A judge Wednesday ruled there was no probable cause for felony charges against seven Occupy Houston protesters for shackling themselves with a homemade device called a "sleeping dragon" during a demonstration at the Port of Houston.

Colleen Barnett, an assistant Harris County district attorney, confirmed that 248th District Court Judge Joan Campbell found there was no probable cause to detain the protesters on felony charges of using a criminal instrument. They were freed after a Wednesday morning court appearance.

Campbell ruled the protesters' use of a so-called "sleeping dragon" or "arm tube" - a PVC pipe used to shackle their arms inside to keep police from handcuffing them - did not meet legal requirements of being a criminal instrument, Barnett said.

Prosecutors have not decided if they will ask a grand jury to consider an indictment on the felony charges, bring less serious charges against the seven or drop the matter.

The ruling was hailed by legal supporters of the Occupy Houston movement, who said the protesters had been "over-charged.''

"We were lucky to be assigned to a sharp judge, who read the law, understood what the law is, and cared enough to address it right up front at a probable cause hearing," said Houston attorney Daphne Patterson Silverman, a member of the National Lawyer's Guild.

Legal precedent

Silverman, who represents Occupy activist and San Antonio native Sierleja Matthew, said the judge recognized legal precedents that a "criminal instrument" concerns suspects who police catch with instruments intended to be used in a future crime.

"The over-arching principle guiding the judge's position is these people were down there not intending to commit a crime, but intending to exercise their constitutional rights to express their views on injustice and inequality in industries," Silverman said. "But that's different from someone with burglar tools in the car who was intending to commit a burglary, which we all know is a crime."

Attorneys defending the protesters earlier predicted the felony charges would not withstand judicial scrutiny, and said the over-charging was a practice by the Houston Police Department intended to punish protesters. Misdemeanor charges are pending against 13 other protesters who were arrested Monday for blocking a roadway at the Port of Houston.

"These kinds of cases regarding criminal instruments by protesters have been forwarded by the Houston police, and dismissed, on many prior occasions," said Randall Kallinen, a civil rights attorney who represented Eric Marquez, one of the seven protesters.

Kallinen alleged HPD used the felony charges to punish, intimidate and frighten peaceful protesters to keep them from expressing their rights to free speech by charging them with more serious felony charges. The seven were charged with a state jail felony, which is punishable by six months to two years in jail, and a fine of up to $10,000.

It's up to the DA

A Houston police spokesman said the department would not comment on the ruling, adding it was up to the district attorney to decide what charges were appropriate.

Kallinen said that in 2007 a Harris County grand jury declined to indict two young Houston protesters who used a bicycle lock to chain themselves to the gate of an immigration detention facility. Off-duty Houston police officers working as security guards at the facility arrested Kallinen's clients.

Barnett said there was probable cause and the felony charges were appropriate in this week's case, and noted the PVC devices had to be removed by a Houston Fire Department rescue team.

"In the manner of its use I believe it was a criminal instrument," said Barnett. "The use of it was in blocking the roadway."

james.pinkerton@chron.com