Tennessee jury rejects felony charges on environmental activist

A Tennessee jury on Apr. 17 rejected felony charges initiated by Homeland Security officers against environmental activist john johnson, finding him guilty only of disorderly conduct and disrupting a meeting, both misdemeanors. The charges arose from a Mountain Justice Summer (MJS) protest on June 7, 2005, at a Holiday Inn in Knoxville, where National Coal Corporation (NCC) was holding a shareholders' meeting. NCC had been targeted for protest because it had acquired extensive rights to strip-mine coal in Tennessee. The mining operation NCC had acquired at Zeb Mountain, an hour or so north of Knoxville, was the first in Tennessee to operate on the same very large scale as mountaintop removal operations in West Virginia and Kentucky. Zeb Mountain had been blockaded by Earth First!ers including john johnson in 2003, and in 2004 johnson and three others were sued by NCC in connection with other protests against the company's coal mining activities. NCC ultimately dropped the suit, which johnson and others have characterized as a SLAPP (Strategic Lawsuit Against Public Participation). At the stockholders' meeting in 2005, about 30 protesters affiliated with MJS gathered in the hallway outside the room where the meeting was taking place. Their intention, according to one of the protesters, was to "raise as much Cain as we can without being violent, but definitely not walk out unless the cops tell us to," and just as definitely to leave on police orders. There was no plan for anyone to break the law or get arrested that day. "We expected that the police would eventually show up, and they would order us to disperse, whereupon we would, and go outside and hold our signs until they told us to disperse there. We just wanted to stretch it out as long as possible." The protesters used musical instruments and noisemakers to make a racket, and when the door to the conference room opened they tried to enter but were blocked. The man in charge of blocking the door, Deputy Sheriff Thomas W. Walker, with the Knox County Sheriff's Department, was not in uniform although his polo shirt did show a sheriff's office insignia. Walker was there because NCC had called a contact in the sheriff's department to hire an off-duty officer to provide security that day, as they had done in the past. The sheriff's office decided instead to send two on-duty officers responsible for Homeland Security operations, which have persistently targeted Earth First! Neither NCC nor the protesters that day clearly understood that Walker was on duty rather than hired by NCC. Hotel staff came and asked the protesters to leave out of consideration for other hotel guests. As they spoke, Walker smiled, did not identify himself as police, and gave no order to disperse. While the hotel staffers were still addressing the group, another officer arrived, identified himself as being with the sheriff's department, and ordered the protesters to leave the building, which they then did immediately. When some of the protesters continued drumming in the hotel parking lot, the officer who had ordered them to leave the building asked that the drumming stop. He told the protesters it would be OK for them to stand quietly in the parking lot, which they then did. Then, unprovoked, the arrests began. Walker, johnson remembers, "came outside and was obviously fixin' to point people out. And so I got pointed out, presumably because of my possession of the bullhorn. I would also imagine that the National Coal people, with their SLAPP suit in mind, said: 'You need to nail him.'" johnson was charged with inciting a riot and assaulting an officer with the bullhorn. (Video taken by the protesters, shown at johnson's trial, shows no such assault.) Chris Dodson (accused of poking Walker in the eye with a drumstick–also not shown on the video) and one other protester, Sequoia McDowell of Asheville, NC, were arrested as well. (McDowell "was way in the back of the crowd," Dodson recalls.) All drew multiple felony charges with steep bail costs. According to johnson, "the affidavit [said]: These people are known Earth First!ers, who are known ecoterrorists, whose protests often end in violence. And that's never happened before. Our protests don't end in violence, unless it's the cops kicking our ass." Ultimately the riot charges were dropped, but a six-count indictment including several felony charges remained against johnson: burglary (for entering NCC's meeting room and committing a felony and an assault there), assault, assault by offensive touching, aggravated criminal trespass, disrupting a meeting and disorderly conduct. Just days before the three were scheduled to stand trial together, Dodson and McDowell's trial was delayed, so only johnson's trial began on Apr. 16. "This case should never have been here," johnson's attorney, Mike Whalen, said when asking Judge Mary Beth Leibowitz to dismiss the charges rather than send them to the jury. The prosecution, on the other hand, argued that johnson should be held "criminally responsible" for any felonies committed by anyone at the protest that day, on the basis that johnson was "a leader" implementing a plan to commit assault and burglary. (The video shows several individuals other than johnson forcing their way into the conference room, tussling with Walker as they did so.) The judge refused to dismiss the charges, but did agree that johnson should not be held "criminally responsible" for the actions of others at the protest. "I don't think there's any evidence that there was a plan" to commit felonies that day, she said.