Calling police to arrest one of its co-owners for trespassing has put the The Food Co-op on trial.
On April 5, 2021, Rachelle Merle, one of the Co-op’s member-owners, refused to wear a mask while shopping in the store. The store’s manager told her she would have to leave. Mrs. Merle said she would not. During the episode she asserted religious, scientific and political reasons for her stance.
The store’s manager called police. Mrs. Merle told the responding officer that she would not wear a mask and gave him her reasons. She also informed him she was “a member.” He informed her that he would arrest her if she did not don a mask or leave. She repeated her refusal to wear a mask and insisted she had the right to be in the store. He handcuffed and arrested her and walked her outside to his patrol car. She continued to state her reasons for refusing to wear a mask and to tell him that what he was doing was wrong.
She was placed in the back seat of his patrol car. A second patrol car arrived. The officers consulted. One went to the street, away from the people observing events, presumably to confer with a supervisor. He returned and stood by the car holding Mrs. Merle while the arresting officer went inside with a clipboard, presumably to confer with store management. He returned and told Merle she was being charged with trespassing and that, at the request of The Food Co-op, she was being “trespassed” from the store for a year. If she returned during that time she would be in violation of the order to stay off the property and arrested.
Merle was arraigned on April 26 on a single count of Trespass in the Second Degree. This is a misdemeanor criminal offense with penalties of up to 90 days in jail and a fine up to $1,000. To understand the offense one must first know what constitutes Trespass in the First Degree: “A person is guilty of trespass in the first degree if he or she knowingly enters or remains unlawfully in a building.” Trespass in the Second Degree is when “he or she knowingly enters or remains unlawfully in or upon the premises of another under circumstances not constituting criminal trespass in the first degree.” (Emphasis added for reasons that follow.)
Merle was not charged with not wearing a mask inside a public place of business, which would be a gross misdemeanor under the Governor’s emergency order. It remains to be seen if the Governor can unilaterally dictate new criminal offenses that could put a citizen in jail for up to a year. Merle’s case does not raise that question.
Mrs. Merle is represented by Caleb Vandebos of Chehalis, Washington. He specializes in criminal defense. Mrs. Merle will be demanding a jury trial.
Eyewitnesses for Good Reason
Merle had told people at the Freedom Rally in downtown Port Townsend the previous Saturday that she would be shopping in The Food Co-op without a mask. Freedom Rallies had been held every Saturday in recent months at the Tyler Street plaza to protest the Governor’s lockdown and masking mandates and distribute information about the vaccines.
I was there that day playing guitar with other musicians.
Merle wanted observers because she was afraid of being assaulted. She said she and, if I recall correctly, an older man had been verbally assaulted and physically intimidated for not wearing masks outside in the Co-op’s parking lot.
I decided to observe and take video for Port Townsend Free Press. I posted a video of her being escorted in handcuffs out of the store. (You can see it at our Facebook page). Shortly afterwards, in comments to the same video posted on my personal FB page, a Co-op employee attempted to start a false narrative that Mrs. Merle “literally took off her mask and coughed on an employee.” I responded that this was false and let the employee know that Mrs. Merle had been watched by a half dozen witnesses, several of whom had video evidence that his statement was false. The Co-op employee attempted to erase his attempt to smear Mrs. Merle, but it was captured by another reader before he could take it down. 
Mr. Woolf did not respond to my question. Nor did the President of the Board of Directors respond to my questions about the incident. As a member-owner of The Food Co-op and editor of this site, I wrote him to receive clarification on the rights of member-owners to shop in the store.
The President, Owen Rowe, who is also a member of the Port Townsend City Council, did not respond. I received a vague and noncommittal response from the secretary, Claire Thomas, who said it was her duty to correspond with members. She wrote:
“As you can imagine, the Board of Directors has gotten several emails regarding the incident involving you and Mrs. Merle last week and we want to read all concerns from our member-owners and have thoughtful conversation about them as a group as well as with our General Manager at the Co-op. I will be answering emails in the order in which they were received and I truly appreciate your patience while we discuss your issue as a board. We take all comments and concerns from our fellow member-owners very seriously and we want to give each person the time and attention they deserve. I will follow up with a more detailed email soon.”
That was April 14. I had written Mr. Rowe on April 7. On April 26 Mrs. Merle was arraigned on the charge of criminal trespass. I still have not received the “more detailed” answer promised by the Co-op. The fact the case is going forward apparently is their answer.
