One Year Later: review and analysis of UNC pro-Palestine encampment arrests
The "Triangle Gaza Solidarity Encampment" (April 26-30, 2024) on the UNC-Chapel Hill campus was ultimately dispersed by police for violating policy, w/ ~36 arrests
"Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse."
So reads Article I Section 14 of the North Carolina Constitution, mirroring two of the rights protected by the First Amendment to the United States Constitution (which was first applied to the states by the Supreme Court of the United States in 1925 under the newly invented "incorporation doctrine.")
However, the right to speak freely does not include the right to destroy property, engage in violence, block streets, or violate content neutral restrictions on public property, such as a prohibition against the erection of temporary structures.
In fact, if certain groups or causes are allowed to step outside the bounds of legality without consequence, it can impinge on both the ability of citizens with opposing views to exercise their own free speech as well as the ability of uninvolved citizens to go about their lawful business unmolested.
Thus, when a police action is taken against a protest or demonstration, it behooves us to loop back around after the justice system has had a chance to take its course and take a deeper look beyond the arrest numbers in the headlines to gain an understanding of how (and whether) the laws are applied. This type of post-adjudication analysis also provides us a baseline to compare whether the law is applied equally in the context of political expression which may or may not align with the sensibilities of the public and their democratically elected district attorneys.
In this article, we will be reviewing nearly three dozen arrestees at the "Triangle Gaza Solidarity Encampment" at UNC one year ago, which was dispersed by police on its fifth day after the participants willfully violated university policy by erecting tents on a public lawn at Polk Place.
Background
Following the Hamas attacks on October 7th, 2023 and the subsequent Israeli retaliation, two facially dissimilar groups have joined forces in opposing Israel: Arabs/Muslims, who support their co-ethnics and co-religionists in Palestine, and leftists, who view Israel as a "settler-colonial state" which ranks on the wrong side of the neo-Marxist oppressed-oppressor matrix.
Timeline of This Week in the Triangle's 2024 reporting on related stories
"Students for Justice in Palestine" interrupt public discourse event at UNC (No. 56 — Jan. 27, 2024)
Durham Police make arrest over stolen Israeli flag at City Council meeting (No. 60 — Feb. 24, 2024)
Durham City Council passes Israeli-Palestine ceasefire resolution (No. 60 — Feb. 24, 2024)
Raleigh Police arrest 26 pro-Palestine demonstrators for blocking downtown traffic (No. 60 — Feb. 24, 2024)
UNC Students for Justice in Palestine hold "encampment" in support of anti-Israel demonstrators at Columbia University (No. 68 — Apr. 20, 2024)
Anti-Israel protesters make 2nd attempt at UNC encampment (No. 69 — Apr. 27, 2024)
UNC Pro-Palestine Encampment Shutdown Timeline (No. 70 — May 4, 2024)
Pro-Palestinian demonstrators begin third encampment at UNC (No. 71 — May 11, 2024)
Pro-Palestine Duke students stage walkout of Jerry Steinfeld's commencement speech (No. 72 — May 18, 2024)
Memorial Day: Vandals desecrate WWI monument with pro-Palestine graffiti (No. 74 — Jun. 1, 2024)
"Free Palestine" protest at 4th of July fireworks display in Raleigh (No. 79 — Jul. 6, 2024)
Defense of American flag by UNC frat bros celebrated at RNC (No. 81 — Jul. 20, 2024)
Interim UNC-Chapel Hill Chancellor Lee Roberts confirmed to permanent appointment (No. 84 — Aug. 10, 2024)
NC Democrats disavow mockery of pro-Palestine protesters at DNC watch party (No. 86 — Aug. 24, 2024)
Flagstock: was it the vibe? (No. 88 — Sep. 7, 2024)
UNC students commit vandalism spree in support of Palestine (No. 90 — Sep. 21, 2024)
Pro-Palestine leftists celebrate anniversary of October 7th attacks with "Week of Resistance" (No. 93 — Oct. 12, 2024)
Chapel Hill removes "Power of Good Trouble" art display which featured pro-Palestine demonstrator (No. 99 — Nov. 23, 2024)
UNC pro-Palestine encampment arrestees receive pretrial depositions (No. 101 — Dec. 7, 2024)
Durham socialist charged with burning US flag at pro-Palestine DC protest (Original Article — Dec. 11, 2024)
UNC pro-Palestine encampment charges - how they were resolved (No. 103 — Dec. 21, 2024)
The Inspiration
One prominent tactic employed at campuses nationwide by this coalition in the spring of the following year is the encampment a la "Occupy Wall Street" in which student-centered demonstrations took over outdoor spaces at public and private universities and colleges in "solidarity" with Palestine.
