This is great! Appreciating your nitty-gritty considerations
(1) There’s a good chance the outcome will be some form of “catch and release”—it’s usually easier to deal with isolated protestors who do not cause violence or significantly damage property in this manner rather than by pursuing criminal charges to trial.
“Catch and release” is what’s happening right now. However, as we keep repeating the barricades, and as hopefully more and more protestors join us, it would highly surprise me if the police and court system just allow us to keep barricading OpenAI’s office entrances without pursuing criminal charges. If police would allow us to keep doing it with at most overnight time in jail, that would of course make doing the barricades easier.
(2) Generally, a trial court acquittal does not establish precedent binding as to future cases. And the California appellate courts are not generally known for being speedy.
This is insightful, thank you! I was personally skeptical that we could set a precedent that would give us a free pass every time. But I am not a lawyer.
Checking: Are you saying that the trial courts generally do not set a precedent (or more specifically do not set a precedent that allows “repeat offenses”)?
And would we only be able to take this up to the appellate court if the judge rules against us (the defendant), and we file an appeal?
[Asking for information only – whatever you share is not legal advice.]
(3) Even assuming there were some binding precedent establishing that you could not be criminally convicted for these actions, it doesn’t necessarily follow that the police or OpenAI could not physically remove you from the area
That is fine. Getting moved around by police is part of the process of doing the protests. As Sam said, when said the time comes, we’ll leave.
It also wouldn’t preclude OpenAI or others from filing a civil lawsuit against the protesters for damages or other relief.
I had not considered this! I’m not sure whether to see this as a serious personal risk to our organisers in the US (though Sam doesn’t have money to hand over anyway), and/or a great opportunity to publicly present arguments of OpenAI’s harmful/illegal activities.
many jurisdictions allow a property owner to use reasonable force to eject a trespasser—and it’s going to tough for a small group to blockade a company headquarters or data center without trespassing on the AI company’s property.
My impression is that the gates we are barricading of the office OpenAI co-rents are actually connected to the public side-walk. In that case we are sitting on the side-walk and not on private property (Sam can correct me here).
For the data centers, I’d expect us to be often be sitting on private property, and for private security to be present and ready to act.
This is insightful, thank you! I was personally skeptical that we could set a precedent that would give us a free pass every time. But I am not a lawyer.
Checking: Are you saying that the trial courts generally do not set a precedent (or more specifically do not set a precedent that allows “repeat offenses”)?
And would we only be able to take this up to the appellate court if the judge rules against us (the defendant), and we file an appeal?
[Asking for information only – whatever you share is not legal advice.]
Keeping it at a general information level --
There are a few main ways that judges “make law” when rendering judicial decisions.
One involves creating precedent that (loosely) binds their court and (more strictly) binds certain lower courts.[1] Note that, in most systems, this only occurs when the court designates its opinion as precedential (“published”).[2] Moreover, only the “holding” (~what was necessary to decide the case) rather than the “dicta” (anything else) become precedent. For better or worse, the courts do not clearly label the difference.
Another method of impact involves the binding effect of the court’s judgment on the parties. In the right procedural posture, this can be very powerful against a government defendant. That usually happens when the only way to provide relief for the plaintiff’s legally recognized injuries in a suit is to award sweeping relief against the government that is within the court’s power.
In other situations, it can be largely useless—there are circumstances in which so-called collateral estoppel (ye olden name) or issue preclusion (the modern name) won’t run against the government when it would against a private litigant. This makes a lot of sense in the criminal context because the government cannot appeal an acquittal, and we generally don’t want to bind a party too much if it lacks the ability to appeal.
People talk about “precedent” in a looser sense—you can point to Judge Smith’s decision in a prior case and try to convince Judge Jones that he should rule the same way. Also, the prosecutor might see Judge Smith’s decision and decide not to file a similar case in the future. Seeking this sort of “precedent” is a valid activist strategy, but it’s important to recognize when it is more or less likely to work. This kind of “precedent” is more likely to be effective when there is limited on-point binding precedent. It can also be effective in causing an opponent to update the odds that litigation won’t go well for them, but this works better when the opponent has a lot to lose if litigation blows up on them.
