March 4, 2017, brought a day of violent political clashes to downtown Berkeley’s Civic Center Park. The event, dubbed the “March on Berkeley” by its pro-Trump organizers, was the first of several large protests in the city in 2017 that would pit pro- and anti-Trump activists against each other. There were verbal altercations and street brawls. And despite efforts by some to keep events peaceful, nearly every rally resulted in violence and arrests. Both sides have blamed the other for provoking the fights.
Wednesday, a trial began in Alameda County Superior Court where jurors have been asked to decide if five self-described “anti-fascist” defendants are guilty of attacking Trump supporter Moshe Daniel Quillinan during his evaluation by Berkeley firefighters for a large cut on his head that ultimately required 10 staples to close, according to testimony last week.
Prosecutor Jim Logan, with the Alameda County district attorney’s office, told jurors Friday during closing arguments that he wouldn’t blame them if they found Quillinan’s political views repulsive. But Logan said that didn’t mean Quillinan deserved to be attacked as he sat near firefighters, with a bandage wrapped completely around his head, waiting for a friend to take him to the hospital: “Just because the victim is dislikable doesn’t mean the rules don’t apply,” Logan said. “The defendants don’t get to decide … punishment on the street. That’s what the courtroom is for.”
Defense attorney Shanta Driver told the jury it was Quillinan who provoked an argument with a group of passers-by that included some of her clients. She said they only tried to defend themselves, as Quillinan tried to strike them with a wooden shield, and argued that Berkeley police were “treating Mr. Quillinan as a victim, and as somebody whose rights were denied, while treating these five [defendants] as villains and perpetrators of violence.”
Driver — who is representing Taylor Fuller, Scott Hedrick, Nathan Perry, Jeff Armstrong and Dustin Sawtelle — told jurors during her closing arguments Friday that they had witnessed “a political trial that’s being conducted in a political era, the Trump era: an era in which lies and fantasies can be substitutes for the truth and reality.”
From Wednesday through Friday, jurors and Judge Alison Tucher heard testimony from a parade of witnesses for the prosecution and defense. Dozens of supporters of the five defendants have been in court for the bulk of the trial. They have made their feelings known, with laughter and sighs of derision, hissing, applause and other outbursts. At one point, a member of the audience held up a political flier, facing the jury, urging the court to “drop the charges” against the activist group.
Tucher repeatedly admonished the crowd to keep on their “poker faces,” or risk ejection, telling them it was a “courtroom, not a political rally.” She said there should be “no snickering, laughing, catcalling” or any other reactions in response to the witnesses: “You can think whatever you want to think inside your heads,” she said. But the proceedings continued to be marked by interruptions and audible reactions, despite her numerous announcements for order.
It wasn’t the only logistical challenge. Throughout the first day and much of the second, during breaks, jurors stood outside the courtroom and rode the elevator within earshot of defense supporters who loudly discussed their views and criticized the prosecution. Jurors are under strict orders to focus only on evidence presented in court, and to have no outside discussions or external exposure to the case to ensure an unbiased process. Eventually, during the second day of testimony, Judge Tucher ordered jurors to spend all breaks inside the jury room, and had the bailiff keep them separate from the crowd.
Driver, who is a national organizer for the political activist group By Any Means Necessary, or BAMN, put all five of her clients on the stand to testify about March 4. She also called on fellow BAMN leader Yvette Felarca, as well as another Berkeley activist, to testify. Much of the testimony on the defense side related to events at Civic Center Park during the March 4 rally — in the hours before the alleged assault in this case — including physical altercations and intimidation that witnesses and defendants attributed to Quillinan.
Prosecutor Logan repeatedly drew the jury’s focus to the incident on Milvia Street shortly after 3 p.m. where two firefighters and a Berkeley police officer said they watched the group swarm Quillinan, as he sat on a concrete ledge near Berkeley High School, then unleashed 10-20 punches and 10-15 kicks over an estimated 15 seconds to a minute. They left when police and firefighters interrupted the alleged attack. Logan asked the jury to decide whether they believed the first responders to be liars, or the defendants who have said they are innocent.
Logan also told jurors to be skeptical of the testimony of the defendants, who all described the altercation with the “same six facts.” He asked the jury to recall the demeanors of the defendants during the three-day proceeding, their smiles and their laughter: “These defendants think it’s a joke,” Logan said.
