Oct 26, 2016 (San Diego) Lawyers for the National Association for the Advancement of Colored People (NCAAP) and El Cajon Protesters, came to the court of Federal Judge Janis L. Sammartino. They were asking for a Transitory Restraining Order to be placed on the El Cajon Police Department and the Sheriffs Department. Those names in the suit were El Cajon Chief of Police Jeff Davis, the city itself, as well as Sheriff Bill Gore.
The lawsuit is meant to prevent the ongoing alleged false arrests, that have been ongoing at 777 Broadway in El Cajon. All the documents filed with the court are here.
The complaint itself is here.
The plaintiff’s lawyer argued that the police department has effectively prevented protesters from being even near the strip mall. He also reminded the court that under the California Constitution malls in California are public. When asked by Judge Sammartino about the cases within the federal system, he cited Collins V Jordan, a case decided by the 9th Circuit in 1997. We are quoting from that case, and how it applies to California Law and free speech.
California state law also reflects these fundamental constitutional principles. While California Penal Code § 407defines unlawful assembly as “whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous assembly,” the California Supreme Court has properly narrowed the statute, in accordance with the requirements of the First Amendment, to those assemblies “which are violent or which pose a clear and present danger of imminent violence,” In re Brown, 9 Cal.3d 612, 623 (Cal. 1973). Thus, it is clearly established federal and state law that protests or assemblies cannot be dispersed on the ground that they are unlawful unless they “are violent or . . . pose a clear and present danger of imminent violence,” id., or they are violating some other law in the process, e.g., In re Bacon, 240 Cal.App.2d 34 (1966) (police properly determined that assembly was unlawful where demonstrators refused to leave public building after closing time).
This was part of the two-fold argument made by the plaintiff. The other is that the police are using state statute to unlawfully disperse demonstrations and vigils using alleged events that happened hours before the order to disperse was given. According to plaintiff, you cannot do that. If anybody is acting in an illegal manner and is witnessed by officers, they have to be arrested and removed. In other words, remove actual agitators and let peaceful protests continue. Do not use alleged events that happened hours before there is a declartion of an ilegal assembly.
What the Plaintiff also alleged is that the city is intimidating and that Chief Jeff Davis threatened a demonstrator for arrest if he did not vacate the property, and that demonstrator was arrested the next day. The City disputes this matter of fact since they say the Chief does not drive himself. or for that matter drive a patrol car.
The city Attorney argued in defense of the city two-fold. The first was that the TRO would lead to an impossible enforcement standard for the police. They could not just remove agitators and leave everybody else. They also argued that not every demonstration was stopped by declaring them illegal assemblies, which was one of the contentions for the plaintiff.
The second was the rights that the strip mall owner and the business to limit speech activities. For this, the defendant cited Ralphs v Commercial Workers Union 8 and a second case, involving Cosco.
The summary from Justia has this interesting tidbit in it.
The Supreme Court reversed and remanded, holding (1) a union’s picketing activities in the supermarket’s privately owned entrance area do not have state constitutional protection; (2) however, those picketing activities do have statutory protection under the Moscone Act and section 1138.1; and (3) these statutory provisions do not violate the federal constitutional prohibition on content discrimination in speech regulations.
The court did find that Ralphs had the right to regulate some of the speech activities on the property. This has not been in dispute by the plaintiff, but the whole sale prohibition of any protester to even enter the strip mall to engage in activities such as buying food is what is the question.
Press Conference After the Hearing
Bryan Pease held a press conference outside and Reporting San Diego asked him to clarify the point about malls and free speech in California. He first cited Article 1, Section 2, and we are citing it as it.
SEC. 2. (a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
Pease did pout out that California Supreme Court “It is more expansive than the First Amendment, and in fact, it does trump private property owner’s rights once you open your shopping center up to the public you have to allow peaceful expression of speech.”
It is not an absolute right, however. There can be time and place rules, such as where or when you can assemble or exercise that speech. But “you cannot be arrested for violating those rules, or for setting up in private property.”
Carl Box also spoke to the press. He is one of the people arrested. He told the press, “I walked onto the property at Los Panchos. First, there was a squad car across the alley observing us, (he was with another protester). We stood there at the site at the vigil just tp pay respects again and mourning. Before we knew it, 15 or more uniformed officers walked through the alley and asked us to leave for trespassing.”
Box also described officers driving up and down in full riot gear, and that was meant to intimidate them. Pease in the courtroom pointed to the chilling effect this can have on speech activities.
He also said that right now they are camped out, and are themselves affecting business. We asked Box what he would like to see to improve communication with the police? He said, that “there is stigma on both sides. They look at us in a way, and sometimes we only see the badge. I think that communication needs to change. We would like a community review board of the police, so we can have a say in police misconduct, that happens. We just want to be treated as humans.”
The Judge will make the decision on this case in the next few of days. It is considered a matter under submission.