issues are brought center stage of politics in Los Angeles: issues like welfare reform, issues like police corruption, issues like the rights of immigrants, issues of homophobia, the kinds of bread-and-better issues...
[Cossack:] But Margaret Margaret, I'm going....
[Prescod:] ... that we're all concerned about.
[Cossack:] Margaret, I understand that those are legitimate issues that absolutely you have an absolute right to bring to the public fore. But what I'm suggesting to you is you are going to want to get as many people as possible to see what you have to say, to understand what you have to say. Now, recognizing that, you're going to want to get perhaps as close to the convention as possible. You're going to want to do as many things as to gain attention to what you're trying to do as possible. That may cause conflict. What are you going to do, and how are you going to are you going to try and accommodate the issues that the police commissioner, policeman has just talked about?
[Prescod:] Well, we've done a number of things. In fact, Commander Kalish referred to a negotiated settlement, but in fact, a judge in federal court told Los Angeles Police Department, the city and the Democratic National Convention that their proposals were unconstitutional. They, therefore, had to go back and take another look at those proposals and put forward another one. You the Los Angeles Police Department, the mayor, the city just cannot set the Constitution aside because the Democrats are coming to town.
[Cossack:] But we understand that, but with that in mind they have an absolute right, as the commander indicates, to look out for the safety of the citizenry. You have an absolute right to go ahead and want to have your message heard. What are you going to do and how are you going to try and accommodate what their issues are?
[Prescod:] Each day there will be legal permitted marches on a number of issues focused around very specific themes, like "Human need, not corporate greed," "Injury to one is an injury to all," et cetera. Each day there will also be people who are committed to doing nonviolent civil disobedience very much in the tradition of Dr. Martin Luther King and Gandhi. There are many of us, many rights that we have in this country and around the world that would not have been achieved if there were not brave and courageous individuals who took the decision to do nonviolence civil disobedience, beginning with the Boston Tea Party, for example. It has a long and glorious tradition in this country, and we'll see some of that on the streets of Los Angeles this summer. However, we have said again and again that we're committed to nonviolence, we're committed to not destroying property. What we are committed to is to make sure that the growing gap between rich and poor in this country comes to the center stage of politics, and that we will no longer tolerate control of both the Republican Party and the Democratic Party by multinational dollars.
[Cossack:] All right, Margaret, let me...
[Prescod:] Government is being privatized but not by the people.
[Cossack:] Let me shut you off for a second and only a second, because we have to take a break. Up next, Los Angeles Police are preparing to control a crowd of protesters, which could exceed 30,000. How did Philadelphia police handle protesters two weeks ago and what has become of those cases? Stay with us. As Los Angeles prepares to host next week's Democratic National Convention, the Los Angeles police are gearing up to control tens of thousands of protesters headed to the city. Two weeks ago, Philadelphia police used video surveillance to keep tabs on protesters at the Republican National Convention. Some of those protesters are still being held on huge bails. Joining me from Philadelphia is Sayde Ladov. Sayde, you are familiar with what happened in Philadelphia as well as what's happened now to those people within the court system. Some of the protesters are being held on million-dollar bails. It seems to me that's a little out of a little out of site. Why is that? What was the rationale for that?
[Sayde Ladov, Former State Prosecutor:] The rationale is fairly simple. It's horn book law that the purpose of bail is to ensure against the individual becoming a flight risk. You want to have that person show up at a subsequent hearing or trial. What has happened in Philadelphia is that the protesters are refusing to give their true identities. They will identify themselves as Jane Doe, John Doe, fictitious address, not let themselves be fingerprinted. So unfortunately, because of their own lack of cooperation with the system, they are being incarcerated at high bail.
[Cossack:] And Sayde, it seems to me that many of these people first of all, I was able to read their names in the newspapers. But putting that aside, it seems like many of these people are being charged with conspiracy, which is a felony, to commit a misdemeanor: you know, blocking traffic, acting outrageously in many ways, and you know, civil disobedience. The notion of using a conspiracy, which is a serious charge, to commit a misdemeanor and keep someone in jail behind a million dollars just seems a little heavy-handed.
[Ladov:] I can tell you what I saw, and what I saw was not a heavy-handed attitude by the police. They truly were the model of restraint, when protesters laid down in the streets, blocked traffic, prevented ordinary people, not delegates, ordinary working folk from going to and from their places of business, going to their homes, leaving their offices, going to the bank the cops stood back and let the protesters do their thing unless and until it got completely out of hand, and the protesters began to confront the police, and destroy and deface property. I hear what you're saying, and it is great concern that you're using a felony conspiracy to commit a misdemeanor. The trier of facts will determine whether or not the district attorney can make out his or her burden of proof. But unless the citizens cooperate with the police officers and give out their true identities, that bail is going to remain unreasonably high. So that, I can't blame the bail commissioner, the trial judge or the D.A. for asking that kind of bail and getting it.
[Cossack:] All right. Joining me from New York with I can tell a look of disgust on his face is Gerry Lefcourt. Gerry, a million-dollar bail. They don't give their name, they don't give their address, what's a police officer to do?
[Gerald Lefcourt, Criminal Defense Attorney:] Well, look, if they're violating the law by not giving their name and there's a statute that requires it, that's one thing. Maybe bail is inappropriate. But if bail is being used, as I think it is being used here, as to keep protest leaders in jail when they very well know who they are because of fingerprints, because there's been published in the newspapers that several of them have prior misdemeanor arrests, this is really political, and it's really nonsensical, and it really violates the demonstrators rights under the First Amendment, because they're basically keeping them off the street with ransom. One million dollars is ransom; it's not bail. And it's certainly not necessary to have somebody to come back to court for some, you know, low-level misdemeanor. So I'm just a little bit concerned, and I'm also concerned about what I heard Commander Kalish list as the responsibilities. He goes through a long list, you know, we have to make sure that the city can function normally, we have to make sure that there's protection for the people in the Staples Center, all true and good. But at the bottom of his list is the First Amendment. You know, and that's not a place where it should be. It should be at the top of his list. It should be to provide demonstrators the opportunities that they have a constitutional right for. And if the city is a little bit troubled, well, so be it. You know, when Clinton comes to New York, New York shuts down for him. But you know, it's really important to have demonstrators exercise their rights, and he should be a little flexible.