Driver said the prosecutor’s description of events was “a real challenge to imagine.” She said her clients had shown up to Berkeley to provide medical aid during the rally, and to ensure the “free speech rights of everyone.” She said there were too many inconsistencies among the witness testimony on the prosecution side. Driver said her clients had simply tried to walk by Quillinan on their way to their car — and had not attacked him in plain view of nearby firefighters.
“You would have to be an idiot to do something like that,” she said.
The defense team had filed a motion before the trial began to ask the judge to exclude “references to ‘black bloc,’ ‘anarchists,’ ‘antifa,’ or ‘people wearing masks’ and statements about violent actions taken by anti-Trump non-defendants on that day.… Such references have no probative value and cause substantial danger of undue prejudice, confusing the issues, and misleading the jury.”
Last week, throughout the week, the defense team sent out email updates to supporters and the media describing the defendants as “the Berkeley Anti-Fascist 5.” They blamed police and prosecutors for engaging “in a conspiracy” with Quillinan, and described all charges as “false.” The goal of the prosecution, they wrote, was “to advance Trump’s agenda in the direction of a police state.”
Some of the defendants testified they had known of Quillinan and his views before the March 4 rally. Others said they saw him in the park being aggressive. They testified that they had been walking to their cars when they found themselves crossing Milvia Street from Kittredge Street, and were surprised to see Quillinan sitting near some firefighters. They said they hadn’t been able to see Quillinan from Kittredge because a fire engine was blocking their view. Defendants said three other men, who had joined their group a block or so earlier, walked with them, but ran off before their arrest. They also said defendant Hedrick had split off from the group before the interaction with Quillinan, then ran back to them afterward to see if they were all right.
Defense attorney Driver at one point filed a motion to ask the judge to allow her clients to sit among the audience so witnesses would have to identify them from among the crowd. Judge Tucher said that would be “unusual,” and that she was “not inclined to grant that,” in part because Driver had cited no related case law.
The prosecution
Berkeley Police Sgt. Jesse Grant testified that he was sitting in an unmarked vehicle at Milvia and Kittredge when he heard words exchanged between the seated Quillinan and a group of pedestrians. Grant saw Armstrong punch Quillinan in the head and Perry kick Quillinan in the leg, he said. Several others then “closed in” around Quillinan, as Grant saw “arms and legs flying.” Grant, the only police officer at the scene, jumped out of the car and called for back-up, then ordered the group to leave. Firefighters also yelled, to break up the fight, and the group “took off” south on Milvia. The defendants were arrested by other BPD officers a short distance down the street.
Grant said he asked Quillinan if he wanted his assailants arrested — which is required by law in any misdemeanor case — and took a statement after Quillinan said he did.
Grant watched the group as they walked a block or so south, as did Berkeley fire captains David Sprague-Livingston and Jonathan Fischer. Fischer testified that he first saw the group walking from the north on Milvia from about 20 feet away. When the group got close, Fischer said one of the pedestrians said something to his patient, who responded. There was a punch and a kick, then more punching and kicking. Fischer said the group of pedestrians “threw the first punch.”
Fischer also testified that he didn’t “recognize anybody” among the defendants in the courtroom, noting it had been more than a year since the incident had taken place. But he said the five people who were detained March 4, whom he had identified during their detention, were the same ones he had seen attack his patient.
Sprague-Livingston testified that he was “certain” the five defendants were the men he saw commit the March 4 assault. In court, he identified each of them as someone who had taken part in the attack, and said the people stopped by police were the ones who assaulted his patient. “I had clear views of the incident the whole time,” he told the jury. “They’re the folks that came by.”
Sprague-Livingston said, during cross-examination, that he could not recall any specific actions he could attribute to any particular defendant due to the nature of the attack. But he said he did see a punch thrown, then an attempt by Quillinan to defend himself by holding up his wooden shield as punches and kicks continued. He said, when he identified the defendants after police detained them, he remembered them because of their faces and their clothing.
Quillinan, a Berkeley antique dealer, testified Wednesday that he wore hockey kneepads and a motorcycle helmet to Berkeley on March 4 “for protection.” He carried with him a yellow-and-black flag on a wooden pole, and a thick wooden shield, which he called “my poster board,” that he said Kyle Chapman made for him. The crowd laughed when Quillinan said, “Sometimes violent people show up, so I wanted to be safe.”