The Food Co-op On Trial
How can the Food Co-op justify having one of its owners arrested for trespassing in a store she co-owns? The definition of criminal trespass requires that the property be “premises of another.” The Food Co-op is her property as much as it is the property of the employee who ejected her, as I am sure all Co-op employees are also member-owners. This will most definitely be a key point of Mrs. Merle’s defense.
Mrs. Merle’s case is not analogous to that of a member-owner caught stealing from the store. The charge would be some level of the criminal offense of theft. The Co-op’s governing documents give its member-owners the right to shop in the store, in addition to voting rights and some other ancillary benefits. Shopping means paying for what is taken, not stealing.
The By-Laws and Articles of Incorporation set forth the rights and responsibilities of being a member-owner. The Articles of Incorporation create a single class of membership. Members of the corporation have the right “To purchase goods from the Corporation at prices generally available to members and otherwise to benefit from participation in the activities of the Corporation.” That right most definitely includes the right to shop in the store during the hours the Co-op is open to other patrons. This right can only be taken away involuntarily, “[f]or reasonable and sufficient cause, including willful violation of the Corporation’s Articles or Bylaws, by a two thirds’ vote of the Board of Directors, after a fair hearing at which the member has had the opportunity to speak and present evidence.”
The By Laws are more expansive on how a member’s ownership rights may be terminated: “Membership may be terminated involuntarily by a two-thirds’ (2/3rds’) vote of the Board for cause after the member-owner is provided fair notice of the reasons for proposed termination and has an opportunity to respond in person or in writing. Cause may include intentional or repeated violation of any provision of the Co-op’s bylaws or policies, actions that will impede the Co-op from accomplishing its purposes, actions or threats that adversely affect the interests of the Co-op or its member-owners, willful obstruction of any lawful purpose or activity of the Co-op, breach of any contract with the Coop, or failure to patronize the business for more than five (5) years.” If a member shoplifts, they could be arrested for shoplifting, but they would not be trespassing and they would retain their ownership rights until revoked by the Board on a 2/3 vote after due process had been provided to the member.
Mrs. Merle was not only charged with trespassing on a property she owns, she was handcuffed and forcibly (although professionally and gently) removed from the store against her will. Furthermore, the Co-op store manager had her “trespassed” from the Co-op, meaning she is denied all of her rights to enter a store she still co-owns. That was done without any due process or action by the Board, as required by the Co-op’s governing documents.
Somebody from the Co-op is going to have to explain themselves at trial and be subject to cross-examination. The Co-op’s actions and internal communications are also fair game for discovery by Mrs. Merle’s defense counsel. Their discussions with the arresting officer and any subsequent communications between Co-op leadership, the Jefferson County Prosecuting Attorney, police and the Jefferson County Health Department, if they occurred, must also be disclosed to the defense, and will be subject to examination at trial.
Did they intentionally disregard Mrs. Merle’s rights under the Co-op’s governing documents to make an example of her? Are they proceeding knowing they could well lose, but with the belief that the deterrent value of taking Mrs. Merle to trial is somehow “worth it”? Are they disregarding Mrs. Merle’s member-owner rights out of malice because of the religious or political beliefs she has asserted in her refusal to wear a mask?
It would be interesting to examine any other cases where the Co-op has called police to remove and arrest a member-owner, and those instances where it might have followed its governing documents in terminating the rights of a member-owner instead of calling police and “trespassing” the member-owner.
Ammunition for the Defense
The Co-op in unambiguous terms tells members they are owners. It has an entire section on its website entitled, “Ownership.” The Co-op provides an “Owners Guide,” that prominently proclaims, “Welcome, Owner!” It goes on to say, “As an owner of The Food Co-op of Port Townsend, you’re part of a community of over 6500 people on the Quimper Peninsula who believe in the value of owning our own grocery store.”
Two important people in the Co-op’s origins and history agree with the view that Mrs. Merle should not have been charged with trespassing. Stephen Schumacher served as Co-op President for two and a half years, was Secretary for four years, and served on the committee that reviewed and revised the Co-op’s governing documents. He is also an expert and published author on the principles of food co-ops. He was a witness to Mrs. Merle’s arrest. He wrote in protest to the acting chief of the Port Townsend Police Department, Troy Surber. His letter is quoted at length:
“I believe the police were misunderstanding the situation when they arrested Rachelle, because as a member-owner of the Co-op she was not and could not have been trespassing while exercising her rights as owner on property she co-owns. As explained in my [attached] article, member-owned cooperatives are a special kind of organization operating on different principles than standard shareholder corporations.