[Cossack:] Gerry, let me ask Bruce Fein a quick question. Bruce, the notion of a million-dollar fine, the reasons behind it. But isn't that kind of a chilling effect? Doesn't that say to other people, you know, perhaps you shouldn't be protesting?
[Bruce Fein, Constitutional Law Scholar:] I don't think so in the circumstances of Philadelphia. The vast majority who were arrested did not confront any such bail. By the way, the U.S. Supreme Court has never held that the excessive bail protection in the Eight Amendment applies to the states. But moreover, I think you've really slighted the potential danger of conspiracy. Even though you have...
[Cossack:] I would suggest the state constitutions, though, do suggest...
[Fein:] They may, but conspiracy involves a much greater threat to social convulsions, because it involves a large number. It's not an individual misdemeanor where you have one car that drives in the wrong way of a street. So there's justification for higher bail. And...
[Lefcourt:] Bruce, that is so ridiculous.
[Cossack:] All right. Hold on, you guys. Hold on, you guys.
[Lefcourt:] You're talking about a conspiracy to have a demonstration? That's ridiculous.
[Fein:] ... violate the law through demonstration...
[Cossack:] All right. Hold on, you guys, or I'm going to be off the air. We've got to break. Up next, a history of civil disobedience: what the police and the law scholars have learned from the ghosts of protests past. Stay with us. [Begin Q&a;]
[Q:] What recently released ex-convict has landed a recurring role on the Fox television show "Ally McBeal"? [END Q&A;] What recently released ex-convict has landed a recurring role on the Fox television show "Ally McBeal"?
[A:] Robert Downey Jr., who was jailed for missing scheduled drug tests, then released early. [END Q&A;]
[Cossack:] Los Angeles Police, like their Philadelphia colleagues before them, are preparing to handle crowds planning to protest during a political convention. Since students and other protesters raided the convention parties of the 1960s, the tactics of police and protesters alike have changed. But what have we learned from history? Commander Kalish, I want to call you commissioner, put you on that commission, But Commander Kalish, what have you learned, and what did you learn from the Philadelphia convention?
[Kalish:] Well, we are always learning. Any time there is an occurrence, we send our people to other cities to learn what worked, what didn't. We try and refine our tactics, refine our training, to provide the best possible service. Again, as I mentioned. we are committed to facilitating individuals who want to exercise their First Amendment rights in a legal and peaceful manner, and that's what we are committed to do. We will only react if there's unlawful activity, if there is violence, if there is property damage, then we are obligate obviously to move in and make arrests.
[Cossack:] Well, what about people who, for example, would lay down in front of oncoming cars and block traffic, nonviolent kinds of activity, in the sense of what we think of violence. I mean, how do you react to that? what are you going to do?
[Kalish:] Well, obviously, it is situational specific. But to use your situation that you described, where an individual lies down in the middle of the street and prevents people from driving, we always begin with asking for voluntary compliance, asking the people to move. If people demand on being arrested, we will be there to do just that.
[Cossack:] Gerald Lefcourt, you yourself were active in protests in the '60s. What exactly, what should protesters do? and what, in your opinion, do they have the right to do?
[Lefcourt:] Well, I think that, you know, what has evolved in this country over centuries really, since the Boston Tea Party, is they certainly have a right for nonviolent protest, that makes a point. You know, the police have to be flexible enough to understand, as I think, Timoney did in Philadelphia, the police commissioner, that protesters sometimes have to be allowed to, in effect, snarl traffic, to make a point to get their message heard on TV. You know, we are no longer the marketplace of ideas where everybody comes to the local town spot and anybody can spout off what they wish. It is only what television will cover is what goes on the air. So protesters, the police have to be flexible, let them block traffic, so what? It's not going to hurt anybody long-term. It's better than creating a situation where protesters feel their point is not getting across, their message is not being heard. And so the protesters also have to understand that tactically they have to understand what police might do to them, and how to regroup, and how to continue being effective. It's a give and take.
[Cossack:] Commander, should the police allow protesters, under certain situations like this, where it is clear that people are coming to protest before a national convention, to perhaps interfere with traffic?
[Kalish:] Listen, I think we have to be realistic. There is obviously political theatrics played out in the streets every day. And, yes, we can be flexible, and yes, we are flexible. But ultimately, if we have to make arrests, if people demand on insist upon breaking the law, and we have to, we will. But obviously, we can be flexible, we do understand the issue of political theatrics in the streets. But each situation is different. We can never allow there to be...
[Lefcourt:] Can I ask the...
[Cossack:] Let me let Bruce jump in.
[Fein:] He is really wrong. There's not a right to violate a law that is a reasonable way to keep thoroughfares and traffic open. If the demonstrators do it today, why can't I or you or anybody else? Well, I want to protest against imports from Taiwan. Or anybody else, why should they selectively claim...
[Cossack:] There's a difference between a political convention, where in fact it almost invites people to come protest so that their party might change and listen to them, as opposed to you and me out there protesting Taiwan.
[Fein:] Not necessarily.
[Lefcourt:] Roger, I wonder...
[Cossack:] This is too great a story. But I have to cut everybody off. We got to go. That's all the time we have for today. Thanks to our guests. Thank you for watching. Today on "
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