Restraining the Political through Stay-Away Orders: The Case of Occupy Oakland.

• Author: Brissette, Emily

IN JANUARY 2012, AFTER MONTHS OF TRYING TO REPRESS A VIBRANT and militant Occupy Oakland, city officials and the Alameda County District Attorney (DA) adopted a new tactic: they sought stay-away orders against a number of Occupiers at arraignment as a condition of pretrial release. These stay-away orders prohibited individual Occupiers from the plaza in front of City Hall, which Occupy Oakland had (re)claimed as a site of protest and democratic possibility, and were intended to force individuals out of the movement, the movement out of the plaza, or both. The stay-away orders did not go uncontested, as both the movement and the American Civil Liberties Union (ACLU) took action, and officials were compelled to justify the tactic to their progressive Bay Area constituencies. This paper examines the public discourse around the stay-away orders that these three sets of actors generated to trace how different notions of politics and the political were fleshed out in and through contestation.

Neither the stay-away orders nor Occupy Oakland can be fully understood without situating both within the broader transformations of urban life that have been ongoing since the late 1970s. As neoliberalism spurred the redevelopment of cities as sites of consumption, tourism, and financial investment, the management of (dis)order became a central preoccupation of municipal governments, and the latent but unrealized promise of cities as spaces of community, creativity, and democracy was further constricted (Davis 2006,Ferrell 2001, Harcourt 2001, Smith 1996). In downtown cores and other areas being similarly refashioned, quality-of-life policing targeted the homeless and other marginalized people, rendering them disreputable and disorderly (Amster 2008, Vitale 2008); stay-away orders criminalized their very presence (Beckett Sc Herbert 2010); and defensive architecture and environmental design further foreclosed space (Davis 2006, Ferrell 2001, see also Bickford 2000). The public came to be ever more narrowly defined, a sterile agglomeration of affluent consumers rather than an interactive, dynamic, agonal community-in-formation. As Mitchell (2003, 52) reminds us, however, the public has always been a contested category, and "excluded groups--women, workers, political dissidents, sexual minorities, and all those deemed by dominant society to be disorderly or unruly--have had to fight their way into public if they wanted to be heard (or sometimes even seen)." In order to vitalize and actualize a more inclusive notion of the public, "excluded groups have taken the streets, plazas, and parks and transformed them" (ibid., emphasis added), forging their own constitutive conditions of possibility.

It is as part of this long history of struggle from below over the right to the city that the Occupy movement emerged in the fall of 2011. A response to the 2008 financial crisis and the bailout of the banks, high underemployment rates among college graduates, and crushing levels of debt, Occupy was also about much more than this. It was a response to decades of neoliberalism and the heightened austerity measures that elites prescribed to address the financial crisis (McNally 2011); it was a protest against the thinning of democracy (Brown 2015, Graeber 2013); and it was fundamentally prefigurative, creating new forms of social life outside of everyday commodified social relations (Brissette 2013, 2016). In contrast to the global justice movement of a decade or more earlier, which also challenged neoliberal governance albeit on a global scale and with mass convergences at summit meetings, the Occupy movement was a resolutely local movement. It was, to be sure, part of a global uprising that began with the Arab Spring and then spread across Europe and the Americas, but Occupy was rooted in local communities. It took different form in each, confronting local problems--the particular manifestations of neoliberalism and austerity on the ground--and not simply the abstraction of Wall Street. In Oakland, those local problems included foreclosures, increasing rents, and their attendant racialized dislocations; cuts to social services, including the closure of several schools and libraries; and policing in the city.

Emerging against the backdrop of decades of investments in the management of (dis)order, and refusing many of the trappings of previous movements that bestowed legitimacy in the eyes of the state (e.g., clearly articulated demands, formal leadership, nondisruptive or permitted tactics [see King 2013]), the Occupy movement posed a challenge to those tasked with maintaining order and, not incidentally, the smooth circulation of money and commodities. In Oakland, the challenge the movement posed was particularly acute. A history of radical struggle in the area, and many participants' own prior experiences in radical movements, made Occupy Oakland little inclined to cooperate, to engage in the expected courtesies with city officials, or to self-police, especially on the question of violence (read: property destruction) (Behbehanian 2016, Brissette 2018, Brissette & King 2017). A motley collection of people, erecting tents on the lawn in front of City Hall, using the stone amphitheater for its seemingly intended purpose as a site of public assembly (Szolucha 2013), holding long meetings and workshops punctuated with music and food, and refusing the police entry to the park: this was truly the definition of disorder.