Although the first such encampment after the October 7th attack was reportedly at Stanford University, beginning on October 20, 2023 and lasting over a hundred days, the phenomenon didn't begin to build steam until April 2024, when protesters attempted to establish a "Gaza Solidarity Encampment" at Columbia University, only for police to take action to clear them out a day later.
First UNC encampment attempt
The next day, on April 19th, UNC Students for Justice in Palestine organized their own "Triangle Gaza Solidarity Encampment" at Polk Place in front of the South Building on the UNC campus to "stand[] in unwavering solidarity with the 100+ students at Columbia University who were unjustly detained and punished" as well as to make their own Palestine-related demands of the university, including "divest[ing] from all products and contracts it maintains with Israeli or Israel-supporting companies."
However, the UNC administration quickly informed the demonstrators that the tents they had erected were in violation of the university's Facilities Use Standard. According to the university, "the group did not initially make efforts to comply, but later removed the tents after university personnel took steps to remove the structures."
Although the protesters attempted to evade the restrictions by putting their tents on folding chairs and marching around with the tents held in the air, this first attempt at an encampment ultimately fizzled.
Triangle Gaza Solidarity Encampment
The protesters returned to campus on Friday, April 26th for a second attempt at an encampment, initially setting up their tents without poles in order to comply with the university policy on "structures."
The occupation continued over the weekend, with over 500 supporters including activists from Duke and NC State gathering at the UNC encampment for a march on Sunday afternoon, which was supported by organizations including local branches of the Party for Socialism and Liberation, Jewish Voice for Peace, and the Democratic Socialists of America, according to the Daily Tar Heel.
On Sunday evening, the occupiers made the decision to flaunt the university rules by re-erecting their tents (with tent poles) and gathering with linked arms around the encampment to resist any attempt by the university to enforce its rules.
Although the administration warned the demonstrators that their tents were in violation, the encampment continued unmolested throughout Monday, as organizers warned the attendees of the possibility of police action and rearranged the encampment for those willing to be arrested to remain.
At around 5:30 am Tuesday morning, the overnight campers were officially warned that if they did not vacate the location by 6:00 am they would be subject to arrest, citing violation of university policies and trespassing into classroom buildings during the nights.
Law enforcement followed through on the warning, and proceeded to arrest 36 of the demonstrators on charges including second degree trespass, resisting a public officer, and assaulting a government official or employee.
The arrests were just the beginning of the day's excitement, with the daytime protesters returning in numbers to retake the area from the police, pulling down the large American flag only for a group of primarily Jewish fraternity brothers to iconically return it to it's proper place, as well as various encounters between the demonstrators and police as well as classic anti-media tactics such as using umbrellas to block mainstream TV reporters as arrestees were released from jail.
However, our focus will remain with the arrestees and their subsequent journey through the legal system, specifically the 34 out of the 36 whose cases I was able to identify in the NC eCourts system:
Legal Process
Although one might be tempted to equate the number of arrests reported in headlines with a number of law-breakers being punished, an arrest is only the first step in our innocent-until-proven-guilty criminal justice system, which also grants the prosecutor, the judge, and potentially a jury decision making power in whether a case is dismissed, or possibly allowing the defendant to receive greatly reduced consequences compared to the sentence received after a guilty verdict at trial.
After an arrest has been made, the district attorney has "prosecutorial discretion" whether or not to pursue a criminal case, which is often used by Democrat DAs to drop demonstration-related cases, which tend to be associated with left-wing causes.
Prosecutorial Discretion
In this case, the District Attorney of Orange and Chatham Counties Jeff Nieman, a Democrat, made the decision to initially pursue each of these 34 criminal cases; however, seven months after the arrest, Nieman's office filed to dismiss six of the cases, reporting to the court that "the arresting officer is unable to be identified." Another six cases were voluntarily dismissed after an unfavorable court ruling at trial, as will be discussed further down, while the remaining arrestees received pretrial diversions:
Although I have not prepared an analysis of the outcomes of arrests at comparable left-wing demonstrations in the Greater Triangle area, one anecdote can be drawn from one of the arrestees, Zoe Christina Schwandt, who had been charged in 2020 with impeding traffic, resisting a public officer, and false imprisonment for a Black Lives Matter demonstration which trapped a number of cars on Capital Blvd., as well as with failure to disperse in relation to an anti-democracy election night protest by black bloc antifa which involved property damage and throwing fireworks—each case is listed as "dismissal without leave by DA" in the eCourts system.