“The Co-op’s attached Bylaws make clear ‘1.2. The Co-op shall be owned by its members’ and its Articles of Incorporation state ‘3. Members of the Corporation shall have the right: (a) To purchase goods from the corporation at prices generally available to members and otherwise to benefit from participation in the activities of the Corporation. That is precisely what Rachelle was peacefully doing when staff illegitimately called in a trespassing complaint against one of their storeowners.
“As Rachelle attempted to explain to the arresting officer, the situation with a cooperative is analogous to a wife asking the police to arrest a husband for trespassing on his own property; if the husband is doing something else wrong, he can be arrested for that, but not for trespassing. Unfortunately Rachelle’s status as co-owner was not made clear, so the arresting officer waved the matter aside along with any grounds for separate offense, saying ‘They can ask you to leave because you are wearing a purple shirt, and you have to leave.’ But that is not true for owners exercising their ownership rights guaranteed in the Co-op’s governing documents.
“This was in fact a matter that should have been handled internally among co-owners without involving the police. Staff had many options, including refusing her check-out at the register, or arranging a meeting to discuss the underlying issues per cooperative principles. The Co-op’s Bylaws themselves provide that ‘2.6. Membership can be terminated non-voluntarily by a two-thirds’ vote of the Board for cause after the member-owner is provided fair notice of the reasons for proposed termination and has an opportunity to respond in person or writing’, after which Rachelle would have been legally subject to a trespassing complaint.
“Given that police were misinformed about how the Co-op’s governing documents make member-owners immune from trespassing complaints, please summarily drop the inapplicable trespassing charge against Co-op co-owner Rachelle Merle and remove it from her legal record. Moreover, it would be good if you could advise the Food Co-op that police will not respond to any future calls from them about member-owners trespassing on their own property.
“If this matter ever comes to court, I would be happy to testify as an expert witness on Rachelle Merle’s behalf that as a co-owner she did not and could not trespass by exercising her ownership rights to shop at the Food Co-op.”
Ana Wolpin was a founder of the Co-op, its first General Manager and a member of its Board of Directors. She also wrote to the acting police chief, likewise citing provisions of the governing document she believes the Co-op violated. She wrote:
I have been a member of the Food Co-op for 46 years; its first General Manager in 1975 and a member of its Board of Directors some decades later. As someone who does not mask, I have not shopped there since the masking policy was put in place nearly a year ago. I have no desire to support an operation where I am no longer welcome. While I choose not to confront this policy as Ms. Merle did, I support her effort to initiate a long-overdue conversation that the Co-op board and management should be having with its member-owners.
It would appear that the Port Townsend Police Department has been erroneously involved in this dispute. The Food Co-op needs to follow its bylaws, and trespassing charges should be dropped.”
Mr. Schumacher and Ms. Wolpin have contributed articles to the Free Press. They provided copies of their letters to the chief, and his response. They also provided copies to the Co-op Board. Former Acting Chief Troy Surber similarly responded to Schumacher and Wolpin. “I understand,” he wrote, that “the Co-op has nuances” and that Mrs. Merle would have the opportunity to present her arguments if the case proceeded to trial and that the prosecutor was aware of the issues they raise.
If the Board reached the 2/3 vote against her, she could then be “trespassed” as the Co-op has trespassed other non-members, principally transients. It would have complied with its governing documents, respected the rights of member-owners, and put Mrs. Merle in a position where, if she returned to the property after being trespassed, her attorney would have little more to do than try to negotiate a plea. But because the Co-op acted in violation of the very documents that brought it into existence, Mrs. Merle’s attorney will have significantly more to work with in her defense.
Jim Scarantino was the editor and founder of Port Townsend Free Press. He is happy in his new role as just a contributor writing on topics of concern to him. He spent the first 25 years of his professional life as a trial attorney, then launched an online investigative news website that broke several national stories. He is also the author of three crime novels. He resides in Jefferson County. See our "About" page for more information.