Generally, one cannot appeal a judgment in one’s favor. And the prosecution cannot appeal an acquittal at all.
The definition of “certain lower courts” depends on the jurisdiction and the court involved. At the low end, it means all courts to which appeals may be had to the court that issued the decision. At the high end, it means all lower courts in the jurisdiction.
Some appellate courts designate ~90% of their decisions as non-precedential. Having been an appellate law clerk, I can tell you that it takes an order of magnitude more time to write a published opinion than an unpublished one.
This is great! Appreciating your nitty-gritty considerations
“Catch and release” is what’s happening right now. However, as we keep repeating the barricades, and as hopefully more and more protestors join us, it would highly surprise me if the police and court system just allow us to keep barricading OpenAI’s office entrances without pursuing criminal charges. If police would allow us to keep doing it with at most overnight time in jail, that would of course make doing the barricades easier.
This is insightful, thank you! I was personally skeptical that we could set a precedent that would give us a free pass every time. But I am not a lawyer.
Checking: Are you saying that the trial courts generally do not set a precedent (or more specifically do not set a precedent that allows “repeat offenses”)?
And would we only be able to take this up to the appellate court if the judge rules against us (the defendant), and we file an appeal?
[Asking for information only – whatever you share is not legal advice.]
That is fine. Getting moved around by police is part of the process of doing the protests. As Sam said, when said the time comes, we’ll leave.
I had not considered this! I’m not sure whether to see this as a serious personal risk to our organisers in the US (though Sam doesn’t have money to hand over anyway), and/or a great opportunity to publicly present arguments of OpenAI’s harmful/illegal activities.
My impression is that the gates we are barricading of the office OpenAI co-rents are actually connected to the public side-walk. In that case we are sitting on the side-walk and not on private property (Sam can correct me here).
For the data centers, I’d expect us to be often be sitting on private property, and for private security to be present and ready to act.
Keeping it at a general information level --
There are a few main ways that judges “make law” when rendering judicial decisions.
One involves creating precedent that (loosely) binds their court and (more strictly) binds certain lower courts.[1] Note that, in most systems, this only occurs when the court designates its opinion as precedential (“published”).[2] Moreover, only the “holding” (~what was necessary to decide the case) rather than the “dicta” (anything else) become precedent. For better or worse, the courts do not clearly label the difference.
Another method of impact involves the binding effect of the court’s judgment on the parties. In the right procedural posture, this can be very powerful against a government defendant. That usually happens when the only way to provide relief for the plaintiff’s legally recognized injuries in a suit is to award sweeping relief against the government that is within the court’s power.
In other situations, it can be largely useless—there are circumstances in which so-called collateral estoppel (ye olden name) or issue preclusion (the modern name) won’t run against the government when it would against a private litigant. This makes a lot of sense in the criminal context because the government cannot appeal an acquittal, and we generally don’t want to bind a party too much if it lacks the ability to appeal.
People talk about “precedent” in a looser sense—you can point to Judge Smith’s decision in a prior case and try to convince Judge Jones that he should rule the same way. Also, the prosecutor might see Judge Smith’s decision and decide not to file a similar case in the future. Seeking this sort of “precedent” is a valid activist strategy, but it’s important to recognize when it is more or less likely to work. This kind of “precedent” is more likely to be effective when there is limited on-point binding precedent. It can also be effective in causing an opponent to update the odds that litigation won’t go well for them, but this works better when the opponent has a lot to lose if litigation blows up on them.
Generally, one cannot appeal a judgment in one’s favor. And the prosecution cannot appeal an acquittal at all.
The definition of “certain lower courts” depends on the jurisdiction and the court involved. At the low end, it means all courts to which appeals may be had to the court that issued the decision. At the high end, it means all lower courts in the jurisdiction.
Some appellate courts designate ~90% of their decisions as non-precedential. Having been an appellate law clerk, I can tell you that it takes an order of magnitude more time to write a published opinion than an unpublished one.