SAN DIEGO (CN) — A federal judge on Wednesday heard from protesters who say they were wrongfully arrested during a late-night vigil for a man who was shot and killed by a police officer in September.
The NAACP and a handful of protesters and children sued the El Cajon Police Department and San Diego Sheriff's Department for what they say were the wrongful arrests during peaceful protests in the days following the shooting of Alfred Olango.
Olango was shot and killed by Officer Richard Gonsalves on Sept. 27, who was responding to a 911 call from Olango's sister. Olango was upset over the death of a friend and having a mental health crisis when he was approached by Gonsalves and Officer Josh McDaniel.
He held a metal object up and took a "shooting stance" before Gonsalves shot him four times and McDaniel deployed a stun gun in a strip mall parking lot in El Cajon, about 15 miles east of San Diego. Olango turned out to be holding an e-cigarette.
After the shooting, hundreds of protesters from all over San Diego County descended on El Cajon to protest the killing of Olango, an unarmed black immigrant from Uganda. Police say the protests were mostly peaceful, but on Oct. 1 more than a dozen protesters were arrested after what officers described as a "shift in the demeanor of the crowd" when a fight broke out and it was reported someone was going to get a gun.
But at Wednesday's hearing, the protesters' attorney Bryan Pease said that characterization of the event couldn't be further from the truth: people gathered for a barbeque to remember Olango and even held a prayer circle when officers surrounded them after declaring an unlawful assembly.
Pease told U.S. District Judge Janis Sammartino police had a "de facto" curfew of 12 a.m., when they would declare an unlawful assembly because "they wanted to go home." He suggested officials decided willy-nilly when to arrest people and have since installed no trespassing signs in the strip mall parking lot, encouraging protesters and mourners to go to a local park - rather than where Olango was shot and killed - to express their grief.
Sammartino pressed Pease on his contention that an unlawful assembly could become a legal gathering if agitators are removed by police officers. Pease said if a fight really did break out between some of the protesters and police heard someone say they were going to get a gun, police should have arrested those people rather than stepping on the First Amendment rights of those who were peaceful and abiding by the law.
Pease also said one of the plaintiffs took a photo of a handwritten sign outside the Los Panchos taco shop, just feet from where Olango killed, which said they were closing early because police had asked them to. The sign points to a preplanned shutdown of the protests despite no unlawful behavior, Pease said.
But El Cajon's attorney Steven Boehmer said the city disputed the declaration of one of the protesters, Michael Feinstein, who claimed he was approached on Oct. 16 by Police Chief Jeff Davis in a car marked with "Chief of Police" on the side. Davis does not drive a police cruiser with his title on the side and never went to the scene where protests were held, Boehmer said.
He also reiterated a fact Sammartino pointed out: that between Oct. 2 and Oct. 13, there were no unlawful assemblies declared or protesters arrested - showing the police did not have a pattern of declaring peaceful assemblies unlawful.
Boehmer said it would be "speculating" to assume police would arrest protesters in the future, which is what the plaintiffs based their request to bar the police department from declaring unlawful assemblies on law-abiding protesters.
Sammartino said what the protesters want - an order forcing the city and its police to abide by the First Amendment and California Constitution - is an unusual request with no case law she knew of.
The strip mall parking lot is private property and police needed to balance the rights of the property owners with the free speech rights of the protesters, Boehmer said.
George Brewster, the county's attorney, told Sammartino the district attorney hasn't yet filed charges against the protesters. He called the case "plain and simple, black and white," saying it's "painfully obvious" police did not violate the First Amendment rights of the protesters since they used a "fairly peaceful" approach to negotiate and later arrest those who would not disperse after the unlawful assembly was declared.
"Cherry-picking agitators is a very difficult task for law enforcement. It's really an impossible task," Brewster said. He cited cases in other cities where unlawful assemblies were declared when rocks were thrown at police or cars were set on fire, adding that he hoped "it's not the plaintiffs' position that we wait until that happens" before declaring an unlawful assembly.
Pease said that "cannot be the standard" for stepping on the protesters' First Amendment rights. He said officials relied on "vague allegations" when deciding to shutdown protests.
"The police, city and county are taking the position if any unlawful activity occurred at any point, even at another location, they can later declare an unlawful assembly," Pease said.
Following the hearing, Pease and several protesters and their supporters — some with kids in tow — held a press conference outside the courthouse where Carl Box, one of the people arrested, told reporters he was arrested just for going to the shopping center. He said officers were "camped out" in the parking lot and have intimidated protesters by following them to their cars or homes after they left gatherings.
Box said the police are the ones who don't want them gathering in the parking lot, not the business owners. Protesters have been patronizing the businesses for weeks and the police presence has deterred customers, not the protesters, he added.
"There's no time limit on peacefully mourning. We just want to come together to bring change," Box said.
The protesters are also represented by attorneys Todd Cardiff and Andrea Carter.
Sammartino said she will issue a written order.
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