Pretrial Diversion
In addition to dismissing cases outright, North Carolina prosecutors have the ability to offer "diversions" which allow defendants to avoid trial by agreeing to abide by certain conditions such as completing community service. These diversions are significantly more favorable for defendants than the more commonly known plea deal, in that they result in the charges being dismissed (with eligibility for expunction) instead of resulting in a finding of guilt and sentencing on their permanent record.
The majority of these cases were resolved with pre-plea "deferred prosecution," with an additional two receiving a post-plea "conditional discharge."
NC GS § 15A-1341 provides statutory guidelines for probation-based deferred protection and conditional discharge "for the purpose of allowing the defendant to demonstrate his good conduct," requiring among other conditions that the defendant has never previously been on probation, ensuring that these diversions could only be applied to a citizen once in their life.
However, it appears that it was a "nonstatutory" deferred prosecution which was accepted by nineteen of the defendants charged solely with second degree trespass, requiring twenty-four hours of community service, but without probation and the one-time use limitation.
The two defendants receiving a diversion who had charges beyond trespass (assaulting a government employee and resisting arrest) were put on probation with conditional discharge agreements for thirty-six hours of community service. Conditional discharge differs from differed prosecution in that the defendant must first submit a guilty plea, though that plea is ultimately not entered by the court and the charges are still dismissed if the agreement is fulfilled.
Trial Dismissals
Two days after the last of these twenty-one defendants accepted diversion agreements, the first of the remaining defendants went to trial, Charles William Soeder.
Soeder's attorney, left-wing activist Gina Balamucki, had filed a motion to dismiss the charges of trespassing and resisting arrest, arguing that the encampment was "constitutionally-protected activity in public forum and in compliance with all University regulations" and that the notice to disperse given to the demonstrators on the morning of the arrests was "vague" and "did not identify which University policy was violated."
However, the notice did clearly reference the Sunday night decision by the protesters to no longer abide by the university's policy against erecting their tents, as was even reported by the left-leaning UNC student newspaper The Daily Tarheel: "Protesters within pro-Palestinian encampment put tents back up in violation with UNC policy" (Sunday, April 28, 2024).
At the close of the state's evidence, Judge Samantha Hyatt Cabe ultimately granted the dismissal without mentioning the constitutional argument, instead ruling that no "reasonable juror" could convict based on the testimony provided:
The State presented its evidence to the court, including the testimony of Deputy Jeter with the Cumberland Co. Sheirff's [sic] Office. At the close of the state's evidence, Defendant's counsel made a motion to dismiss.
This Court, considering all evidence in light most favorable to the state, finds and concludes that the state failed to present sufficient evidence to pursuade [sic] a reasonable juror of Defendant's guilt beyond reasonable doubt, and as a result, that the charge of 2nd Degree Tresspassing [sic] should be dismissed.
Therefore, it is hereby ORDERED, that the charge of 2nd Degree Trespassing in the above-captioned case be dismissed.
In response to the ruling, Nieman dismissed the remaining cases, as he told the News & Observer: "in light of the ruling on the case last week, and our evaluation of the evidence in the remaining cases, we do not think that we will prevail at trial and we are deciding to dismiss the cases."
It appears that this ruling was unexpected for defendants such as Jackson Prause, who explained his decision as one of the last to take the diversion agreement as allowing him to "focus more on forms of resistance, which is a better focus of my time and energy than taking my case to trial, given the relatively low chance of beating my charges."
Nieman appears to lay the blame for the insufficient evidence at the feet of the police who gathered evidence and made the arrests, diplomatically describing the day as "a chaotic situation" which "caused challenges for the law enforcement officers to pass along the information we normally expect in preparation for a trial."
Whether this result will serve as a learning experience for law enforcement and prosecutors dealing with occupational demonstrators or whether it will more function as an encouragement to those willing to push the limits of rules and policies remains to be seen.
Arrestee analysis
Although the sample of arrestees may not be fully representative of the demonstration's attendees, as the arrestees self-selected by being present at the encampment in the early morning hours and refusing to disperse when ordered to do so, we may nonetheless gain some measure of insight with a bit of quantitative analysis.
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