SAN DIEGO (CN) – A free speech case filed by protesters who were arrested in the days following the fatal shooting of an unarmed black man last year can move forward, a federal judge ruled, opening the way for the activists to file an amended lawsuit.
Earlier this week, U.S. District Judge Janis Sammartino found the lawsuit filed by nearly a dozen protesters and mourners who were arrested at a vigil for Alfred Olango last fall can proceed if the plaintiffs file an amended complaint by June 20.
El Cajon Police Officer Richard Gonsalves shot and killed Olango on Sept. 27, 2016 after his sister had called 911 seeking help for her brother who was behaving erratically after learning of a friend’s suicide.
Gonsalves shot him within a couple minutes of arriving on the scene at an El Cajon strip mall after officers said the Ugandan immigrant took a “shooting stance” and pointed a shiny metal object at them that turned out to be an e-cigarette.
Days of protests followed. The shooting attracted international attention as police officers across the country faced increased scrutiny for fatal shootings of unarmed black men.
A dozen of the Olango vigil protesters were arrested Oct. 1 after officers said there was a “shift in the demeanor in the crowd” and a fight broke out late at night.
But the mourners dispute that those gathered ever became violent, alleging the officers “could easily see and ascertain the peaceful nature of the vigil.”
The protesters’ attorney Bryan Pease said in a phone interview that his clients plan to amend their complaint and add additional state law claims, which he noted are easier to prove. He said his clients were “rushed” when initially filing the case because they were seeking a temporary restraining order against law enforcement officials barring them from arresting people who wanted to pay their respects at the shooting site.
“The police pretty much set up shop and if someone did not show them a receipt from a restaurant or business they were visiting, they would arrest them,” Pease said.
Sammartino denied the request for the temporary restraining order last November, finding that while an unlawful assembly had been declared on two separate occasions, because the protesters had returned to the vigil site multiple times without incident further action against law enforcement was not necessary.
Pease said he was unaware of any recent arrests of mourners who may have gone back to the shooting site.
The San Diego chapter of the American Civil Liberties Union called on El Cajon police to provide details on the arrests, but did not end up filing a lawsuit.
Sammartino threw out most of the protesters’ civil rights claims in her 19-page order, pointing out recent Ninth Circuit rulings that found groups “do not enjoy absolute First Amendment rights” to gather in places such as the strip mall parking lot where Olango was shot. However, because the protesters claim they received permission from the Los Panchos Taco Shop for their vigil, Sammartino ruled their First Amendment claim should survive.
“Taking Plaintiffs allegations as true – as the court must on a motion to dismiss – these facts set forth a plausible claim that the officers lacked probable cause to arrest pursuant to the unlawful assembly declarations,” Sammartino wrote.
The judge also dismissed a number of parties from the case, including San Diego County and its sheriff, William Gore, finding claims against them were “sparse” and insufficient to plead municipal liability.
Sammartino also dismissed the National Association for the Advancement of Colored People (NAACP) as a plaintiff since the civil rights organization did not state how it was harmed by the alleged free speech violations, though the group claims it has been “repeatedly unable to hold assemblies at the vigil site due to defendants’ position they can bar all expressive activity on the property.”
A Sheriff’s Department spokeswoman directed Courthouse News to county counsel, who said they cannot comment on pending litigation.
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