Screen grab from youtube video showing the arrest of Occupy LA activist Sergio Ballesteros on Thursday, Jan. 12. Ballesteros, 30, was released on $50,000 bail early Tuesday. He is charged with "lynching"--a felony charge originally drafted to deal with vigilante mobs.
Sergio Ballesteros, 30, has been involved in Occupy LA since the movement had its California launch in October. But this week, his activism took an abrupt turn when he was arrested on a felony charge — lynching.
Under the California penal code, lynching is “taking by means of a riot of any person from the lawful custody of any peace officer," where "riot" is defined as two or more people threatening violence or disturbing the peace. The original purpose of the legal code section 405(a) was to protect defendants in police custody from vigilante mobs — especially black defendants from racist groups.
Whether the police allegation in this case will be pursued by by California’s courts is uncertain. But the felony charge — which carries a potential four-year prison sentence — is the kind of accusation that can change the landscape for would-be demonstrators.
"Felonies really heighten the stakes for the protesters," said Baher Azmy, legal director at Center for Constitutional Rights in New York. "I think in situations where there are mass demonstrations and a confrontation between protesters and police, one always has to be on the lookout for exaggerated interpretations of legal rules that attempt to punish or squelch the protesters."
Ballesteros, a teacher-turned-social-activist, was one of two people arrested during an "art walk" in downtown Los Angeles on Thursday. He and other Occupy LA activists — maybe 200, he said — had joined the procession to bring their message about social injustice to the thousands of gallery-goers.
Adam Alders, a protester who was playing a drum was arrested after stepping off the curb into the street. Ballesteros said that in doing so, the drummer was joining hundreds of other people who could not fit on the crowded sidewalk.
Ballesteros said he was across the street when he saw the arrest — which he said looked excessively rough -- and it was “startling.” Under legal advice, Ballesteros is not providing additional detail, but apparently he objected — in some fashion — to the arrest. A video of the crowded scene posted on YouTube shows Ballesteros on the ground, being handcuffed.
The police report says officers called for backup when Ballesteros pulled Alders out into the crowd, which was "hostile."
A video of the event shows the crowd chanting "let him go!"
He was booked into jail on a felony charge, the Los Angeles Police department confirmed, and released on $50,000 bail early Tuesday morning.
'I can't go out and express myself'
Ballesteros is not the first protester to face this 1933 California law.
Occupy Oakland activist Tiffany Tran, 23, was arrested Dec. 30 and charged with "lynching." At an arraignment four days later, prosecutors opted not to file the charges, the San Francisco Bay Guardian reported. They could change their decision until the one-year statute of limitations expires.
"Now I feel I can’t go out and express myself as I should be able to," Tran told the paper.
In the handful of protest cases in which lynching has been used as a charge in the past, it later has been dropped. However, in one case, a court concluded that “lynching” could include “a person who takes part in a riot leading to his escape from custody."
Many states have laws against lynching — largely drafted to prevent white supremacists and other vigilante groups from using violence against African Americans and white people who supported them. Hundreds of lynchings of this sort took place in the late 1800s through the mid-1900s.
Ballesteros' lawyer said use of this law was perhaps less appealing to the District Attorney than to the police.
Ballesteros is an activist outside the Occupy movement -- building homes through Habitat for Humanity during his spring breaks, aiding at a children's camp for the poorest kids in the Appalachians during the summer, and acting as mentor for disadvantaged kids in the Los Angeles area.
"Whether the District Attorney has the stomach to charge this model young man with a felony is questionable," saidd Mieke ter Poorten, an LA criminal defense attorney who is handling this case pro bono.
Trying to silence?
Ballesteros, who spoke to msnbc.com on Tuesday, said that he does not believe he will be convicted of lynching.
“They don’t have much,” he said of the case against him.
He also faces a misdemeanor charge for his arrest Nov. 30, when he was among more than 200 people who defied eviction from an encampment on the grounds of Los Angeles' City Hall. There was an arraignment for protesters arrested that day, but they were told no charges yet had been filed.
“They have a year to do so,” said Ballesteros. "Now they certainly will. It’s obvious. It’s all political.”