When aggressive police tactics proved counterproductive, (1) city officials, the Oakland Police Department (OPD), and the Alameda County DA began to employ the more low-key, but more intensive, tools they had developed to move the homeless out of parks and sex workers and drug dealers off of street corners. In addition to surveillance, harassment, and targeting those on probation for arrest, the city began to seek stay-away orders against individual Occupiers, prohibiting them from City Hall and the amphitheater and plaza at its feet (Behbehanian 2016). Rather than simply a quiet, behind-the-scenes tool for regulating the movement of individual Occupiers in the city, and thus frustrating meetings and mobilizations more generally, the stay-away orders became a public site of struggle. City officials, OPD, and the DA all presented the stay-away orders as a necessary antidote to an increasingly intractable Occupy Oakland, which had ostensibly lost sight of the political aims of the larger Occupy movement and devolved into criminal mischief and (threats of) violence. The ACLU and sympathetic others argued that the stay-away orders abridged fundamental rights to speech, stressing the political nature both of the movement and of the space most at issue: the plaza in front of City Hall. Meanwhile, Occupy Oakland's Anti-Repression Committee linked the stay-away orders to the city's contested gang injunctions, highlighting the way that both expanded the category of criminal, reinforced state power and circumscribed individuals' ability to engage in public life. Grounding this critique is a notion of politics beyond the state that Occupy Oakland sought to instantiate. In what follows, I illuminate and trace how these divergent definitions of the political were manifest in the public debate over the stay-away orders. The discussion is based on an interpretive analysis of press releases, mainstream and movement news reports, op-eds, and court filings, contextualized by and in conversation with ethnographic observations from my own participation within Occupy Oakland.

Stay-Away Orders

Before turning to the public debate on the use of stay-away orders against Occupy Oakland, some additional explanation of these orders maybe helpful. In California, the term stay-away order is used to refer to what elsewhere might be differentiated into two categories of injunctions, those prohibiting contact with a particular person (no contact orders) and those prohibiting presence in a particular place (no trespass orders). In the first iteration, the order is meant to manage or mitigate the threat of interpersonal violence; in the latter, it corresponds to the logic of broken windows policing and is meant to manage the threat of disorder and ostensibly improve the quality of life of the community (Beckett Sc Herbert 2010, Harcourt 2001, Vitale 2008). Whichever form it takes, a stay-away order in California names the victim and then requires those ordered to stay a specified distance away from that victim. In the case of Occupy Oakland, the victim was identified as the City of Oakland itself, with City Hall as its physical manifestation. Any violation of a stay-away order constitutes an arrestable offense and can result in jail time.

Appellate court files show that California courts have imposed stayaway orders on those convicted of prostitution since, and possibly before, the 1970s, usually prohibiting them from the area where they were arrested, often as a condition of probation. Over time, the use of stay-away orders expanded to encompass other offenses, including drug-related offenses and petty theft, and they were applied not only in the case of conviction, but also as a condition of pretrial release. Johnna Watson (quoted in Cagle 2012), spokesperson for the OPD, noted in an interview during Occupy that the city had a longstanding "policy of issuing temporary restraining orders for sex workers and drug dealers...: 'It is something we do and have done in the city for many years.'" In addition, in the weeks leading up to Occupy, the California Legislature passed a bill authorizing the Bay Area Rapid Transit (BART) rail system, which finks the San Francisco Peninsula to the East Bay and its suburbs, to issue stay-away orders to unruly or disruptive passengers. (2) Although the official story in the media was that the bill was prompted by attacks on BART employees, the legislation authorized BART to issue stay-away orders to individuals who...