Suffolk County prosecutors dropped Friday the case against more than two dozen protesters arrested during the Occupy Boston demonstrations, but at least five defendants will contest the dismissal in hope of fighting the accusations on their merits.
“Our clients feel that they deserve a day in court to contest their arrests on constitutional grounds,” said Jeff Feuer of the National Lawyers Guild, which is defending the demonstrators. “They were using a public park.”
Feuer said the October 2011 arrests, which came as the demonstration swelled beyond its original boundaries in Dewey Square, violated the protesters’ rights of assembly and free speech under the state’s constitution. The five protesters were scheduled to go on trial Monday, but instead will appear in Boston Municipal Court to contest the dismissal, which would end legal proceedings against the protesters.
A spokesman for Suffolk District Attorney Daniel F. Conley said prosecutors decided to resolve the cases because the defendants had abided by certain restrictions imposed by the court for more than a year. Other protesters charged with trespassing and unlawful assembly had agreed to similar conditions in resolving their cases.
“There’s now parity with prior cases arising from the protests,” Jake Wark said. “They’ve served essentially the same sentences.”
Wark said the defendants had been offered similar dispositions shortly after their arrests, but they insisted on criminal trials.
Prosecutors also considered the resources of their office and the “gravity of these cases relative to those involving firearm violations, violent crime, and other offenses.”
About 120 protesters agreed to resolve their cases by serving a period of probation or paying a fine. But 27 have refused to settle, believing that the charges were unjust.
“We were behaving in a legal manner,” said Tammi Arford, one of the five demonstrators.
Arford said defendants have been preparing for a trial, only to have the prosecution drop the charges just before it was scheduled to begin.
“They have been dragging us through this process for more than a year,” she said.
Arford and Andrea Hill, another Occupy member, said they believed that resolving the cases would have been an admission of wrongdoing.
Defendants argue that the area where they were arrested is public land at the entrance to the Rose Kennedy Greenway, which is managed by a private nonprofit and created to be public space. They note that the nonprofit, the Rose Fitzgerald Kennedy Greenway Conservancy, had written a letter before the raids saying it would allow the encampment to stay.
“Charging them with criminal conduct for exercising those rights was plainly unlawful and in violation of their constitutional rights to assembly and free speech under the First Amendment to the United States Constitution and Articles 16 and 19 of the Massachusetts Declaration of Rights,” the lawyers guild said.
Prosecutors cited a 2011 decision by Suffolk Superior Court Judge Frances McIntyre, who wrote that the protesters had no First Amendment right to “seize and hold the land on which they sit.”Peter Schworm can be reached at firstname.lastname@example.org.