An Orange County Superior Court judge on Thursday, March 12, decided against dismissing criminal charges against three people accused of failing to follow a police order to leave a pro-Palestinian protest at UC Irvine, leaving a jury to decide whether law enforcement’s actions on the campus were constitutional.
Attorneys for the three defendants argue that a police order for protesters to disperse from a campus encampment May 15, 2024, was part of an effort by law enforcement and UCI leaders to shut down the protesters’ First Amendment rights, not a lawful response to violence or imminent danger.
The three defendants — Adel Shaker Hijazi, 41; Malik Alrefai, 25; and Jacob Andrew Hernandez, 33 — are scheduled for trial next week on misdemeanor charges of failure to disperse.
Orange County Superior Court Judge Eric Scarbrough didn’t weigh in on the substance of the defense argument challenging the constitutionality of the police dispersal order. Instead, Scarbrough said that argument would likely be the heart of their trial and should be decided by a jury instead of a judge.
Around 50 people were charged in connection with the same UCI protest, with the vast majority accused of a misdemeanor count of failing to disperse when ordered by police. More than 40 of those defendants have already resolved their cases, most agreeing to taking part in a diversion program rather than face a conviction or time behind bars.
The 2024 UCI demonstration came amid a wave of protests at college campuses across the country related to the Israel-Hamas war.
A makeshift encampment erected by protesters stood for two weeks, beginning in late April 2024. Protesters sought to force the university to divest from companies and institutions with ties to Israel and weapons manufacturers, to support an end to the Israeli occupation of the Gaza Strip and to reinvest funds toward students and workers, among other demands.
The crowd had swelled to 500 or so people by the afternoon of May 15, when officers in riot gear from more than a dozen law enforcement agencies swept through the crowd following reports of a small group barricading itself into the Physical Sciences Lecture Hall, which was adjacent to the encampment.
UCI leaders argued they had exhausted all possible alternatives before resorting to police intervention. Orange County District Attorney Todd Spitzer, whose office filed the charges against the protesters, said at the time that “criminal activity (that) transcends peaceful assembly will not be tolerated.”
But the decisions to call in law enforcement and to file charges against protesters were condemned by civil rights groups and some faculty members as a politically driven effort to silence pro-Palestinian activism on campus.
During Thursday’s hearing in a Santa Ana courtroom, Alternate Defender James Henshaw, Alrefai’s attorney, described the dispersal order his client is accused of failing to follow as a “sham” that was used to violate the First Amendment rights of the protesters.
There was no violence and no threat of imminent violence, the attorney added as he noted that police waited around 2½ hours from the first dispersal order to the arrests.
“They didn’t like the cause; they didn’t like the attention,” Henshaw said. “The police and UCI administrators wanted to shut this down.”
Deputy District Attorney Matthew Bradbury told the judge that there was evidence of violence or potential violence that led officers to issue the dispersal order and then to make arrests. The prosecutor told the judge that he had officers at the courthouse Thursday ready to testify and body-worn camera footage on hand. But the officers did not ultimately take the stand Thursday and the footage was not shown.
Along with arguing the police order was unconstitutional, Hernandez’s attorney is also arguing that Hernandez was covering the protest as a freelance reporter and therefore was covered by state laws exempting journalists covering a protest from failure to disperse charges. The judge held off on weighing in on that argument Thursday.
A jury trial for Hijazi, Alrefai and Hernandez is currently scheduled for next week.
