Is the 1st Amendment on Trial in Our Courts?

Protest Related Cases Mixed in With Murder, Rape and Other Heavy-Duty Cases

By Crescenzo Vellucci
Vanguard Sacramento Bureau

SACRAMENTO – On nearly every given day, at the courthouses that reside in downtown Sacramento – that’s the Sacramento Superior Courthouse and U.S. District Courthouse – there are some very heavy-duty cases being heard, in either the preliminary stages or at trial.

Alleged murders, rapes, burglaries and other nasty cases fill the calendars to be sure. There are “very bad guys out there,” cautions former County District Attorney of the Year, and later U.S. Attorney Todd Leras, who made his name going to trial to put these “bad guys” away so they can’t do harm to others.

But then there are the cases involving free speech related activities in and around Sacramento and the State Capitol. Leras, when he ran against current Sacramento County District Attorney Anne Marie Schubert in 2014, said he wouldn’t waste time with those cases – only the serious ones.

“I won’t waste taxpayer dollars on nonviolent cases. But when it comes to shooters, pedophiles, rapists and the like, I drag my knuckles on the ground like every good prosecutor,” Leras said to voters at the time.

But Leras didn’t win, and, as of late August, there are no fewer than 13 individuals facing trial as a result of incidents involving the exercise of  constitutional rights. In U.S Court and Sacramento Superior Court.

They’re looking at everything from “riot” to “stealing a sign” and putting a banner over a statue to sitting in front of the Governor’s locked outer door and allegedly tossing a small plant in the direction of a police officer.

Taxpayers – who will pay close to a $500 million for a new Sacramento County Court  – don’t hear much if anything about cases like these. They just presume the courts and jails are keeping them safe in bed at night from murderers, rapists and burglars. And that is what happening much of the time.

But not always. Here’s a rundown of social justice protest cases we’re following:

CASE 1: CLIMATE YOUTH – Late this month, six young “climate youth” have a court hearing for sitting in front of the Governor’s office door (Gov. Brown was out) for hours so they could talk to him about fossil fuels, and how he should “freeze new fossil fuel drilling and develop a plan to phase out oil and gas extraction.”

“California is on fire while our governor continues to sanction new fossil fuel projects. It’s clear our generation cannot afford new oil and gas drilling….these destructive operations are robbing California youth of our future,” said 26-year-old Niria Alicia. We need Gov Brown to keep fossil fuels in the ground so that my generation and ones still to come can have a chance for a livable future.”

California is the 6th largest oil producing state in the nation and Brown has granted 20,000 new well permits and won’t ban fracking. Twenty-something Isabella Zizi said, “Young people cannot accept morally compromised leaders who claim to represent our generation while taking money from an industry destroying our air, water and future.”

CASE 2: POOR PEOPLE PROTESTORS – Two nonviolent protestors arrested at the Capitol in June face vandalism charges in mid-September for their protest against the treatment of poor people, the environment and racial injustice.

They are accused of vandalism – although legal observers deny any took place – when some demonstrators placed a banner and/or flag over a statue at the Capitol.

“We are at a point in the history of this country where the crisis of systemic racism, poverty and the war economy decimating communities here and abroad have not only become worse over the past 50 years but…are clearly leading to a crisis of ecological devastation. Unless we get to the root causes of these evils…we’re not going to be able to resolve them,” said Shailly Gupta Barnes from the national Poor Peoples’ Campaign.

CASE 3: THE PLANT ASSAULT. Several months ago, at one of many protests about killings by Sacramento police of unarmed Black men, specifically Stephon Clark, a tiny plant landed at the feet of a police officer in a mini-cloud of dust. Someone tossed it at the officer, causing no damage. And yet a protestor is being targeted for assault on an officer. Her court hearing is in late August.