All fair inquiry and due process will hopefully take place in the Food Co-Op/ Mask/ Trespass matter.I would just make the point there may be other constructive ways to demonstrate freedom of expression and individuality than violating a public health regulation potentially jeopardizing your community.In my opinion it is more provocative than demonstrative or even effective in achieving its intent.
It would seem from the article that Ms. Merle voiced her intent to enter the Co-op with the required mask prior to the day the incident occurred. The mandate to wear a mask was for ALL people entering the store – members, employees and non-members. Obviously her motive was pre-mediated with the intent of creating a disturbance. Would it have been such a big deal to wear a mask? Many people are not too happy about wearing a mask but they do it in consideration of others. Ms. Merle instigated this confrontation and wasted law enforcement’s time and that of other people involved with this matter. She should have stuck with her protesting on the streets.
Am I blocked from commenting….if so, why?
Merle’s actions were definitely pre-mediated. Her intent, which she publicly made known prior to her visit to the Co-op, was going to cause a disturbance since ALL members, non-members and employees are required to wear a mask to be on the premises. Her refusal to wear a mask was defiant and no amount of “ownership” claims should eliminate her being charged. Many people don’t like wearing a mask, but it is mandatory for right now to enter any establishment and people do it in consideration of others. Is it such a big deal wear a mask?
Having arrived with her children in tow, knowing that a confrontation would develop was putting her children in harm’s way. Not a wise move. I’m not sure what she was attempting to do but I suspect she had an inkling of the outcome. I suggest she stick to protesting on the streets so as not to waste the time of law enforcement or that of other people.
Obviously Ms. Merle’s actions were pre-mediated. According to the article, she announced her intent to enter the Co-op without a mask and go against the mandated rule of wearing one if going in the store. She knew this would create a disturbance and unwisely made the decision to include her children in what could have been a very unsafe situation. Does Ms. Merle think the rest of society enjoys wearing a mask when out in public? Of course we don’t, but we obey the law and take other people into consideration. Even if she claims “ownership” that doesn’t mean she can unilaterally exclude herself from the law establish by the Co-op. She should have thought about her stance a little harder before wasting the time of law enforcement and that of other people. Her actions were irresponsible and she deserves the charges made against her.
Trish – You seem to be misinformed… Rachelle left her three children safely at home with her husband while entering the Co-op alone, so did not “include her own children in what could have been a very unsafe situation… having arrived with her children in tow, knowing that a confrontation would develop was putting her children in harm’s way.” Regarding the charge of Trespass in the Second Degree, the issue is not whether her “actions were pre-meditated” but whether it is an appropriate charge, since it applies to one entering “the premises of another”, not to a co-owner entering her own property to exercise her ownership rights. I am sure the good-hearted management at the Co-op were dealing with a thorny situation the best they could, but I feel their way going forward should be to drop the problematic Trespass charge and engage internally with their membership about the underlying ownership access and public accommodation issues.
The end result of all this drama – payday for lawyers. It isn’t obvious to me what anyone hoped to accomplish by participating in this protest. I believe the co-op will refund your membership fee if you no longer choose to deal with them. Many of us are dealing with very serious financial and health problems as the result of the Covid medical dictatorship. I’m not able to care about anyone who intentionally creates unnecessary problems for themselves and the community.
Good job maam i commend your bravery, more of us need to take a stand…im a part owner of the pt coop too maybe i should go shop without my mask too…get up stand up sheeple…
The fact that the Food Co-op and police chose to charge Ms Merle with trespassing tells me authorities would rather not deal with a challenge to the legality of the governor’s unilateral face mask directive, which is obviously the issue here. Face masks, social distancing, closed business and other mandates have always been about government cancelling the constitutional rights of an individual, particularly since Stanford University and numerous other scientific authorities have concluded that face masks offer no defense to interpersonal transmittal of the Covid-19 Virus, and that wearing a mask can be, in fact, extremely harmful to those who wear them for extended periods of time.
How does one test a “government mandate” that on closer examination is not based in fact, restricts an individual’s freedom, and challenges ones civil rights? Rosa Parks occupied a bus while breaking a law. American Indians were jailed and killed for resisting the US Government for breaking signed treaties. Anti war activists were arrested and killed at Ohio State for protesting an illegal war in Vietnam. Our history is filled with examples of individuals who have stood up for their freedom even in the face of overwhelming authoritative opposition. Freedom always comes at a cost and it is those rare individuals who through the virtue of righteous indignation that have kept freedom alive for all of us.
