SAN DIEGO (CN) – The San Diego branch of the NAACP and a handful of protesters arrested while holding a candlelight vigil for a man shot and killed by a police officer in 2016 may advance their free speech lawsuit against local police, a federal judge has ruled.
“There’s this pattern whenever there is a protest in San Diego – we saw the same thing during the ‘Occupy’ protests – that when law enforcement has decided the protest is inconvenient they decide to declare it unlawful, which is a complete violation of the First Amendment,” NAACP attorney Bryan Pease told Courthouse News.
Pease and attorney Todd Cardiff represent the San Diego NAACP and nearly one dozen protesters who were arrested over a series of days while holding vigil and protesting at the El Cajon, California shopping center where police officer Richard Gonsalves shot and killed Alfred Olango in 2016.
Law enforcement arrested more than 10 protesters for trespassing. But on at least two of the days protesters gathered – Oct. 1 and 2, 2016 – they claim the Los Panchos Taco Shop gave them permission to gather in the parking lot where Olango was shot and killed.
The protesters sued San Diego County and the city of El Cajon – along with a host of San Diego County sheriff’s deputies and officers – for violating their free speech rights by declaring the gathering an unlawful assembly on several separate nights between Sept. 30, 2016 and Oct. 17, 2016.
A court order in response to the city and county’s motion to dismiss the case issued Jan. 25 allowed many of the protesters’ claims to continue.
In an interview, First Amendment Coalition executive director David Snyder said how much the land owner’s permission matters when it comes to free speech rights on private property “really just depends on the circumstances.”
But Snyder noted California’s Constitution is more protective of free expression rights on private property – and if the protesters had permission to be there “they would have a better argument for First Amendment protection on private property.”
“If it’s a purely peaceful protest and they are on private property with permission – barring evidence other crimes were committed – I don’t see how police could legitimately declare an unlawful assembly consistent with the First Amendment,” Snyder said.
In the months following the shooting, El Cajon police officers were posted in the shopping center and a mobile observation tower that was installed in the parking lot. Later that year, protesters inquired with the police department if they would be arrested if they visited the vigil site, but the city did not respond to the inquiry, according to the lawsuit.
On the one-year anniversary of the shooting, Sept. 27, 2017, the NAACP learned El Cajon police were threatening to arrest anyone who visited the shooting site. The organization sought an agreement with police that citizens would not be arrested, but the police department refused to agree.
No one has been arrested at the site for over two years, however, and police officers are no longer posted at the shopping center.
U.S. District Judge Janis Sammartino dismissed some of the protesters’ claims in their third amended complaint in a 38-page order Friday, but found most of the mourners’ First and Fourth Amendment claims should survive, including claims for municipal liability on the part of El Cajon Police Chief Jeff Davis.
“Plaintiffs have established that Chief Davis, as someone with final policymaking authority, established a policy that represented an official policy of the city,” Sammartino wrote.
Sammartino previously found the officers “were clearly incorrect” in declaring the protests unlawful assemblies under state law and that they lacked probable cause for arresting the protesters. But she declined to issue a temporary restraining order when law enforcement declared the protests unlawful assemblies.
Pease said that’s why the state’s penal code on declaring unlawful assemblies needs to be changed.
“The statute for unlawful assembly is very vague and law enforcement looks at it and says ‘if two people do anything wrong we can tell them to go home,’” Pease said.
“Even though the law assumes police departments are briefed on case law and interpretations of the statute, it can be misapplied,” Pease added.
He said “nobody was doing anything unlawful – they were in a silent prayer circle. The police just didn’t want them there.”
John Cooley, an attorney for the county, said the county does not generally comment on pending litigation.