CASE 4: BANNER THEFT – At an immigration rights protest at the U.S. Courthouse in June, an elderly demonstrator was attacked by a counter protestor opposing immigration,  who pepper sprayed pro-immigration rights demonstrators. Ironically, it’s the immigration rights activist who’s facing “banner theft” charges on Sept. 11. He grabbed the banner to stay upright after being punched. Now he’s facing jail time.

CASE 5: NAZI PROTESTORS – A trio of anti-fascist protestors face state charges after counter protesting a neo-Nazi at the Capitol in June of 2016. Seven counter protestors were stabbed by Nazi sympathizers. But three people from the group that was attacked are facing charges in October.

Although while it appears that federal and state courts are, at least in part, targeting actions of free speech activists, maybe it’s a bit better than 2017 when a young jazz band member – attending a Trump protest at the Capitol like thousands of others – was arrested on a “weapons charge” and jailed.

He had percussion sticks in his coat pocket because he was on his way to jazz band practice.

But the most amazing aspect of this was not that some overzealous California Highway Patrol officer arrested him, but that the case actually went to trial before jurors, and judge, costing the County of Sacramento tens of thousands of dollars. In the end, the jury, in effect, found the case laughable and unanimously found the “dangerous person” not guilty.

And then there was the 2017 case of four young college students prosecuted for waiting for a ride (they were barely of driving age) while sitting on the steps of the State Capitol at night.

Their charges? “Attempted vandalism.” Joe Friday of 50’s “Dragnet” fame would have been proud of the CHP officers on this one. The evidence? They were carrying magic markers in their back packs. The reason the students were carrying those “instruments of criminality (magic markers)? Not to deface the Capitol, but because they spent the day making signs for a Capitol rally for a faculty group where they were honor student interns.

At least this case didn’t go to trial – the District Attorney eventually dismissed all charges, but only after many months of trying to get the students to accept a deal offer for something they didn’t do.


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5 Comments

  1. Alan Miller

    It was a sad day when the Davis Enterprise removed the comics section.  It’s so nice that the Davis Vanguard has hired a comic writer to fill that gap in Davis.

  2. Ken A

    It sounds like the first amendment (freedom of speech, or of the press; or the right of the people peaceably to assemble) is not on trial in the examples above but:

    Case #1 Trespassing

    Case #2 Vandalism

    Case #3 Assault

    Case #4 Theft

    Case #5 Assault

    It looks like we still have “freedom of speech” but some people forget that the first amendment does not add “and while exercising this amendment it is OK to trespass, vandalize stuff, assault people and steal things”…

    P.S. It seems that the author thinks it is OK to throw “tiny” plants at police officers and I’m wondering if he can let us know if he just includes the throwing of “tiny” plants in his definition of free speech or if it would be OK to also throw medium and big plants at police officers.  Since I’m guessing that the “protesters” didn’t buy the “tiny” plants from Don it seems like throwing a plant at a cop (or anyone else ) is usually, theft, vandalism “and” assault…

    1. Eric Gelber

      I’m not defending the selective and overly simplistic presentation of facts in the article, but the point apparently being made is that criminal charges may very well have been filed in these cases to punish the exercise of free speech. Protesting on public property is not, without more, trespassing. Putting a banner, or flag, on a statue is not vandalism (deliberate damage to or destruction of property). Assault is a threat of bodily harm with an apparent present ability to cause harm. We need more facts to determine if throwing a “tiny” plant at someone’s feet is an assault. (Was it even potted?) Theft is the physical removal of an object without the owner’s consent. Grabbing a banner to keeps one’s balance would not meet the definition. Drumsticks in one’s pocket are not weapons (even a pen or pencil could be used as a weapon) nor would that meet the definition of assault.

      Particularly in light of the overcrowded criminal court system, prosecuting these relatively trivial cases (based on any interpretation of the facts) certainly seems to be an unwarranted use of resources. So, it’s not unreasonable to at least raise the question of whether these cases are being prosecuted to punish or chill the exercise of First Amendment rights.

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