I just wonder what would have happened if, instead of Mrs. Merle, this incident involved a “person of color”. How would that have been handled by the virtue signaling Co-op? Or the press? Or PT police?
Kelli– they would have done the same thing to a person of color, I am sure. I say this because I am a disabled person who once took in my own wheeled shopping cart when I was an owner at the co-op. I was told I could not bring my own shopping cart into the store. When I asked why, they said if everyone brought in their own shopping carts it would make it too easy for people to steal. I stated my disabilities and my reasons for having my own cart, and they said they understood all that, but they re-stated that they did not want me to bring my own cart into the building and that if I insisted on staying there with my own cart or bringing it back, they would call the police to have me removed. I left and never went back and never renewed my membership.
I would also add, just for clarity; Safeway and QFC both let me use my walker-cart without hassle or comment. Only the Co-op and the former Aldritch’s owner ever had a problem with it. Really sick and tired of these smug bastiches around here, who just live to enforce their random ridiculous arbitrary RULES. Rules they only subject on people they dont like, but never on themselves. It’s the hypocrisy, for me.
Even if I wanted to grossly overpay for my groceries, I couldn’t shop at LeftieLand – I’m allergic to the smug in the air there. Now that I think of it, did anybody at the misLeader or elsewhere ever look into the alleged arrangements that allowed the Co-op to be built without being burdened by all the site environmental and other regulatory permit nonsense that burden normal businesses seeking to build or expand?
What’s the peer-reviewed science behind forced mask-wearing? So far, all I’ve seen is preliminary results that indicate it doesn’t make a measurable difference and besides, I thought we’ve been told that the Trump / Big Pharma vaccine is 94+% effective and so masks are irrelevant anyway.
Funny how our dopey governor keeps up the oppression while Florida and Texas are doing much better than Washington without the face diapers and business-killing arbitrary restrictions.
Stop being sheeple. Demand evidence.
Exactly!
What should our response be to people not wearing masks? Here is advice from the WA State gov pages:
Should I say something if someone near me isn’t wearing a face covering?
No. Someone may have a medical reason for not wearing a face covering. Whether those around you are wearing face coverings or not, focus on keeping 6 feet of distance between you and washing your hands often.
From the WA gov coronavirus response page: https://coronavirus.wa.gov/information-for/you-and-your-family/face-masks-or-cloth-face-covering
Yes, we all need to have a big discussion…yes yes yes to all your great responses keep at it…another interesting thing is the roads in Port Townsend it’s like I’m driving off road everywhere, with the highest taxes around you would think the roads would be painted in gold lol….
German Intelligence Puts Coronavirus Deniers Under Surveillance
The country’s domestic intelligence agency says it will create a new department to deal with extremism among conspiracy theorists.
April 28, 2021
BERLIN — Germany’s domestic intelligence service said on Wednesday that it would surveil members of the increasingly aggressive coronavirus denier movement because they posed a risk of undermining the state.
https://www.nytimes.com/2021/04/28/world/europe/germany-coronavirus-deniers-surveillance.html
The Lives of Others | Official Trailer (2006)
1:49 min
At once a political thriller and human drama, THE LIVES OF OTHERS begins in East Berlin in 1984, five years before Glasnost and the fall of the Berlin Wall and ultimately takes us to 1991, in what is now the reunited Germany.
The Lives of Others won the Academy Award for Best Foreign Language Film.
People are being conditioned to do whatever the government says and what big business want. Case in point is this weeks mariners game wher the ones with both shots got preference because they had both shots. Look for not being vacinated will bar you from air travel, bus travel and ship travel, motels and hotels. You can bet they are thinking of more restrictions of your Constitutional rights.This weeks leader had a letter from Dr. Don Stromberg that people who aren’t vacinated should have to pay a “HeftyTax”. What about the people who can’t afford itI suppose they will have to give up everything and be sent to the “showers” for final cleaning. Will the next be Gays, the sick and all the others of theI non pure people? We’re in very bad times and something will have to give. I wasn’t on the first Enemies List, but I intend to be on the next one. I’m 77, a Vet and will defend the Constitution of the United States as long as I can breath. By the way, I haven’t had the shots and I’m not going to get them.
Right on . Thank you!