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Charge dismissed against protester

Attorney Daniel Mellen, who was appointed last year to represent one of the protesters arrested in downtown Vancouver, successfully argued earlier this month for the criminal charge to be dismissed.

His client, along with several other protesters, were arrested on Oct. 30 and charged with failure to disperse, a misdemeanor.

As reported at the time, the protests were in response to the fatal police shooting of Kevin E. Peterson, Jr.

In a pre-trial motion, Mellen argued the charge should be dismissed because prosecutors have insufficient evidence to prove a crime had been committed.

Mellen wrote that approximately 300 protesters were in downtown Vancouver on Oct. 30, and, while there was property damage, including graffiti and broken windows, none of the Vancouver police officers reported seeing his client do any of the damage or associated him with people who did any of the damage.

That’s one reason the charge should be dismissed, Mellen wrote. To win their case, prosecutors would have to prove his client was in a group of people and that group “created a substantial risk of causing injury to any person or substantial harm to property,” he wrote, citing state law.

Another reason the charge should be dismissed, he added, is prosecutors would be unable to prove his client was “ordered to disperse by a peace officer or other public servant engaged in enforcing or executing the law.”

The police officer who arrested his client wrote in his report that he was dispatched to Esther Short Park for a protest.

“That is the only reason he gives for going to park: that there was a protest,” Mellen wrote. “He then went to the protest and saw officers order protesters to leave; of particular import to this case, he saw an officer order (my client) to leave. It’s not clear why the officer told (my client) to leave or what law the officer was trying to enforce or execute at that point. The First Amendment of the United States Constitution says that people have the right to assemble and to protest. Based on the police reports, it sounds like the officers went to the park to tell the protesters to stop exercising those rights. Nothing in any of the fourteen police reports written in this case suggests that the officers saw anybody do anything illegal; they only saw the protesters marching and chanting. Not one of the police reports references any law that the officers were enforcing or executing before they started ordering the congregated people to disperse. This fact shows that these officers were not engaged in enforcing or executing the law when they gave the order to disperse,” Mellen wrote.

The assistant city attorney assigned to the case did not even argue the motion in court, and instead filed a dismissal.

On Feb. 12, the city of Vancouver issued a press release stating criminal charges were being dismissed against a total of five people who were arrested Oct. 30.

The individuals (including Mellen’s client) “were arrested under circumstances that were tense, uncertain and rapidly evolving,” the press release stated. It said upon further investigation, none of individuals “were suspected of causing any property damage in the city of Vancouver.”

“In view of what evidence would be admissible if presented in a court of law, the City Attorney’s Office was not satisfied that it would be able to establish the guilt of these individuals beyond a reasonable doubt at trial. The City Attorney’s Office emphasizes that a prosecutor’s decision to dismiss criminal charges should not be construed as approval of the conduct originally suspected by police, nor a suggestion that probable cause was lacking at any time.”

The statement said city attorneys are continuing to review cases for others arrested on Oct. 30. “Prosecutors noted that, in the future, the use of police body-worn cameras is likely to greatly assist in capturing evidence that can be used in criminal cases.”

Tags: criminal law, failure to disperse, Vancouver Police Department , protests, Daniel Mellen

Jeffrey D. Barrar, P.S.: Vancouver Defenders Jeffrey D. Barrar, P.S.
Vancouver Defenders