By Crescenzo Vellucci
Sacramento Bureau Chief
SACRAMENTO, CA – The city of Sacramento’s latest gambit to infringe on the rights of those expressing opinions city leaders don’t like has failed – a Sacramento County Superior Court judge issued a tentative ruling Friday in favor of City Councilwoman Katie Valenzuela aide Skyler Henry, who the city was attempting to bar from city hall.
Judge George A. Acero left so little doubt as to where the court stood Friday that City Hall said it gives up, in effect, and won’t purse the restraining order Monday, when the Friday tentative ruling becomes officially final.
The city had attempted to bar Henry from City Hall – where he works – and within 100 yards of city manager Howard Chan because of a statement made by Henry. And because Chan declared he was fearful after community members demonstrated on the sidewalk in front of his Natomas home in July of 2020 and March of this year.
Henry, who didn’t attend either protest, was hired by Valenzuela in June, after the protests. Still, Chan claimed to court he was fearful Henry who works in the same building, and sought the “Workplace Violence Restraining Order.”
Henry said, in a March “Voices: River City” podcast: “You should be terrified for the rest of your life,” but it wasn’t aimed at Chan but Democratic Sen. Kyrsten Sinema’s vote against the $15 minimum wage in the coronavirus relief package. Henry added, “You should never be able to leave your house if that is how you’re going to use your position to govern. And like, to me, the same thing sort of applies with the mayor and the city manager of this city.”
Henry bluntly noted, “It’s like, no, no, no, you don’t get to do that. You do not get to make the decisions that you have made over and over and over again to the detriment of everybody who lives here and then go home to your little…McMansion in Natomas and like have a good night’s rest. I’m sorry, you don’t get to do that. You do not have a right to that. Absolutely not.”
But the judge felt none of that protected speech came close to justifying either a temporary restraining order or permanent restraining order sought by the city, noting “the evidence presented by the City does not show by clear and convincing evidence ‘that great or irreparable harm would result to an employee if a prohibitory injunction were not issued due to the reasonable probability unlawful violence will occur in the future.’
“(T)he City has failed to present clear and convincing evidence that there is a ‘reasonable probability’ that Henry is a threat of future physical harm to Chan. Since the City cannot establish one of the required elements of its Workplace Violence Restraining Order, it has not proven its cause of action has merit,” the judge’s order said.
The judge specifically noted the city was, in effect, barking up the wrong tree, stressing “(T)he Court is cognizant of the concerns raised by the City regarding violence against politicians. The Court agrees that such concerns should be taken very seriously and that courts have an important role in protecting persons subjected to credible threats of violence.”
“But the Petition was not filed against…protestors that vandalized City Manager Chan’s home. The Petition was filed against Henry. The undisputed evidence is that Henry was not at these protests. It is also undisputed that Henry’s podcast comments were made after both protests so the podcast comments could not have incited either protest,” he said.
Chessie Thacher, Senior Staff Attorney of the ACLU Foundation of Northern California, which is representing Henry, said, “We welcome the City of Sacramento’s decision to end its meritless and costly legal action against Skyler Henry. The Court correctly recognized that the City failed to demonstrate why these restraining orders were necessary, or even appropriate.”
She added, “We believe that this was a shameful example of local government lashing out to punish valid political speech. The First Amendment demands better—especially from our state’s capital.”
The ACLU joined Sacramento civil rights attorney Mark Merin, and other lawyers in the legal action, charging that the city violated “free speech protections and are an example of the danger posed to individuals when government officials attempt to punish speech they do not like. The right to speak critically of government officials forms the foundation of the First Amendment.”
In a pleading filed by Henry’s legal team, he not only objected to the city’s action but initiated a SLAPP suit that argues the city’s effort has “no merit, was designed to harass and intimidate him, and must be struck down.”
Note: A SLAPP motion is permitted by California’s Anti-Strategic Lawsuit Against Public Participation statute. It defends groups and individuals against frivolous litigation that violates their right to speak out on issues of public significance.
The petition to ban Henry was filed after the Sacramento City Council voted 8 to 1 in support. No news there.
The city has a history of pursuing progressive activists, and their speech, specifically over the last decade or so, from arresting 110 Occupy protestors in 2011 (charges all dismissed), to 84 police brutality demonstrators in 2019 (all dismissed) to shooting bystanders in the face with so-called non-lethal projectiles during the 2020 police reform protests.
The ACLU points out that that the court noted earlier in this legal fracas, that “the evidence presented does not meet the applicable legal standard and there are obvious First Amendment concerns.”
The city admitted that the Chan home protests were linked to many controversial decisions made by the city manager, including Chan’s decision not to fire the police officers who fatally shot the unarmed Stephon Clark, and Chan’s decision not to open a warming shelter on a night when a major storm killed several unhoused people.