He said he had been in the park along with “conservative pro-Trump Republicans” and “communists, Marxists [and] antifa” when someone grabbed him from behind. He was “thrown the ground, mobbed and beaten,” and sustained a “large gash” in his head when someone removed his motorcycle helmet. Quillinan said that attack happened when he was “trying to break up another fight” by swinging his flagpole at people in the park. (That incident is separate from the one that is before the jury.)
After he was taken out of the park, firefighters moved Quillinan down the street on Milvia to make sure they were a safe distance away from the crowd. He said he saw a group approaching, and then one person said something to him that was “probably mocking.” One person kicked him, and then others held him and beat him for 15-20 seconds. He said the five men police stopped nearby — the five defendants — were the ones who attacked him. He said he recognized at least four of them “for sure,” but one of them — Hedrick — was “familiar but I don’t recognize for sure.”
Quillinan testified, during cross-examination, that he had tried to attend a talk at UC Berkeley in early February last year by Milo Yiannopoulos. Counter-protesters shut down the event, and Quillinan said he saw someone attacked in front of him while he was streaming video live to Facebook. Driver asked Quillinan if he was a fascist, and if he was a white nationalist. He said he was neither.
As the hearing ended for the day, the crowd spilled into the hallway.
“I can’t believe he lied about being a Nazi,” one member of the group of supporters told another.
The defense
After Quillinan’s testimony ended, the five defendants took the stand along with BAMN leader Felarca and another local activist. Sawtelle, an Oakland tattoo artist, said he’d attended many political rallies, and came to the March 4, 2017, event in Berkeley because a lot of the promotional materials leading up to it had indicated there could be violence against leftists. He said he was aware of Quillinan and Chapman, and their posts online, before the rally.
The defendants said they knew each other through the music scene, and that some perform in local bands.
Sawtelle said he and Perry had picked up medical supplies to help with basic first aid because “police and firefighters don’t typically go rushing into the scene” during contentious political events. Sawtelle said he did not bring any weapons with him to the rally but, according to court papers, police recovered a knife among his possessions during a search when he was arrested.
The defendants said they were prepared for fights that day, based on what they had seen at prior events of a similar nature.
“I knew for a fact there would be an altercation or violence,” Hedrick, a machine operator who lives in Oakland, testified. “I don’t think it would bring out someone wanting to debate.”
Sawtelle said initially there was political debate between the two sides, and “some heated talking,” but then Chapman, Quillinan and some others showed up and the dynamic changed. Sawtelle said the new arrivals shoved people and shot pepper spray into the crowd. People on both sides began yelling.
Sawtelle said he helped several people who were injured. He said he and his four friends “got between a lot of things” to stop assaults that day, and to defend people who could not defend themselves. He said, at one point, he saw a group that did not include Quillinan going after Felarca, and he intervened. He later saw Quillinan dragged out of the park after people kicked and punched him, and pulled off his helmet.
Eventually, the pro-Trump crowd began a march toward downtown, and Sawtelle said he and the others decided to leave.
“We were all tired and covered in pepper spray, and had been there all day,” he said. Armstrong, a union organizer who lives in Oakland, said it had been “a very violent day,” and that they were all ready to be done.
As they headed back to the car, three strangers joined them, Sawtelle said, and they “grouped together for safety.” They walked west on Kittredge, he said, and crossed to the west side of Milvia. Hedrick turned right to go to his car, which was parked elsewhere. Sawtelle said they only noticed Quillinan after crossing the street, from about 100 feet away. But the sidewalk was about 8 feet wide, he said, and the group didn’t see any reason to steer clear.
“Aw shit, here we go again,” Armstrong recalled thinking. “We can’t get rid of these people.”
“Lots of hands flying all over the place”
Sawtelle said the group agreed to ignore Quillinan as they passed, but Quillinan “started staying stuff,” then made a “high-pitched squeal” that Sawtelle said Quillinan had used at the park earlier as a “war cry.” Armstrong said he saw Quillinan “kick his leg up” on one of the other men.
Sawtelle, who had passed Quillinan, turned back around and saw him making “chopping motions” as he swung his shield, Sawtelle said. Armstrong said he “shot my arms up and got out of the way.” He said he “absolutely” tried to take away Quillinan’s shield, and was trying to hold onto it: “I didn’t want to get hit with that thing.”
Sawtelle said he tried to grab the shield, but failed, then a police officer — Sgt. Grant — shoved him from behind.
“He attacked us,” Sawtelle said he told Grant, of Quillinan.
“No, he didn’t,” he said Grant responded.
