UPDATE January 6, 2014 – Gutierrez will be sentenced on Friday, January 10 at 10:30am Oakland Federal Courthouse 1301 Clay Street
October 4, 2013 – A jury in federal court has found KPFA citizen journalist Jose Gutierrez guilty of assaulting a US marshall during a protest of the raid on Oaksterdam University on April 2, 2012.
Gutierrez was wearing a bull mask and holding a sign saying “Department of Injustice: BULLIES” when the incident happened at the neighboring Blue Sky coffeehouse in Oakland. In the throng of a shifting crowd, the sign briefly struck a marshall, who was unharmed. Guiterrez was wrestled to the ground (show above), beaten, and taken to the hospital after the incident.
“At the end of the day, it’s in the videos,” the prosecution concluded. Several angles and views of the incident were shown, none of them definitive. In no case were anything other than Gutierrez’s arms and head shown, so it was impossible to determine whether or not he had been shoved in such as way as to cause impact. All of the videos showed a general melee going on and defense attorney Tony Serra cited witness statements like, “The crowd came back like a wave…Bodies were like dominoes…everyone was being pushed forward.”
Serra pointed out that the US Marshalls, who turned out in force (though not in uniform) in the courtroom, were not trained in crowd control and were doublessly tired and hungry, since they’d begun their day with a 5 AM meeting (to which Oakland Police Department was not invited). They thought they were finished with their day when they got the call that DEA and IRS agents were inside the Blue Sky coffeeshop with a crowd outside.
“This was a protest against the federal government’s closing of state- and locally-approved Oaksterdam University,” said Serra, though the prosecution tried to say none of that was relevant. In the “clash of ideology,” OPD was excluded and there was no chain of command, he alleged. The lack of crowd control “created the ultimate forward surge that should never have occurred,” said Serra, using the metaphor, “For want of a nail, the kingdom was lost….For lack of experience, there was no perimeter established, a crowd was allowed to amass and havoc ensued….it was a disgrace of mismanagement and they know it…they created the disaster.”
Knowing that there were six locations for which search warrants were to be served, three of them Oaksterdam properties, a perimeter should have been established at each so that protesters could exercise their right to protest, Serra argued. He called Gutierrez a “guerilla journalist” in the mode of Hunter S. Thompson in which “you involve yourself in the event,” and harkened to George Orwell’s Animal Farm in the way the police may have interpreted Jose’s bull mask as a pig. Bull-ies are “tepid,” he said, compared to the betrayal of the pigs in Orwell and the derogatory nature of the term to police’s ears.
Serra reminded jurors that they promised in voir dire not to favor law enforcement’s over protestors’ word, and asked them to disregard the police presence in the courtroom. He thanked Judge Shubb for “fair trial and forum.” However, Shubb disallowed all mention of the marshall’s beating of Gutierrez after the incident.
“They filed this charge to protect themselves against a lawsuit for beating up Jose,” said Serra. “By disallowing all mention of the beating, the judge ripped the guts out of our case.” As many as 35 witnesses were disallowed from testifying.
Gutierrez’s sentencing is set for January 10 and he is out on probation until that time. He faces up to 8 years in federal prison. An appeal is being considered.