“He shoved me and told me to leave,” Sawtelle said, of Grant.
Fuller, a bar-back and door man at area bars, who lives in San Francisco, said “it was hard to tell what started the altercation.” But he saw Quillinan swing his shield and thought he may have hit someone. Someone tried to take the shield, he recalled, but no one kicked or punched him. He said he saw what looked like movement “to restrain” Quillinan, but he was behind the others during the “brief little struggle,” with mace still in his eyes from earlier in the day.
“I couldn’t tell who touched who where,” he told Logan, on cross-examination. “I’m not sure whose hands were doing what.”
Perry said he saw “lots of hands flying all over the place” as people tried to grab the shield. But he was 5 feet away and was not involved, he said.
Fuller said it had been “kind of a surprise” to see Quillinan sitting on the ledge, but “with him busted up, I didn’t think he was too dangerous.” “I kind of figured all the violent shit had ended for the day,” Armstrong testified.
Hedrick said he ran back to the group and saw Quillinan looking tense and upset, crouched over, “but I didn’t see him hit anybody.” He had come from the corner of Milvia and Allston Way when he saw his friends “backing up,” and “it looked like something was going on.”
After the incident, Sawtelle said the three strangers who had joined their group ran off to the east down Milvia and turned a corner. He and his four friends continued south. They were detained nearby by police.
On cross-examination, Sawtelle told Logan he is “not a fan of pro-Trump people” but said it would only be OK to punch them “if they’re being violent.” He said, even before the March 4 event, he believed Quillinan to be “a gross human being.” He said he saw Quillinan during the event swinging his “giant stick” and “giant wooden shield” randomly into the crowd “a lot.” He said he didn’t see any of his friends hit or punch Quillinan during the alleged attack on Milvia, however.
Felarca testified that Quillinan had “pointed his stick at me” during the rally, and that people were yelling her name: “It was absolutely a threat,” she said. She said she was part of a “community mobilization to defend Berkeley” so people didn’t get “hurt or killed.” On cross-examination, Logan briefly questioned Felarca for several minutes. He asked her to confirm that she has a felony criminal case pending, and she said she does. When she said she did not see the incident on Milvia, however, he said he had no further questions.
Sawtelle testified that he strongly opposes racism and fascism, and expresses his beliefs at rallies. Logan asked him if he thought it would be appropriate to punch someone holding a banner featuring a swastika, and Sawtelle said no. Logan asked whether filing a lawsuit might be a reasonable way to fight back.
“I don’t believe in calling the police,” Sawtelle replied. “The American justice system promotes a system of white supremacy.”
Closing arguments
In her closing argument Friday, Driver spoke to the jury about the “proud tradition” of political protest “that is in danger of being eviscerated through these proceedings.” She asked jurors to consider how the protests have been “radically different from anything we’ve seen in the Trump era” — hopeful, and positive, and a sign that “human progress can be achieved.”
She said many people might take issue with people like Quillinan, “but not a lot of people act on it,” she said. “It’s very difficult to imagine what it is to build a political movement that is a resistance to what is taking place now.”
The courtroom burst into a hearty and extended round of applause at the conclusion of her remarks.
Logan told jurors Friday that they should be “pissed off” at Driver’s argument, describing it as “a half-hour of politics.”
“Your job is not to think about politics, not to think about the audience,” he told them.
“Anything that happened in the park … that’s outside of your job,” Logan said. “Set aside what happened earlier in the day. Does that mean he deserves to get his ass kicked when he’s out of the fight?”
Update, 3:45 p.m. The jury has found all five defendants not guilty of misdemeanor assault, and not guilty of assault causing great bodily injury, also a misdemeanor. About 30 supporters of the defendants were in the courtroom for the reading of the verdicts, which began at about 3:40 p.m. Some cried quietly as the clerk read the decisions for each person. After the reading, there was a brief round of applause before the judge released the jury.
One of the defendants, Scott Hedrick, said it was a relief for the case to be over.
“It’s been over a year of this,” he said. “It was intense. We’re all just ready to move on with our lives.”
The men, who met through the underground punk scene, said they now plan to hold benefit concerts to help raise money for their attorneys.
Several jurors told Berkeleyside the group found itself in agreement relatively early on regarding the not guilty verdicts. But they wanted to make sure they worked through the process carefully. They deliberated for nearly a day. Ultimately, they said, they were not convinced a crime had occurred. There were other viable explanations for what took place, they said.